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The opinion of the court was delivered by McFarland, J.: Defendant Helen Louise Roberts-Reid appeals her jury trial conviction of making a false writing (K.S.A. 21-3711). The false writing was a financial statement submitted in support of defendant’s application for a bank loan. The Court of Appeals reversed the conviction in an unpublished opinion filed September 19,1985, and the case is before us on petition for review. The first issue is alleged error by the trial court in failing to define the word “material” contained in the elements instruction. K.S.A. 21-3711 provides, in relevant part: “Making a false writing is making or drawing or causing to be made or drawn any written instrument or entry in a book of account with knowledge that such writing falsely states or represents some material matter or is not what it purports to be, and with intent to defraud or induce official action.” The elements instruction herein stated: “1) That the defendant caused to be made a false financial statement; “2) That the defendant knew that such financial statement falsely stated or represented some material matter; “3) That the defendant intended to defraud based upon such financial statement; and “4) That this act occurred on or about the 2nd day of February, 1982, in Shawnee County, Kansas.” Defendant contends the trial court erred in failing to define the term “material” contained in paragraph 2 of the elements instruction. K.S.A. 22-3414 provides, in pertinent part: “No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous.” Defendant did not object to the lack of a definitional instruction on the word “material.” The question then becomes whether the failure to define the word “material” was clearly erroneous. An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict. State v. Stafford, 223 Kan. 62, 65, 573 P.2d 970 (1977). A trial court has a duty to instruct on the law applicable to the case; however, that does not mean the court must define every word or phrase. A term which is widely used or easily comprehended by individuals of common intelligence does not require a defining instruction. State v. Norris, 226 Kan. 90, 95, 595 P.2d 1110 (1979). “Substantial” and “material” were held to be synonymous terms in State v. Gordon, 219 Kan. 643, 549 P.2d 886 (1976). In Lynn v. Taylor, 7 Kan. App. 2d 369, 371, 642 P.2d 131, rev. denied 231 Kan. 801 (1982), the Court of Appeals stated: “A matter is material if it is one to which a reasonable person would attach importance in determining his choice of action in the transaction in question.” The foregoing definitions give us a “legal” definition of “material.” Does this “legal” definition vary from the common, ordinary understanding of the term? We believe not. Webster’s New Collegiate Dictionary 709 (1977) defines “material” (for purposes of this case) as meaning: “having real importance or great consequences (e.g.) facts [material] to the investigation . . . .” It is interesting to note that, in his closing argument, defense counsel stated: “The meat of the State’s case has to center around one thing, ‘Was it a material statement?’ That is, did it make a difference to the loan?” We conclude the trial court’s failure to define the term “material” was not error. Accordingly, we need not determine whether the omission rises to the level of a “clearly erroneous” defect in the instruction. The second claim of error also relates to the jury instructions. Defendant contends the trial court erred in failing to give an instruction on attempt to make a false writing as a lesser included offense of the charged crime — making a false writing. Defendant contends she was entitled to such an instruction (although not requested) by virtue of the following evidence. Defendant prepared a financial statement and submitted it to the Fairlawn Plaza State Bank in support of a February 2, 1982, loan application for the purchase of an automobile. The car loan was not approved. The same financial statement was utilized by the bank in granting defendant a $1,500 loan sixteen days later. The crime of making a false writing was completed on February 2, 1982. The crime is to make the false writing with the required intent and it is not necessary that it actually defrauds or induces official action. We conclude this issue is without merit. The third issue goes to the sufficiency of the evidence relevant to whether the false writing involved a “material matter.” We must examine the relevant evidence supporting the conviction in some detail, viewing the same in the light most favorable to the State. See State v. Douglas, 230 Kan. 744, 640 P.2d 1259 (1982). The defendant made application for a loan from the Fairlawn Plaza State Bank in Topeka on February 2, 1982. The loan application stated defendant was in the process of assuming an $85,000 mortgage on a home she had been purchasing with her former fiance and that she had an annual income of $30,000. Defendant listed no other debts. In fact, the gross sales from her antique business for the year were only $3,000, and she had unlisted debts in excess of $200,000. Based upon the false financial statement, the Bank loaned money to the defendant. The officer handling the loan testified that a customer’s ability to repay the loan is one of the most important factors in determining whether to grant the loan. In making the decision whether or not to loan money, the officer testified the bank reviewed such factors as: “length of time that they’re at their address, length of employment, what other indebtedness they have, what their income would be as far as being able to repay the debt, and this type of thing.” At trial the bank officer was asked questions about some of the individual unlisted debts of defendant as to whether he would have loaned the money if he had known of that particular debt. His answers were along the lines of “probably not,” “could have [altered the decision],” etc. The Court of Appeals reversed the conviction on the following rationale: “From our examination of the loan officer’s testimony appearing in the record, we are convinced and conclude that on the question of materiality his testimony fails to affirmatively establish that the defendant’s false statements or representations were material, that is, were of ‘material matter’; they were not affirmatively shown to be materially controlling on the question whether the bank would lend or not lend.” Under the rationale of the Court of Appeals, it is incumbent upon the State to prove that the false statements were not just material but were “materially controlling” on the bank’s ultimate action. The loan officer would have had to categorically state words to the effect that had he known the truth he would not have loaned the money. This interpretation greatly narrows the statute. The offense is making a writing containing material false statements with “intent to defraud or induce official action.” The crime is complete whether or not anyone is actually defrauded or induced to take any official action. The defendant herein grossly falsified her income and her outstanding indebtedness. It is common knowledge that a customer’s income and indebtedness are major considerations in a lending agency’s decision relative to whether or not to loan the customer money. The bank officer so testified. As the bank officer testified further, the ultimate decision of whether or not to loan money is based substantially on ability to repay the loan. There was ample evidence to convince a rational factfinder that said representations as to outstanding debts and current income were false statements on material matters intended to defraud. We conclude this issue is without merit. For her fourth issue defendant contends the sentence imposed constitutes an abuse of trial court discretion. The crime of making a false writing (K.S.A. 21-3711) is a Class D felony. The sentence imposed herein was not less than one year nor more than ten years’ imprisonment and, accordingly, was within the legally permissible limits. The general rule, as iterated in State v. Coberly, 233 Kan. 100, Syl. ¶ 5, 661 P.2d 383 (1983), is: “A sentence imposed by a trial court will not be disturbed on appeal provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, oppression or corrupt motive.” No claim of partiality, prejudice, oppression or corrupt motive is made. The trial court did not make specific findings relative to each of the sentencing criteria set forth in K.S.A. 21-4606. The journal entry filed by the trial court provides in part: “Having considered the information offered relevant to the question of sentencing, having reviewed the Court’s file and the presentence investigation report, having heard evidence presented and the arguments and statements of counsel, having reviewed the criteria for fixing minimum terms as set out in K.S.A. 21-4506, and having been otherwise fully and duly advised in the matter, the Court finds and concludes as follows . . . .” The sentence imposed was for the minimum legally permissible period of incarceration. Defendant contends she should have been placed on probation rather than sentenced to any term of imprisonment. We have carefully reviewed the record and find no abuse of discretion relative to sentencing. The judgment of the district court is affirmed; the judgment of the Court of Appeals is reversed.	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The opinion of the court was delivered by Prager, J.: This is a direct appeal by the defendant, Sherman L. Galloway, who was convicted of rape (K.S.A. 21-3502), aggravated sodomy (K.S.A. 21-3506), aggravated robbery (K.S.A. 21-3427), and kidnapping (K.S.A. 21-3420). This case has been before this court twice on interlocutory appeals by the State. See State v. Galloway, 232 Kan. 87, 652 P.2d 673 (1982) (hereinafter referred to as Galloway I); State v. Galloway, 235 Kan. 70, 680 P.2d 268 (1984) (hereinafter referred to as Galloway II). The facts are undisputed and were set forth in Galloway II as follows: “ ‘On May 12,1981, at approximately 12:30 a.m., Ms. G, a Kansas University (KU) graduate student, was attacked by a black male as she walked home. The man forced her into his car and drove her to Clinton Park in Lawrence where he raped her and sodomized her. He then left the park taking with him Ms. G’s clothing, a set of keys to KU buildings issued to her, a backpack containing a textbook with the victim’s name in it, a swim cap, a coin purse and other items. Ms. G went to her apartment immediately after the incident and reported it to the police, who came and took her statement that night. The next day she aided the police in assembling a composite of her assailant and notified them of the items of personal property taken from her by the rapist. “ ‘On July 8, 1981, at approximately 10:20 p.m., Ms. R was jogging on the KU campus when she was attacked from behind by a black male wearing a sleeveless tank top shirt. He threatened Ms. R with a knife and dragged her down a hill into a bushy area where he raped and sodomized her. Ms. R managed to struggle free and run to a nearby street where she received a ride from a passing motorist. She notified the KU police, who went to the area and found a billfold containing the driver’s license of Sherman L. Galloway. The next day officers of the KU police department (KUPD) submitted to Ms. R a photographic lineup of eight black males. From the photographs she identified Sherman L. Galloway. “ ‘During the afternoon of July 9, 1981, a warrant for the arrest of Sherman L. Galloway was issued charging him with the rape (K.S.A. 21-3502) and aggravated sodomy (K.S.A. 21-3506) of Ms. R. The same day Lt. Detective Vic Strnad of the KU police department obtained a search warrant for the residence of Sherman Galloway. The officers were authorized to seize “one (1) sleeveless tank top shirt appearing to be brown in color with horizontal stripes and one (1) knife with a curved blade approximately % inch wide and approximately three to four inches long.” “ ‘KU Detectives Strnad and Mike Riner and Lawrence police Detective Mike Hall executed the warrants during the evening of July 9, 1981. Detective Hall found a knife, which he seized, in the drawer of a nightstand. Next to the knife he observed a ring with KU keys on it. Detective Hall showed the keys to Detective Riner who also recognized them as KU keys. The officers then seized the keys. Other property taken in the search included drug paraphernalia and a portable food warmer marked “Property of Domino’s Pizza. If found return to Domino’s for reward.” “ ‘On July 14, 1981, Detective Hall contacted Ms. G and showed her a ring of KU keys. She identified the keys as those taken from her by the person who sexually assaulted her on May 12. She later identified Galloway as her assailant from a photographic lineup. “ ‘On July 22, 1981, Detective Hall obtained a warrant authorizing another search of Galloway’s residence, along with his automobile. Property listed on this search warrant included most of the things taken from Ms. G when she was attacked. During this search officers found and seized Ms. G’s backpack, textbook, class notes and swim cap. “ ‘On July 24, 1981, an amended complaint was filed charging Galloway with rape and aggravated oral sodomy concerning Ms. R and kidnapping (K.S.A. 21-3420), aggravated robbery (K.S.A. 21-3427), rape and aggravated oral sodomy concerning Ms. G. The Ms. R charges were later severed from the Ms. G charges. “ ‘On September 25, 1981, Galloway filed a motion to suppress the KU keys seized from his residence on July 9, 1981. The trial court granted the motion and the State took an interlocutory appeal. The Court of Appeals, in an unpublished opinion, upheld the trial court. This court then granted the State’s petition for review.’ 232 Kan. at 87-89. “This court in Galloway I reversed the district court’s suppression of the seized keys and the Court of Appeals’ affirmance thereof and remanded the case for further proceedings. The issue in Galloway I focused upon the State’s right to seize the ring of keys during the execution of the search warrant. As indicated in the statement of facts, the charges relative to victims Ms. R and Ms. G, while contained in one complaint, had been severed. Defendant has been convicted of the charges relative to victim Ms. R and the conviction has been affirmed by this court in an unpublished opinion. (State v. Galloway, No. 54,304, filed March 26, 1983.) The issues herein solely relate to the charges pending relative to victim Ms. G. “After the case was remanded to the district court for further proceedings, certain evidentiary motions were heard. The district court sustained defendant’s motions: (1) to suppress a composite photograph of a completed Tdenti-Kit’; and (2) the photographic lineup identification of the defendant by the victim. Additionally, the district court held, on the State’s motion in limine, the State would not be permitted to introduce any evidence relative to observation of the keys by defendant’s wife. . . . The State then filed this interlocutory appeal pursuant to K.S.A. 22-3603 as to all three adverse rulings.” 235 Kan. at 71-73. The Court of Appeals in Galloway II dismissed the appeal because there were allegedly no final orders to appeal from. This court granted the State’s petition for review. In Galloway II this court determined it had jurisdiction over the interlocutory appeal, reversed the Court of Appeals’ dismissal of the appeal, reversed the decision of the trial court, and remanded. The defendant then filed a motion on April 27, 1984, for an order discharging defendant for failure to grant him a speedy trial. This motion was denied on May 4, 1984, and the matter proceeded to trial by jury on May 7, 1984. The only fact issue at the trial was the identity of defendant Galloway as the rapist. The defendant was convicted on all counts and filed a timely appeal. The first point raised by the defendant on the appeal is that the trial court erred in overruling his motion to discharge on May 4, 1984, because he was denied his constitutional right to a speedy trial. It should be noted at the outset that the defendant does not claim that his statutory right to a speedy trial under K.S.A. 22-3402 has been violated. He claims only a violation of his constitutional right to a speedy trial. The general rules regarding the constitutional right of a defendant to a speedy trial were recently discussed in State v. Rosine, 233 Kan. 663, 666-67, 664 P.2d 852 (1983), in which the court stated: “The Sixth Amendment to the United States Constitution, as pertinent here, provides: “ ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . Section Ten of the Kansas Constitution Bill of Rights similarly proclaims: “ ‘In all prosecutions, the accused shall be allowed ... a speedy public trial . . . “The leading United States Supreme Court case on the right to speedy trial is Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972). In Barker more than five years elapsed between defendant’s arrest and trial. The United States Supreme Court adopted a case-by-case flexible approach for determining whether an accused’s constitutional right to a speedy trial had been violated, stating: “ ‘A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. “ ‘The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.’ 407 U.S. at 530. “Less than five months after Barker we adopted the Barker four-point analysis in State v. Otero, 210 Kan. 530, 502 P.2d 763 (1972). In Otero there was nearly an eight-year delay between charges being filed and trial. The court found this delay violated defendant’s right to a speedy trial and reversed his conviction. Since Otero the Barker analysis has been applied a number of times by Kansas appellate courts. E.g., State v. Calderon, 233 Kan. 87, 94, 661 P.2d 781 (1983); State v. Hunt, 8 Kan. App. 2d 162, 167, 651 P.2d 967 (1982); Williams v. Darr, 4 Kan. App. 2d 178, 182-83, 603 P.2d 1021 (1979); State v. Wilson, 227 Kan. 619, Syl. ¶ 2, 608 P.2d 1344 (1980); State v. Ward, 227 Kan. 663, Syl. ¶ 4, 608 P.2d 1351 (1980); State v. Taylor, 3 Kan. App. 2d 316, 321-22, 594 P.2d 262 (1979); State v. Cuezze, Houston & Faltico, 225 Kan. 274, 589 P.2d 626 (1979); State v. Fink, 217 Kan. 671, Syl. ¶ 4, 538 P.2d 1390 (1975); State v. Smith, 215 Kan. 34, 40, 523 P.2d 691 (1974); and State v. Hemminger, 210 Kan. 587, 593, 502 P.2d 791 (1972).” The basic issue presented here involves the effect of an interlocutory appeal by the State, filed pursuant to K.S.A. 22-3603, on a defendant’s constitutional right to a speedy trial. The Kansas Supreme Court has not specifically addressed the issue. However, the court has addressed a similar issue in regard to the Kansas speedy trial statute, K.S.A. 22-3402, which provides in part as follows; “22-3402. Discharge of persons not brought promptly to trial. (1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3). “(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).” K.S.A. 22-3603, which authorizes interlocutory appeals by the State, provides that further proceedings in the trial court shall be stayed pending determination of the appeal. Where an interlocutory appeal is taken by the State, K.S.A. 22-3604 requires without equivocation that the time during which an appeal by the prosecution is pending shall not be counted for the purpose of determining whether a defendant is entitled to discharge under K.S.A. 22-3402. In State v. Grimes, 229 Kan. 143, 622 P.2d 143 (1981), it was held that K.S.A. 22-3604 applies only to interlocutory appeals authorized and taken pursuant to K.S.A. 22-3603, and where the State takes an unauthorized interlocutory appeal, the time during which the interlocutory appeal is pending should not be charged against the accused in computing the 90- and 180-day time periods set by K.S.A. 22-3402. See also, State v. McQuillen, 236 Kan. 161, 689 P.2d 822 (1984). In the present case, the two interlocutory appeals taken by the State in Galloway I and Galloway II mentioned above were held to be authorized by K.S.A. 22-3603 and, therefore, the period in which those appeals by the prosecution were pending would not be counted for the purpose of determining whether the defendant’s statutory right to a speedy trial was denied under K.S.A. 22-3402. The question for us to determine is whether an interlocutory appeal taken by the State which delays trial should be charged against the State in determining whether the defendant’s constitutional right to a speedy trial has been violated. A survey of the cases from other jurisdictions on this issue reveals a split of authority. In several cases handed down by different United States Courts of Appeal, it has been held that, in calculating the length of delay in bringing a defendant to trial for purposes of determining whether he has been denied his right to a speedy trial, the period of delay attributable to an interlocutory appeal by the government should not be considered unless the interlocutory appeal was taken in bad faith or for the sole purpose of delay. See, for example, United States v. Herman, 576 F.2d 1139 (5th Cir. 1978); United States v. Jackson, 508 F.2d 1001 (7th Cir. 1975); and United States v. Bishton, 463 F.2d 887, 150 U.S. App. D.C. 51 (1972). In United States v. Herman, the defendant appealed from a conviction of aggravated robbery and first-degree murder arguing, inter alia, that the government had denied his constitutional right to a speedy trial by taking an interlocutory appeal. The delay in trial totaled 22 months and 20 days. Some of the delay was attributable to defendant but most of the delay, almost 15 months, resulted from the government’s decision to take an interlocutory appeal from an order of the district court suppressing evidence. The court, in the opinion, held that an interlocutory appeal by the government is generally a valid reason that justifies an appropriate delay. However, when the government acts arbitrarily, negligently, or in bad faith, the delay resulting from an interlocutory appeal may not be justified. The court suggested that three factors must be considered in connection with the interlocutory appeal: (1) The necessity of the appealed question to the government’s case; (2) the strength of the government’s position on that issue; and (3) the seriousness of the crime. The Herman court approved the observations of the court in United States v. Bishton that, whenever the government’s action at any stage of the proceeding indicates bad faith, neglect, or a purpose to secure delay itself or some other procedural advantage, the resulting delay is not justified. The court analyzed the interlocutory appeal previously taken by the government and concluded that the question the government presented in the interlocutory appeal was an important one and the government’s position was strong, although it did not prevail. The seriousness of the charge also influenced the court toward the view the government had taken a proper interlocutory appeal to have the issue determined prior to trial. Several state appellate courts have held that, where the prosecution desired to take an interlocutory appeal from an adverse ruling of the trial court on a motion to suppress, the prosecution does not have the right to stay trial and the defendant’s right to a speedy trial continues to run while the interlocutory appeal is being determined. See, for example, State v. Million, 120 Ariz. 10, 583 P.2d 897 (1978); State v. Pfortmiller, 53 Or. App. 394, 632 P.2d 459 (1981). We have concluded that as a general rule, an interlocutory appeal taken by the State púrsuant to and authorized by K.S.A. 22-3603 justifies an appropriate delay in trial, and that the period during which the interlocutory appeal is pending should not be counted against the State in determining whether a defendant’s constitutional right to a speedy trial has been violated. However, where it is shown that the State has taken an interlocutory appeal arbitrarily or negligently or in bad faith, the delay may not be justifiable. In that situation, the time during which the interlocutory appeal is pending may be counted against the State. In State v. Rosine, 233 Kan. 663, it was held that in each case a court must balance the action or inaction of the State with that of the accused and consider the four Barker factors, including the length of the delay, defendant’s assertion of his right to a speedy trial, the reason for the delay, and the prejudice resulting to the defendant. Using the balancing test and considering those factors in the case now before us, we have concluded that the trial court did not err in denying defendant’s motion for discharge on the basis that his constitutional right to a speedy trial had been violated. The record clearly shows that the only causes for trial delay in this case were the two interlocutory appeals taken by the State as a matter of right under K.S.A. 22-3603. The State prevailed in both interlocutory appeals which involved rulings of the trial court holding inadmissible important evidence connecting the defendant with the crime charged. The total time to trial from arraignment was approximately two years and ten months. In State v. Wilson, 227 Kan. 619, 608 P.2d 1344 (1980), this court affirmed the conviction where a three-year-period existed between arrest and trial. In State v. Dolack, 216 Kan. 622, 636, 533 P.2d 1282 (1975), it was found that there was no abridgment of constitutional rights where more than three years passed. State v. Hemminger, 210 Kan. 587, 502 P.2d 791 (1972), reached a like result in a case where over four years passed while the action was pending. In Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972), the United States Supreme Court found no violation of defendant’s right to a speedy trial where more than five years elapsed between his arrest and trial. Considering the reason for the delay, we have no hesitancy in holding that the State did not act arbitrarily, negligently, or in bad faith in talcing the two interlocutory appeals in this case. In both cases, the State prevailed. There was no unreasonable action or delay on the part of the prosecution. We have also considered the remaining two Barker factors, which are the defendant’s assertion of his right and prejudice to the defendant. The State concedes that the defendant timely asserted his right to a speedy trial. On the record before us, we find that defendant has failed to prove prejudice sufficient to justify a reversal of the trial court. During the period of the delay, the defendant was already incarcerated on the sentence arising from his prior conviction in the case involving the rape of Ms. R, which conviction was affirmed by this court in March of 1983. Furthermore, the record does not show to us that defendant was prejudiced because certain live witnesses were unavailable at the time of trial and it was necessary to use a stipulation as to the testimony of two witnesses arid the prior testimony of the victim in another case. We have, thus, considered the four Barker factors and hold that the trial court did not err in overruling the defendant’s motion for discharge based on a denial of his constitutional right to a speedy trial. The defendant’s second point on the appeal is that he was denied due process of law because of this court’s decision in State v. Galloway, 232 Kan. 87. The defendant challenges the court’s decision in Galloway I, raising the same issues raised on that appeal. Galloway I involved the seizure of the victim’s KU keys at the defendant’s apartment. We adhere to our decision in Galloway I, and hold that the first interlocutory appeal in this case was correctly decided in accordance with the opinion of Justice Herd. The defendant’s third point is that the trial court erred in admitting evidence of a photographic lineup identification by the victim. This is the identical issue raised and decided in Galloway II, 235 Kan. 70. As noted above, Galloway II involved the district court’s order sustaining defendant’s motion to suppress certain evidence. The Court of Appeals dismissed the State’s interlocutory appeal on the basis that the appeal was not authorized by K.S.A. 22-3603. The Supreme Court granted the State’s petition for review. Galloway II determined that the Kansas appellate courts had jurisdiction to hear and decide the issues raised on the State’s interlocutory appeal. The decision of the Court of Appeals dismissing the appeal was reversed, and the Supreme Court then reviewed the decision of the trial court suppressing certain State’s evidence and reversed. The case was then remanded for trial. On this appeal, the defendant’s basic argument is that the Supreme Court lacked jurisdiction to determine the issue pertaining to the admissibility of the photographic lineup because the only decision of the Court of Appeals subject to review on the State’s petition for review was the jurisdictional issue: whether the interlocutory appeal by the State was a type of interlocutory appeal authorized by K.S.A. 22-3603. We have no hesitancy in holding that, after granting the State’s petition for review, the Supreme Court had plenary jurisdiction to review and determine any and all issues in the case which were raised in the interlocutory appeal then before the court. The judicial power of this state is vested in one court of justice which is divided into one Supreme Court, district courts, and such other courts as are provided by law, including the Court of Appeals. Constitution of Kansas, Article 3, Section 1. Under Kansas appellate procedure, appeals pending in the appellate courts may be freely transferred from the Court of Appeals to the Supreme Court either on request of the Court of Appeals (K.S.A. 20-3016), on motion of a party to the appeal (K.S.A. 20-3017), or on order of the Supreme Court (K.S.A. 20-3018). Any party aggrieved by the decision of the Court of Appeals may petition the Supreme Court for review within 30 days after the decision of the Court of Appeals. K.S.A. 20-3018 provides that the procedures governing petitions for review shall be prescribed by rules of the Supreme Court, and the review of any such decisions shall be at the discretion of the Supreme Court. Under Appellate Court Rule 8.03 (235 Kan. Ixxvii), adopted by the Supreme Court, whenever a review of a decision of the Court of Appeals has been granted by the Supreme Court the case is heard on the record and briefs previously filed with the Court of Appeals. Any party may supplement his original brief with additional authorities. When review is granted, if the Supreme Court finds it has jurisdiction to hear the appeal, it has the authority to determine any appropriate issue presented on the appeal, thus avoiding the delay resulting from a transfer of the case back to the Court of Appeals for a consideration of those issues not previously decided. We find the defendant’s contention that the Supreme Court did not have jurisdiction to determine the issues presented in Galloway II to be without merit. We adhere to our decision in Galloway II as set forth in the opinion of Justice McFarland. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Prager, J.: This is an appeal from a summary judgment entered in favor of defendants in an action to quiet title to certain land and to recover damages, brought against the State of Kansas and the Kansas Fish and Game Commission. The plaintiffs’ claim is based upon a reversion clause in a warranty deed executed by the Kinney Land and Cattle Company in 1934. The plaintiffs claim to be the survivors in interest and heirs of the stockholders of the corporation, now dissolved. As a basis for their cause of action, the plaintiffs rely on provisions in a general warranty deed dated February 8, 1934, in which the Kinney Land and Cattle Company conveyed to the State of Kansas certain real estate located in Finney County. The property conveyed contained approximately 790 acres and is currently known as the Finney County State Park. Involved in this case are the fifth and sixth clauses of the deed, which provided as follows: “It is understood by the parties hereto that this conveyance constitutes a donation of the above property for state park purposes within the meaning of Chapter 124 and Chapter 127 of the Special Session Laws of 1933. “CLAUSE OF REVERSION “It is further agreed and understood by and between the parties hereto that the premises herein described are to be used by the party of the second part as a public forestry, fish and game preserve and recreational state park, and in so using the said premises a lake of at least 150 acres is to be constructed thereon, and said premises are to be used and maintained for purposes aforesaid, and if party of the second part fails to so use and maintain said premises, then and in that event the title to the said property hereinbefore described shall revert to the party of the first part, its successors or assigns.” Chapter 124 of the Special Session Laws of 1933, referred to in clause five, provided in part as follows: “SECTION 1. That whenever any person donates or has donated real estate to the state of Kansas for use as a state park upon which real-estate taxes have been levied and assessed and upon which penalties and charges have accrued, the board of county commissioners of the county in which such real estate is situated are hereby authorized and directed to remit and cancel all such taxes, penalties and charges.” Chapter 127 of the Special Session Laws of 1933 provided in part as follows: “SECTION 1: That section 1 of chapter 332 of the Session Laws of 1933 is hereby amended to read as follows: Section 1. That any landowner owning land in the state of Kansas not within the corporate limits of any city in this state who shall by the construction of a dam across any dry watercourse form upon his own land one or more reservoirs for the collection and storage of surface water, and who shall maintain such reservoir or reservoirs in such condition as to collect and store such water, or who shall donate to the state of Kansas or any of its agencies a tract of land on which the state, or any of its agencies, may erect and maintain a reservoir for the storage of water, shall be entitled to a reduction of the assessed valuation of the piece of land upon which such reservoir is located, of forty dollars ($40) for each acre foot of storage capacity afforded by such dam: Provided, That the total amount of such reduction shall not exceed forty per cent (40%) of the assessed valuation of the entire contiguous acreage, owned by the landowner and upon which such reservoir or reservoirs are located . . . .” Simply stated, it is the claim of the plaintiffs that the warranty deed of 1934 conveyed to the State a fee simple determinable, sometimes described as a fee simple subject to a condition subsequent, whereby the interest of the State was to be terminated and the title to revert to the grantor, its survivors or assigns, if the State, as grantee, failed to use and maintain the premises for the purposes set forth in the reversion clause. The plaintiffs contend that the State has failed to use and maintain the premises for the stated purposes, and, therefore, title to the land has reverted to them as the survivors in interest of the Kinney Land and Cattle Company. At the time summary judgment was entered by the trial court in favor of the State, the case had not been tried on the merits nor had the parties been afforded an opportunity to complete their discovery. In effect, the trial court entered summary judgment without having resolved all of the issues raised in the case. In order to understand the status of the case on the appeal, the following proceedings in the trial court should be noted. Plaintiffs filed their petition on November 21,1980. On March 4, 1981, the plaintiffs served notice on the defendants that the case had been set for a discovery conference to be held on March 30, 1981. A discovery conference was held on the date set, and counsel for the parties made preliminary statements to the court. The trial judge raised a legal question, which he felt should be determined at the outset in order to effectuate orderly discovery in the case. The trial court noted the clause of reversion contained in the deed and directed the parties to brief the following question: Does reverter arise under the terms above set forth when the lake in question had no water prior to and subsequent to the filing of this action as same is construed with the other provisions, and its effect upon the entire grant of approximately 790 acres? The trial court allowed counsel time to file briefs, stating that it would determine the legal question and would then schedule a subsequent discovery conference. The defendants filed a motion for partial summary judgment which raised the identical legal question suggested by the trial court. The parties filed their briefs. On December 13, 1984, the trial court filed its memorandum decision in which it made the following findings of fact: “1. The defendant, State of Kansas, is a sovereign state of the United States of America (Act, Jan. 29, 1861, Ch. 20, Section 1, 12 Stat. 126). “2. Defendant, Kansas Fish and Game Commission, is a state commission created by statute (K.S.A. 1983 Supp. 74-3301, et seq.). “3. Plaintiffs allege in their petition they are the surviving heirs of the stockholders of Kinney Land and Cattle Co., and as such, are successors to the reversion or possibility of reverter created by the general warranty deed of February 8, 1934. “4. On February 8, 1934, Kinney Land and Cattle Company owned and possessed in fee simple certain lands situated in Finney County, Kansas, more particularly described as follows: “The West One-Half (W/2) of Section Thirty-one (31), Township Twenty-one (21), Range Twenty-seven (27); the Southwest Quarter (SW/4) of Section Thirty (30), Township Twenty-one (21), Range Twenty-seven (27); the Southeast Quarter (SE/4) of the Northeast Quarter (NE/4) and the Southeast Quarter (SE/4) and the East One-Half (E/2) of the Southwest Quarter (SW/4), Range Twenty-Eight (28); the Diagonal Northwest One-Half (NW/2) of the Northeast Quarter (NE/4) of the Northwest Quarter (NW14} of Section Six (6), Township Twenty-Two (22), Range Twenty-Seven (27) West of the 6th P.M. “Also a strip of land 60 feet wide to be used as a roadway, beginning at the center of the south line of Section Six (6), Township Twenty-Two (22), Range Twenty-Seven (27) and extending north to the center of Section Thirty-One (31), Township Twenty-One (21), Range Twenty-Seven (27) West of the 6th P.M. “5. On February 8, 1934, Kinney Land and Cattle Company executed and delivered to defendants a general warranty deed conveying, for consideration, the aforementioned property to defendant as a donation for a public forestry, fish and game preserve and recreational state park and in so using the said premises a lake of at least 150 acres is to be constructed thereon, within the meaning of Chapter 124 and Chapter 127 of the Special Session Laws of 1933. “6. The aforementioned general warranty deed was recorded in the office of the Finney County Register of Deeds in book 158 at page 652, on the 22nd day of March, 1934. “7. A dam of2,200 feet in length and 43 feet in height, with a capacity to create a lake of325 acres was built on the aforementioned property by the United States Civilian Conservation Corps on behalf of the defendant in 1934. “8. The Finney County State Park has been subject to improvements provided by or for the defendant, Kansas Fish and Game Commission, said improvements including the planting of trees, the building of fences, the maintenance of the lake’s dam and road improvements. As to the years and dates when said improvements were made same are in controversy but that said improvements have, in fact, [been] made is uncontroverted. “9. It is further uncontroverted that the Finney County State Lake has contained water in the area upon which the dam was constructed and that intermittently between 1934 and 1970 the lake has contained water or has been dry but has never reached the 150 acre minimum as set forth in the deed. And, furthermore, since 1970 if any water has accumulated in the area behind the dam it has been minimal and has been for very limited time frames. “10. Although controverted by the plaintiffs it must be concluded by the Court that there is no controverted fact that the biennial reports, Fish and Game Commission, 1934 to present reflect that there has been a Finney County State Park utilized as a public forestry, fish and game preserve and recreational park.” The trial court made the following conclusions of law: “In reading the clause of reversion as contained in the four corners thereof the Court must conclude that no ambiguity exists. The clause of reversion is clear on its face; that is, the premises (land conveyed) are to be used as a public forestry, fish and game preserve and recreational state park. There is no ambiguity whatsoever as to the use of the premises. The only condition in conveying the premises is that a lake of at least 150 acres is to be constructed thereon. The evidence on the uncontroverted facts is clear; that is, that a lake of at least 150 acres was, in fact, constructed upon the premises. There is nothing contained in the clause of reversion which says that the lake of 150 acres must be maintained. Only that the premises which were conveyed for a public forestry, fish and game preserve and recreational state park be maintained. “The uncontroverted facts reflect that there is still a dam of the length and height described located upon the property and that the only thing that is not existing is water contained therein. This allegation by the plaintiffs is without merit in a careful review of the clause of reversion. The Court finds that there is no requirement upon the defendants to make sure that there is water of at least 150 acres behind the dam to constitute a lake. The only requirement that exists upon the defendants is that the lake be constructed and that the rest of the property be maintained with the integrity for which it was conveyed.” The trial court then concluded that the motion of the defendants for partial summary judgment must be granted. On January 22, 1985, a journal entry was signed by the trial court sustaining defendants’ motion for partial summary judgment but at the same time making a finding that the sustaining of the defendants’ motion rendered the remaining litigation moot and judgment must be in favor of defendants and against plaintiffs’ cause of action. Thus, although purporting only to be an order in favor of the defendants for partial summary judgment, the court found that the defendants were entitled to judgment against the plaintiffs on their cause of action. The plaintiffs, having been placed in a position where their cause of action had been terminated, filed a timely appeal to the appellate courts. The appeal was assigned to the Supreme Court for its determination. The basic issue raised on the appeal is this: Does the fact that the Finney County State Lake located on the land no longer contains a body of water of 150 acres serve as a basis for the activation of the reversion clause so as to terminate the State’s title to the real estate and cause title to revert to the plaintiffs? In order to determine this basic issue it would be helpful to consider certain general principles of law which are applicable in cases involving reversion clauses. In this case, the State, as grantee, owns a determinable or qualified fee in real estate which has all the attributes of a fee simple except it is subject to being defeated by the happening of a condition which is to terminate the estate. An estate in fee simple determinable is created by any limitation which: (1) creates an estate in fee simple and (2) provides that the estate shall automatically expire upon the occurrence of the stated event. In the past, this court has determined issues involving estates in fee simple determinable. In Curtis v. Board of Education, 43 Kan. 138, 144, 23 Pac. 98 (1890), it was stated that the authorities are uniform that an estate upon condition subsequent, which estate after having been fully vested may be defeated by a breach of the condition, is never favored in law, and that no deed will be construed to create such an estate unless the language to that effect is so clear that no room is left for any other construction. In Ritchie v. K.N. & D. Rly. Co., 55 Kan. 36, 57, 39 Pac. 718 (1895), it was held that an instrument containing a condition subsequent, working a forfeiture of an estate, is to be strictly construed and its terms will never be extended by construction. This general rule is based upon the theory that, since a deed is the act of the grantor, it will be construed most strongly against him. See Rose v. School District No. 94, 162 Kan. 720, 726, 179 P.2d 181 (1947). Where, however, a deed clearly creates a fee simple determinable and reserves a reversionary interest in the grantor, such provisions will be enforced. See, for example, Thompson v. Godfrey, 191 Kan. 102, 379 P.2d 269 (1963). The clause of reversion contained in paragraph six of the warranty deed requires that the premises be used by the State, as grantee, as a “public forestry, fish and game preserve and recreational state park.” At the time the deed was executed, the statutes of Kansas provided for the establishment of public forestry, fish and game preserves, and recreational grounds. G.S. 1935, 32-215 authorized the forestry, fish and game commission, among other things, to establish, maintain, and provide for sanctuaries, in which game, game birds, fur-bearing animals or fish may breed or rest; to replenish hunting and trapping grounds and water or fishing waters; and to establish, maintain, and improve recreational grounds for the purpose of affording recreational facilities for the citizens of Kansas. That statute was enacted in 1927 and was in full force and effect at the time the warranty deed was executed in the present case. These same basic powers are given to the fish and game commission today by virtue of our present statutes in K.S.A. 32-201 et seq. G.S. 1935, 32-214 gave the forestry, fish and game commission broad power and authority to acquire lands by donation or by purchase for the purpose of establishing and maintaining the same as a public forestry, recreational grounds, and fish and game preserves; to acquire or provide for the building of reservoirs, dam or lakes for impounding water and for providing for the planting of forestry trees; to supervise building and construction work of all kinds; to plant forestry trees and to make improvements on the property including the upkeep of roads and to do all and anything possible to carry out the intent of the act. Thus, by statute, the fish and game commission, acting on behalf of the State, is obviously vested with great power and discretion in using donated lands for a public forestry, fish and game preserve or a recreational state park. In the City of Wichita v. Clapp, 125 Kan. 100, 263 Pac. 12 (1928), it was held that the use of a portion of a public park as an airport came within the proper and legitimate uses for which public parks are created. In the opinion, at page 101, the court discussed the meaning of the term “park purposes.” The court stated: “The specific question for consideration is whether park purposes may include an airport or landing field for airplanes. Under various authorities, the expression ‘park purposes’ has been held to include a race track, a tourist camp, bridle trails, boating, bathing, refreshment and lunch stands, providing bathing suits, towels and rooms for bathers, dressing pavilion, waiting room for street cars, refreshment and shelter room for the public, grandstand, ball games, baseball diamond, race meets, tennis courts, croquet grounds, children’s playgrounds, hotels, restaurants, museums, art galleries, zoological ■ and botanical 'gardens, conservatories, and many other recreational and educational facilities. In Bailey v. City of Topeka, 97 Kan. 327, 330, 154 Pac. 1014, this court quoted approvingly from Dillon on Municipal Corporations, to the effect that: “ ‘A park may be devoted to any use which tends to promote popular enjoyment and recreation.’ (Dillon, Municipal Corporations, 5th ed. § 1096, p. 1749.)” In 1955, the legislature provided for a state park and resources authority (K.S.A. 74-4501 et seq). The legislature gave broad and comprehensive definitions to the terms “state park” and “park facilities.” See K.S.A. 74-4502(d) and (e). These various statutes and authorities are cited to show the broad interpretation which has been given to the terms “forestry, fish and game preserve and recreational state park.” The trial court in this case granted partial summary judgment in favor of the defendants, holding that the terms of the deed do not support a forfeiture of the State’s interest in the property simply because the lake constructed on the premises contained a body of water of less than 150 acres prior to and subsequent to the filing of this action. We agree with the trial court. The deed should be construed to require only that the State in good faith maintain the property as a public forestry, fish and game facility and as a recreational state park. The grantor obviously had in mind an area dedicated to the protection and conservation of natural surroundings, game and fish, and a place where the people could enjoy such natural beauties. The lake is an important factor to be considered in determining whether the State in good faith has maintained the entire property for the intended uses. The maintenance of the lake, however, is not the controlling consideration but is only a part of the big picture. Under the circumstances, we hold that the trial court correctly held that the State of Kansas had not forfeited its title to the land simply because the quantity of water contained in the lake has not been sufficient to completely fill an area of 150 acres. The quantity of water contained in the lake is bound to vary from year to year depending upon the amount of rainfall and any other available sources of water in the area. As noted above, however, the trial court, instead of restricting its decision to a partial summary judgment on the single issue presented, found that all other issues in the case were moot and that judgment should be rendered in favor of the defendants and against the plaintiffs “on their cause of action.” We hold that, in entering that judgment, the trial court committed reversible error. The final summary judgment rendered was erroneous because it was prematurely granted and denied to the parties the opportunity to complete their discovery and present evidence on the ultimate factual issue presented in the case: Whether the state has in good faith used and maintained the premises for the inténded purposes. In Lawrence v. Deemy, 204 Kan. 299, 461 P.2d 770 (1969), this court reviewed our law relating to summary judgment and stated as follows: “Generally before a summary [judgment] may be granted, the record before the court must show conclusively that there remains no genuine issue as to a material fact, and that the moving party is entitled to judgment as a matter of law. A mere surmise or belief on the part of the trial court, no matter how reasonable, that a party cannot prevail upon a trial will not warrant a summary judgment if there remains a dispute as to a material fact which is not clearly shown to be sham, frivolous, or so unsubstantial that it would be futile to try the case (Knowles v. Klase, 204 Kan. 156, 460 P.2d 444; Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P.2d 1019.) The manifest purpose of a summary judgment is to obviate delay where there is no real issue of fact. A court should never attempt to determine the factual issues on a motion for summary judgment, but should search the record for the purpose of determining whether factual issues do exist. If there is a reasonable doubt as to their existence, a motion for summary judgment will not lie. (Secrist v. Turley, 196 Kan. 572, 412 P.2d 976.) A court, in making its determination, must give to the party against whom summary judgment is sought the benefit of all inferences that may be drawn from the facts under consideration. (Shehi v. Southwest Rentals, Inc., 199 Kan. 265, 428 P.2d 838; Jarnagin v. Ditus, 198 Kan. 413, 424 P.2d 265; Brick v. City of Wichita, 195 Kan. 206, 403 P.2d 964.) “Regardless of how refined or sophisticated we attempt to state the summary judgment rule, we always return to the language of the statute itself (K.S.A. 60-256[c]) — there must remain ‘no genuine issue as to any material fact.’ ” 204 Kan. at 301-02. Although there was apparently some evidence presented to the trial court at the informal discovery conference that improvements had been made on the land and that the lake had contained water intermittently down through the years and that various sums of money have been spent on the property, such evidence has not been included in the record on appeal and the parties have not been furnished a full opportunity to complete their discovery and develop evidence to be presented on the primary issue in the case, set forth above, or on other issues raised by the parties. We have no hesitancy in holding that final summary judgment in the case was prematurely granted and that the case must be remanded to the trial court for further proceedings. The judgment of the district court is affirmed in part and reversed in part and remanded for further proceedings in accordance with the views expressed in this opinion.	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The opinion of the court was delivered by Lockett, J.: This action arose when Harry A. Ebeling’s pickup truck struck the rear of a six-passenger automobile in which the plaintiff, Mary F. Tice, was a passenger. Tice alleged that the driver of the pickup truck, Ebeling, was negligent, and that General Motors Corporation (GM), the manufacturer of the Tice vehicle, was also negligent for failing to provide a head restraint for the front center seat of the six-passenger automobile. At the close of the plaintiff s evidence, the trial judge sustained GM’s motion for a directed verdict. After the case was submitted, the jury attributed 100 per cent of the fault to Ebeling and awarded the plaintiff $9,100 as damages. Plaintiff appeals the trial court’s directed verdict for GM and, in addition, claims that the damage award was inadequate as a matter of law and contrary to the evidence. On March 14, 1981, plaintiff was a passenger in a 1981 Oldsmobile Cutlass Supreme Brougham driven by her husband, Richard Tice. Richard Tice had worked as a car salesman since 1970. The automobile had been issued to Tice by his employer. It was equipped with a bench front seat. Head restraints were provided for the driver and the right front passenger. The center front seating position had a lower seat back than the other two front positions and had no head restraint. Mrs. Tice was seated in the center front position. Her husband was seated on her left, and her daughter, Sheri Bundy, was seated on her right. Two of plaintiff s grandsons were seated in the back seat. Tice was driving north on a Lawrence street toward a stop light. He stopped for a red light and had been sitting there approximately 15 seconds when his vehicle was struck from behind by a pickup driven by the defendant, Harry A. Ebeling, since deceased. There was evidence at trial that Ebeling had been drinking and taking prescription medication prior to the accident. Ebeling pleaded guilty to a charge of reckless driving in Lawrence Municipal Court. The case was tried to a jury of eleven. The trial court, at the close of plaintiffs case, sustained GM’s motion for directed verdict pursuant to K.S.A. 60-250. Thereafter, evidence was received on behalf of the remaining defendant, Ebeling. The case was submitted to the jury, which returned a verdict attributing 100 per cent of the fault to Ebeling and awarding Tice damages in the amount of $9,100. The plaintiff appeals from the court’s directed verdict for GM, and from the jury verdict finding that the plaintiff sustained only $9,100 in damages. Because the judge sustained GM’s motion for a directed verdict, the verdict form submitted by the judge to the jury did not show GM as a party whose fault should be compared with that of the drivers of the two vehicles involved in the accident. Tice contends that because GM was originally a party to the action, the judge, by sustaining GM’s motion for a directed verdict, confused the jury’s determination of Tice’s damages. Tice does not claim the court’s action resulted in a judgment against an insolvent defendant which would deprive her of collecting the judgment, rather that the jury was confused by hearing the plaintiff s evidence against GM but not being allowed to determine whether GM was at fault. Under comparative negligence, the jury had to allot fault between the two remaining parties. GM contends that a finding of 100 per cent fault on the part of the defendant Ebeling precludes any further action against GM by Tice. It claims that if the judgment against Ebeling is valid, plaintiff has received a judgment of 100 per cent of her damages and is entitled to no more, and, therefore, any mistake in granting a directed verdict in favor of GM is inconsequential and harmless error as to Tice. GM bases its argument on Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 634 P.2d 1127 (1981). In that case, Albertson, the plaintiff, and Travis, the defendant, were involved in a collision. Albertson sued Travis, and the jury returned a verdict attributing 40 per cent of the fault to Albertson and 60 per cent to Travis. Albertson then filed suit in federal court against Volkswagen, manufacturer of the van Albertson was driving at the time of the collision. Volkswagen replied, contending that the rules relating to comparative fault barred the suit against it. The case came to us on a question certified by the federal court. This court said that Volkswagen could have been sued in state court but plaintiff chose not to join the corporation for strategic reasons. It held that, under the doctrine of comparative fault, all parties to an occurrence must have their fault determined in one action, even though some parties cannot be formally joined or held legally responsible. Those not joined as parties or for determination of fault escaped liability. The present case can be distinguished from Albertson. In Albertson, the fault of Volkswagen was not considered because the corporation was not joined as a defendant in the state court action. In the present case, GM was a party to the action, and the plaintiff did not attempt to sue GM in a separate action. In addition, the plaintiff received all of the damages to which the jury determined she was entitled, despite the fact that the court ordered a directed verdict for GM. The intent and purpose of the legislature in adopting K.S.A. 60-258a was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages, even though one or more of the parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault. Teepak, Inc. v. Learned, 237 Kan. 320, 699 P.2d 35 (1985). The concept of joint and several liability between joint tortfeasors which previously existed in this state no longer applies in comparative negligence actions. The individual liability of each defendant for payment of damages is to be based on proportionate fault, and contribution among joint judgment debtors is no longer needed in such cases because separate individual judgments are to be rendered. Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978). Ebeling’s estate neither contests the judge’s granting of GM’s motion for a directed verdict nor claims that the damages award to the plaintiff is excessive. Where a trial judge has dismissed the other alleged defendants from an action and the jury apportions 100 per cent of the fault against the remaining defendant and awards proper damages, the plaintiff has been awarded full compensation for the injuries claimed against all the alleged defendants, regardless of their proportionate fault, if no prejudice results from that dismissal. The granting of a new trial under such circumstances would serve no useful purpose. In the present case, it is necessary to determine whether the jury’s award of damages to compensate the plaintiff for her injuries was proper. If the award of damages to Tice was proper, there is no reason to grant plaintiff a new trial. The plaintiff contends (1) that the amount of damages awarded for medical expenses was inadequate in light of the testimony of the medical experts and (2) that the award of zero damages for future medical expenses was contrary to the evidence. A new trial may be granted when the amount of damages granted is- inadequate in the light of evidence as to the severity, duration, extent and permanency of the injuries. Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P.2d 60 (1961). Mrs. Tice testified that she had incurred the following medical expenses which total $6,750'.47: Ransom Memorial Hospital, $1,450.25; Ottawa Medical Center, $747; prescriptions, $197.51; Dr. Eaton, $182; Radiological Professional Services, $18; Douglas County Ambulance, $56; Dr. Striebinger, $55; Dr. Weinstein, $212.40; Research Medical Center, $95; Dr. McKelvey, $569; Lawrence Memorial, $109.70; Dr. Shefer, $135; Olathe Community Hospital, $8; Dr. Shelton, $245; Dr. Whitaker, $80; Dr. Amaro, $2,575.61; Dr. Wertzberger, $15. The plaintiff called as her medical witnesses Dr. Guy Edward. Counselman, a chiropractic doctor; Dr. John Amaro, a chiropractic doctor; Dr. Don McKelvey, a chiropractic doctor; and Dr. Steve Shelton, a psychiatrist. Their testimony indicated that to the best of their medical knowledge Mrs. Tice was suffering permanent disability as a result of the automobile accident and that she would require future medical treatment and incur additional medical expenses because of her continuing problem. The defendant presented as medical witnesses Dr. Larry James Matney, a chiropractic doctor; Dr. Harold Joe Pryor, a medical doctor subspecializing in electromyography; Dr. Ronald Dean Oelschlager, a radiologist; Dr. Joseph Gendel, an orthopedic surgeon; Dr. Richard C. Tozer, a neurosurgeon; and Dr. Charles L. Weinstein, a medical neurologist. The defendants’ medical witnesses testified that to the best of their medical knowledge Mrs. Tice had normal motor function, no atrophy of the muscles, no neurological, brain, spinal cord or peripheral nerve problems, no evidence of soft-tissue or ligamentous damage or any evidence of fracture, dislocation or injury to the neck and no abnormality, disease or injury to the nerves. They testified that they believed Mrs. Tice’s problems were due to tension. When a verdict is attacked on the ground it is contrary to the evidence, it is not the function of this court on appeal to weigh the evidence or pass on the credibility of the witnesses. If the evidence with all reasonable inferences to be drawn therefrom, when considered in a light most favorable to the successful party below, will support the verdict this court should not intervene. Toumberlin v. Haas, 236 Kan. 138, Syl. ¶ 5, 689 P.2d 808 (1984). Here the evidence does not support the plaintiff s argument that the jury acted out of passion and prejudice. The award was not contrary to the evidence and does not constitute reversible error. The plaintiff next contends that the award for pain and suffering was inadequate as a matter of law and that the award of zero damages for future pain and suffering was contrary to the evidence and constituted reversible error. Pain and suffering have no known dimensions, mathematical or financial. There is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in such amount as reasonable persons estimate to be fair compensation for the injuries suffered. The law has entrusted the administration of the criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence. Kirk v. Beachner Construction Co., Inc., 214 Kan. 733, 522 P.2d 176 (1974). Following the trial, the plaintiff s counsel discussed the damages award with the jury foreman, John R. Miller, Sr. Miller said that the $9,100 award consisted of $4,000 for medical expenses, $3,500 for pain and suffering and $1,600 for lost wages. No damages were awarded for future medical expenses, future pain and suffering or loss of consortium. The plaintiff does not raise an issue of jury misconduct but contends that the $3,500 for pain and suffering was inadequate, because the evidence showed that Mrs. Tice suffered extensive pain as a result of the accident. Dr. Amaro testified that Mrs. Tice was suffering from severe headaches, pain in the right lower neck and right arm and some numbness. An appellate court must be cautious when requested to substitute its judgment for that of the trier of fact in the matter of assessing damages and must not do so unless the verdict shocks the conscience or indicates passion and prejudice on the part of any trier of fact. McGuire v. Sifers, 235 Kan. 368, 681 P.2d 1025 (1984). Generally, findings of fact and a general verdict of the jury based on conflicting evidence, when approved by the trial court, will not be disturbed on appellate review. Purvis v. Brenner, 189 Kan. 369, 369 P.2d 253 (1962). In the present case, there was conflicting testimony as to whether Mrs. Tice was suffering pain from her injury. The defendant’s medical experts testified that they could find no physical reasons to substantiate her claims of pain and suffering. The jury weighed the conflicting evidence, then made a determination and awarded some damages for pain and suffering. If plaintiff s claim that the jury made no award for future pain and suffering is correct, then the jury made this decision after hearing the conflicting testimony and did not deem it necessary to make such an award. This was a jury decision and should not be disturbed on appeal. The plaintiff next contends that the jury’s failure to make an award for loss of consortium, in spite of plaintiffs uncontradicted and unimpeached testimony, demonstrates passion and prejudice and warrants a new trial. Kansas recognizes a legal cause of action for loss of consortium. When a married person sustains personal injuries causing the loss or impairment of his or her ability to perform services, any recovery is based on the loss or impairment of his or her ability to perform services in the household and in the discharge of his or her domestic duties. K.S.A. 23-205. Domestic duties means all the benefits that accrue as the result of the conjugal relation, such as society, comfort, aid, assistance or any other act that tends to make wedded life worthwhile. Clark v. Southwestern Greyhound Lines, 144 Kan. 344, 58 P.2d 1128 (1936). Dr. McKelvey testified that he had advised Mrs. Tice to stay away from stressful situations and not to participate in such physical activities as vacuuming, scrubbing or overhead work. The plaintiff testified she was no longer able to perform housework or participate in leisure activities, that she suffered from headaches and pain and, therefore, was unable to socialize as she had previously. Her husband testified that the quality of their marital relations had suffered as a result of the accident and that they rarely had sexual relations following the accident, because of the pain and stress Mrs. Tice was suffering as a result of the accident. Plaintiff claims the jury disregarded the uncontradicted and unimpeached testimony of Mrs. Tice’s impaired abilities to perform services relating to her domestic and household duties and returned a verdict directly opposite to the evidence. She contends that an inadequate verdict in the face of uncontroverted testimony indicates passion and prejudice and requires the granting of a new trial. There is a split of authority as to whether a new trial should be granted for loss of consortium where a jury returns a verdict of no damages despite the uncontroverted testimony by the husband and wife of the alleged impairment. Some jurisdictions hold that a verdict for no damages in such a case requires a new trial. Smith v. Covell, 100 Cal. App. 3d 947, 161 Cal. Rptr. 377 (1980); Manders v. Pulice, 102 Ill. App. 2d 468, 242 N.E.2d 617 (1968), aff'd 44 Ill. 2d 511, 256 N.E.2d 330 (1970); Albritton v. State Farm Mut. Auto. Ins. Co., 382 So. 2d 1267 (Fla. Dist. App. 1980). Other jurisdictions have determined that the testimony of husband and wife in a loss of consortium case is so uniquely irrefutable as to permit a jury the latitude of a negative finding. See Schmitz v. Yant, 242 Or. 308, 318, 409 P.2d 346 (1965), and Streight v. Conroy, 279 Or. 289, 291, 566 P.2d 1198 (1977). In Briscoe v. Ehrlich, 9 Kan. App. 2d 191, 674 P.2d 1064, rev. denied 235 Kan. 1041 (1984), the Court of Appeals considered whether a jury decision to award no damages for loss of consortium required a new trial where there was undisputed evidence of such loss. The Court of Appeals followed the reasoning of the Oregon court in Streight v. Conroy, 279 Or. at 291, where the court determined that the relations between husband and wife brought into question by an action for loss of consortium, whether relating to respective hours worked in a family business or other conjugal association, are of so intimate a character that the question of damages almost always is one where a jury may properly test the credibility of the witnesses. Not only is the availability of evidence to contradict almost nil, but plaintiff has a direct interest in the outcome and her husband has a material, indirect interest as well. We agree with the holding of the Court of Appeals. Where the only testimony regarding the loss of consortium is the uncontradicted and unimpeached testimony of the husband and the wife, evidence to contradict their testimony is usually unavailable. In such a case, a jury may properly test the credibility of such witnesses and return a verdict for zero damages. Here, there was testimony in addition to that of the husband and wife. Dr. McKelvey testified that he had advised Mrs. Tice not to engage in physical household chores because of impairment which resulted from the accident. During the trial the plaintiff admitted that from 1975 to 1977, she had been treated 60 times by Dr. Matney for complaints similar to those she claimed resulted from the 1981 accident. Mrs. Tice testified that the 1975-77 problems did not affect her ability to function in any manner. Under such circumstances, a jury may test the credibility of such witnesses and return a verdict for zero damages in spite of the uncontradicted and unimpeached testimony of the witnesses. The verdict of the jury awarding no damages for loss of consortium does not justify the granting of a new trial to the plaintiff. Since we have determined that the jury’s award of damages was correct under the evidence in this case, we need not discuss whether the trial judge erred by granting GM’s motion for a directed verdict at the close of the plaintiff s evidence. It is noted that since the accident in this action occurred on March 14, 1981, plaintiff s claim against GM would have been determined under our prior case law. On July 1, 1981, the Kansas product liability act (Act), K.S.A. 60-3301 et seq., became law. Product liability claims after the effective date of the Act are governed by the Act. The plaintiff contends that the trial court committed reversible error by refusing to allow the plaintiff s attorney to cross-examine Dr. Tozer regarding his hostile feelings toward plaintiff s counsel. According to the plaintiff, Dr. Tozer’s hostility was the result of a dispute over the amount of a fee the doctor charged for being deposed by the plaintiff s attorney. The plaintiff had requested the defendant’s counsel to allow a deposition of Dr. Tozer. Dr. Tozer said he would charge $750 for the deposition. Dr. Tozer was subpoenaed by the plaintiff s attorney and, at taking of the deposition, he testified that his normal charge was $100 an hour. The deposition lasted an hour and 15 minutes. The plaintiffs attorney sent the doctor a letter stating that, if the doctor would present a bill for his travel, preparation and time at the deposition at the same hourly rate he was charging the defendant, the plaintiff would pay that amount. Dr. Tozer never responded. Plaintiff s attorney stated that he met Dr. Tozer during a recess at trial and the following conversation took place: “ ‘Well, Doctor, did you get my letter?’ And he said, ‘Yes, and you never intended to pay me, and that was a shitty thing to do, and I hope you lose. I hope you lose your damn shirt on this case.’ That was this morning, here in the courtroom.” Defendant’s counsel requested the court to direct the plaintiff s counsel not to make any inquiry into the dispute over fees. The court ruled that plaintiff s counsel should not cross-examine on this issue unless Dr. Tozer testified differently from the neurological report he prepared or from any statements Dr. Tozer made in the deposition. Plaintiff s counsel replied: “I voluntarily will say I am not going to bring that up until he testifies differently than he did in his deposition or his report.” The plaintiff contends that during the trial Dr. Tozer’s testimony did vary from statements made in the deposition. She contends that when Dr. Tozer was deposed, he stated that it was his belief plaintiff s symptoms were not monetarily motivated. At trial, Dr. Tozer testified that he believed her symptoms were monetarily motivated. Following that testimony at trial, the plaintiff s attorney began to question Dr. Tozer about the fees he had charged. The defense counsel interrupted. The attorneys approached the bench. Plaintiffs attorney claimed that the witness had contradicted his prior statements. The judge offered to recess the trial and check the doctor’s deposition to determine whether Dr. Tozer had changed his testimony. Plaintiffs attorney stated he did not want to check the deposition and was ready to proceed. He believed that the doctor had indicated his feelings against the plaintiff to the jury. The plaintiff s counsel did not object to the court’s ruling. As a general rule, anything which savors of acquiescence in a judgment cuts off the right of appellate review. Vap v. Diamond Oil Producers, Inc., 9 Kan. App. 2d 58, Syl. ¶ 2, 671 P.2d 1126 (1983); Anderson v. Carder, 159 Kan. 1, 5, 150 P.2d 754 (1944). The gist of acquiescence sufficient to cut off a light to appeal, is voluntary compliance with the judgment. McDaniel v. Jones, 235 Kan. 93, 102, 679 P.2d 682 (1984). Mrs. Tice’s attorney did not accept the trial judge’s offer to check the doctor’s deposition to determine if Dr. Tozer’s testimony varied from his neurological report or his deposition. Appellate review is not available where there has been acquiescence and a failure to object to actions at trial. The decision of the trial court is affirmed.	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The opinion of the court was delivered by Herd, J.: This is an appeal from a jury verdict for damages impersonal injuries resulting from an automobile/tractor-trailer collision. Plaintiff/appellee, Jill Ratterree, was a passenger in a car driven by defendant/appellee, Jose Hernandez. They collided with defendant/appellant, Richard Bartlett, who was driving a tractor-trailer. Ratterree sued both defendants and Bartlett’s employer, William Munger, and insurer, Kansas Fire & Casualty Co. (KFC), for damages. Hernandez cross-claimed against Bartlett, Munger and KFC for his injuries sustained in the accident. Both Ratterree and Hernandez were awarded damages. Defendants Bartlett, Munger and KFC appeal. On the evening of January 8,1982, Ratterree met Hernandez at Jalisco’s Restaurant in Kansas City, Kansas. Hernandez invited Ratterree to accompany him in his 1971 Porsche automobile to Kansas City International Airport to pick up a friend. Enroute to the airport, in a northbound lane of 1-635 near Leavenworth Road, the Porsche was involved in an accident with a tractor-trailer truck driven by Bartlett. At the point where the accident occurred, 1-635 is a 6-lane divided highway, with three northbound lanes, a right outside shoulder, and a left inside shoulder bordered by a guardrail. The cause of the collision was disputed at trial. Bartlett testified he had been traveling in the center lane of 1-635. Traffic was braking in front of him, so he turned on his left turn signal and moved to the left inside lane. He traveled there for approximately one-quarter to one-half mile when he felt something collide with his left front wheel. He looked down, saw a Porsche, moved to the right lane, and stopped on the shoulder. Highway patrol officers LeRoy McConico, Jr., and George Tate investigated the accident. The officers testified the only point of impact with Bartlett’s truck was at the left front bumper of the cab of the truck. The officers also testified there were rolling tire tracks from the Porsche automobile entering onto the shoulder and running parallel to the guardrail for approximately 75 to 90 feet prior to the collision with the guardrail. According to appellees Ratterree and Hernandez, the accident occurred when the tractor-trailer driven by Bartlett cut suddenly, without warning, into the Porsche’s lane of travel in the left northbound lane and collided with Hernandez’ vehicle. As the wheels of the tractor-trailer moved toward the car, Ratterree shouted a warning. After the collision, Hernandez steered his vehicle onto the shoulder attempting to regain control. The Porsche traveled approximately 75 feet before striking the steel guardrail which runs parallel to the shoulder. The car then rebounded from that contact and began to spin down the roadway where it struck the guardrail again approximately 68 .feet away and thereafter came to rest 60 feet further down the roadway. Both Ratterree and Hernandez testified they believed they collided with the left rear wheels of the tractor-trailer when Bartlett moved from the center lane into the left lane. The shoulder, at the point of the collision, is six feet wide. On the night of the accident there was snow and ice packed against the guardrail and on the shoulder from recent snows and road-clearing operations. At some point during the collision, the door of the car was torn open and as the car spun, Ratterree was thrown onto the highway. As a result, she sustained severe head injuries, which caused brain damage and other loss of mental skills. At the time of the accident she was an electronics assembler at Butler National Corporation in Lenexa, Kansas. At the time of the appeal she was unemployed, continued to suffer from pain, and had been diagnosed as suffering from depression due to the consequences of the accident. Hernandez also suffered injuries for which he received medical treatment. Hernandez testified he continues to experience pain and other injury-related physical ailments. Ratterree initiated this litigation by filing suit on August 27, 1982, naming in her petition as defendants Richard Bartlett, the tractor-trailer driver; William Munger, his employer; the Kansas Fire & Casualty Company, the common carrier insurer; and Jose Hernandez, operator of the car in which she was a passenger. Hernandez cross-claimed against the other defendants for personal injuries he suffered in the collision. Just prior to trial Hernandez’ insurance company and Ratterree entered into a compromise settlement of her claim against Hernandez. The morning of trial defendants and the trial court were advised of the settlement, but not of its terms. Hernandez remained in the suit as a named defendant at trial. Defendants requested the settlement agreement be produced at trial and that it be admitted into evidence. The trial court denied the motions. The matter was tried to the jury, which found Bartlett 90% at fault and Hernandez 10% at fault in causing the accident. The jury awarded Ratterree $400,000 in damages and Hernandez $50,000 in damages on his cross-claim. Bartlett, Munger and KFC appeal. The first issue to be considered is whether the trial court erred in prohibiting the testimony of the two highway patrol officers as to their opinion that Hernandez was passing on the shoulder at the time of the collision. Highway patrol officers LeRoy McConico, Jr., and George Tate investigated the accident. Based on the physical evidence at the scene, they were of the opinion that Hernandez was in the process of passing on the inside shoulder of the highway at the time the accident occurred. At trial, after the officers testified that the physical evidence showed Hernandez’ vehicle was on the shoulder, appellants sought to have them testify as to whether in their opinions Hernandez was on the shoulder trying to pass. The trial court excluded the opinion testimony. Appellants contend this exclusion was in error since the testimony was proper expert opinion testimony. In support appellants cite Lollis v. Superior Sales Co., 224 Kan. 251, 580 P.2d 423 (1978). In Lollis we held opinion evidence by investigating police officers concerning physical factors of an accident is admissible when a proper foundation for such conclusions is presented and the conclusions are the proper subject of expert testimony. Appellants argue the two tests were met in this case. Officer McConico testified he had fourteen years of law enforcement experience and had been in accident investigation throughout his entire fourteen years. McConico further related he had received accident investigation training from three police departments, as well as from the Kansas Highway Patrol. Officer Tate, a twenty-four year veteran of the highway patrol, testified he had investigated over 1,000 accidents during his career as a highway patrolman. Appellants argue the officers’ accident investigation experience provided a sufficient foundation for their conclusions regarding the cause of the accident. Appellants also argue the officers’ opinions were the proper subjects of expert testimony since they were based upon facts and data personally perceived by them at the scene of the accident, which was within their special knowledge, skill, experience and training. They also argue the testimony would have aided the jury in the interpretation of technical facts so it could better understand the significance of physical facts admitted into evidence. Appellees do not attack the foundation of the opinions, although the court excluded the testimony because the officers were not accident reconstruction experts. Appellees instead argue the issue as to Hernandez’ state of mind regarding his reason for driving on the shoulder was an improper subject for expert opinion since it went to the ultimate issue to be decided by the jury. The drawing of conclusions by experts regarding the ultimate issue of negligence is not allowed. Appellees argue the testimony appellants were endeavoring to elicit from the officers, that Hernandez was “passing on the shoulder,” was synonymous with fault, and therefore improper. In Morlan v. Smith, 191 Kan. 218, 380 P.2d 312 (1963), we held an officer’s statement that “no improper driving indicated” was a pure conclusion of the investigating officer concerning the very question of negligence, which only the jury was allowed to decide. In McGrath v. Mance, 194 Kan. 640, 642, 400 P.2d 1013 (1965), this court found the officer’s notation that plaintiff was guilty of “inattention” and an “improper start from parked position” was nothing more than his opinion regarding a question which was for the jury to decide. The court in Lollis v. Superior Sales Co., 224 Kan. 251, cited by appellants, also held expert witnesses in automobile accident negligence cases may not state their opinions as to what actions of the parties, if any, contributed to the collision or who was at fault in causing the collision. Therefore, the officers’ testimony as to the position of the Hernandez vehicle at the time of the collision was proper, including their testimony that the vehicle had all four wheels on the shoulder when the collision occurred. Their testimony, however, regarding their opinions as to Hernandez’ intent in driving on the shoulder was improper opinion testimony since such testimony would have invaded the province of the jury on the ultimate issue of negligence. We hold the trial court did not err in excluding such opinion evidence. Appellants next argue the trial court erred in refusing to give their requested instruction regarding driving left of a yellow line. At trial, appellants submitted the following instruction: “The laws of Kansas provide that a solid yellow line delineates the left edge of [a] divided highway and indicates a restriction against passing on the left of such yellow line. Where such markings are in place, no driver shall, at any time, drive on the left side of such pavement striping.” The court refused to give the instruction, ruling that: “I read the statute [K.S.A. 8-1520] cited by counsel and I quite honestly don’t think that based on the evidence presented in this case that the statute applies and I don’t think that the statute actually says what the instruction says in essence, so the requested addition to instruction No. 6 will be denied.” Appellants contend their instruction was properly based on K.S.A. 8-1520, which prohibits driving on “the left side of any pavement striping designed to mark such no-passing zone.” The failure to give this instruction, appellants argue, misled the jury “as they were not fully apprised of applicable law pertaining to this issue.” Appellee Ratterree argues in response that the court has the duty to instruct the jury only on applicable statutes. She further argues a party is entitled to an instruction explaining the theory of his case only where evidence is introduced to support that theory. Shawnee Township Fire District v. Morgan, 221 Kan. 271, 277, 559 P.2d 1141 (1977). She contends no evidence was admitted at trial to substantiate the purpose of the left-hand yellow line. Further, appellee points out, K.S.A. 8-1520 does not apply when an obstruction exists in the roadway. See K.S.A. 8-1520(c) and K.S.A. 8-1514(a)(2). Thus, appellee argues, under the emergency circumstances of this case, Hernandez was permitted to drive left of the yellow line and appellants’ proposed instruction would have automatically condemned such driving. We agree. The proposed instruction did not accurately state the law applicable in this case. The trial court did not err by refusing to give appellants’ proposed instruction. Appellants next argue the trial court erred in excluding testimony concerning the smell of alcohol on Hernandez’ breath. At trial, appellants attempted to have the two highway patrol officers testify they smelled alcohol on Hernandez’ breath. The court ruled this was inadmissible since the officers specifically stated they did not consider alcohol to be a contributing factor to the accident and did not test Hernandez for intoxication, despite the smell of alcohol on Hernandez’ breath. The court concluded the evidence would be more prejudicial than probative and was therefore inadmissible pursuant to K.S.A. 60-445. Appellants argue the court’s ruling was erroneous since the smell of alcohol was relevant to why Hernandez may have attempted to pass on the shoulder. Appellees argue appellants did not allege Hernandez’ intoxication as a ground for negligence in the pretrial order. Additionally, appellees note, at trial Hernandez admitted having one drink on the day of the accident and, thus, the testimony of the officers would be merely cumulative. Appellees finally argue the officers’ proffered testimony was that alcohol was not a contributing factor to the accident. Under the circumstances of this case, where the officers who saw and interviewed Hernandez at the accident scene and from that concluded alcohol was not a contributing factor in the accident and confirmed that opinion by deciding not to test him for intoxication, we hold the trial court correctly ruled the evidence of the smell of alcohol on Hernandez’ breath would be more prejudicial than probative and correctly excluded the evidence. See K.S.A. 60-445. The next issue raised by appellants is the trial court erred in refusing to allow testimony regarding Ratterree’s failure to use a seat belt and failing to instruct the jury as to such being an element of fault. Appellants admit this same argument was made and rejected in Taplin v. Clark, 6 Kan. App. 2d 66, 626 P.2d 1198 (1981). Appellants merely urge reconsideration of that rule. In Taplin, the Court of Appeals held: “A passenger in an automobile has no legal duty to use an available seat belt in anticipation of the driver’s negligence, and evidence of nonuse is inadmissible under the comparative negligence doctrine either on the issue of contributory negligence or in mitigation of damages (following Hampton v. State Highway Commission, 209 Kan. 565, 498 P.2d 236 [1972]).” 6 Kan. App. 2d 66, Syl. ¶ 1. In this case appellants make no new arguments which were not fully considered in Taplin and Hampton. We find the decisions in those cases sound and thereby controlling in the case at bar. Appellants’ argument on this point is rejected. The trial court did not err in refusing to allow testimony regarding Ratterree’s failure to use a seat belt and in failing to instruct the jury that the lack of seat belt use was negligence. Appellants next argue the trial court erred in refusing to instruct the jury on four elements of plaintiff s alleged negligence. These are: (1) allowing Hernandez to drive without headlights; (2) riding in a car without headlights on; (3) failing to object to Hernandez’ attempting to pass on the shoulder of the roadway; and (4) failing to keep a proper lookout. Appellants argue there was substantial evidence that each of these allegations was true and was therefore evidence of plaintiff s negligence. The only evidence that Hernandez did not have headlights was from the two officers who worked the accident. Both officers testified they observed no broken headlights on the roadway and that the headlight sockets appeared to be rusted as though there had been no headlights in the sockets for some time. Contrary to this was the testimony of Mike Rogers, the tow truck operator summoned to the scene of the accident. As a tow truck operator, part of Rogers’ duties was to clear the area of accident debris. Rogers testified he is familiar with the headlight assemblies of Porsche automobiles, which consist of small doors which contain the sealed beam headlights that rise up when turned on. He testified that at the accident scene he cleaned up Porsche headlight glass shards and one headlight insert, and that he found the other headlight pushed up into the car. Additionally, Ratterree’s testimony was that when Hernandez started the vehicle she saw the illumination of the headlights in a store front window and observed them on the roadway. Hernandez testified he had headlights, they were on, and he had also seen them in the store front window. This testimony squarely presented a fact issue for the jury. It held Hernandez 10% at fault in a general verdict. Thus, it is undetermined how the jury resolved the headlight issues. Therefore, it is possible for Ratterree to have been negligent on these issues as presented. If a passenger has knowledge of danger and the circumstances are such that an ordinary person would speak out or take other positive action to avoid injury to him or herself, then it is the passenger’s duty to take the action the ordinary person would take under the circumstances. If there were no headlights, Ms. Ratterree had a duty to speak out and take positive action to avoid injury to herself. Under such circumstances, jury instructions should have been given as to her alleged negligence and her negligence, if any, should have been compared. As to Ratterree’s failure to object to Hernandez’ driving on the shoulder of the road, according to Ratterree and Hernandez they were on the shoulder of the road as a result of Bartlett’s trailer cutting into their lane and forcing them off the road. If such are the facts, Ratterree had no duty to object to Hernandez’ driving on the shoulder. Thus, there is no evidence of Ratterree’s negligence on this point and failure to instruct thereon was not error. As to the contention that Ratterree failed to keep a proper lookout, both Ratterree and Hernandez testified Ratterree yelled to Hernandez to “look out,” when the tractor-trailer driven by Bartlett moved into their lane. In Miles v. West, 224 Kan. 284, 580 P.2d 876 (1978), this court specifically held passengers were not required to keep a lookout for other cars on the street. Additionally, this court held, “[a] passenger in an automobile is entitled to trust the vigilance or skill of the driver unless he is aware of the existence of a particular danger or knows from past experience or in some other manner that a driver is not vigilant or skillful.” 224 Kan. at 289. Ratterree testified she had never ridden with Hernandez before and had no specific knowledge of any lack of skill on his part. She was therefore entitled to trust Hernandez’ driving. See Akins v. Hamblin, 237 Kan. 742, 703 P.2d 771 (1985). The court did not err in failing to instruct on this issue. Appellants argue the trial court erred in failing to instruct on Ratterree’s claims against Hernandez, as set forth in the pretrial order. Appellants contend the jury was misled and confused by the posture of Hernandez as a defendant where the instruction indicated Ratterree was making no claim against him. Appellees respond that the instruction was not erroneous since it was based upon the evidence at trial. There was no claim by Ratterree of negligence on the part of Hernandez in her testimony. The rule is that no instruction will be given if there is no evidence to support such an instruction. Since the evidence supported the instruction as given, it was not erroneous. Appellants also argue the instruction on comparative fault is erroneous because it tells the jury the effect of a 50/50 verdict and because it failed to include Ratterree’s name with those to be considered by the jury in assigning fault. Appellees argue Thomas v. Board of Trustees of Salem Township, 224 Kan. 539, 582 P.2d 271 (1978), specifically approves the giving of an instruction which explains the effect of a 50/50 verdict. In so ruling, the court held, “[w]e have considered the pros and cons and have concluded it is not error for a trial court in this state to inform the jury as to the legal effect of its answers in a comparative negligence case.” 224 Kan. at 551. Appellee Ratterree also argues the trial court did not err in refusing to place her name into consideration for assignment of fault, since she was not negligent. Since there was evidence of Ratterree’s possible negligence, as previously discussed, the trial court erred in refusing to allow comparison of her fault. Appellants next argue the trial court erred in instructing the jury it could compensate Hernandez for disfigurement. The instruction given by the trial court was based upon PIK Civ. 2d 9.01, which allows compensation for “pain, suffering, disabilities, or disfigurement.” Appellants argue the instruction was improper because there was no evidence of any disfigurement of Hernandez as a result of the accident. This court has defined disfigurement as: “ ‘that which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, misshapen or imperfect or deforms in some manner.’ ” Smith v. Marshall, 225 Kan. 70, 73, 587 P.2d 320 (1978). There was evidence at trial that, as a result of the accident, Hernandez suffered from a locking elbow which occurred frequently and without warning. The trial court ruled this locking elbow was sufficient evidence of a disfigurement to warrant the instruction. The locking elbow from which Hernandez suffers meets the definition of a disfigurement as set out in Smith. As previously stated, since there was evidence to support the instruction, the trial court did not err in so instructing the jury. The next issue raised is whether the trial court erred in allowing testimony concerning the chances of Ratterree developing epilepsy as a result of her head injury. The court allowed testimony by Doctors Abrams and Fowler concerning Ratterree’s chances of developing epilepsy in the future. Appellants contend their responses were inadmissible under Kansas law. The doctors’ testimony was that although Ratterree had never suffered an epileptic seizure, her chances of having one were from one to three percent. The doctors did not state whether they considered this a certainty, a probability, or a possibility. Appellants contend this low percentage is a mere “possibility” which is in violation of Nunez v. Wilson, 211 Kan. 443, 507 P.2d 329 (1973). In that case we held: “Expert witnesses should confine their opinions to relevant matters which are certain or probable, not those which are merely possible. However, no particular words of art are necessary to express the degree of proof required, and it is sufficient if the expert’s words can be interpreted to show reasonable probability.” 211 Kan. 443, Syl. ¶ 1. In so ruling, the Nunez court found the expert’s testimony in that case “did have probative value on the issue of permanent injuries; [and] the jury should therefore have been allowed to consider the testimony and determine for itself the weight it wished to accord it.” 211 Kan. at 448. The testimony given by the doctors in this case was that all head injury patients have a one to three percent chance of suffering from epilepsy; thus, Ratterree’s chances were within that range. This testimony is not the speculation or mere conjecture the Nunez court sought to eliminate. Rather, there was sound evidence as to what percentage chance Ratterree had of suffering from such a condition. Thus, as the Nunez court held, it was admissible, but it was up to the jury to weigh the evidence. Appellants next argue the verdicts with regard to damages for Ratterree and the cross-claim of Hernandez were so excessive as to show they were given under the influence of passion and prejudice. Appellants’ claim of passion and prejudice is based solely on the amount of the verdicts. Ratterree was awarded $400,000 and Hernandez was awarded $50,000. This court has held: “Where a charge of excessive verdict is based on passion or prejudice of the jury, but is supported solely by the size of the verdict the trial court will not be reversed for not ordering a new trial, and no remittitur will be ordered unless the amount of the verdict in light of the evidence shocks the conscience of the appellate court." Cantrell v. R. D. Werner Co., 226 Kan. 681, 686, 602 P.2d 1326 (1979). Appellees note in response that this court has specifically held “the reviewing court must review the evidence in the light most favorable to the party prevailing below.” Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, Syl. ¶ 1, 681 P.2d 1038, cert. denied 469 U.S. 965 (1984). In regard to the injuries of Hernandez, Dr. Steven Baker testified Hernandez sustained a hyperflexion, hyperextension neck injury resulting in muscle spasm, muscle strain and ligamentous sprain or tearing. As a result, Hernandez required treatment from January 20, 1982, to March 12, 1982, for pain in the cervical spine and neck, thoracic region and lumbar lower back, radiating pain to the right elbow as a result of vertebrae out of position and compression on nerve roots. In addition, sharp pain was radiated to the legs. Hernandez further sustained tendinitis to the right elbow and locking of that elbow. After treat ment was stopped in March 1982, Hernandez continued to suffer pain and his elbow continued to lock one to two times per month. Headaches also accompanied the pain. As to the injuries of Ratterree, Dr. Abrams, appellants’ own medical expert, testified Jill Ratterree had suffered a significant head injury in the collision from which numerous subsequent problems arose. He testified he felt she was in need of treatment and would require vocational rehabilitation, psychotherapy, counseling and medical management. One of Ratterree’s damage experts, Dr. Butts, a neuropsychologist, testified her head injury had resulted in brain damage. Her short-term ability to recall verbal instructions was severely impaired. The motor speed of her right hand had been slowed. Her I.Q., which had been in the normal range of 100, had been diminished to the borderline defective range of 77. As a result of the head injury, Ratterree suffered continuous headaches, which in turn caused emotional problems. Dr. Butts concluded Ratterree was not employable, although this evidence was contradicted by appellants’ witnesses. Her actual medical expenses were $8,400. Appellees argue since the issue of damages is a difficult one to calculate, the law has given juries great leeway in this area. In Kirk v. Beachner Construction Co., Inc., 214 Kan. 733, 737, 522 P.2d 176 (1974), we held: “ ‘Pain and suffering have no known dimensions, mathematical or financial. There is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries suffered, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence.’ ” Quoting Domann v. Pence, 183 Kan. 135, 325 P.2d 321 (1958). We find the facts support the amount of the verdict and, therefore, there is no evidence the verdict was rendered under the influence of passion and prejudice. Appellants next argue the verdicts were contrary to the evidence. We have held when a verdict is attacked on the ground it is contrary to the evidence, it is not the function of the court on appeal to weigh the evidence or pass on the credibility of the witnesses. If the evidence with all reasonable inferences to be drawn therefrom, when considered in a light most favorable to the successful party below, will support the verdict, this court should not intervene. Timsah v. General Motors Corp., 225 Kan. 305, Syl. ¶ 1, 591 P.2d 154 (1979). Appellants contend the verdict is contrary to the physical evidence in that Hernandez’ vehicle struck the left front bumper of the tractor, rather than the left rear wheels of the trailer, as testified to by appellees. Appellants also contend the gradual tire marks rolling onto the shoulder were indicative that Hernandez was attempting to pass, rather than, as he testified, attempting to get out of the way of Rartlett’s truck. This, with other facts, appellants contend, is inconsistent with the finding of 90% negligence on Rartlett’s part. Appellees note that in opening and closing arguments, appellants’ counsel told the jury that this was a case where the testimony of the two sides was irreconcilable. Due to these irreconcilable positions, appellants argued the jury would either have to believe one side or the other. As appellees note, the jury obviously believed the appellees’ theory, rather than that of appellants. There were conflicting theories and evidence presented at trial. The jury chose to believe appellees’ theory and the evidence is not inconsistent with that theory. Thus, according to the required scope of review the verdict is upheld. The final issue we must consider is appellants’ contention that the trial court erred in refusing to require production of or make known to the court and jury the terms of the settlement between Ratterree and Hernandez. Appellees notified the court and appellants they had settled their dispute prior to trial. However, the terms of the settlement were not disclosed. Appellants contend the terms of the settlement are that Hernandez would guarantee to Ratterree the payment of his insurance policy limits of $50,000 and would remain in the lawsuit and participate in the trial. Appellants further contend appellees agreed in their settlement that any money recovered by Ratterree from appellants over and above $150,000 would reduce Hernandez’ obligation to Ratterree dollar for dollar regardless of the actual verdict returned against Hernandez. Though the settlement terms are unknown, for purposes of this discussion we will assume appellants’ allegations are true. Such settlements are not new to the law but this is a case of first impression in Kansas. They have come to be known as “Mary Carter,” “Gallagher” or “sliding scale” contracts. The names come from two well-known cases involving such settlements: Booth v. Mary Carter Paint Co., 202 So. 2d 8 (Fla. Dist. App. 1967), and City of Tucson v. Gallagher, 108 Ariz. 140, 493 P.2d 1197 (1972). Such settlements usually involve the following scenario: “One or more defendants secretly guarantee the plaintiff a specified recovery, which will be diminished or extinguished by any recovery secured from the other defendants. The agreeing defendants may remain parties to the lawsuit and, in some cases, may provide the plaintiff with an interest-free loan in the amount of the specified recovery, which is repayable solely from judgments or settlements ultimately obtained from nonagreeing defendants.” Eubanks and Cocchiarella, In Defense of “Mary Carter,” 26 For the Defense 14, 15 (Feb. 1984). In Booth v. Mary Carter Paint Co., two fraternity pledges were blindfolded and left on a highway as part of an initiation ritual. Two southbound trucks belonging to Mary Carter Paint Co. came upon the boys and stopped, assuming they had been in an accident. Shortly thereafter, a northbound truck belonging to B. C. Willoughby arrived and stopped in the traffic lane opposite the Mary Carter trucks, blocking the traffic on the two-lane highway. Just then the plaintiff s wife, Elsie Booth, arrived at the scene, crashed her Volkswagen into the rear of the Willoughby truck and was killed instantly. (See 182 So. 2d 292 [Fla. Dist. App. 1966], for above facts.) J. D. Booth brought a wrongful death action against Willoughby and Mary Carter, alleging both were negligent. Subsequently, prior to trial, Booth and Willoughby entered into a settlement agreement. It provided Willoughby’s liability was limited to $12,500 with Willoughby remaining active in the suit until all issues of liability and damages were resolved between Booth and Mary Carter. In the event a joint verdict was returned against all defendants for more than $37,500, Booth agreed to enforce the judgment only against Mary Carter. If Mary Carter’s liability did not reach $37,500, Willoughby agreed to make up the difference to $37,500, but in no case would its contribution exceed $12,500. If the jury returned a verdict for all defendants, then Willoughby would pay Booth $12,500. If the jury returned a verdict solely against Mary Carter for $37,500 or less, Willoughby would contribute $12,500. The agreement applied to a final determination of the suit whether by jury verdict or settlement. The agreement and its terms were not to be revealed to the jury nor furnished to anyone else unless ordered by the court. 202 So. 2d 8. A similar agreement was entered into in City of Tucson v. Gallagher, 108 Ariz. 140. There Gallagher was injured when the car in which she was a passenger fell into a deep washout in the road. She brought a negligence action against both the driver and the City of Tucson. The driver had insurance coverage to $10,000. Gallagher entered into a settlement agreement with the driver, giving her the option of taking $10,000 and releasing the driver. Until the option was exercised, the driver would remain in the case. Gallagher agreed if a judgment were obtained against the city for more than $10,000, she would not attempt to collect from the driver, but if the judgment were obtained against the city for less than $10,000, the driver would pay the difference up to $10,000. In the instant case it was acknowledged there was a secret settlement on the eve of the trial. Appellants moved for discovery of that settlement in order to determine whether it might be a “Mary Carter” agreement and possibly thereby objectionable. The district judge denied the motion for discovery. Appellants argue the failure to make the agreement known to the judge, opposing counsel, and the jury prejudiced appellants’ right to a fair trial in that it affected the jury’s ability to analyze the true posture of the parties and the weight and credibility to be given to the testimony of the witnesses, since the jurors were unaware that one of the “defendants” had an actual financial interest in plaintiff s obtaining a large verdict against the other defendant. It is further argued that, due to the jury’s lack of knowledge of the agreement, the settling defendant in such cases can add greatly to the credibility of the plaintiff s position and enhance the plaintiff s chances of obtaining a large verdict against the nonsettling defendant. Appellees argue this is not a “Mary Carter” agreement because such occur only in joint and several liability cases where one defendant can shift the entire liability to the other, which cannot occur in comparative fault cases. Due to the possibility of prejudice arising from such secret “Mary Carter” agreements, the overwhelming majority of courts, though approving such agreements, have required disclosure of the settlement terms to the parties and the court and, under certain circumstances, to the jury. See Alaska—Breitkreutz v. Baker, 514 P.2d 17 (Alaska 1973); Arizona—Taylor v. DiRico, 124 Ariz. 513, 606 P.2d 3 (1980); Arkansas—Firestone Tire & Rubber Co. v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982); California—Pellett v. Sonotone Corp., 26 Cal. 2d 705, 160 P.2d 783 (1945); Colorado—Bashor v. Northland Ins., 29 Colo. App. 81, 480 P.2d 864 (1970), aff'd 177 Colo. 463, 494 P.2d 1292 (1972); Florida—Ward v. Ochoa, 284 . So. 2d 385 (Fla. 1973); Maryland—General Motors Corp. v. Lahocki, 286 Md. 714, 410 A.2d 1039 (1980); Minnesota—Johnson v. Moberg, 334 N.W.2d 411 (Minn. 1983); Nebraska—Hegarty v. Campbell Soup Co., 214 Neb. 716, 335 N.W.2d 758 (1983); New Hampshire—Bedford School Dist. v. Caron Const. Co., 116 N.H. 800, 367 A.2d 1051 (1976); Oregon—Grillo v. Burke’s Paint Co., 275 Or. 421, 551 P.2d 449 (1976); Texas—Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801 (Tex., 1978). One court emphasized why disclosure of the terms of such agreements is so important: “The search for the truth, in order to give justice to the litigants, is the primary duty of the courts. Secret agreements between plaintiffs and one or more of several multiple defendants can tend to mislead judges and juries, and border on collusion. To prevent such deception, we are compelled to hold that such agreements must be produced for examination before trial, when sought to be discovered under appropriate rules of procedure. If the agreement shows that the signing defendant will have his maximum liability reduced by increasing the liability of one or more co-defendants, such agreement should be admitted into evidence at-trial upon the request of any other defendant who may stand to lose as a result of such agreement. If defendants not directly affected by such agreement move for severance because of possible prejudice to them, the Court shall exercise its sound discretion in granting or denying such motion.” Ward v. Ochoa, 284 So. 2d at 387-88. California believes so profoundly in the disclosure of such agreements that it has enacted a statute requiring disclosure of them to the court and the other parties. See Cal. Civ. Proc. Code § 877.5(b) (West 1980). Not only has the failure to disclose the settlement to the court and the other parties been found to be error, but many times the failure to disclose the agreement to the jury has also been found to be reversible error. See General Motors Corp. v. Lahocki, 286 Md. at 728; Hegarty v. Campbell Soup Co., 214 Neb. 716; General Motors Corp. v. Simmons, 558 S.W.2d 855, 857-59 (Tex. 1977). Each case, however, must be considered on its own facts, since the terms of settlements vary. Some settlements, although appearing to be “Mary Carter” agreements, because of the circumstances of the case will not actually result in aligning the plaintiff and one of the defendants. This type of agreement would therefore be acceptable. See, e.g., Lahocki v. Contee Sand & Gravel Co., 41 Md. App. 579, 608-10, 398 A.2d 490 (1979), revd on other grounds 286 Md. 714, 410 A.2d 1039 (1980). In the instant case, however, we are unable to evaluate the settlement because we do not know its terms. Appellants maintain several events occurred at trial indicating Ratterree and Hernandez had secretly aligned themselves through the settlement agreement, rendering Hernandez’ testimony no longer credible as a “defendant.” Appellants claim seven instances of prejudice. First, although Ratterree alleged Hernandez was negligent in the petition and in the pretrial order, at trial Ratterree said that Hernandez was not in the least bit negligent. Second, no objection was made by Ratterree to Hernandez’ motion for directed verdict. In fact, Ratterree’s attorney stated: “If his directed verdict motion were good against us, does that mean that Mr. Hernandez wouldn’t be compared for negligence purposes because that’s the only basis upon which his motion could be valid? If there’s, a directed verdict against the plaintiff as against this defendant then he would not be comparable to Mr. Bartlett for negligence purposes. Furthermore so far as I’m concerned I suspect that I would just as soon that that be the case. It would be kind of unusual normally but under the present circumstances of it, if sustaining his motion would mean that Mr. Hernandez’s fault wouldn’t be compared I guess I don’t oppose it . . . Third, Hernandez’ attorney misinformed the jury that Ratterree had to sue him because of the law of comparative negligence, even though Ratterree did not think that Hernandez was negligent. Fourth, Ratterree made no mention in opening statement of Hernandez’ negligence, despite the pretrial order which specifically alleged negligence on the part of Hernandez by Ratterree. Fifth, in opening statement Hernandez made no comment about the validity of Ratterree’s damage claims, even though he was being sued in the trial for three-quarters of a million dollars. Sixth, Hernandez did not cross-examine one of Ratterree’s damage witnesses and only did limited cross-examination of another. Seventh, Hernandez urged in closing that the jury adequately compensate both Hernandez and Ratterree and even commented on the extensiveness of Ratterree’s damages. Our examination of the record does not impress us with the change of positions of either Ratterree or Hernandez of which appellants complain. We recognize Ratterree and Hernandez are friends and were in the same vehicle which collided with Bartlett’s truck, causing both of them great injury. Such a common experience forms a bond. That fact aligns them on the same side of the case in spite of their party designations. In addition, Hernandez filed a cross-claim against appellants. That position was taken from the beginning. Hernandez’ statements consistently blame the accident on appellants. In the absence of a secret settlement, Ratterree and Hernandez had a common interest against appellants by virtue of Hernandez’ cross-claim. To that extent the settlement in this case is not a classic “Mary Carter” agreement. However, the potential for injustice is so great from the use of secret settlement agreements in any tort action where there are multiple defendants, whether under joint and several liability or comparative fault principles, that we believe a disclosure rule should be adopted. Therefore, we hereby adopt this rule: When a settlement agreement is entered into between the plaintiff and one or more, but not all, alleged defendant tortfeasors, the parties entering into such agreement shall promptly inform the court in which the action is pending and the other parties to the action of the existence of the agreement and its terms. If the action is tried to a jury and a defendant who is a party to the agreement is a witness, the court shall, upon motion of a party, disclose the existence and content of the agreement to the jury unless the court finds in its discretion such disclosure to the jury will create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. The disclosure of the settlement agreement to the jury herein required shall be no more than the court deems necessary to apprise the jury of the essential nature of the agreement and the possibility the agreement may bias the testimony of the parties who entered into the agreement. In no instance shall the amount of the settlement or any specific contingencies be disclosed to the jury, except the jury shall be apprised in general terms of the financial interest in the outcome of the case of any defendant who is a party to such an agreement. The judgment of the trial court is reversed and the case remanded with directions to grant a new trial. Schroeder, C.J., concurs in the result.	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The opinion of the court was delivered by Herd, J.: This is a criminal action. Joel D. Jackson was con victed by a jury of attempted first-degree murder (K.S.A. 1984 Supp. 21-3301 and K.S.A. 21-3401) and aggravated kidnapping (K.S.A. 21-3421). Joel Jackson rented stalls at Sunflower Farms where he boarded horses owned by himself and his mother. The victim, Denise Picard, was employed as a horse trainer at Sunflower Farms. Her duties included feeding, grooming and training the owners’ horses and cleaning stalls. At the time of the incident, Denise lived in a one-room apartment built inside the barn. Prior to the incident which resulted in appellant’s conviction, a number of antagonistic exchanges had taken place between him and the victim which resulted in the victim’s being afraid of him. Jackson continually criticized Denise’s work, telling her she wasn’t doing things properly and that if she couldn’t handle the job, she should quit. Denise’s fear of appellant and his harassment drove her to tears on many occasions. Frequently Jackson would ask Denise’s supervisor, Fred Oden, to fire Denise and to hire him. He was told by Mr. Oden that Denise was progressing fine in her work and he was not ready to hire anyone else. By early April of 1984, appellant’s dislike for Denise had taken on a more menacing tone, when he told Mr. Oden, “Denise better not never mess with me because if she do, I’ll cut her up.” Mr. Oden told appellant that if he was going to talk like that, he should load up his horses and leave. On the morning of April 20, 1984, Joel Jackson drove to Sunflower Farms, where Denise was helping the owners of a sick horse. Jackson told Denise his mother was bringing two more horses out that day and he was going to bring out a stud as well. Denise told him he would have to wait until the following Monday because there was no additional room in the stables. She also explained she couldn’t put a stud with the other horses or the horses would fight. They argued over this matter for a few minutes until appellant finally gave up and walked away. Jackson’s story differed from that of Denise. He testified that after arriving at Sunflower Farms, he began checking horses in various stalls. He claimed Mr. Oden had asked him to keep an eye on things while he was away. Mr. Oden and the owners of Sunflower Farms were at a horse show in St. Louis at the time of the incident. He further testified Denise asked him to look at a sick horse and after a conversation about the horse, some new boarders arrived at the barn. He said he left shortly thereafter, and he and Denise did not argue that morning. After leaving Sunflower Farms, Jackson went to work at the China Inn restaurant in Wichita. While he was cutting vegetables at work that morning, he asked his boss, Bill Mar, to sharpen a knife. The knife had a plastic handle and a six-inch blade. Mr. Mar noticed the following day that a knife similar to the one that he had sharpened for Jackson the morning before was now missing. A knife of the same type was used in the attack on Denise. After working through the noon hour, appellant received permission from Mr. Mar to leave. He was scheduled to return to work at 5:00 that evening. Before he left the China Inn, Mr. Mar asked him to pick up some supplies for the restaurant and gave him $150 with which to purchase them. Appellant picked up the supplies and then drove back out to Sunflower Farms. According to Denise, Joel Jackson returned to Sunflower Farms at about 2:40 p.m. that afternoon. Denise was there alone at the time. She was hand-spreading straw in the stalls when she saw appellant’s car back up to the west entrance of the barn. After about five minutes', appellant came into the barn and began looking into the stalls. Denise asked him if he was still waiting for his mother to bring out the horses, but he did not respond. Denise then started for the hallway leading to the west exit from the barn. Appellant followed her. When she reached the pop machine in the hallway, appellant reached out and grabbed her hair with his left hand. He pulled a plastic-handled knife with a five- or six-inch blade from inside his coat, and cut the right side of her throat. Denise fell to her knees while Jackson continued to stab her throat and the right side of her head. She attempted to block the knife with her hands, resulting in numerous cuts to her hands. Appellant then began to pull and drag Denise towards the west exit. When they were within two feet from the door, he threw the knife back inside the barn, reached in his right-hand pocket and got out his car keys, all the while still holding on to Denise’s hair. Upon reaching the doorway, he opened the trunk of his car and attempted to push Denise into the trunk. Her resistance was strong however, and he was able to get only her right hand and her head into the trunk. Appellant then pulled Denise back inside the barn, pushed her down, took off his coat and threw it in the middle of the hallway. He retrieved the knife and began stabbing her again, five or six times. Denise was able to break away from her assailant momentarily, but he got hold of her again and pleaded with her to get into the trunk of his car. After again unsuccessfully attempting to get Denise into the trunk, he slammed the trunk lid on her head three or four times. By grabbing his leg, Denise was able to get entirely out of the trunk so that it slammed shut. She then grabbed the keys from the trunk and threw them. Appellant released her to retrieve his keys and she was thus able to run across the porch and down the road. She ran behind a wire fence for protection until his car went by her. She then ran back to the barn and drove to the closest business for help. Jackson’s version of these events is essentially that Denise made sexual overtures to him which he spurned, prompting Denise to hit him in the back with a pitch fork. He then claims he “blacked out” and the next thing he remembers is he was standing next to Denise at the pop machine and observed that she was bleeding. He claims she then started yelling and screaming and ran out the front door of the bam. He says he followed her a short distance but could not catch her so he got into his car and left “very fast.” Jackson drove to his mother’s home in El Dorado and, upon arriving there, told his mother he had been in a “terrible fight.” He then called a friend in California, who advised him to contact an attorney. He called attorney Jim Hargrove, and with his attorney’s help, surrendered himself at the Butler County sheriffs department that evening. Jackson was charged with aggravated kidnapping, attempted first-degree murder, and aggravated battery. The aggravated battery charge was later dismissed upon motion of the State. At trial, Jackson presented an insanity defense. The jury found him guilty of aggravated kidnapping and attempted first-degree murder. After reviewing a report of appellant’s examination and evaluation at Larned State Security Hospital, the trial judge sentenced him to fifteen years to life for attempted first-degree murder and to life imprisonment on the charge of aggravated kidnapping, with sentences to run consecutively. This appeal followed. The appellant first claims error in the trial court’s failure to give a jury instruction on the defense of diminished capacity. The appellant argues the doctrine of diminished capacity is recognized and applied in Kansas despite statements to the contrary in a number of opinions by this court. Appellant’s argument centers on our holding in State v. Dargatz, 228 Kan. 322, 614 P.2d 430 (1980). In Dargatz, we specifically rejected the doctrine of diminished capacity. However, we also stated: “Although a mental illness or defect not amounting to legal insanity is not a defense, since, for purposes of the capacity to commit crime, degrees of mental abnormality are not recognized, where the crime charged requires a specific intent, evidence of a mental defect which negates the specific intent is admissible.” p. 332. Appellant argues that by allowing evidence of a mental defect which negates specific intent, we have, in effect, adopted the doctrine of diminished capacity. This statement is true. However, under our rule, diminished capacity may be used only to negate specific intent, not to remove criminal responsibility. Appellant goes on to argue that under such circumstance the jury should have been instructed that evidence of mental disease or defect not amounting to legal insanity may be considered in deciding whether the defendant formed the specific intent necessary for the crimes charged. We rejected the argument for such instruction in State v. Grauerholz, 232 Kan. 221, 654 P.2d 395 (1982). There, we reaffirmed Dargatz, noting that while evidence of mental defects is admissible, an instruction on diminished capacity was not proper since we have not adopted the defense of diminished capacity. Similarily, in State v. Topham, 231 Kan. 167, 170, 642 P.2d 986 (1982), we held that since we have rejected the doctrine of diminished capacity, the defendant was not entitled to an instruction permitting the jury to consider whether the defendant, although legally sane, was deprived of the mental ability to form the requisite specific intent. Thus, instructions on lesser included offenses were not required. In addition to Topham and Grauerholz, we have recently reiterated our holding in Dargatz in State v. Wood, 235 Kan. 915, 686 P.2d 128 (1984). Our statements in the foregoing cases are misleading: we reject the doctrine of diminished capacity yet permit the admission of evidence of diminished capacity in specific intent crimes. The admission of such evidence for the limited purpose of a partial defense against the specific intent of the crime is the doctrine of diminished capacity or — as designated in many jurisdictions — diminished or partial responsibility. In Lewin, Psychiatric Evidence In Criminal Cases for Purposes Other Than the Defense of Insanity, 26 Syracuse L. Rev. 1051, 1060 (1976), Professor Travis Lewin discussed the scope of the partial responsibility defense: “Partial responsibility is a defense only in specific intent cases. Specific intent crimes are those in which, as one of the essential elements of the offense, the prosecution must prove beyond a reasonable doubt that the defendant entertained a specific objective or engaged in certain specified mental activity. Examples of specific intent crimes range from aggravated homicides requiring proof of premeditation, deliberation and a design to effect death, through larceny offenses which require proof that the defendant intended to permanently deprive an owner of personalty of his right to possession, to conspiracy, attempted crimes and all offenses based upon accessorial liability. If for any reason the defendant did not entertain the particular mental state, then he did not commit that crime, although he may, of course, have committed some other or lesser crime not requiring that particular state of mind.” Thus, it is apparent we have adopted the doctrine of diminished capacity in spite of our past disclaimers. Evidence of diminished capacity is admissible only for the limited purpose of negating specific intent and is not a substitute for a plea of insanity. Where insanity is relied upon, the jury must first determine that issue. If it finds the defendant sane, it may then consider, where appropriate, evidence of diminished capacity as a defense to a crime requiring proof of a specific intent. Whether the jury should be instructed on diminished capacity is left to the sound discretion of the trial court. Here the court gave PIK instructions on intent, lesser included offenses and epilepsy. We consider the instructions in this case adequate to apprise the jury of appellant’s case. We find no error. Appellant next contends the trial court’s refusal to instruct the jury on the defense of diminished capacity constituted a denial of equal protection in light of the fact that a jury instruction is allowed upon the partial defense of voluntary intoxication. K.S.A. 21-3208(2) provides that evidence of voluntary intoxication may be considered when a specific intent or state of mind is a necessary element to constitute a particular crime. Thus, we have held that where the crime charged requires a specific intent, voluntary intoxication may be a defense and instruction thereon is required where there is evidence to support such a defense. State v. Sterling, 235 Kan. 526, 529-30, 680 P.2d 301 (1984). The fact that we have required an instruction on voluntary intoxication is merely a response to the legislature’s enactment of K.S.A. 21-3208(2) and an attempt to carry out the purpose of the statute. As we have already determined, the trial court’s failure to give an instruction on diminished capacity was not prejudicial since this theory was adequately covered by general instructions given by the trial court. This issue is without merit. Appellant next contends the evidence was insufficient to support a conviction of attempted first-degree murder. The crime of attempted first-degree murder requires proof that the defendant acted “maliciously, willfully, deliberately and with premeditation.” K.S.A. 21-3401. Appellant argues there was insufficient evidence to establish premeditation, deliberation and intent to kill in the instant case. When the issue of the sufficiency of the evidence to support a conviction is raised, the standard of review on appeal is whether the evidence, when viewed in a light most favorable to the prosecution, convinces the appellate court that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained. State v. Zuniga, 237 Kan. 788, 794, 703 P.2d 805 (1985). The evidence presented at trial demonstrated there had been animosity between the appellant and the victim for some time prior to the attack, due in part because the victim had a job which the appellant desired. The appellant had harassed the victim on a number of occasions and the victim’s supervisor had witnessed this harassment. Not long before the attack, the appellant had threatened the victim, telling her supervisor he would “cut her (the victim) up” if she caused him any trouble. The appellant was aware the victim would probably be alone the day of the attack, since he knew that her supervisor and the owners of Sunflower Farms were in St. Louis that day. On the morning of the attack, the appellant had asked his employer to sharpen a knife for him. His employer noticed the next day that a knife similar to the one he had sharpened for appellant was missing. A knife of that same type was used in the attack on the victim. The victim was slashed and stabbed repeatedly with the knife. The evidence indicated that upon arriving at Sunflower Farms that afternoon, appellant had backed up his car to the door of the barn. He later attempted repeatedly to force the victim into the trunk. Although the appellant testified that prior to his “blackout,” he remembered the victim stabbing him with the pitchfork, the appellant bore no bruises, scratches or other indications of an attack on his person. A review of the evidence makes it clear a rational factfinder could have found the appellant guilty of attempted first-degree murder beyond a reasonable doubt and the evidence was sufficient to support the jury’s verdict. The appellant next argues the evidence was insufficient to establish the independent crime of aggravated kidnapping. The appellant makes three separate arguments relating to this issue: (1) The appellant lacked sufficient control over the victim for there to be a taking or confinement; (2) the appellant lacked sufficient intent; (3) the acts upon which the aggravated kidnapping charge was based occurred during a prolonged struggle between the victim and the appellant and were merely incidental to the charge of attempted murder. The aggravated kidnapping charge arose out of the victim’s testimony that the appellant twice attempted to push her into the trunk of his car. The appellant first argues he failed to exert sufficient control over the victim for there to be a “taking or confining” as required by the kidnapping statute, K.S.A. 21-3420. While it is true the appellant was not successful in getting the victim locked inside his trunk, such control is not necessary. In State v. Mahlandt, 231 Kan. 665, 647 P.2d 1307 (1982), the defendant was convicted of robbery and aggravated kidnapping arising out of two separate convenience store incidents. After robbing the first store, the defendant forced the female cashier to leave the store. She put up a struggle and he hit her in the face and head several times. The defendant placed the victim in his car, but she was able to escape. As in the instant case, the defendant in Mahlandt argued his actions constituted only attempted kidnapping, since his victim escaped. We held as follows: “The issue here turns on the degree of asportation required to constitute a ‘taking’ under the statute. In State v. Buggs, 219 Kan. 203, 214, 547 P.2d 720 (1976), this court construed the statute as requiring no particular distance of removal, nor any particular time or place of confinement. Rather, it is the fact and not the distance of the taking that supplies the necessary element of kidnapping. “Here the evidence was sufficient to establish an actual taking of the victim. Either the defendant was guilty of kidnapping under the statute or he was not guilty, depending on the jury’s belief of the evidence. There was no evidence of an attempt to kidnap. “The uncontroverted evidence here shows that the victim was forced from the store despite her attempt to fight and get away, and was physically placed by the defendant in his car. It was only after the defendant went around to the other side of his car to get in, and started up the ear to drive away that the victim was able to escape. Once the defendant secured the victim in his car it is clear that she was under his control and a taking had occurred.” 231 Kan. at 671. Appellant here argues our holding in Mahlandt requires the defendant to have completely secured the victim in his car in order for a “taking” to have occurred. We do not agree. The facts of the instant case are similar to those in State v. Royal, 234 Kan. 218, 670 P.2d 1337 (1983). There, the defendant was convicted of aggravated burglary, aggravated battery and aggravated kidnapping, arising out of two separate incidents. In the second incident, the defendant approached the victim while she was in the parking lot of her apartment building, standing next to her car. He grabbed her around the neck, held a knife to her throat, and dragged her to his car. She fell down and briefly lost consciousness. While the defendant was placing her in his car from the driver’s side, she regained consciousness, resisted and escaped. As in Mahlandt, the defendant argued the trial court should have instructed on attempted kidnapping. We held: “Here, the taking or confinement is alleged to have been done to facilitate the commission of the crime of aggravated battery or rape. Ms. Harper was dragged a distance of some forty feet from her car across the parking lot to the defendant’s vehicle. She explained that she fell down and evidently was knocked out; when she regained consciousness, the door on the driver’s side of the defendant’s car had been opened, and ‘he had me past the open door and was pushing me into the car, into the driver’s side of the car.’ The defendant had the victim entirely under his control. He removed her from a well-lighted public place into the interior of his vehicle. That she kept fighting and screaming, and eventually was able to break away, does not lessen the offense.” State v. Royal, 234 Kan. at 223-24. The key factor in both Mahlandt and Royal was not that the victim was pushed completely inside the car. Rather, the court emphasized- the defendant’s control over the victim. The victim in the instant case was twice dragged by the appellant from inside the stables to the appellant’s car, which was backed up to the door outside. While the appellant was not successful in getting her completely inside the trunk, it is clear she was under his control. The fact that the victim was able to escape does not prevent the appellant’s conviction for aggravated kidnapping. The appellant also maintains the evidence was insufficient to show he acted with the intent “to facilitate flight or the commission of any crime” or “to inflict bodily injury” on the victim, as required by K.S.A. 21-3420. Specifically, appellant points to the fact that he and the victim were already in a secluded place, and appellant knew the owners and trainer were out of town. He argues that forcing the victim from the barn to his car could only have increased his risk of detection. Thus, the appellant argues his forcing of the victim from the barn to the car could not have been done with the intent to facilitate the commission of a crime. Applying the standard of review earlier set out, we find the evidence was sufficient to find the appellant intended to either inflict further bodily injury on the victim or to facilitate the commission of his crime by hiding the victim’s body and fleeing. Appellant next contends under this issue that there was a continuous and extended struggle giving rise to the charge of attempted murder. Thus, he argues the acts allegedly constituting kidnapping were merely incidental to the former charge and did not have as their purpose the facilitation of the commission of a crime. The appellant relies on State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976). In Buggs, we discussed the difference between a taking to facilitate the commission of a crime and a taking which is merely incidental to the main crime. We held: “[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement: “(a) Must not be slight, inconsequential and merely incidental to the other crime; “(b) Must not be of the kind inherent in the nature of the other crime; and “(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.” p. 216. Applying the factors set out in Buggs, we find the conduct of the appellant here constituted an independent crime of aggravated kidnapping. The action of the appellant in attempting to force the victim into the trunk was clearly done to facilitate the commission of a crime. Had he succeeded in forcing the victim into the trunk, the appellant would have substantially lessened the risk of detection. In addition, his actions in shoving her out of the barn and trying to push her into the trunk were not of the kind inherent in the nature of attempted first-degree murder. Thus, the evidence presented was sufficient to establish the separate crime of aggravated kidnapping. As a final point under this issue, the appellant argues the trial court erred in failing to instruct upon the offense of attempted kidnapping. “Attempt” is defined at K.S.A. 1984 Supp. 21-3301(a) as follows: “An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” As we previously stated, the evidence presented at trial was sufficient to establish the completed crime of aggravated kidnapping. Therefore, the trial court’s failure to give an instruction on attempted kidnapping was not error. Appellant next argues the trial court erred in not finding him to be insane as a matter of law under the M’Naghten test of insanity. Much of the trial of this case was taken up with the testimony of psychological experts relating to the appellant’s mental condition. Dr. Moeller, a clinical psychologist, was initially contacted by the State to evaluate the defendant, but after the State declined to call him as a witness, he testified for the defense. Dr. Moeller testified that the appellant was a “very impaired individual.” He described the appellant as having a borderline personality, a condition under which a person with enough emotion and stress “can become disoriented to the place where he . . . does not know right from wrong, reality from fantasy.” Dr. Moeller also testified he did not believe the appellant knew right from wrong at the time of the attack. Dr. Thomas Thorp, also a clinical psychologist, testified that the appellant suffered from a personality disorder, was very prone to anxiety and sensitive to stress, and that it was not unusual for persons with the appellant’s psychological problems “to lose awareness of their actions for certain periods of time.” Dr. Thorp did not believe the appellant knew right from wrong at the moment of the crime. Dr. Leslie Ruthven, a clinical psychologist, also testified at trial regarding the results of tests he performed on the appellant. Dr. Ruthven testified the appellant exhibited some symptoms of temporal lobe epilepsy, but his testing was unable to negate or confirm the existence of that defect. Dr. Ruthven concluded from his testing the appellant suffered from brain damage which had been in existence for a very long time, and that this brain damage prevented the full development of his intellectual academic skills and higher level ability. Dr. Ruthven did not testify as to whether the defendant knew right from wrong at the time of the crime. Since the only experts who testified regarding the issue of legal insanity were both of the opinion that the appellant was legally insane at the time of the incident, appellant argues the trial court should have found him insane as a matter of law. The test for taking the issue of insanity away from the jury was adopted by this court in State v. Chase, 206 Kan. 352, 362, 480 P.2d 62 (1971), and reiterated in State v. Sanders, 225 Kan. 147, 151, 587 P.2d 893 (1978). There, we held that in order to remove the case from the jury’s consideration on the basis of the evidence, reasonable persons must necessarily possess a reasonable doubt as to the defendant’s sanity and must conclude that the government has failed to sustain its burden of proving beyond a reasonable doubt that the accused had the capacity to commit the crime. In Sanders, we held that even though medical experts are unanimous in their diagnosis of the defendant, such testimony is not conclusive simply because it is not disputed by other medical testimony. State v. Sanders, 225 Kan. at 153. In addition to expert testimony, the jury is free to consider the testimony of non-expert witnesses who observed the accused’s actions before, during and after the crime. State v. Sanders, 225 Kan. at 153; State v. Sagebiel, 206 Kan. 482, 489, 480 P.2d 44 (1971). Additionally, in In re Jones, 228 Kan. 90, 99, 612 P.2d 1211 (1980), we noted that evidence a defendant attempted to conceal the crime or his identity as the perpetrator thereof goes a long way to defeat an insanity defense. In the present case, the appellant was aware no one was at Sunflower Farms the day of the attack except the victim. He attempted to conceal his crime by trying to force the victim into the trunk of his car. Additionally, there was evidence the appellant tried to run over the victim as he fled from the scene of the crime. We have held it is a rare occasion when the insanity issue should be taken from the jury. State v. Sanders, 225 Kan. 147, 151. This is not such a case. The State sustained its burden of proof with respect to the issue of the appellant’s sanity and the question was properly sent to the jury. The appellant’s final contention on appeal is that the trial court erred in giving a modified version of the “presumption of intent” instruction, PIK Crim. 2d 54.01. The instruction in question read as follows: “Ordinarily a person intends all the usual consequences of his voluntary acts. This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the State has met the burden to prove the required criminal intent of the defendant. “If you find that Mr. Jackson was in the throes of an epileptic seizure at the precise time of the commission of the crimes and that the seizure rendered his actions unintentional and involuntary, you must find him not guilty of all charges and their lesser included offenses.” The first paragraph of the instruction is a modified version of PIK Crim. 2d 54.01. That instruction provides: “Ordinarily a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant.” The obvious difference between the instruction given and the PIK instruction, and the difference about which the appellant complains, is the failure of the trial court to instruct the jury that the burden never shifts to the defendant, as is stated in the last sentence of the PIK instruction. The second paragraph of the instruction was added as a result of testimony that the appellant may suffer from temporal lobe epilepsy. In State v. Robinson, Lloyd & Clark, 229 Kan. 301, 624 P.2d 964 (1981), we discussed the history of PIK Crim. 2d 54.Q1 and its predecessor. We noted that the revised presumption met the requirements of Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979). In Sandstrom, the court held that the instruction, “the law presumes that a person intends the ordinary consequences of his voluntary acts,” violated the requirement that the State prove every element of a crime beyond a reasonable doubt. The court reasoned that this instruction might be interpreted by the jury as creating either a conclusive presumption or a burden-shifting presumption. 442 U.S. at 524. Thus, in State v. Robinson, Lloyd & Clark, we held that the revised instruction (PIK Crim. 2d 54.01) clearly establishes only a permissive inference and does not create a burden-shifting presumption in violation of Sandstrom. We reiterated the Sandstrom requirements in State v. Johnson, 233 Kan. 981, 666 P.2d 706 (1983), holding that: “It has long been recognized that any instruction which shifts the burden of proof or of persuasion to the defendant is unconstitutional and is clearly erroneous. It appears that under Sandstrom any instruction which might reasonably be construed by the jury as shifting the burden of proof to the defendant is also unconstitutional.” p. 985. We further held in Johnson: “[Ujnder the pronouncements of Sandstrom and Johnson, the jury must be clearly instructed as to the nature and extent of the presumption and that it does not shift the burden of proof to the defendant. Any instruction which may reasonably lead the jury to believe that a presumption is conclusive or that the burden to disprove an element of the crime rests with the defendant is unconstitutional.” 233 Kan. at 986. While the instruction at issue in the instant case adequately conveyed the nature and extent of the presumption, it did not specifically instruct the jury that the burden of proof never shifts to the defendant. The State concedes it would have been advisable to include the language in question, but argues any error in its omission is harmless. We agree. The jury instruction given here emphasized the State’s burden to prove the required criminal intent. The instruction did not establish a conclusive presumption requiring the defendant to come forth with evidence of his mental state. Rather, it simply stated a permissive inference. The judgment of the trial court is affirmed. Miller, J., concurring: In State v. Grauerholz, 232 Kan. 221, 229, 654 P.2d 395 (1982), the defendant contended that the trial court should have given a special jury instruction on diminished capacity. We noted in our opinion that evidence of one’s mental state is admissible on the subject of intent, and that the defendant was permitted to introduce all of the evidence he wished, in order to show his mental capabilities. We concluded that a special instruction on diminished capacity need not be given and was properly rejected by the trial court. In the case now before us, appellant argues that the jury should have been instructed on diminished capacity. We have concluded that the trial court did not err in refusing to give such an instruction. In this I agree. However, the majority has taken a new tack and states: “Whether the jury should be instructed on diminished capacity is left to the sound discretion of the trial court.” The doctrine of diminished capacity is discussed in 21 Am. Jur. 2d, Criminal Law § 41. Under the doctrine: “[W]here there is evidence of an abnormal mental condition tending to prove either that the accused could not or did not entertain the specific intent or state of mind essential to the offense, such evidence, though not sufficient in itself to establish legal insanity, should be considered for the purpose of determining whether the crime charged, or a lesser degree thereof, was in fact committed.” Evidence of the accused’s mental condition may tend to show that he could not form the required intent. Evidence of his physical condition may tend to show that he was unable to perform certain acts charged. Evidence of his presence in some other location during the time that the crime was committed may tend to show that the defendant could not have been present at the crime scene. Each of these are evidentiary matters which a jury may properly consider; but, in my judgment, none of them should be the subject of specific jury instructions. Jury instructions in a criminal case tell the jury what the State must prove and then tell the jury that it must consider and weigh all of the evidence to determine whether or not the State has met its burden. An instruction on diminished capacity, it seems to me, would unduly emphasize certain evidence in the case. It is not the function of jury instructions to emphasize either party’s evidence or to argue the case on behalf of either side. A special jury instruction on diminished capacity should not be given. I agree with the disposition of this case, but I disagree with the quoted language relating to jury instructions. McFarland, J., joins the above concurring opinion.	[ 113, -28, -40, -81, 40, 96, 42, -100, 83, -61, -14, -45, -85, -57, 0, 41, -6, 45, 85, 105, -44, -78, 87, -28, -80, -5, 33, -35, -77, 79, -4, 87, 41, 112, -118, 83, -30, 18, 33, 90, -122, 35, -77, -24, 16, -62, 50, 123, 22, 78, 53, -113, -21, 38, 85, 95, 9, 56, 107, 45, -56, 113, -29, 15, -53, 2, -77, 32, -81, 1, -8, 46, -103, 48, 1, -8, 83, -90, -118, 84, 76, -103, 12, 38, 98, 33, 77, -49, 37, -56, 15, 126, -115, -89, -104, 72, 19, 69, -98, -97, 80, -48, -121, 124, -21, -52, 21, 100, 0, -57, -46, -93, -115, 60, -106, 40, -61, -89, 17, 113, -50, -30, 92, 68, 118, -97, -121, -73 ]
The opinion of the court was delivered by McFarland, J.: This is an appeal by the Kansas Employment Security Board of Review (Board) from a judgment of the district court denying unemployment benefits to certain permanent part-time employees of the McCall Pattern Company. The examiner had previously found the employees eligible for such benefits and the awards had been affirmed by the referee and then the Board. We shall first state the proper scope of review. K.S.A. 1984 Supp. 44-709(i)(5) provides: “In any judicial proceeding under this section, the findings of the board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of the court shall be confined to questions of law. Such proceeding, and the questions of law certified, shall be heard in a summary manner and shall be given precedence over all other civil cases except cases arising under the workmen’s compensation act.” In Townsend v. Kansas Employment Security Board of Review, 218 Kan. 306, 543 P.2d 888 (1975), an earlier form of K.S.A. 1984 Supp. 44-709(i)(5) (the difference being insignificant) was discussed as follows: “We have previously examined the scope of review provided by this statute. In Pickman v. Weltmer, 191 Kan. 543, 382 P.2d 298 [1963], it is held: “ ‘Where a claimant seeks judicial review for unemployment compensation benefits, findings of fact of the Employment Security Board of Review are conclusive and may not be set aside by the district court in the absence of fraud where they are supported by evidence, and the jurisdiction of the court is confined to questions of law.’ (Syl. ¶ 3.)” 218 Kan. at 311. See also Strader v. Kansas Public Employees Retirement System, 206 Kan. 392, 479 P.2d 860, cert. denied 403 U.S. 914 (1971); Boeing Co. v. Kansas Employment Security Board of Review, 193 Kan. 287, 392 P.2d 904 (1964); Chadwick v. Employment Security Board of Review, 192 Kan. 769, 771, 390 P.2d 1017 (1964); Clark v. Board of Review Employment Security Division, 187 Kan. 695, 700, 359 P.2d 856 (1961); Read v. Warkentin, Commissioner, 185 Kan. 287, 290, 341 P.2d 980 (1959). The exact procedural routing of the various claims through the administrative agency is confusing, and nothing would be gained by a recital thereof in this opinion. One of the difficulties lies in the fact that the case of each claimant was considered individually until it reached the level of the Board, but all cases were considered collectively by the Board and on judicial appeal. The decision of the Board (entered in each case), in its totality, is as follows: “Now on this 30th day of March 1984, the above-entitled matter comes on for consideration by the Board of Review. After examination of the case, the Board determines to decide the matter on the record. “The majority of the Board, after reviewing all the evidence and being fully advised in the matter, adopts the findings of fact and decision of the Referee rendered in this matter as though fully incorporated herein, and finds that the decision of the Referee should be affirmed. "IT IS THEREFORE CONSIDERED, ORDERED, AND ADJUDGED that the decision of the Referee rendered in the above-entitled matter should be and is hereby affirmed.” As a result, there appears to be no one decision of the Board, or of the referee, stating the findings of fact collectively — yet the appeal before us presents issues on the basis of the claimants as being a class of employees, and their claims to entitlement benefits are based upon the nature of the work performed by the class. Therefore, the findings of fact of the administrative agency, upon which review is sought, go to particular facts of days worked, etc., by particular claimants while the opinion of the district court and the issues before us concern the claimants as a class of employees. The posture of the appeal compels us to view the facts relative to the class or category of the claimants rather than the specific facts relative to any particular claimant. Fortunately, the facts relative to the class, or individual claimants therein, are not in dispute and are well summarized by the district court in its memorandum decision, as follows: “1. Plaintiff is a business entity, incorporated in the State of Delaware, engaged in the manufacture, sale and distribution of home sewing patterns throughout the United States. Its principal manufacturing and distribution facility is located in Manhattan, Pottawatomie County, Kansas. “2. The individual defendant-claimants are employees of McCall who have claimed benefits under the law during the months of November and December, 1983. McCall employs approximately fifty persons who are classified as ‘permanent part-time employees.’ All individual claimants involved in this matter fall within that company classification. “3. During the period of early December, 1983, an Examiner for the Department of Human Resources initially determined pursuant to KSA 44-709(b) and 44-710(c) that claimants were entitled to benefits under the law and that McCall’s experience rating account should be charged for such benefits because the claimants were separated from their work, ‘due to a reduction in force’, or ‘due to a lack of work.’ “4. Thereafter, on or about December 16, 1983, McCall timely appealed the Examiner’s determinations as to each claimant. The appeals were heard by Referee Preston Gates pursuant to KSA 44-709 (c)-(e) on or about January 19, 1984, who subsequently affirmed the determinations of the Examiner. “5. On or about February 15, 1984, McCall timely appealed each determination of the Referee, to the Board of Review pursuant to KSA 44-709(f). These appeals were consolidated for determination by the Board which, in a split decision by two of its three members, affirmed the decisions of the referee. This appeal followed. “6. As permanent part-time employees of McCall, each claimant was hired to work on a schedule of regular hours, 8 to 10 working days of each month, except in the months of May and November, of each year. Claimants have a regular work schedule during each 12 month period, and can sign up for extra work within the company for additional pay when extra work is available. Their respective work schedules were made known to them at the time they were hired. It was also made known to each of them that there would be no regularly scheduled work during the two months noted of each year. “7. Each claimant works in the distribution section of the company. In the months of May and November, the company does not send out an issue or distribute its product so there is no scheduled work in those months in that section of the company’s operations. There may be work available in other sections of the company during those months, and any permanent part-time employee can sign for same. Such work would constitute ‘extra work’ as discussed in the preceding paragraph. “8. There was no evidence presented to the Board by the claimants that they availed themselves of the opportunity for extra work. There was no evidence presented by claimants that if they did sign for extra work within the company, none was offered to them during the periods for which they claim benefits. “9. At all times, permanent part-time employees enjoy the same company fringe benefits offered the company’s regular full-time employees. “10. During what the company refers to as ‘non-scheduled’ work days (days off) permanent part-time employees are subject to call by McCall and must report for work, if called, on one hour’s notice. At no time during the year is there a termination of the employer-employee relationship between McCall and its permanent part-time employees.” The primary issues before us are solely questions of law— whether the Board correctly applied the law to the facts in determining the claimants were eligible for unemployment benefits. The linchpin issue is whether or not the claimants were involuntarily unemployed during the months of November and May. In reversing the Board’s two-to-one decision, the district court reasoned as follows: “This action stems from application by the claimant-defendants for benefits under the Employment Security Law, KSA 44-701, et seq. KSA 44-702 provides in part as follows: KSA 44-702.....‘As a guide to the interpretation and application of this act, the public policy of this state is declared to be as follows: Economic insecurity, due to unemployment, is a serious menace to health, morals and welfare of the people of this state. INVOLUNTARY UNEMPLOYMENT is therefore a subject of general interest and concern .... The achievement of social security requires protection against this greatest hazard of our economic life. This can be provided by encouraging employers to provide more stable employment . . . .’ The Court believes the controlling issue herein is whether or not the claimants were involuntarily unemployed during the periods for which they have made claim to benefits. “In Clark v. Board of Review Employment Security Division, [187 Kan. 695, 359 P.2d 856 (1961)], the Court explains at page 698, ‘the basic concept of the Act, and declared to be the public policy of the state, is to protect against INVOLUNTARY UNEMPLOYMENT — that is, to provide benefits for those who are unemployed through no fault of their own and who are willing, anxious and ready to support themselves and their families, and who are unemployed because of conditions over which they have no control . . . .’ The Court adds that ‘an unemployed person shall be eligible to receive benefits ONLY if it is found that he is able to work, is available for work, and is making reasonable efforts to obtain work.’ “ ‘Involuntary’ means without will or power of choice. Black’s Law Dictionary, 5th Ed. As to the instant case, the claimants’ unemployment must therefore have been without choice, or as stated in the Clark case, supra, because of conditions over which they had no control. The burden of proof is upon the claimants to establish they were ‘involuntarily’ unemployed because of conditions over which they had no control. “The record reflects that the claimants herein accepted the conditions of their employment knowing precisely what their work schedule would be and that there would be no regularly scheduled work for the periods for which they claim benefits. Further, said claimants accepted employment with McCall’s on a permanent or ‘regular’ part-time basis knowing that while there were to be non-scheduled work periods in May and November each year, there would not be any termination of the employer-employee relationship they enjoy with McCall. Thus, they accepted regular part-time employment which was systematic, not subject to unexplained or irrational variations, and which was to be performed in a method in accordance with established rule or practice within the company. “It is neither consistent nor logical on the one hand to knowingly and voluntarily accept a stable part-time work arrangement such as the claimants enjoy and on the other hand to claim they are ‘involuntarily’ unemployed during the periods of time they knew there would be no work scheduled, and for which they now claim benefits. If the term ‘involuntary unemployment’ is to have substantive application in this case, as it must, it seems to me that the ‘conditions’ referred to in the Clark opinion, supra, must include the conditions made known to the claimants at the time they accepted their employment, namely, there would be no scheduled work in the months of May and November. Consequently, claimants had control over that condition of their employment as they were free to refuse the job and continue their search for employment under conditions acceptable to them. By accepting employment with McCall, it seems to me that each of them freely chose the condition of no scheduled work during the times in question and as a matter of law it cannot now be made the basis of a claim of involuntary unemployment.” The factual situation in the claimants’ employment does not fit into the usual categories of employment. The claimants are not seasonal or temporary employees. Each claimant remains a permanent employee of McCall throughout the calendar year. Each claimant has eight to ten work days each month and often is called to work on “unscheduled” days. All claimants are on call to work unscheduled days, including those during the months of November and May. The claimants were fully informed of the unusual employment requirements before becoming permanent part-time employees of McCall. Although not critical to the determination of the issues herein, it is interesting each claimant has been offered permanent full-time employment with McCall but has declined such permanent employment in favor of the permanent part-time employment. For various reasons, such as family obligations or simply personal preference, an individual may prefer permanent part-time employment to permanent full-time employment. Such is the right of choice of individuals. Under the unique factual circumstances presented herein, we agree with the district court’s determination that the claimants herein were not involuntarily unemployed as contemplated by the Kansas employment security law (K.S.A. 44-701 et seq.), and, hence, were not entitled to receive benefits thereunder. By virtue of the result reached on this issue, other issues raised need not be addressed. The judgment is affirmed.	[ 52, -23, -3, -100, 10, -31, 58, 26, 107, -89, 37, 83, 47, -36, 13, 121, -10, 29, -48, 104, -41, -73, 19, -54, -46, -9, -101, -59, -71, 91, -12, 94, 76, 48, 10, -43, 70, -64, 65, 28, -114, 6, -88, -21, -39, -56, 32, 107, -78, 75, 113, -98, -5, 40, 24, -57, 8, 44, 91, -84, 17, -15, -86, 5, 127, 16, -109, 2, -68, 7, -48, 63, 24, 56, 1, -24, 90, -90, -46, 52, 105, -71, 12, 102, 98, 48, 60, -26, 108, -120, 14, 86, -115, -25, -112, 24, 97, 5, -106, -103, 93, 52, 14, 124, -30, 5, 31, 125, -119, -113, -94, -79, 15, 124, 18, -101, -1, -93, -110, 97, -52, -86, 93, 70, 18, 15, -18, -112 ]
The opinion of the court was delivered by Herd, J.: This is an appeal from a district court’s determination that the City of Kansas City acted'reasonably in granting a special use permit to R. E. Wolfe Enterprises of America, Inc., for the operation of a sanitary landfill within the city. All of the plaintiffs in this action either live or operate businesses adjacent to, or in the near proximity of, the proposed sanitary landfill. Many of the plaintiffs are general partners in K-S Center Company, Inc., which owns and operates the Indian Springs Shopping Center (Indian Springs). Indian Springs is an enclosed shopping center located at 4601 State Avenue in Kansas City. It is near the proposed landfill site. The plaintiffs seek review, pursuant to K.S.A. 12-712, of the reasonableness of the City Council’s grant of a special use permit for the operation of the sanitary landfill. We have recently held thatK.S.A. 12-712 is a proper statute under which to seek review of a city’s action on an application for a special use permit. Sprint Print, Inc. v. City of Overland Park, 238 Kan. 230, 708 P.2d 210 (1985). Before considering this case, we point out its similarity to Daniels v. Board of Kansas City Comm’rs, 236 Kan. 578, 693 P.2d 1170 (1985). Daniels involved an application for a special use permit by Browning-Ferris Industries (BFI). BFI sought approval for the placement and operation of a sanitary landfill in an area between 32nd Street and 1-635, just south of the Missouri Pacific Railroad. The Board of City Commissioners granted the special use permit subject to the performance of certain commitments made by BFI. These commitments included both conditions precedent to the operation of activities on the landfill site and conditions subsequent to actual operation of the sanitary landfill. Plaintiff landowners petitioned the district court, pursuant to K.S.A. 12-712, to determine the validity and reasonableness of the special use permit. The case was tried to the same district judge who tried the instant case. The trial court concluded that the Board’s grant of the special use permit was lawful and reasonable and not arbitrary and capricious. We affirmed, finding substantial competent evidence to support the district court’s findings of fact and conclusions of law. The landfill at issue in the Daniels case has not yet become operative since BFI is in the process of satisfying the conditions placed on the permit by the City. The facts giving rise to this controversy are: In September of 1983, R. E. Wolfe Enterprises of America, Inc., (Wolfe) a sanitary landfill operator, filed a petition to obtain a special use permit to operate a sanitary landfill in an area bounded by Interstates 70 and 635 and K-32 Highway. With its petition, Wolfe submitted a Preliminary Engineering Report through its consulting engineers, Burns & McDonnell. The City professional staff evaluated the engineering report and found certain technical information missing. An exchange of letters followed which failed to resolve the staffs concerns. Thus, the staff reports both to the Planning Commission and the Council failed to include a recommendation on the landfill proposal. In spite of this, after a public hearing the planning commission unanimously recommended the special use permit be issued to Wolfe. Following the favorable recommendation from the Planning Commission; the City Council held a public hearing on October 27, 1983. At the hearing, petitions both for and against the proposed landfill were received. A lengthy presentation was made by R. E. Wolfe and R. E. Wolfe Enterprises of America, Inc., and the company’s attorneys, chief engineer, consulting engineers and project manager. Wolfe cited its record in operating landfills, the need for a landfill within the City, the central location of and access to the proposed site and certain geological information. The owners of Indian Springs appeared and spoke in opposition to the landfill, citing several concerns, including gas recovery, odors, dust and groundwater. They also argued the location of the landfill would create aesthetic and image problems for Indian Springs and have a potentially devastating effect on the future of the shopping center and surrounding commercial and residential development. Appellants also cited the alleged failure of the City to consider the eight factors suggested by this court in Golden v. City of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978), to be utilized in land use decisions. At the conclusion of the hearing, the City Council voted 5 to 2 to grant preliminary approval of the special use permit, subject to the drafting of suggested Findings of Fact and Conclusions of Law by the City Planning and Legal Departments for later submission to the Council. After further review the Council, on December 15, 1983, unanimously adopted the following Findings of Fact (in pertinent part) and Conclusions of Law: “II. Findings of Fact — Evidence received and Reviewed. “1. All Findings of Fact made, and the Exhibits listed thereto in S ection I, above, are hereby incorporated by reference as if fully set out in this Section II. Findings of Fact — Evidence Received and Reviewed. “2. Petitioner, R. E. Wolfe Enterprises of America, Inc. submitted a Preliminary Engineering Report through its engineers, Burns and McDonnell, regarding the proposed landfill in September, 1983. After review and comments by City Engineering, Planning, Water Pollution, Air Pollution, Health and the Board of Public Utilities, Burns and McDonnell submitted a supplemental report. These reports were submitted and reviewed by the City Planning Commission. “3. Dr. Darrell Newkirk, Director of Kansas City/Wyandotte County Health Department, Gary Stubbs, City Public Works Director, and Frederick Backus, P.E. City Engineer, all reviewed the proposed landfill and sent communications to the Planning Commission in support of the proposal. “4. At the Planning Commission Hearing, Joseph H. McDowell, and Chuck Swoboda, attorneys, R. E. Wolfe, Petitioner, Phil Sutton and Robert Robinson, engineers, all on behalf of the petitioner, were present and spoke in favor of the landfill. “5. At the Planning Commission Hearing, persons appeared in opposition to the landfill including various residents of the surrounding area and a Mr. John Bowlin, representing merchants of Indian Springs Shopping Center, who spoke. Some of the concerns they expressed were blowing trash, odor controls, potential blasting and combustion fire control of the landfill. “6. A property owner in the area, Rosalie Douglas; the president of Brown Wrecking Company, Harold Brown, and another resident of Kansas City, Kansas, appeared and spoke in favor of the landfill proposal. Their comments centered around the serious need for a landfill in the City and previous successful operation of another landfill in the 1970’s at 5th and Garland in Kansas City, Kansas, which is now Garland Park. “7. Prior to the City Council’s public hearing, Burns and McDonnell Consulting Engineers submitted a responsive update of its engineering study to the City Planning Department. “8. Prior to the City Council public hearing several Council Members made an on site and perimeter inspection of the proposed landfill site. “9. Gilbert A. Pintar, Director of the City Planning Department who serves as Secretary of the City Planning Commission submitted his staff opinion, and the minutes including the unanimous recommendation for approval by the City Planning Commission to the City Council through a communication dated October 24, 1983, to the City Administrator, M. James Medin. “10. At the City Council Hearing signed protest petitions from citizens were received which stated: “The following are concerned taxpayers of Wyandotte County who are opposed to the landfill being proposed at 47th Terrace and K-32. This landfill is within four blocks of Indian Springs Shopping Mall, adjacent to Indian Springs Medical Building at 47th and Orville, three blocks south of 47th Street which includes various businesses and surrounding residential community. “11. At the Council Hearing signed petitionfs] in favor of the proposed landfill were received which stated: “We, the undersigned, hereby declare that we are in support of the proposed R.E. Wolfe Enterprises, Inc. Sanitary Landfill to be located near K-32 Highway, (Tobin Mine) in Kansas City, Kansas — Wyandotte County. We understand the need for a properly operated landfill and the importance it will have on the future growth of Kansas City, Kansas, and Wyandotte County. We understand that the Indian Springs Shopping Center is 2,000 feet away from the proposed landfill site. The sanitary landfill will not affect our willingness to shop at the Indian Springs Shopping Center. “12. At the Council hearing, the petitioner, R. E. Wolfe of R. E. Wolfe Enterprises of America, Inc. again appeared with his attorneys, Chief Engineer, Consulting Engineers and Project Manager. They made a lengthy presentation and answered numerous questions by City Council Members and citizens. In addition, Rosalie Douglas of 5492 Muncie Drive, testified in favor of the proposal, stating she had a business near the 5th and Garland landfill and witnessed that operation daily from its inception through the closing of the landfill and the use of the site as a park. Mrs. Douglas stated that no problems arose concerning odors, blowing papers, or fencing and screening. “13. At the Council Hearing, Mr. R. J. Campbell, Attorney-at-Law, appeared and spoke on behalf of the owners of Indian Springs Shopping Center in opposition to the landfill. His opposition included concerns regarding gas recovery, odors, groundwater and dust. Mr. Campbell submitted an analysis by Howard, Needles, Tammen & Bergendoff, Engineering Consultants, regarding the Burns and McDonnell and Black and Veatch imports. In addition to his technical concerns, Mr. Campbell argued the location of the landfill at this site would negatively impact and create aesthetic and image problems for Indian Springs Shopping Center. Finally, Mr. Campbell contended the landfill was an unsound land use decision, contrary to the criteria enumerated by the Kansas Supreme Court to be utilized in land use decisions. “14. Other citizens, business representatives, and one of the Indian Springs Shopping Center owners appeared and spoke in opposition at the Council Hearing. “15. City Administrator, M. James Medin made a presentation at the City Council hearing. His comments analyzed the various factors both pro and con in landfill proposals. Drawing on his previous experience as City Administrator in Fond du Lac, Wisconsin, he concluded that a properly managed and operated sanitary landfill would not detrimentally affect adjacent properties. “16. Special Use Permits are authorized for sanitary landfill operations pursuant to City Code of Ordinances, Section 27-103(l)(A)2g. Code Section 27-103(l)(C)l sets out the basic criteria for review of special use permit petitions. There are eight general areas which this Board must consider in reviewing special use permit petitions. Those are: “a. Whether the proposed use will destroy the aesthetics of the surrounding development (to protect the character of the surrounding development); “b. Whether the proposed use will result in increasing the amount of vehicular traffic to the point where it exceeds the capacity of the street network to accommodate it; “c.- Whether the proposed use is reasonably necessary for the convenience and welfare of the public and will not substantially or permanently injure the appropriate use of adjoining property; “d. Whether the noise, vibration, dust, or lighting that would normally be associated with such use is of such duration and intensity as to be objectionable to adjacent property; “e. Whether the proposed use would pollute the air or water; “f. Whether the use would destroy an irreplaceable natural resource; “g. Whether the construction activities or quality of maintenance associated with the use would cause excessive erosion; and “h. Whether the proposed use would result in overcrowding of land or cause an undue concentration of population. “17. In addition to these criteria adopted by city ordinance the Supreme Court of Kansas has listed factors to be considered in making zoning decisions. While the landfill proposal is not a zoning change the below factors are considered: “(1) The character of the neighborhood; “(2) the zoning and uses of properties nearby; “(3) the suitability of the subject property for the uses to which it has been restricted; “(4) the extent to which removal of the restrictions will detrimentally affect nearby property; “(5) the length of time the subject property has remained vacant as zoned; “(6) the relative gain to the public health, safety, and welfare by the destruction of the value of plaintiff s property as compared to the hardship imposed upon the individual landowner; “(7) recommendations of permanent and professional staff; and “(8) conformance to Master Plan. “18. This Council, in addition to considering above listed criteria, specifically finds this proposed sanitary landfill consistent with the Solid Waste Management Study prepared for the City by Black and Veatch. This site and method of solid waste disposal is in fact highly recommended in that study. “19. At the public hearings, on this proposed Special Use Permit, evidence and testimony was presented which addressed each of these criteria for review. “20. No person who appeared in opposition to the proposed Special Use Permit at either the Planning Commission Hearing or the City Council Hearing submitted any documentary evidence, letters or expert testimony in support of their opposition to the proposed petition sufficient; nor was any of the oral testimony submitted sufficient to refute the totality of the evidence adduced by the proponents of the granting of the Special Use Permit. “21. That the attached Exhibit A, representing the documentation received and considered by this Council in the hearing and processing of this Special Use Permit is hereby incorporated by reference into these Findings of Fact as if totally set out herein. “22. That this quasi-judicial review has at all times been conducted as a review of a Special Use Permit petition for a five-year permit and not a change of zoning application. Specifically, with reference to objections on the issue of Master Plan conformance, it is considered and found that this Special Permit decision will not change the zoning of the subject property, that the existing implementation of the Master Plan has gone unutilized for fourteen years, that the mine situation and lack of infrastructure casts serious doubt on current development of the subject property in accord with the Master Plan. “III. Conditions of Approval of Special Use Permit. “1. This Council accepts the following commitments of R. E. Wolfe, Enterprises of America, Inc., makes Findings of Fact with regard to them, and stipulates that they are conditions precedent to any operational or property site activity by the petitioner. “(a) Final plans shall be submitted to the Planning Commission and City Council for approval. Until final plans are approved, site preparation activities shall not begin. The Special Use Permit is dependent on the approval of final plans. All activities shall be carried out in conformance with the approved final plans. The final plans shall include: “(1) Sight line surveys for points along the northern perimeter of the landfill property from the westernmost point along Muncie Drive to 47th Street and Orville. Such surveys should be provided at an average 400’ interval; should select particular sight lines where the sanitary landfill is most likely to be visible; and should envision the landfill at approximately its final contours. “(2) All information and plans required by the State of Kansas for a permit to operate a sanitary landfill. “(3) Detailed response as applicable to the Howard, Needles, Tammen and Bergendoff analysis. “(4) A leachate control plan. “(5) Gas recovery and control systems plan. “(6) A screening, landscaping and fencing plan. “(7) Plan for controlling illegal dumping around entrance during non-operational periods. “(8) Details of the noise impact analysis. “(9) Detailed survey information for all undermined areas which extend beyond the boundaries of the sanitary landfill as delineated in the Special Use Permit application. “(10) Plans to stabilize the improperly mined portion of the quarry with fly ash and other suitable materials. “(b) Access shall be limited to the existing drive on to K-32 Highway, and a de-acceleration lane shall be provided on the North side of K-32 consistent with the existing road cut as practicable. Conformance shall be made with any other road improvements or alterations as required or recommended by the Kansas Department of Transportation. “(c) All surface drainage structures shall be designed to accommodate a minimum 10 year, 24-hour precipitation event. “(d) Adjacent residences and businesses shall be protected as necessary to assure that an acceptable noise environment as defined by H.U.D. standards is maintained. “(e) Adjacent residences and businesses shall be visually screened from the sanitary landfill working face disposal operations from the outset of its operation and during its active life. Berms, existing natural features, retention of existing tree cover, screen plantings, wood screening fences or any combination thereof may be utilized, but whatever is selected must remain in place during the lifetime of the sanitary landfill and be an effective visual screen. Where existing tree cover is to be retained, at least a 100’ wide undisturbed area must be retained. Where wood screen fencing is to be utilized it must be supplemented with landscape plantings. Along the West boundary there shall be a 125’ wide undisturbed area and an additional 125’ setback from the undisturbed area to any disposal operations. The sanitary landfill working face disposal operations shall not be visible from normal eye level upon the Indian Springs Shopping Center existing building entrances and parking areas. The boundary along Interstate 70 shall be screened in accordance with the requirements and plans approved by the Kansas Department of Transportation. “(f) A long term contract from a reliable supplier to dispose of fly ash in quantities adequate to assure stabilization of the mine in a timely fashion. In this regard, petitioner agrees to reasonably negotiate with the City, as may be legally possible, contracts for disposal with the Board of Public Utilities and Water Pollution Control Department. Specifically, a possible joint venture incineration program shall be examined between petitioner and the City for processing of Water Pollution Control materials. “(g) Blowing refuse shall be controlled by proper alignment of unloading areas and through movable litter fences maintained near the active face. A six foot high fence shall surround the perimeter of the landfill area and entrances to control access and to provide litter control. “(h) The installation of additional fire hydrants in conformance with the requirements of the Fire Department. “2. This Council makes the following Findings of Fact and stipulates that each shall be a condition subsequent to continuation of the actual sanitary landfill operation: “(a) That not only shall all hazardous waste be excluded from the landfill, but also, at least the following: liquid industrial wastes such as acids, caustics, metal-finishing baths, paint, strippers, waste oils, waste solvents or other materials which are ignitable, corrosive, reactive, toxic, or infectious, industrial waste-waters, sanitary sewage, septic tank, cesspool or pit toilet cleanings, sanitary sewage sludges or non-hazardous industrial sludges not dewatered to a solid or semi-solid condition, and pathological wastes such as tissue and culture media, unless autoclaved. “(b) Compliance with any adopted solid Waste Management Ordinance of the City in regard to the operation of this proposed sanitary landfill. “(c) That the hours of operation for accepting waste shall not extend beyond 7 a.m. to 5 p.m., with disposal and covering operations closing not later than 7:00 p.m. or those hours and days of operation as further regulated by City ordinance. “(d) That the naturally occurring groundwater quality beyond the disposal site boundary shall not be degraded. It should be anticipated that any such degradation will result in the imposition of fines or suspension of landfill activities. “(e) That the City implies no permanent approval of the proposal to provide 2 feet of final cover and that ordinance changes should be anticipated that would require a certain depth of topsoil and/or additional depth of final cover so that more diverse plant life can be supported and erosion controlled. “(f) Odors should be controlled to the degree technically feasible and may be required to go beyond mere compliance with federal air pollution standards. “(g) At all times the landfill working face disposal operations shall be visually screened from pedestrian view at eye level at any point on the Indian Springs Shopping Center’s existing parking areas or building entrances. “(h) A noise environment shall be maintained at or below those levels considered acceptable by the Department of Housing and Urban Development. “(i) The operators of the sanitary landfill shall have no automatic vested rights in the preservation of the landfill operating standards of today. Lawfully and reasonably revised and updated standards may be imposed. “(j) Washing facilities may be required on the site to prevent tracking of mud, etc. beyond the boundaries of the site. “(k) No blasting will be permitted without permission from the City Council. “(1) That petitioner shall comply and pay any regulatory fees or franchise taxes which the City may adopt and impose. “IV. CONCLUSIONS OF LAW “I. Special use permits are based upon the zoning power granted by the State but, by definition, empower governing bodies to impose conditions upon the granting of such permits to protect the health, safety and welfare of the public. “2. The City of Kansas City, Kansas, has legislatively adopted a Special Uses ordinance setting out the procedure and basis for review in considering [a] Special Use Permit petition. In this regard, the Council concludes that this Special Use Permit: “(a) Will not destroy the aesthetics of surrounding developments but rather will be operated in such a manner as to buffer and screen potential objectionable sights and upon completion of the landfill provide an aesthetically attractive green space. “(b) Vehicular traffic will not exceed street capacity because no traffic access will be allowed on residential streets but be exclusively routed on K-32 Highway. “(c) This proposed sanitary landfill is crucial for the efficient disposal of sanitary refuse and will benefit the general public for many years. Proper operation will assure no adverse effects to adjoining property. “(d) Operational conditions and controls previously cited, i.e., an acoustical study regarding noise, on site dust controls, including a water truck, and earth and tree berming, no nighttime operations, etc. will prevent objectionable effects to adjoining properties. “(e) Air and water pollution will be avoided as represented by petitioner; based upon the study and the construction and maintenance standards by the engineering firm, Burns & McDonnell. “(f) There will be no destruction of an irreplaceable natural resource. “(g) Construction and maintenance of this operation will not cause excessive erosion but will in fact eliminate and remedy an existing and potentially hazardous mine collapse. “(h) This proposed use will obviously not result in overcrowding of land or cause undue concentration of population. “3. In addition, although the above mentioned Supreme Court of Kansas suggested factors for consideration in change of zoning cases are not applicable to this Special Use Permit proceeding, this governing body concludes: “(a) The character, the zoning and the uses of the surrounding neighborhood are primarily low density and sparse residential, a single development devoted to office and professional use, and a commercial shopping center — all of which shall be pro tected by existing land buffers, highway systems and affirmative screening steps. “(b) There is poor suitability for residential development on the subject property as it currently exists because of the topography and the mines. “(c) As mentioned earlier, nearby properties will be adequately protected and the use as a landfill is limited and fixed durationally. “(d) The bulk of the subject property has always been vacant with a rock quarry and an illegal dump the only uses in recent history. “(e) A tremendous benefit to the public’s health, safety and welfare will inure with the establishment of this landfill by way of satisfying a crucial community need for safe, professional solid waste disposal with no undue hardships to adjacent properties. “(f) The City’s professional staff properly analyzed, collected and processed all available information and presented it to this governing body for its decision. “(g) The City’s Master Plan for this area has gone unutilized and the viability of development in accord with the plan is dubious. “4. This proposal is in accord with the findings and conclusions reached in the Solid Waste Management Study prepared by Black and Veatch, Consulting Engineers, for the City of Kansas City, Kansas. “5. This governing body concludes that the instant petitioner has met the criteria of the City’s ordinance regarding special use permits, subject to compliance with the conditions hereinbefore set out, and, therefore, grants this Special Use Permit.” The Council also accepted a Unilateral Agreement executed by R. E. Wolfe Enterprises of America, Inc., wherein Wolfe agreed to the terms and conditions set forth in the Findings and Conclusions. Prior to the formal adoption of the Findings of Fact and Conclusions of Law, the plaintiffs filed an action in the District Court of Wyandotte County pursuant to K.S.A. 12-712, seeking review of the City’s issuance of the special use permit. On June 14, 1984, the court remanded the special use permit matter to the City Council for consideration of additional facts relating to the transferability of the permit. Specifically, the court was concerned with an agreement between Wolfe and Laidlaw Industries, Inc., (Laidlaw) a Canadian-based waste management company, whereby Wolfe sold the Southeast Landfill in Kansas City, Missouri, to Laidlaw. As part of the agreement, executed on September 6, 1983, Wolfe covenanted not to compete in the landfill business within 35 miles from downtown Kansas City, Missouri, for five years subsequent to the completion of the Southeast Landfill. The Laid-law agreement further provided that if Wolfe obtained the right to operate a sanitary landfill within the 35-mile area, it must allow Laidlaw the option of taking over that landfill after all final government approvals are obtained and any threatened or pending litigation has been concluded. Thus, if Laidlaw chose to exercise its option, Laidlaw, and not Wolfe, would be the operator of the proposed landfill. A public hearing before the City Council was held on this matter on July 19, 1984. At that hearing, the Council received and considered evidence and testimony regarding the agreement between Laidlaw and Wolfe. Wolfe testified he did not believe Laidlaw would be operating the landfill and all he was requesting was a personal, nonassignable permit. At the conclusion of the hearing the City Council voted 4 to 3 in favor of reaffirming its previous decision to grant Wolfe a special use permit, subject to the permit being restricted and running to the benefit of Wolfe only. The Council unanimously adopted a resolution adopting Addendum Findings of Fact and Conclusions of Law and accepting a Unilateral Agreement by Wolfe setting forth the permit’s terms and conditions and Wolfe’s agreement to adhere to those conditions. In its Journal Entry of Judgment, the trial court noted that the terms and conditions of the permit obtained by Wolfe at the rehearing do not appear to comply with the agreement between Wolfe and Laidlaw. Nevertheless, the trial court determined that the agreement between Wolfe and Laidlaw was outside the scope of review and did not affect the reasonableness of the special use permit granted by the City. The trial court made extensive findings of fact and conclusions of law and concluded the City’s decision granting the special use permit was reasonable. This appeal followed. Prior to considering the issues raised by the appellants on appeal, let us first set out the scope of appellate review of a decision of the governing body of a city in a zoning or special use permit case. These rules were recently set forth in Daniels v. Board of Kansas City Comm’rs, 236 Kan. 578, 585-86, 693 P.2d 1170 (1985): “ ‘(1) The local zoning authority, and not the court, has the right to prescribe, change or refuse to change, zoning. “ ‘(2) The district court’s power is limited to determining “ ‘(a) the lawfulness of the action taken, and “ ‘(b) the reasonableness of such action. “ ‘(3) There is a presumption that the zoning authority acted reasonably. “ ‘(4) The landowner has the burden of proving unreasonableness by a preponderance of the evidence. “ ‘(5) A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence. " ‘(6) Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate. “ ‘(7) Whether action is reasonable or not is a question of law, to be determined upon the basis of the facts which were presented to the zoning authority. “ ‘(8) An appellate court must make the same review of the zoning authority’s action as did the district court’ ” (Quoting Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, 28, 605 P.2d 533 [1980].) In addition, in Golden v. City of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978), we set out several factors which should be considered by the zoning body and which would aid the reviewing court in determining the reasonableness and validity of zoning determinations. Those factors are: “(1) The character of the neighborhood; “(2) the zoning and uses of properties nearby; “(3) the suitability of the subject property for the uses to which it has been restricted; “(4) the extent to which removal of the restrictions will detrimentally affect nearby property; “(5) the length of time the subject property has remained vacant as zoned; and “(6) the relative gain to the public health, safety, and welfare by the destruction of the value of plaintiffs property as compared to the hardship imposed upon the individual landowner. “[7 and 8] the recommendations of permanent or professional staff, and the conformance of the requested change to the adopted or recognized master plan being utilized by the city.” 224 Kan. at 598. As we noted in Taco Bell v. City of Mission, 234 Kan 879, 887, 678 P.2d 133 (1984), the traditional tests of reasonableness were not abandoned by the addition of the Golden criteria. Rather, the traditional tests were “enhanced by the eight factors which provide a reviewing court with a basis for testing the action of a governing body in a meaningful way.” The parties disagree as to whether the Golden criteria are applicable to special use permit cases. The appellants contend that since the issuance of a special permit triggers the same review for “reasonableness” as does a rezoning case, the eight factors enumerated in Golden are equally applicable in special use permit cases. The City, however, argues that this court has never specifically stated that the Golden factors are applicable to special use permit cases, and it should not so hold in this case. The appellants’ argument has merit. We have consistently held, in reviewing the grant or denial of a special use permit, the same test of “reasonableness” applies as in rezoning cases. Gaslight Villa, Inc. v. City of Lansing, 213 Kan. 862, 864, 518 P.2d 410 (1974); Creten v. Board of County Commissioners, 204 Kan. 782, 783, 466 P.2d 263 (1970). This court’s purpose in suggesting zoning bodies apply the Golden factors was to aid in a more precise definition and application of the “reasonableness” standard. Thus, there is no sound basis for distinguishing special use permit cases from rezoning cases and the factors set forth by this court in Golden are applicable to a city’s action on a special use permit, where relevant. Appellants’ first issue on appeal is that the City failed to consider the Golden standards discussed above prior to granting Wolfe’s application for a special use permit. Appellants base this contention on the fact that the City’s resolution adopting findings of fact and conclusions of law was not made until six weeks after preliminary approval of the permit was made at the hearing. Thus, the appellants argue the decision to grant the special permit was made weeks before the Golden factors were considered by the City. Appellants’ argument fails because the decision made by the City at the end of the four-hour hearing was not a final decision. It was clearly subject to a later adoption of findings of fact and conclusions of law. At the City Council hearing, Mayor Reardon stated for the record that any motions to approve or deny the permit should include a directive to the City Planning and Legal Departments to prepare suggested findings of fact and conclusions of law, which would form the basis of the decision made at the hearing. After a half-hour executive session, the Board approved the Planning Commission’s recommendation to grant the special use permit “subject to findings of fact and conclusions of law.” The City, in its resolution adopting findings of fact and conclusions of law, set forth the Golden criteria and stated that these factors had been considered in arriving at its conclusion. It is not our prerogative on appellate review to tell a local governing body how long it should take in making its decision, so long as the proper matters are considered. We conclude the Golden factors were properly considered by the City in the present case. Appellants next contend the district court erred in holding the City’s grant of a special use permit to Wolfe was reasonable in light of Wolfe’s noncompetition contract and option with Laid-law. The district court held the terms and conditions of the agreement between Laidlaw and Wolfe were outside its scope of review. It specifically held the Wolfe-Laidlaw agreement had no effect upon the reasonableness of the special use permit granted by the City. Therefore, the issue on appeal is whether the district court properly found the terms and conditions of the agreement between Wolfe and Laidlaw outside its scope of review. The appellants argue Wolfe’s failure to disclose the contractual limitations on its ability to own and operate the proposed landfill significantly impacted upon Wolfe’s credibility, and the City’s grant of a permit to Wolfe under such circumstances was unreasonable. While it is true this information should have been disclosed to the City prior to or during its consideration of the permit application, it does not necessarily follow that all other representations made by Wolfe to the City must be reevaluated. After the district court judge remanded this issue to the City, another hearing was held, at which time the City was made fully aware of the contract between Wolfe and Laidlaw. After being fully informed of the agreement and its limitations, the City voted to reaffirm its previous decision to grant a special use permit to Wolfe. The City argues the district court properly ruled this issue to be outside the scope of review of this action. It points out Laidlaw has not yet exercised its option and may never exercise its option. In addition, the City, in its Addendum Findings of Fact and Conclusion of Law, ruled that any attempted transfer of the permit or the rights granted thereunder would render the permit null and void. Since the City affirmed the permit with full knowledge of the contract between Laidlaw and Wolfe, and since Laidlaw has not yet attempted to exercise its option under the agreement, there is no controversy at this time. We will not consider and decide questions when there is no actual controversy and where the judgment cannot affect the matter in issue before the court. In re Estate of Jud, 238 Kan. 268, Syl. ¶ 3, 710 P.2d 1241 (1985). The final issue on appeal is whether the district court erred in holding the City’s approval of the special use permit was reasonable. We have already set forth the eight Golden factors to be applied in determining the reasonableness of a zoning determination. Also relevant to the question of reasonableness are the factors set out in the City’s Special Use Permit Ordinance Section 27-103(l)(C)l. Those factors are: “a. Whether the proposed use will destroy the aesthetics of the surrounding development (to protect the character of the surrounding development); “b. Whether the proposed use will result in increasing the amount of vehicular traffic to the point where it exceeds the capacity of the street network to accommodate it; “c. Whether the proposed use is reasonably necessary for the convenience and welfare of the public and will not substantially or permanently injure the appropriate use of adjoining property; “d. Whether the noise, vibration, dust, or lighting that would normally be associated with such use is of such duration and intensity as to be objectionable to adjacent property; “e. Whether the proposed use would pollute the air or water; “f. Whether the use would destroy an irreplaceable natural resource; “g. Whether the construction activities or quality of maintenance associated with the use would cause excessive erosion; and “h. Whether the proposed use would result in overcrowding of land or cause an undue concentration of population.” It is clear that the City considered these factors, as well as the Golden factors, in arriving at its decision to grant Wolfe a special use permit to operate the sanitary landfill. The City, in its Findings of Fact, set out the Golden criteria and the ordinance standards listed above. Then, in its Conclusions of Law, the City considered and applied each of the factors separately. The district court concluded the City properly considered both the Golden criteria and the ordinance standards in reaching its decision and that the process utilized in reaching that decision was not arbitrary and capricious. Appellants contend Wolfe’s special use permit application was not sufficiently definite and that if a more detailed plan had been presented to the City, the application would have been denied. In particular, appellants cite the lack of a detailed plan to deal with the possible build-up of methane gas as refuse disintegrates below the landfill surface. Appellants also argue Wolfe’s plan to inject unstable mines with fly ash is unworkable and insufficiently detailed. In its formal Findings of Fact and Conclusions of Law, the City set out very detailed conditions which must be met prior to final approval of the special use permit and noted that the special use permit is dependent upon the approval of final plans. A reading of these detailed conditions precedent and conditions subsequent confirms the appellants’ concerns have been considered and dealt with in a very thorough and careful manner. Our reasoning in Daniels v. Board of Kansas City Comm’rs, 236 Kan. at 587, is instructive here: “We wish to emphasize, however, that this holding does not preclude the plaintiffs from seeking relief from the district court at some future time. As noted above, the city, in granting the special use permit for the landfill, conditioned the granting of the permit on stated conditions precedent and conditions subsequent in order to protect the rights of the landowners. If those requirements are not properly complied with or if the plaintiffs, as adjacent landowners, are subjected to intolerable conditions on the landfill property which would constitute a nuisance, then the plaintiffs may seek appropriate relief in the district court.” Wolfe’s failure to provide the City with detailed plans concerning all aspects of the special use permit application did not make the City’s grant of the permit unreasonable. Such a finding would render meaningless the detailed conditions precedent and conditions subsequent placed upon Wolfe by the City. As pointed out in Daniels, if the conditions set by the City are not properly complied with, the appellants can always seek appropriate relief in the district court. We are sympathetic to the concerns of appellants about the location of this landfill with its attendant increased traffic, creation of health hazards and detraction from scenic areas. However, the public need for adequate sanitary landfills cannot be ignored since the failure to provide for adequate waste disposal creates health hazards and destroys scenic beauty of greater magnitude, affecting the entire community. No one questions the need for this landfill. The sole question is its location. There are few locations available for landfills in an urban area. An examination of the record shows that learned counsel for ap pellants made the City aware of all the objections to this location. The engineers’ report and the findings of fact show the City considered the objections in making its decision. This court’s power is limited to determining the lawfulness and reasonableness of the City’s actions. There is a presumption the action was reasonable which must be overcome by a preponderance of the evidence. The courts may not substitute their judgment for that of the City. Since there is no question a City has the lawful authority to issue special use permits, the remaining question is the reasonableness of its action in so doing. We have held an action is unreasonable when it is so arbitrary it can be said it was taken without regard to the benefit or harm to the community at large and was so wide of the mark that its unreasonableness lies outside the realm of fair debate. Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, 29, 605 P.2d 533 (1980). The issue here was clearly within the realm of fair debate. Thus, we conclude the district court did not err in finding the City’s action granting the special use permit to be lawful and reasonable. The judgment is affirmed. Miller, J., dissenting: The special use permit issued by the City is for the operation of a “sanitary landfill,” an innocuous enough expression which has found its way into governmental jargon. In plain English, however, we are talking in this case about an enormous garbage and trash dump, where the refuse of the City will be piled and will occasionally be covered by layers of earth, spread about by earth-moving equipment. The operation will be four blocks distant from a large shopping center, now visited by 10,000 people daily. It will be at a higher elevation than the center and will be visible therefrom. It is near homes, a medical building, and other shopping areas. The usual wind currents in the area are from the southwest, and the project is southwest of the shopping center. While time does not permit me to state my views fully, I respectfully disagree with my colleagues that the action of the City in this case is reasonable. If this is reasonable, then it will be reasonable to authorize the location and operation of other garbage and trash dumps, feed lots for cattle and hogs, and most any other such venture, at any location in any city — so long as the officials have “considered” and enumerated the appropriate factors. I respectfully dissent.	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The opinion of the court was delivered by Herd, J.: This is an appeal from the district court’s grant of summary judgment in favor of Executive Financial Services (EFS) on its breach of contract claim, and the subsequent dismissal of defendants’ counterclaim based on negligence. This case arose out of the sale and lease/financing of three tractors. EFS purchased the three tractors from Tri-County Farm Equipment Company (Tri-County), a John Deere farm implement dealership corporation owned by James Loyd and Gene Mohr. EFS then leased the tractors to Mohr-Loyd Leasing, a partnership between Mohr and Loyd. The primary business purpose of the partnership was to buy office equipment and vehicles for lease to Tri-County and to act as a tax shelter for Mohr and Loyd. A secondary operation of the partnership involved the acquisition of farm equipment for lease to farmers. The first transaction involves John Deere tractor model No. 8640. On July 19, 1982, James Loyd executed a purchase order on behalf of Tri-County, whereby Tri-County sold John Deere tractor model No. 8640 to EFS for $48,000. Concurrently, Loyd signed an agreement allegedly on behalf of Mohr-Loyd Leasing, whereby Mohr-Loyd agreed to lease the tractor from EFS. Loyd also completed a resolution of the Roard of Directors of TriCounty authorizing Tri-County’s corporate guarantee of the lease transaction. As payment for the tractors, EFS issued a $48,000 check made payable to Tri-County, which was deposited by Loyd into one of his personal business accounts. Similar documents exist with respect to the second and third lease transactions, whereby two more John Deere tractors were purchased by EFS from Tri-County and leased to Mohr-Loyd Leasing. The second transaction was completed on August 30, 1982, for a purchase price of $19,000. The third transaction was completed November 3, 1982, for a purchase price of $38,000. Within two months of these transactions, Loyd sold all three tractors to third parties and Mohr-Loyd Leasing and Tri-County defaulted on the leases. EFS then filed the present action on May 6, 1983, alleging breach of contract, fraud, conversion and embezzlement, and seeking money damages and replevin. TriCounty Farm Equipment and Gene Mohr then filed a counterclaim against EFS based on negligence. The trial court granted summary judgment in favor of EFS on its breach of contract claim and summarily dismissed appellants’ counterclaim. The trial court then stayed execution on the judgment pending the outcome of litigation in two related cases, captioned Executive Financial Services, Inc. v. Donald H. Pagel, et al., case No. 83-C-84 in the Jackson District Court, and Executive Financial Services v. Marvin Allen, Jr., et al., case No. 121639 in the Johnson District Court. Judgment has since been rendered in these cases and they are the subject of a consolidated appeal to this court. See Executive Financial Services, Inc. v. Pagel, 238 Kan. 809, 715 P.2d 381 (1986). Appellants Gene Mohr and Tri-County appeal from the district court’s grant of summary judgment in favor of EFS and EFS cross-appeals from the district court’s stay of execution on the judgment and dismissal of Count II of its petition. The first issue on appeal is whether a material question of fact remained as to James Loyd’s actual or apparent authority to act for or on behalf of Mohr-Loyd Leasing or Tri-County Farm Equipment Company. The trial court found that Loyd, as an officer and agent of the corporation, had the authority to bind Tri-County and, as a general partner, had the authority to bind Mohr-Loyd Leasing. The question of Loyd’s authority to act on behalf of Mohr-Loyd Leasing is governed by K.S.A. 56-309(a) and (b), which provides: “(a) Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on in the usual way the business of the partnership of which he or she is a member binds the partnership, unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom the partner is dealing has knowledge of the fact that he or she has no such authority. “(b) An act of a partner which is not apparently for the carrying on of the business of the partnership in the usual way does not bind the partnership unless authorized by the other partners.” Thus, we see a partner’s authority to act is limited to transactions within the scope of the partnership business, or within the apparent scope of the partner’s authority. Appellants contend Loyd’s transactions with EFS were not for the purpose of the “carrying on of the business of the partnership in the usual way” and that Loyd had no authority to act on behalf of the partnership in this particular matter. In other words, they claim Loyd was not authorized to commit illegal acts and that neither the partnership nor corporation should be bound by such acts. The evidence established, and the trial court held, that the business of Mohr-Loyd Leasing involved the purchase of office equipment and vehicles for lease to Tri-County and the acquisition of farm equipment for lease to farmers. Thus, Loyd was acting within the usual course of the partnership business when he acquired three tractors from EFS for subsequent lease to farmers. The fact that Mohr-Loyd Leasing did not actually lease the tractors to farmers is immaterial. Thus, as a general partner, Loyd had both apparent and actual authority to act within the usual course of partnership business, even though he used his authority illegally. The trial court did not err in so holding. Likewise, Tri-County is bound by the acts of Loyd since generally a corporation is bound by contracts entered into on its behalf by its duly authorized officers or agents acting within the scope of their authority. Loyd was a director, officer and fifty percent shareholder in Tri-County. He was authorized to sign all orders, contracts and notes for Tri-County. Thus, Loyd acted within the scope of his authority in guaranteeing the lease transaction in question. The fact that Mohr was not aware of the lease transactions and did not specifically authorize them is not controlling here since Loyd was acting within the scope of his authority. A corporation may be bound by a contract entered into by an agent or officer even if it is not communicated to the company. 18B Am. Jur. 2d, Corporations § 1666, p. 519. Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Peoples Nat’l Bank & Trust v. Excel Corp., 236 Kan. 687, 695, 695 P.2d 444 (1985). The trial court did not err in finding no material question of fact remained as to James Loyd’s authority to act on behalf of either Mohr-Loyd Leasing or Tri-County. Appellants next contend the trial court erred in granting summary judgment prior to the hearing date set by the parties for oral argument. EFS, along with its motion for summary judgment, filed a notice for hearing on March 16, 1984. The trial court filed its memorandum decision sustaining EFS’s motion for summary judgment on March 8, 1984. Supreme Court Rule 133, 235 Kan. cv-cvi, provides in part: “If the motion [seeking a ruling on the merits of the action] also contains a request for oral argument, or within five days of the service of the motion an adverse party serves and files a request for oral argument, no ruling shall be made on the motion without opportunity being given to counsel to present such arguments.” EFS contends its motion for summary judgment contained no request for oral argument, but was merely the required notice of a date and time for hearing. Thus, EFS argues that the appellants were required to file a request for oral argument. Since appellants failed to do so, EFS contends appellants have no grounds for complaint on appeal. Under Rule 133, the adverse party has five days from the date of service of the motion to request oral argument. Appellants had an opportunity to request oral argument, but they did not do so, thus they cannot now complain of the trial court’s granting summary judgment without the benefit of oral argument. The notice of the time and place of hearing of a motion is not a request for oral argument. Appellants also allege the trial court erred by considering an “unverified affidavit” in rendering its summary judgment decision. On January 31, 1984, EFS submitted the unverified affidavits of Michael Cohen and James Neese for the trial court’s consideration in rendering its decision on EFS’s motion for summary judgment. Appellants admit that a verified affidavit of Michael Cohen was later filed but contend the Neese affidavit was never properly submitted. Appellants’ argument on this issue is without merit since the properly verified affidavit of James Neese was filed with the trial court on February 10, 1984, and is a part of the record on appeal. The appellants next contend the trial court erred in dismissing their counterclaim against EFS since a material question of fact remained as to the alleged negligence of EFS. Appellants filed a counterclaim against EFS based on the second and third lease transactions which formed the basis of EFS’s claim against Tri-County and Mohr-Loyd Leasing. As support for their claim, appellants alleged that EFS either knew or should have known that the proceeds from checks delivered to Loyd were diverted from Tri-County to Loyd’s personal business account. Additionally, appellants argue EFS should have known that the signatures on the sale and lease transactions purporting tobe Gene R. Mohr’s were forgeries. Finally, appellants suggest that EFS knew the Tri-County corporate resolutions obtained by EFS were fraudulently obtained by Loyd. Appellants filed a timely request for jury trial on the issue of EFS’s negligence. The trial court ruled on appellants’ counterclaim as follows: “That the counterclaim of defendants Gene Mohr, Mohr-Loyd Leasing arid Tri-County Farm Equipment Co. against plaintiff is hereby dismissed by virtue of this court’s judgment entered against them.” EFS argues the above ruling was proper since no material question of fact remained as to the issue of EFS’s negligence. We have determined that Loyd had authority to conduct the transactions in question, and thus EFS had no reason to know of any lack of authority, and no duty to investigate the situation any further. Appellants also allege the trial court erred in dismissing their counterclaim without setting forth specific findings of fact and conclusions of law to support its order of dismissal. This argument lacks merit since, in the journal entry dismissing defendants’ counterclaim, the court stated, “[T]he Memorandum Decisions of this court filed March 8, 1984, and July 13, 1984, are the findings of fact and conclusions of law of this court and are incorporated herein by reference as though more fully set out herein.” In the memorandum decisions of March 8 and July 13, the court sets out the findings of fact and conclusions of law relevant to the defendants’ counterclaim. We can find no error in the trial court’s failure to repeat the findings of fact and conclusions of law in its decision dismissing appellants’ counterclaim. In its cross-appeal, EFS argues the trial court erred in imposing a stay of execution upon its judgment against appellants, pending the outcome of two cases, Executive Financial Services, Inc. v. Donald H. Pagel, et al., case No. 83-C-84, in the district court of Jackson County, and Executive Financial Services, Inc. v. Marvin Allen, Jr., et al., case No. 121639, in the district court of Johnson County. Judgment has since been rendered in these cases and they are presently the subject of consolidated appeals in this court. EFS has since proceeded to judgment in this case and the trial court’s stay of execution was effectively lifted. Any decision by this court as to the appropriateness of the stay imposed by the trial court would be of no consequence, since EFS was denied judgment in the other cases and the stay has been lifted. Thus, the issue is moot. As often repeated, we will not decide questions when our decision will not pertain to an actual case or controversy and where the judgment itself would be unavailing. State ex rel. Stephan v. Pepsi-Cola Gen'l Bottlers, Inc., 232 Kan. 843, 844, 659 P.2d 213 (1983). EFS also cross-appeals on the ground the trial court erred in holding EFS was precluded from recovery against the appellants based upon fraud, conversion and embezzlement, since EFS had already been granted judgment on its breach of contract claim. The trial court recognized the claims were not inconsistent but found plaintiff could not be permitted to recover twice for the same element of damages. The damages which EFS sought were identical under both Counts I and II of its petition, with the exception of punitive damages. Since the trial court found for EFS on Count I of its petition alleging breach of contract, EFS was precluded from recovering damages under the tort theories alleged in Count II of its petition. A verdict of actual damages is essential for a recovery of punitive damages. Lindquist v. Ayerst Laboratories, Inc., 227 Kan. 308, 316, 607 P.2d 1339 (1980). Since EFS could not recover actual damages under its tort theories, no award of punitive damages was possible. The trial court did not err in dismissing Count II of appellee’s petition. The judgment of the trial court is affirmed.	[ -12, 108, 89, -52, 24, -30, 58, 26, 91, -92, 55, 83, -93, -14, 16, 109, -28, 93, -27, 104, 87, -78, 103, -30, -41, -69, -21, -35, -72, 79, -90, 68, 76, -80, -126, 93, -28, -62, -59, 28, 86, 6, -69, 104, -3, 112, 60, -85, 20, 73, 97, -114, 59, 46, 61, 66, 105, 42, -21, 41, -64, -15, -21, 5, 95, 23, -78, 4, -104, 65, -54, 46, -128, -7, 40, -7, -70, -90, -44, -12, 11, -71, 9, 38, 102, 0, 20, -49, -36, -120, -122, -37, 31, -92, -112, 88, 27, 35, -66, 31, 114, 18, 6, -4, -19, -115, 31, 109, 5, -50, -106, -109, -81, -32, -100, 11, -25, 11, 49, 113, -113, -14, 92, 87, 114, 31, -122, -77 ]
These are two original proceedings filed with the Kansas Board for Discipline of Attorneys (Board) by Arno Windscheffel, disciplinary administrator, against Frank W. Hylton, of Wichita, an attorney admitted to practice in the State of Kansas. The complaints filed with the Disciplinary Board on or about August 13, 1985, each alleged that respondent had neglected legal matters entrusted to him and had failed to refund money due the complainant. The two complaints were consolidated before the Board and remain so in this court. Complaint No. W 3438 involved Ronald Hall, who retained respondent on or about August 10, 1984, to represent him in the filing of a bankruptcy action. Hall paid respondent a $200.00 retainer and turned over the keys to a Cadillac automobile with instructions that it should be returned to the bank that had a lien upon it. Respondent failed to file the bankruptcy action or to deliver the automobile to the bank. On or about October 17, 1984, at respondent’s request, Hall paid an additional $65.00 for the filing fee. Again, respondent failed to file the bankruptcy action and about December 1, 1984, on demand of Mr. Hall, respondent refunded the filing fee but failed to return any portion of the $200.00 retainer. In addition, respondent could not remember what he had done with the Cadillac. At the hearing held before a panel of the Board on October 17,1985, respondent failed to appear although duly notified in accordance with the rules of the Board and the Supreme Court. The panel found that respondent had neglected a legal matter entrusted to him and, in view of the fact that respondent had been admonished in several previous cases for neglect of clients’ matters and that respondent had failed to comply with orders of the Disciplinary Administrator in connection therewith, recommended punishment by disbarment. Complaint No. W 3449 concerned Steve Scuka, who retained respondent on or about November 1, 1984, to file a Chapter 13 bankruptcy proceeding. Respondent, after having accepted $120.00 from Mr. Scuka, failed to file the action, resulting in Mr. Scuka’s checking account being garnished on December 28, 1984, with a loss to the client of approximately $300.00. After receiving an additional $60.00 from his client, respondent finally filed the action on January 28, 1985. The following day, respondent was notified by the Clerk of the Bankruptcy Court that the petition was defective and inadequate. Respondent took no action to correct the deficiencies. Again, the panel of the Board found that respondent had neglected a legal matter entrusted to him and recommended disbarment. In April 1985, following numerous complaints to the Supreme Court alleging neglect, the Court issued an order to respondent to appear before the court on April 12, 1985, to show cause why he should not be temporarily suspended from the practice of law. Although respondent was duly notified and received a copy of the show cause order, he advised the office of the disciplinary administrator that he would not appear and did not want to contest the show cause order. An order temporarily suspending respondent from the practice of law was issued by this court April 25, 1985. The court has carefully considered the report of the Board in these proceedings and concurs in its recommendations. IT IS THEREFORE ORDERED that Frank W. Hylton be and he is hereby disbarred from the practice of law in the State of Kansas and the Clerk of the Appellate Courts is hereby directed to strike the name of Frank W. Hylton from the rolls of attorneys admitted to practice in Kansas. IT IS FURTHER ORDERED that Frank W. Hylton shall forthwith surrender to the Clerk of the Appellate Courts his certificate to practice law in Kansas. IT IS FURTHER ORDERED that this order shall be published in the official Kansas Reports and that the costs herein be assessed to the respondent. Effective this 21st day of February, 1986.	[ -80, -21, -55, -34, 10, 32, 58, 42, 113, -29, 115, 87, -19, -25, 13, 125, -12, 57, -12, 123, -57, -109, 114, -23, -26, -70, -7, -43, -70, 79, -11, -107, 73, -80, -62, -123, -122, -126, -59, 92, -50, 7, 9, -16, -39, 0, 48, -87, 22, 9, 113, 14, -93, 43, 51, 79, 104, 104, -1, 105, -48, -80, -101, 21, 127, 19, -127, -106, -100, 15, 80, 63, -120, 48, 3, -23, 34, -74, -122, 84, 11, -119, 4, 38, 98, 35, 17, -17, -96, -120, 6, -7, -97, -125, -15, 85, 3, 33, -106, -98, 117, 18, 7, -4, -20, -107, 45, 104, 8, -53, -12, -111, 30, 7, -36, -101, -17, -85, 52, 113, -119, -10, 95, 23, 56, 59, -114, -75 ]
The opinion of the court was delivered by Holmes, J.; Plaintiff Raymond Girrens appeals from a jury verdict denying recovery under the uninsured motorist clause of his father’s automobile insurance policy. The principal facts are not in dispute. On February 27, 1977, plaintiff sustained personal injuries in an off-highway accident when the motorcycle he was riding was involved in a collision with another motorcycle, neither of which was insured. Plaintiff sustained severe injury and has been partially compensated under the medical payment and personal injury protection coverage in the policy. Plaintiff s father, Lawrence Girrens, was the named insured in five automobile policies covering his various vehicles, all of which were issued by the defendant, Farm Bureau Mutual Insurance Company, Inc. (Farm Bureau). The provisions of the policies applicable to this action were identical and hereafter the policies will be referred to in the singular. Farm Bureau denied recovery under the policy based upon its definition of the “insured” in the uninsured motorist coverage section of the policy. This suit followed, resulting in a jury verdict for Farm Bureau. Additional facts will be set forth as they become relevant to the various issues on appeal. The essential inquiry, both at trial and on appeal, is whether Raymond Girrens fell within the definition of “insured” set forth in the uninsured motorist section of his father’s automobile insurance policy. The definition of “Insured” found in that section of the policy provides: “(a) Insured. The unqualified word insured means (1) the named insured if an individual, or spouse if a resident of the same household, or any dependent person whose legal residence is the household of the named insured and with respect to whom the named insured or spouse is a parent or stands in loco parentis.” (Emphasis added.) The foregoing definition of “insured” generates two of the plaintiffs principal issues on appeal. First, he contends the definition illegally limits the coverage under the uninsured motorist clause to a more restrictive class than other definitions in the policy. Second, it is asserted that the term “dependent person” is ambiguous and should be construed to include the plaintiff. Plaintiff contends that, as the definition of insured under the personal injury protection and medical payment coverages includes relatives under certain circumstances, the uninsured motorist coverage must also cover those relatives, including plaintiff. The policy provides: “III. DEFINITION OF INSURED. (a) with respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either. . . . (b) with respect to Coverage C-Medical Payments, the unqualified word ‘insured’ includes the named insured, if an individual, his spouse or relatives of either while residents of the same household.” It is apparently plaintiff s position that Farm Rureau could not limit its liability under the uninsured motorist clause except as provided under the broadest coverage which may be found anywhere in the policy. Having included “relatives . . . while residents of the same household” in its medical payment coverage, it is asserted that similar coverage must be provided under the uninsured motorist provision of the policy. As stated in plaintiff s brief, “if a person is an insured under any portion of the policy, the person must also be an uninsured motorist insured.” Plaintiff relies upon K.S.A. 1985 Supp. 40-284 and Forrester v. State Farm Mutual Automobile Ins. Co., 213 Kan. 442, 517 P.2d 173 (1973), to support his position. K.S.A. 1985 Supp. 40-284 provides in part: “(a) No automobile liability insurance policy covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, unless the policy contains or has endorsed thereon, a provision with coverage limits equal to the limits of liability coverage for bodily injury or death in such automobile liability insurance policy sold to the named insured for payment of part or all sums which the insured or the insured’s legal representative shall be legally entitled to recover as damages from the uninsured owner or operator of a motor vehicle because of bodily injury, sickness or disease, including death, resulting therefrom, sustained by the insured, caused by accident and arising out of ownership, maintenance or use of such motor vehicle, or providing for such payment irrespective of legal liability of the insured or any other person or organization.” In Forrester the court was faced with an unusual set of facts which the trial court observed would not occur again “in a million auto collisions.” The named insured, Raymond Noel, was the owner of two automobiles, only one of which was insured. Plaintiff Forrester was injured while a passenger in the insured vehicle, driven by one of Raymond’s sons, which col lided with the uninsured Noel vehicle being driven by another of Raymond’s sons. Forrester sought recovery under the uninsured motorist coverage of the policy issued upon the car in which he was a passenger. The defendant denied coverage based upon an exclusion in the uninsured motorist coverage for any injury received from being struck by an uninsured vehicle also owned by the named insured, Raymond Noel. “Insured” was defined in the Noel policy as: “(1) the first person named in the declarations and while residents of his household, his spouse and the relatives of either; . . .” It does not appear there was any separate definition of insured under the uninsured motorist coverage section of the policy and the defendant relied solely upon the exception denying coverage if both vehicles involved in the collision were owned by the same person. The court stated: “Actually, the precise question whether an insurer has the right to restrict uninsured motorist coverage to exclude any and all persons, including relatives and passengers — -except the named insured, is not before us here; we merely hold that the statute requires that coverage be afforded those persons falling within “insured” as defined in the policy. In the instant case plaintiff is an insured under definitions set forth in the policy and thus has a statutory right to the protection for the ‘insured’ required by the statute.” 213 Kan. at 447-48. “We hold that plaintiff as an insured under the policy is an insured within the meaning of the statute and that the exclusion operates to annul the coverage mandated therein, thus, the exclusion is void with respect to a person in plaintiffs position. We do not determine herein the limits of the power of defendant, within statutory authority, to predetermine who is to be an insured. Our holding is limited to the facts herein that where an insured, in an insured automobile, is injured by an uninsured motorist the coverage mandated by the statute precludes his exclusion.” 213 Kan. at 451-52. The court concluded that as Forrester was included within the definition of insured for uninsured motorist coverage, it could not then be limited by an exclusion. In doing so, the court held: “An exclusionary clause of an uninsured motorist provision of an insurance policy which purports to exclude from coverage ^n insured person occupying the insured automobile when his injuries are caused by an uninsured operator of an uninsured automobile because it was owned by the named insured, is void and of no effect as an attempt to dilute the statutory mandate of uninsured motorist coverage. (K.S.A. 1972 Supp. 40-284.)” 213 Kan. 442, Syl. ¶ 6. In Farmers Ins. Co. v. Schiller, 226 Kan. 155, 597 P.2d 238 (1979), the court had before it a consideration of whether Schiller fell within the definition of insured as a permissive user of the vehicle. The court recognized that 40-284 was controlling and stated: “In issuing a policy of insurance a company has a right of contract which permits the company to predetermine who is to be ‘the insured.’ [Citation omitted.] This court has held, however, that when that determination is once made the persons insured under the uninsured motorist coverage cannot then be so defined to limit or restrict the persons insured and thereby dilute coverage under the uninsured motorist provisions of the policy. A person covered or insured as a named insured in the policy cannot be eliminated by definition from uninsured motorist coverage. [Citation omitted.] In the present case the persons to whom the coverage is extended under the uninsured motorist provisions of the policy are restricted no more than in the other provisions of the policy. The persons predetermined for coverage in the policy are covered against the uninsured motorist. Insurance coverage is not present in either event when the vehicle is being operated by a third party without the express or implied permission of the insured. “K.S.A. 40-284 requires that insurance companies provide coverage for personal injuries sustained ‘by the insured.’ The persons insured under the general policy may be predetermined by the company to include a named insured, a relative, or a passenger occupying the insured vehicle provided the actual use of the vehicle is by the named insured or any other person with permission of the named insured. The uninsured motorist statute was not enacted to provide coverage for everyone.” 226 Kan. at 161-62. We are not faced with a policy restriction which attempts to dilute uninsured motorist coverage by limiting those covered by the policy to a class more restrictive than the insureds under the general liability provisions of the policy. Under those provisions only the insured, his or her spouse and permissive users are considered insured. For uninsured motorist coverage, the insured not only includes those individuals but is extended to cover a “dependent person” under certain circumstances. Under the Kansas automobile injury reparations act, K.S.A. 1985 Supp. 40-3107 requires every motor vehicle liability policy to insure the named insured and persons using the vehicle with the consent of the named insured. The same statute requires personal injury protection benefits must include the named insured, relatives residing in the same household, permissive users and others under certain circumstances. Thus, the statutes contemplate that there may be more than one definition of an insured in the same policy. K.S.A. 1985 Supp. 40-284 requires every automobile liability insurance policy to include uninsured motorist coverage and we hold that the class of insureds under such coverage cannot be more restrictive than the class covered by the liability coverage for personal injury and property damage under K.S.A. 1985 Supp. 40-3107. In the present policy it is clearly stated on the face of the policy that: “UNINSURED MOTORIST COVERAGE (A-l) is provided as a part of the Bodily Injury Coverage; . . .” We conclude the definition of “insured” contained in the uninsured motorist provisions of the subject policy complies with the requirements of the statutes and is not controlled by the medical payment or personal injury protection clauses. Plaintiffs next argument is that the term “dependent person” is ambiguous and therefore the policy must be construed to include plaintiff as an insured under the uninsured motorist coverage. When a question arises regarding the interpretation of an insurance contract, a number of well-settled legal principles must be considered. If the policy provisions are clear and unambiguous there is no need for application of rules of construction. Maryland Cas. Co. v. Alliance Mut. Cas. Co., 223 Kan. 674, 676, 576 P.2d 625 (1978). An ambiguity is said to exist if the words used in the contract may be understood to reach two or more possible meanings. Western Casualty & Surety Co. v. Budig, 213 Kan. 517, 519, 516 P.2d 939 (1973). Where an insurance contract is open to different constructions, that most favorable to the insured must be adopted, but this rule does not authorize a perversion of the language or the exercise of inventive powers for the purpose of creating an ambiguity where none exists. Central Security Mut. Ins. Co. v. DePinto, 235 Kan. 331, Syl. ¶ 2, 681 P.2d 15 (1984). While the term “dependent person” may have different meanings under differing factual situations, we do not find the term so ambiguous under the facts and insurance policy herein as to require as a matter of law that it be construed to include plaintiff. At the time of the accident plaintiff was twenty-three-years old, single and lived at home on the family farm. He was employed full time as a machinist and supplemented his income with farm work. He did not own a licensed vehicle. His parents provided him with room, board and transportation, in that he was free to use one of his father’s vehicles. In return he worked on the family farm and there was some evidence that he did so in exchange for the room, board and transportation furnished by his parents. In his brief plaintiff points to cases wherein words such as “relatives,” “resident,” “member,” “household” and “family” have been construed because of their ambiguous nature. It is argued “dependent person” is also subject to the rules of construction. Although it obviously needs definition, it does not necessarily follow that plaintiff is automatically brought within the policy coverage as an insured. The trial court, in its instruction number 6, which will be discussed in detail later, provided the jury with a definition and guidance sufficient for it to determine whether plaintiff was a “dependent person.” Plaintiff takes the position that the ambiguity also extends to the term “insured” and as “insured” is defined for personal injury protection and medical payment coverage as including relatives, then we must construe “insured” under the uninsured motorist clause to also include relatives. We do not agree. The term “insured” as it applies to the uninsured motorist is clear with the possible exception of the determination of who is a dependent person. The fact that such a determination may need to be made does not automatically extend coverage to include relatives who would not otherwise qualify under the policy. While it does not appear that the term “dependent” or “dependent person” has arisen before in the context herein presented, it has been considered in various factual situations hundreds of times. See 12 Words and Phrases, “Dependent; Dependency.” Although the present policy does not define the nature of the dependency required to invoke coverage, we think it is clear that the term relates to a monetary or otherwise generally accepted familial dependence for care and sustenance. The requirement that the dependent person be “a resident of the same household, or any dependent person whose legal residence is the household of the named insured and with respect to whom the named insured or spouse is a parent or stands in loco parentis” makes it clear that a parental setting or environment is contemplated. Early Kansas cases pertaining to fraternal insurance have had occasion to consider who may be considered a dependent. In Johnson v. United Workmen, 91 Kan. 315, 137 Pac. 1190 (1914), the court quoted with approval from a Massachusetts case as follows: “ ‘The beneficiary must be dependent upon the member in a material degree for support, or maintenance, or assistance, and the obligation on the part of the member to furnish it must, it would seem, rest upon some moral, or legal, or equitable grounds, and not upon the purely voluntary or charitable impulses or disposition of the member.’ ” p. 317, See also Rollins v. Independent Order, 124 Kan. 166, 257 Pac. 754 (1927); Modern Woodmen v. Comeaux, 79 Kan. 493, 101 Pac. 1 (1909). Plaintiff goes to great lengths to point out that no cases exist on the precise point before the court because no other company has used the term “dependent person” in its designation of uninsured motorist coverage. It is true the specimen policies included in the record usually cover relatives and others but that does not require as a matter of law that the policy in question be construed to include persons obviously not contemplated under the clear language of the uninsured motorist clause, We agree with the trial court that a determination of whether plaintiff was a “dependent person” was a question of fact to be submitted to the jury under proper instructions. Even under our doctrine of liberal construction, we cannot totally ignore the policy language and extend coverage where it is not contemplated in the policy or is not required by statute. We also note that while the language used here is no longer included in Farm Bureau’s policies, the form of the policy in question was approved by the Kansas insurance commissioner at the time of the accident herein. Next, plaintiff asserts the trial court erred in its instructions to the jury on the definition of “dependent person.” Many definitions from other cases and authorities are submitted in an attempt to discredit the trial court’s instructions, which read: “Instruction No. 6 “You are instructed that a ‘dependent person’ is one who relies on substantial contributions from another person, without which he would be unable to afford the reasonable necessities of life. “He is not required to establish the status of a present total and absolute reliance upon that person for those contributions, but looks to that person and relies upon him for them with substantial regularity. “As used in this instruction, ‘contributions’ are money, services, goods, or a means of living, given without cost to the recipient, and for which the recipient did not provide money, services or goods in exchange.” “Instruction No. 7 “The fact that Raymond Girrens declared himself as a dependent on his income tax returns and that his father, Lawrence Girrens, did not, is not determinative of the issue of dependency of the Uninsured Motorist provisions. The definition of ‘dependent’ adopted by the Internal Revenue Department is not in evidence before you and may not be used as the definition for your use in determining whether Raymond Girrens was a dependent person.” The trial court is required to instruct the jury on the law applicable to the facts of the case. State v. Payton, 229 Kan. 106, 111, 622 P.2d 651 (1981). It is clear that error cannot be predicated on the trial court’s refusal to give an instruction when its substance is adequately covered in other instructions. Powers v. Kansas Power & Light Co., 234 Kan. 89, 92, 671 P.2d 491 (1983). If jury instructions properly and fairly state the law as applied to the facts of the case when they are considered as a whole, and if the jury could not reasonably be misled by them, the instructions should be approved on appeal. Douglas v. Lombardino, 236 Kan. 471, 480, 693 P.2d 1138 (1985). Plaintiff asserts the language in the court’s instruction to the effect that without the contribution of his parents “he would be unable to afford the reasonable necessities of life” establishes an unreasonable standard which does not conform to a liberal construction of the policy. Definitions of a dependent may be found which cover the gamut from total dependency to a mere gratuitous contribution enjoyed but not actually needed by the recipient. Instructions requested by plaintiff also covered the entire range of possibilities. In the context used in the present policy, we are of the opinion that a substantial contribution required to provide the necessities of life is not an unreasonable standard. Here the plaintiff was employed full time as a machinist with supplemental income provided from farming. It cannot be said that just because plaintiff, 23 years old, had never left the family farm and enjoyed the benefits thereof he was a “dependent person.” We find no error under the facts of this case in the instructions given by the trial court. The refusal of the trial court to rule as a matter of law that plaintiff was not a dependent person would appear to be a liberal construction of the policy language under these facts. Plaintiff s next contention is that the court erred in requiring production of a transcript of a statement given by plaintiff to his attorney at a time when the attorney-client relationship existed as to this case. On December 13, 1979, plaintiff s deposition was taken by defense counsel and in preparation for the deposition the plaintiff reviewed a transcript of an oral statement made to his attorney on July 14, 1977, nearly two and one-half years earlier. Defense counsel demanded a copy of the transcript for use in deposing the plaintiff and, when plaintiffs counsel refused, a motion was made to the court to compel production of the transcript. The motion was sustained and defense counsel then utilized the transcript at trial in his cross-examination of the plaintiff and attempted to use it in cross-examination of the plaintiff s father. Defendant asserts that plaintiff has acquiesced in the trial court’s order and that it is not a proper issue on appeal. We find defendant’s argument as to acquiescence to be without merit. Plaintiff asserts that the court’s production order violates the lawyer-client privilege in K.S.A. 60-426(a), which states in part: “[Cjommunications found by the judge to have been between lawyer and his or her client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege (1) if he or she is the witness to refuse to disclose any such communication, and (2) to prevent his or her lawyer from disclosing it, and (3) to prevent any other witness from disclosing such communication . . . .” Certain exceptions are included in the statute, none of which are applicable here. We also note that the defendant has not seen fit to brief the merits of plaintiff s position, perhaps in recognition of the weakness of its own. The principal case relied on by the trial court in holding that privileged documents may be used in preparation for depositions is Wheeling-Pittsburgh Steel v. Underwriters Labs., 81 F.R.D. 8 (N.D. Ill. 1978). In Wheeling a corporate vice-president used a file captioned “Communications with Counsel” to prepare for his deposition. The district court held that Fed. R. Evid. 612 allowed discovery of these privileged documents under the facts of the case. Rule 612 provides in part: “[I]f a witness uses a writing to refresh his memory for the purpose of testifying, either— (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interest of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.” Plaintiff correctly notes that Rule 612 has no counterpart in the Kansas Rules of Evidence. The trial court’s ruling, if approved, would not only hamper proper trial preparation but would also contravene applicable statutory and case law on the subject. The essential purpose of the lawyer-client privilege is to secure the client’s confidence and promote freedom of consultation with legal advisors by clients. Cranston v. Stewart, 184 Kan. 99, 103, 334 P.2d 337 (1959). In Fisher v. Mr. Harold’s Hair Lab, Inc., 215 Kan. 515, 519, 527 P.2d 1026 (1974), we stated: “The rule has always been that communications between attorney and client are privileged when made in professional confidence — this is the essence of our code governing the subject [Citation omitted].” In our statutes governing discovery, K.S.A. 60-226 provides in part: “(b) Scope of discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) In general: Parties may obtain discovery regarding any matter, not privileged which is relevant to the subject matter in the pending action, . . . Except as permitted under paragraph (3) of this subsection, a party shall not require a deponent to produce, or submit for inspection, any writing prepared by, or under the supervision of, an attorney in preparation for trial.” (Emphasis added.) Again, the exceptions and conditions in the statute do not apply to the facts of this case. We are not impressed by the federal authorities cited by the defendant in the trial court and find no basis for their application under our rules and statutes. Here there was no showing of necessity or that denial of production would prejudice the preparation of the defendant’s case or cause any hardship or injustice. See Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947); K.S.A. 60-226(b)(3). It would be difficult to imagine any lawyer-client communication that would, of necessity, be more subject to the privilege than the client’s statement to his lawyer of the circumstances of the event in question. In addition, it is a part of the work product of the lawyer necessary to the preparation for trial. We conclude the trial court erred in ordering production of plaintiff s statement to his lawyer and in allowing its use at trial. However, our conclusion that the trial court erred does not necessarily require the granting of a new trial. Under the provisions of K.S.A. 60-261, error in a trial proceeding which does not affect the substantial rights of the parties is to be considered harmless and does not constitute grounds for the granting of a new trial. We have carefully considered the record in this case and conclude that the discovery and use of plaintiff s privileged statement was harmless error and that substantial justice has been done in this case. The final issue on appeal is whether plaintiff is entitled to attorney fees. The relevant statute is K.S.A. 40-256. Under this statute, no provision is made for the awarding of attorney fees to an unsuccessful plaintiff. Accordingly, the trial court properly refused to grant plaintiff his attorney fees. Eis v. Hawkeye-Security Ins. Co., 192 Kan. 103, 386 P.2d 206 (1963). The judgment is affirmed.	[ -80, -8, -43, -84, 9, 32, 50, 74, 88, -51, -90, 19, -1, -58, 5, 33, -1, 125, 67, 43, -11, -93, 22, -110, -38, -109, -69, -59, -112, -37, 46, 125, 77, 48, -118, -43, 102, 8, -123, 16, -54, 2, -71, -23, 25, -46, -68, 90, 68, 79, 117, -97, 3, 46, 59, -25, 41, 32, 75, 57, -47, -72, -113, 15, 126, 16, 35, 4, -104, 39, 90, 10, -100, -69, 0, -8, 114, -74, -58, -76, 111, -103, 9, 98, 103, 35, 125, -52, -20, -104, -122, 2, 31, -123, -106, 57, 1, 10, -105, -99, 122, 16, 6, 124, -4, 93, 15, 124, 7, -113, -106, -95, -51, 100, 29, -117, -17, -49, 54, 113, -54, -14, 93, 85, 125, -101, -109, -102 ]
Per Curiam: This is an original proceeding in discipline filed by Arno Windscheffel, disciplinary administrator, against Christopher P. Christian, of Wichita, an attorney duly admitted to the practice of law in Kansas. On or about September 3, 1982, Hans Burgdorf retained respondent and the law firm of which he was a member to represent him in connection with a personal injury claim against the owners of Paradise Lake, a recreational lake in Sedgwick County. Hartford Insurance Company was the liability insurance carrier for Paradise Lake and was also a client of respondent’s law firm. Respondent failed to secure a settlement of Mr. Burgdorf s claim and failed to file suit prior to the running of the statute of limitations. Respondent did not advise his client that his claim was barred by the statute of limitations and did not advise his law partners. Respondent advised Mr. Burgdorf he had an offer of $1,500.00 from the Hartford, it was all it would pay, and he recommended it be accepted. Mr. Burgdorf agreed and accepted the $1,500.00, which was paid by respondent’s law firm and did not come from the insurance company. Subsequently the law firm discovered the questionable disbursement and, upon questioning, respondent admitted what had occurred. The foregoing facts, while greatly summarized, are not disputed by the respondent. The Kansas Board for Discipline of Attorneys held a hearing on the complaint and on August 26, 1985, filed its report with the clerk of the appellate courts in which it made extensive findings of fact. It also found: “It is the unanimous finding of the hearing panel that there is clear and convincing evidence that respondent neglected a legal matter entrusted to him, in violation of DR 6-101(A)(3), that respondent engaged in dishonesty, deceit and misrepresentation in violation of DR 1-102[A](4); that respondent’s conduct adversely reflects on his fitness to practice law in violation of DR 1-102[A](6); that respondent attempted to limit his liability to his client for his personal malpractice in violation of DR 6-102(A); that respondent knowingly made false statements of law and fact in violation of DR 7-102[A](5).” It then recommended that respondent be suspended from the practice of law for one year. In considering disciplinary proceedings the Supreme Court is not bound by the recommendations of the Kansas Board for Discipline of Attorneys and the same are advisory only. Supreme Court Rule 212(f), 235 Kan. cxxx; State v. Davitt, 234 Kan. 283, 671 P.2d 1123 (1983). After a careful review of the record, a minority of the members of the court would accept the recommendations of the disciplinary board. However, a majority of the court is of the opinion that the serious nature of the conduct of the respondent requires that he be indefinitely suspended from the practice of law in Kansas. It Is Therefore Ordered And Adjudged that Christopher P. Christian be and he is hereby indefinitely suspended from the practice of law in the State of Kansas and the costs of this action are assessed to the respondent.	[ -76, -22, -100, -82, 8, 97, 58, 34, 121, -37, 115, 115, -19, -54, 5, 125, -64, 45, 84, 106, -41, -78, 119, 0, 102, -13, -8, -44, -80, 79, -12, -41, 8, 56, -118, 85, -122, -118, -123, -40, -122, 6, 27, -4, -39, 65, 48, 123, 22, 15, 49, 30, 99, 43, 21, 75, -87, 40, 126, 45, -47, -111, -37, 5, 123, 19, -95, -108, 24, 3, 86, 59, -112, -80, 11, -23, 115, -74, -126, -12, 79, -87, -124, 102, 99, 33, 81, -59, -80, -104, 7, -80, 13, -121, -71, 88, 107, 1, -66, -67, 112, 20, 39, 108, 100, -35, 23, -28, 3, -49, -44, -109, -34, 68, -36, -121, -25, -125, 38, 65, -121, -26, 94, 95, 114, 27, 26, -91 ]
The opinion of the court was delivered by Prager, J.: This is a consolidated appeal from two separate rulings of the district court of Johnson County made during the administration of the estate of Frank J. Williams, deceased. The appellant is Kris L. Arnold, trustee in bankruptcy for the estate of Nelle Williams Gilmore, the daughter and sole heir-at-law of the decedent. The appellees are Terry L. Rees, as conservator for the three minor children of Nelle Gilmore; Jean Rea Gilmore Cushman, Nelle Gilmore’s adult daughter; and Benjamin F. Farney, administrator c.t.a. of the Williams estate. The essential facts in the case are for the most part undisputed and are as follows: On August 9, 1973, the deceased, Frank J. Williams, age 89, executed his last will and testament. The will provided, in substance, that, after the disposition of his tangible personal property, the residue of his estate was to be placed in trust with 30% for the benefit of his daughter, Nelle Gilmore, and the remainder for the benefit of his grandchildren. In September of 1974, the ¿ecedent was struck by an automobile and was admitted to the hospital. The decedent then executed a power of attorney, naming Nelle Gilmore his attorney in fact. Shortly thereafter, Nelle Gilmore and her attorney entered the decedent’s safety deposit box and withdrew all of the contents, including the decedent’s 1973 will. On October 25, 1974, while in the hospital, the decedent executed a codicil to his will. The codicil modified the trust for his grandchildren and appointed Nelle as his executrix. On October 16, 1980, decedent died and left a sizable estate. On August 3, 1982, Nelle Gilmore and her husband, Ted, filed for bankruptcy, and Kris L. Arnold was appointed trustee in bankruptcy. No formal proceedings were had in the estate until, at the request of Nelle Gilmore, Benjamin J. Farney filed a petition for determination of descent on March 14, 1983. Because of unpaid death taxes, it was necessary to commence a full administration of the estate, and Farney was appointed administrator on May 23, 1983. Thereafter, Farney sought to take possession of the assets of the estate and discovered that the decedent had executed the will and codicil mentioned heretofore. Farney then filed a petition for instructions relative to the probate of the 1973 will and the 1974 codicil under the provisions of K.S.A. 59-618. Nelle Gilmore filed written defenses in opposition to the petition to probate the lost will and codicil. Petitions for probate of the lost will and codicil were also filed on behalf of the grandchildren. On February 22, 1984, Kris L. Arnold, as trustee in bankruptcy, filed an answer objecting to the probate of the lost will and codicil. In May 1984, motions were filed on behalf of the decedent’s grandchildren to strike the written defenses of the trustee in bankruptcy on the basis that the trustee lacked the capacity to oppose the petition for probate. On June 7,1984, the district court filed a journal entry holding that the bankruptcy trustee was not a person who is permitted to contest the probate of a will under the provisions of K.S.A. 59-2224. Forty-eight days later, on July 25, 1984, Arnold, as trustee, filed a notice of appeal from the decision of the district court denying him standing to object or otherwise defend against admission of the lost will to probate. Thereafter, Nelle Gilmore, pro se, continued to oppose probate of the lost will and codicil. On September 18,1984, all of the family members entered into a family settlement in which they agreed that the lost will and codicil were to be admitted to probate. A full hearing was held, and the execution of the lost will and codicil was established by evidence. On September 21, 1984, a journal entry was filed by the court admitting the lost will and codicil to probate, and Benjamin L, Farney was appointed administrator c.t.a. No appeal was taken by anyone from the order admitting the will and codicil to probate. On October 25, 1984, Farney, as administrator c.t.a., having determined that certain land in Kansas City, Kansas, was titled in the name of the decedent, petitioned the district court for authority to sell the land. This land is described in the record as the Granada Theater land. On November 8, 1984, Arnold, as trustee in bankruptcy, ob jected to the proposed sale, claiming to have the status of a purchaser in good faith under the bankruptcy act and that Farney, as administrator c.t.a., had no right to sell the land, because it was properly a part of the bankruptcy estate of Nelle Gilmore and subject to the control of the trustee. On December 12, 1984, the district court entered an order authorizing the sale of the real estate. On January 10, 1985, Arnold, as trustee in bankruptcy, filed a notice of appeal from the order permitting the sale of the Granada Theater land. Case No. 57,541 is the appeal of Kris L. Arnold, as trustee in bankruptcy, from the decision of the district court denying the trustee standing to oppose admission of the lost will and codicil to probate. Case No. 57,777 involves the appeal of Arnold, as trustee in bankruptcy, from the order of the district court entered December 12, 1984, authorizing sale of the Granada Theater land. These two appeals were consolidated in the present proceeding. In Case No. 57,541, the issue presented is whether the trial court erred in holding that the trustee in bankruptcy lacked standing to oppose admission of the lost will and codicil to probate. In regard to this appeal, the appellees raise a jurisdictional issue. They maintain that the Supreme Court lacks jurisdiction to determine that appeal because the appeal was not timely filed. The record shows that on June 7, 1984, the district court filed its order denying the trustee standing to oppose the lost will and codicil. On July 25,1984, the trustee filed a notice of appeal more than 30 days after entry of the judgment appealed from. We hold that the appeal in Case No. 57,541 was not timely taken as required by statute, and that this court lacks jurisdiction to determine the appeal. Appeals in probate proceedings are covered by K.S.A. 59-2401, which provides in part as follows: “59-2401. Appealable orders, when; bond. (a) An appeal may be taken within thirty (30) days from the date of entry of any of the following orders, judgments, decrees and decisions: “(1) An order admitting, or refusing to admit, a will to probate. “(2) An order appointing, or refusing to appoint, or removing or refusing to remove, a fiduciary other than a special administrator. “(3) An order setting apart, or refusing to set apart, a homestead or other property, or making or refusing to make an allowance of exempt property to the spouse and minor children. “(4) An order determining, or refusing to determine, venue; an order transferring, or refusing to transfer, venue. “(5) An order allowing, or disallowing, a demand in whole or in part when the amount in controversy exceeds fifty dollars ($50). “(6) An order authorizing, or refusing to authorize, the sale, lease, or mortgage of real estate; an order confirming, or refusing to confirm, the sale, lease, or mortgage of real estate. “(7) Judgments for waste. “(8) An order directing, or refusing to direct, a conveyance or lease of real estate under contract . “(9) An order directing, or refusing to direct, the payment of a legacy or distributive share. “(10) An order allowing, or refusing to allow, an account of a fiduciary or any part thereof. “(11) A judgment or decree of partial or final distribution. “(12) An order compelling, or refusing to compel, a legatee or distributee to refund. “(13) An order directing an allowance, or refusing to direct an allowance, for the expenses of administration. “(14) An order vacating, or refusing to vacate, a previous appealable order, judgment, decree, or decision. “(15) A decree determining, or refusing to determine, the heirs, devisees and legatees. “(16) An order adjudging a person in contempt. “(17) An order adjudging, or refusing to adjudge, a person an incapacitated person. “(18) The granting, or refusing to grant, an order for treatment. “(19) An order granting or denying restoration to capacity. “(20) An order granting or denying discharge. “(21) An order decreeing, or refusing to decree, an adoption. “(22) A final order, decision or judgment in any probate proceeding. “(c) Except as otherwise provided in this section, appeals taken pursuant to this section shall be taken in the manner provided by chapter 60 of the Kansas Statutes Annotated for other civil cases.” This statute clearly requires that an appeal be taken within 30 days from the date of entry of the orders, judgments, decrees, and decisions specifically enumerated. The statute also declares that, except as otherwise provided in that section, appeals shall be taken pursuant to chapter 60 of the Kansas Statutes Annotated for other civil cases. K.S.A. 60-2103 requires that an appeal be taken within 30 days from the entry of judgment. K.S.A. 60-258 provides that a judgment is effective when a signed journal entry is filed with the clerk of the court. Clearly, the filing of a notice of appeal in this case 48 days following the entry of the judgment is not within the statutory period for taking an appeal and ordinarily would bar the appeal. The trustee contends, however, that the notice of appeal was filed on July 25, 1984, in an abundance of caution in order to preserve an appeal in case the issues involving admission of the will and codicil to probate were decided adversely to the bankruptcy estate’s interest without his knowledge. In taking this position, the trustee relies on Supreme Court Rule 2.03 (235 Kan. lviii), which provides: “Rule 2.03. Premature Notice of Appeal. A notice of appeal filed subsequent to an announcement by the judge of the district court on a judgment to be entered, but prior to the actual entry of judgment as provided in Sec. 60-258, shall be effective as notice of appeal under Sec. 60-2103, if it identifies the judgment or part thereof from which the appeal is taken with sufficient certainty to inform all parties of the rulings to be reviewed on appeal. Such advance filing shall have the same effect for purposes of the appeal as if the notice of appeal had been filed simultaneously with the actual entry of judgment, provided it complies with Sec. 60-2103(b).” (Emphasis supplied.) The appellees maintain that Supreme Court Rule 2.03 is not applicable in this case, because at the time the notice of appeal was filed by the trustee the district court had not announced the judgment to be later entered that the lost will was to be admitted to probate. The record is clear that the trustee never at any time thereafter appealed from the order admitting the lost will and codicil to probate. We have no hesitancy in holding that, assuming the order of June 7, 1984, denying the trustee’s standing to contest the lost will was an appealable order the trustee in bankruptcy failed to take a timely appeal as required by the statutes of this state. It is obvious to us that the provisions of Supreme Court Rule 2.03 are not applicable. At the time the appeal was taken by the trustee, the trial court had not even set a date for hearing on the petitions to admit the lost will and codicil to probate. The district court had not announced a judgment that the will and codicil were to be admitted to probate at a later time. The law is clear in Kansas that the right to appeal is neither a vested nor a constitutional right, but is strictly statutory in nature and may be limited in any manner by the legislature. Szoboszlay v. Glessner, 233 Kan. 475, 664 P.2d 1327 (1983); In re K-Mart Corp., 232 Kan. 387, Syl. ¶ 2, 654 P.2d 470 (1982). In view of the fact that a timely appeal was not taken in Case No. 57,541, we hold that this court has no jurisdiction to determine the issue raised in that appeal. As noted heretofore in the opinion, Case No. 57,777 involves an appeal taken by the trustee in bankruptcy from the order of the district court overruling the trustee’s objection to the sale of the Granada Theater land which, without question, was property owned by the decedent at the time of his death. The appeal taken by the trustee from this order was timely taken and this court has jurisdiction to determine the question raised in that appeal. Simply stated, it is the position of the trustee, Kris L. Arnold, as trustee in bankruptcy of the estate of Nelle Williams Gilmore, that the Granada Theater land was, by law, a part of the bankruptcy estate for two reasons, (1) When Frank J. Williams died on October 16,1980, the legal title to his estate automatically vested in his only legal heir, Nelle Gilmore. Thereafter, when Nelle Gilmore filed for bankruptcy, the property became part of her bankrupt estate pursuant to 11 U.S.C. § 541(a)(1), (c)(1) (1982). (2) Under the bankruptcy statutes, the trustee is by law deemed to have the status of a good faith purchaser of the property without notice of the existence of the unprobated will, and, therefore, the trustee’s title is protected from divestiture by the lost will under K.S.A. 59-618, which provides as follows: “59-618. Liability and effect of withholding will. Any person who has possession of the will of a testator dying a resident of this state, or has knowledge of such will and access to it for the purpose of probate, and knowingly withholds it from the district court having jurisdiction to probate it for more than nine (9) months after the death of the testator shall be barred from all rights under the will and shall be liable for all damages sustained by beneficiaries under the will who do not have possession of the will and are without knowledge thereof and access thereto. Said will may be admitted to probate as to any innocent beneficiary on petition for probate by any such beneficiary, if such petition is filed within ninety (90) days after such beneficiary has knowledge of such will and access thereto and within five years after the death of the testator, except that the title of any purchaser in good faith, without knowledge of such will, to any property derived from the fiduciary, heirs, devisees, or legatees of the decedent shall not be defeated by the production of the will of such decedent and the petition for probate thereof after the expiration of nine (9) months from the death of the decedent.” (Emphasis supplied.) It should be noted that, under K.S.A. 59-618, where a will has been lost and has been withheld from probate, the will may be admitted later to probate by any beneficiary if the petition is filed within 90 days after knowledge thereof and within five years after the death of the decedent. The statute provides, however, that the title of any purchaser in good faith, without knowledge of the will, to any property acquired from an heir of the decedent shall not be defeated by the subsequent production of the will by the decedent’s estate after the expiration of nine months from the death of decedent. Thus, it is the trustee’s position that he stands in the position of a bona fide purchaser who purchased the property from Nelle Gilmore, the sole heir-at-law of the decedent, as of the date of the bankruptcy filing, August 3, 1982. The district court rejected this contention of the trustee, reasoning in its memorandum decision as follows: “The issue is whether or not the acting administrator eta should be authorized to sell real estate. Here all parties agree that the real estate should be sold and that the pending sale is fair and reasonable. “The trustee in bankruptcy claims a superior title to the property in question and would thereafter sell same for benefit of others that are interested in any assets remaining to be distributed by the administrator eta. “Such an argument is tantamount to requesting that the asset be struck from the estate inventory and inserted in the voluntary bankrupt’s estate (Nelle Rae Gilmore). “There is no claim that either Ted or Nelle Gilmore ever had any right, title or intei'est in the property. It is clear that the deceased has been the title owner at all pertinent times. “The asset has been inventoried by the decedent’s estate fiduciary and various responsibilities of a fiduciary have been undertaken. “The mere fact that an heir-at-law filed an action in bankruptcy at a time when such heir might possess a future interest in an asset can not cloud title to this real estate. “The argument of the trustee might be logically extended to any asset inventoried herein. As the file reflects hundreds of thousands of dollars in assets have been sold by the acting fiduciary, most with actual knowledge of the trustee. The real-personal property distinction being of obvious note. “That a court exercising Chapter 59 jurisdiction of a decedent’s property has an exclusive jurisdiction is well settled. Certainly the trustee could not logically have any greater interest in the property in question than Nelle Rae Gilmore. Her interest, be it through intestate succession or through a testamentary bequest, has never been determined. “The trustee sought to intervene in the matter of the court’s consideration of admission to probate of an instrument of a testamentary nature; such was denied but remains a subject on appeal. “The coupling of K.S.A. 59-618 and 11 U.S.C. 544 (a)(3) as urged by the trustee is, in my view, a misapplication of the law. “The objection, as filed, is overruled and the administrator eta is authorized to sell the real estate per the petition filed.” We have concluded that the district court correctly decided the issue and that the Granada Theater property is legally a part of the estate of the decedent, Frank J. Williams, and subject to probate proceedings in Johnson County district court. We recognize the Kansas rule regarding the descent of intestate property is that the legal title to real property vests immediately in the heirs-at-law on the death of a person. Peterson v. Peterson, 173 Kan. 636, 639, 251 P.2d 221 (1952); K.S.A. 59-502. Such vesting, however, is subject to being divested if a will of the decedent is later admitted to probate. Clearly, rights derived from intestate succession are taken away by a will which is admitted to probate and which effectively disposes of the estate of the decedent. The trustee contends that after her father’s death on October 16, 1980, the legal title to his real estate vested in her and thus became part of the bankrupt estate of Nelle Gilmore when the bankruptcy proceedings were commenced in August 1982. In taking this position, the trustee relies on 11 U.S.C. § 541 (a)(1), (c)(1) and (d), which provides in part as follows: “§ 541. Property of the estate “(a) The commencement of a case under section 301, 302, or 303 of this title creates an estate. Such estate is comprised of all the following property wherever located: “(1) Except as provided in subsections (b) and (c) (2) of this section, all legal or equitable interests of the debtor in property as of the commencement of the case. “(c)(1) Except as provided in paragraph (2) of this subsection, an interest of the debtor in property becomes property of the estate under subsection (a)(1), (a)(2), or (a)(5) of this section . . . “(d) Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest, such as a mortgage secured by real property, or an interest in such a mortgage, sold by the debtor but as to which the debtor retains legal title to service or supervise the servicing of such mortgage or interest, becomes property of the estate under subsection (a)(1) of this section only to the extent of the debtor’s legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold.” As noted heretofore, the trustee further argues that he has the status of a purchaser in good faith without knowledge by the provisions of 11 U.S.C. § 544(a)(3) (1982), which provides in part: “§ 544. Trustee as lien creditor and as successor to certain creditors and purchasers “(a) The trustee shall have, as of the commencement of the case, and without. regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by “(3) a bona fide purchaser of real property from the debtor, against whom applicable law permits such transfer to be perfected, that obtains the status of a bona fide purchaser at the time of the commencement of the case, whether or not such a purchaser exists." (Emphasis supplied.) The appellees are correct in contending that this provision is applicable only if the trustee seeks to avoid transfers of title by a bankrupt to escape his obligation to his creditors. Here there was no transfer of title. In this regard, the law is clear that a trustee in bankruptcy succeeds to only such title and rights in property as the debtor had at the time the bankruptcy petition was filed. See In re Shepard, 29 Bankr. 928, 932 (Bankr. M.D. Fla. 1983), which states that, if the debtor holds only a bare legal title to property without any equitable interest, bare legal title is all that becomes property of the bankruptcy estate. Furthermore, it has been held that the bankruptcy estate takes its interest subject to the conditions under which the debtor held the interest. Matter of Depot), 29 Bankr. 466 (Bankr. N.D. Ind. 1983); In re Sively, 14 Bankr. 905 (Bankr. E.D. Tenn. 1981). These decisions are consistent with the well-established rule that a trustee in bankruptcy ordinarily stands in the shoes of the bankrupt; the trustee takes no greater title than the bankrupt has and the property of the bankrupt is subject to all of the equities impressed upon it in the hands of the bankrupt. Security Warehousing Co. v. Hand, 206 U.S. 415, 51 L.Ed. 1117, 27 S. Ct. 720 (1907); First National Bank v. Staake, 202 U.S. 141, 50 L.Ed. 967, 26 S. Ct. 580 (1906). This principle is supported by a long line of cases. For example in Creel v. Birmingham Trust National Bank, 383 F. Supp. 871 (N.D. Ala. 1974), aff'd 510 F.2d 1363 (5th Cir. 1975), it was held that the trustee in bankruptcy succeeds to only such right or title as the bankrupt had, and if the bankrupt had no right or title, then the trustee succeeds to none. It is also well established that the nature and extent of the bankrupt debtor’s interest in property are ordinarily determined by state law. In Re Turner, 29 Bankr. 628 (Bankr. D. Me. 1983). This principle was followed in the Kansas District of the United States Bankruptcy Court, in In re Olson, 39 Bankr. 872 (Bankr. D. Kan. 1984). Olson involved a motion by the trustee in bankruptcy of the estate of the debtor, Mona Olson, to turn over real estate the debtor had inherited from her grandmother, Christina Younger. The will of Mrs. Younger was admitted to probate on January 9, 1981, and devised certain real property to Mrs. Olson. On March 2, 1981, the debtors conveyed their interest in the real estate to their daughter, Tammy Olson. On May 26, 1981, the debtors took bankruptcy. On September 13, 1983, a bankruptcy trustee filed a complaint under 11 U.S.C. § 548 (1982) to set aside the debtors’ conveyance of real property to their daughter as a fraudulent transfer. The issue in the bankruptcy court was whether the real property transferred by the debtors to their daughter was a part of the bankruptcy estate and therefore subject to the trustee’s motion for turnover. The bankruptcy court, interpreting Kansas probate law, held that it was not. The court stated that it is a fundamental principle of bankruptcy law that the property rights which form the estate under § 541 are defined by state law, citing Butner v. United States, 440 U.S. 48, 59 L. Ed. 2d 136, 99 S. Ct. 914 (1979). The Court concluded that it was required to look to Kansas law to determine the interest which the bankrupt, Mona Olson, acquired. Under the undisputed factual circumstances shown in the record in this case, we have no hesitancy in holding that the trial court did not err in holding that the Granada Theater land was properly a part of the estate of Frank J. Williams, deceased, and subject to the orders of the district court in the probate proceedings. Here the will and codicil of Frank J. Williams had been admitted to probate. No appeal was taken from that order within the 30-day period allowed by K.S.A. 59-2401 and K.S.A. 60-2103. Thus, the rights of the parties under Kansas law are controlled by the lost will and codicil admitted to probate. Nelle Williams Gilmore had no right to the possession of the property simply because she is the sole heir-at-law of the deceased. Any rights that she has must be afforded her under the last will and testament of Frank J. Williams, which was admitted to probate. The Granada Theater land is clearly a part of the assets of the Williams estate. The administrator c.t.a. has not only the right but also the duty to administer the estate, including the sale of real estate to pay debts and expenses of administration. If the trustee in bankruptcy of an heir-at-law had the authority to interfere with the administration of a decedent’s estate by pre venting an administrator or testatrix from carrying out his or her duties, the result would be total chaos. We, of course, recognize that under 11 U.S.C. § 544, a trustee in bankruptcy has, as of the commencement of the case, the status of a bona fide purchaser of real property in order to avoid a wrongful transfer of property by the debtor. However, we hold that a trustee in bankruptcy of an heir-at-law does not have the status of a purchaser in good faith under the provisions of K.S.A. 59-618 where the last will and codicil of a testator are offered and admitted to probate after commencement of the bankruptcy proceeding. We recognize also that the trustee in bankruptcy of Nelle Gilmore may have a valid claim to any estate property which Nelle Gilmore may receive as the result of the probate proceedings. Prior to the distribution of the estate assets, the trustee in bankruptcy has the right to appear in the estate proceedings to assert any claims that he may have against any property due the bankrupt. Those issues will have to be determined in future litigation. For the reasons stated heretofore in the opinion, the appeal in case No. 57,541 is dismissed for want of jurisdiction. The judgment of the district court in Case No. 57,777 is affirmed.	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The opinion of the court was delivered by Lockett, J.: By interlocutory appeal (K.S.A. 22-3603) the State challenges a ruling by the district court suppressing the admission into evidence of the results of a breath test. The district court determined that neither the officer who had collected the breath sample nor the breath collection device were certified pursuant to K.A.R. 28-32-1. On September 8, 1984, at approximately 12:05 a.m., Kansas Highway Patrolman Ronald D. Alvord observed the defendant’s automobile approaching at a high rate of speed. Alvord’s radar unit registered the speed of the oncoming vehicle at 100 m.p.h. The trooper pursued the speeding vehicle approximately 13 miles. Trooper Alvord finally stopped the fleeing vehicle by intentionally colliding with it. The trooper ordered the two occupants out of the vehicle. Alvord observed that the driver, Huninghake, appeared unsteady on his feet and had an odor of alcohol about his person. Defendant Huninghake was requested to submit to a breath test to determine the alcoholic content of his blood pursuant to the provisions of K.S.A. 8-1001 et seq. The breath sample was then taken by Officer Alvord. Alvord used a Gas Chromatograph Intoximeter Field Breath Indium Encapsulation System, also referred to as a “crimper box,” to obtain the sample. Trooper Alvord was not certified pursuant to any regulations of the State Board of Health. He had received some training in use of the box as an officer of the patrol. The crimper box itself was not certified although there was some evidence to indicate it had been inspected by the Department of Health in 1983, but had not been checked since. The breath sample, once drawn, was sent to the Kansas Highway Patrol laboratory in Topeka where it was analyzed by a person certified by the Kansas State Board of Health using a gas chromatograph system known as Intoximeter Mark IV, which was also certified by the Kansas State Board of Health. The analysis of the breath sample showed a blood alcohol level of 0.19 per cent. Prior to trial Huninghake moved to suppress all physical evidence obtained as a result of his arrest, including the evidence obtained as a result of the breath test. The trial court granted the motion to suppress because neither the officer taking the breath sample nor the apparatus used to collect it were certified. The State filed an interlocutory appeal pursuant to K.S.A. 22-3603. The defendant contends that this court does not have jurisdiction to hear the interlocutory appeal and that this court should dismiss the appeal. The State argues that the district court made an order suppressing evidence which is essential to its case and it, therefore, is entitled to an interlocutory appeal. In State v. Newman, 235 Kan. 29, 680 P.2d 257 (1984), this court interpreted the term “suppressing evidence” as used in 22-3603 to have a broader meaning than the suppression of evidence which is illegally obtained. This court stated that interlocutory appeals by the State under the statute included not only “constitutional suppression” but also rulings of a trial court which exclude State’s evidence so as to substantially impair the State’s ability to prosecute the case. 235 Kan. at 34. Suppression rulings which seriously impede, although they do not technically foreclose, prosecution can be appealed under K.S.A. 22-3603. In the present case, without admission of the blood alcohol test results, the State’s only evidence is that Huninghake was driving at a high rate of speed and refused to stop until the officer forced him off the road, that the officer smelled alcohol on the defendant’s breath, and that the officer observed that Huninghake was unsteady on his feet after he got out of his car. The State would be denied the presumption provided by K.S.A. 8-1005(a) that a blood alcohol level greater than 0.1 percent is prima facie evidence that the defendant was under the influence of alcohol. The suppression of evidence which denies the State the introduction of blood alcohol test results and the statutory presumption ofK.S.A. 8-1005(a) does substantially impair the State’s case. This court, therefore, has jurisdiction to hear this appeal. The defendant contends that state law requires that both the officer taking the breath sample and the equipment used in taking the sample be certified annually by the Secretary of Health and Environment. The State argues that the statutes and regulations concerning certification apply only to those persons actually analyzing the sample and the equipment actually used in analyzing the breath sample, not the trooper and the device he used to collect the sample. K.S.A. 65-1,107(c) and (d) authorize the Secretary of Health and Environment to promulgate rules and regulations governing: “(c) the procedures, qualifications of personnel and standards of performance in the testing of human breath for law enforcement purposes, including procedures for the periodic inspection of apparatus, equipment and devices approved by the advisory commission for the testing of human breath for law enforcement purposes; and (d) prescribe the requirements for the training, certification and periodic testing of persons who operate apparatus, equipment or devices for the testing of human breath for law enforcement purposes.” Based on the above statute, the Secretary of Health and Environment promulgated K.A.R. 28-32-1 et seq. Briefly summarized, the regulations require initial inspection of the testing machine for accuracy with yearly testing and certification thereafter, and initial training of operators with periodic proficiency testing and yearly certification. The regulations also require that breath testing machines be operated strictly in accordance with the manufacturer’s operational manual. The Highway Patrol initiated a program for testing human breath for blood alcohol content by use of the gas chromatograph and remote breath sample collection. The testing device itself is a gas chromatograph. Seven of these machines are in use throughout the state by the Patrol, and are operated only by trained, tested and licensed or certified personnel of the Patrol. A specimen gathering system, known as the “Indium Encapsulation System,” permits remote gathering of human breath samples by troopers and police officers. The system consists essentially of a small box, known as a crimper box, and a soft metal tube made of indium in which the breath sample itself is captured. The box is equipped with a manually operated crimping device, or jaws, and a thermostatically controlled heater. To take a sample of breath, the small indium tube is inserted in the box in a channel designed to secure the tube, and the heater is activated to heat the tube sufficiently to prevent the condensation of moisture therein. When the necessary temperature is reached, a small red light indicates that fact. The suspect is instructed to expel breath into the tube, and while breath is passing through it, the trooper manually closes the crimper jaws, capturing the breath sample in three separate segments of the tube, which are sealed by the crimper jaws. The tube containing the sample is then forwarded for testing by licensed operators using tested and certified gas chromatography devices located regionally throughout the state. See Att’y Gen. Op. No. 78-121. This court has never considered whether taking the breath sample was an inherent part of the testing process. At least two other courts have treated the breath sampling as a separate process from the actual testing. In State v. Tiernan, 206 N.W.2d 898 (Iowa 1973), the Iowa court held that taking the sample was a separate procedure from actually running the test on the sample. The court noted that the device used by the officer is extremely simple in conception and operation. Its operation is almost exclusively mechanical. The defendant in State v. Burack, 133 Vt. 482, 346 A.2d 192 (1975), claimed that the results of a blood alcohol test should be excluded because no proper foundation was introduced to show that the officer collecting the breath sample was certified to operate the crimper. The Vermont court determined that the crimper was not an analyzing device, but merely collected the breath sample for transmission and later laboratory analysis; the crimper was not a testing machine; and the test was performed by another person operating a chromatograph. K.S.A. 65-1,107 states that regulations and procedures should be promulgated for the testing of human breath and for those persons who operate the apparatus for the testing of human breath. The question is whether the taking of a sample is part of the testing procedure. Since taking the breath sample by use of the Indium Encapsulation System is merely a simple mechanical process and law enforcement personnel are provided with instructions as to how to take the sample, it is not necessary that they should be certified each year to take such a sample. It was not the intent of the legislature nor the Secretary of Health and Environment when promulgating the rules and regulations governing certification and periodic testing under K.S.A. 65-1,107(c) and (d) and K.A.R. 28-32-5 to require law enforcement officers collecting breath samples by use of the crimper box to be certified. Any question as to whether the officer collecting the breath sample by use of the crimper box followed the procedure furnished by the manufacturer is a question of foundation for the admission of evidence as to the collection procedure. The appeal is sustained and the case remanded to the district court for further proceedings.	[ -16, -22, -15, -98, 45, 64, 59, 58, 81, -97, 100, 83, -83, -46, 5, 114, -6, 55, 116, 89, -57, -74, 87, -127, -58, -13, -8, -43, 51, 91, -20, -12, 12, 48, -118, 21, 38, 74, -121, -40, -114, 6, -71, -16, 82, -112, -96, 106, -78, 11, 49, -117, -29, 42, 30, -61, -23, 52, -53, -92, -32, -15, -85, -107, -1, 86, -77, 4, -66, 13, 80, 55, -102, 49, 0, 124, -5, -90, -102, -12, 43, -103, 12, -90, 107, 33, 21, -84, -84, -116, 46, 58, 15, -89, -104, 81, 105, -84, -106, 29, 125, 18, 7, 120, -21, 68, 95, 124, 2, -53, -92, -111, 73, 48, -126, 89, -21, -27, 18, 113, -57, -14, 92, -59, 112, -101, -57, -106 ]
The opinion of the court was delivered by Holmes, J.: Appeals by both the defendant and the State in a criminal action have been consolidated in this court. Louis Keeler, Jr., appeals his jury conviction of felony theft (K.S.A. 1984 Supp. 21-3701). The case, originally docketed in the Court of Appeals, was transferred to the Supreme Court pursuant to K.S.A. 20-3018(c). The State, in the same case, appeals from the sentencing of the defendant. The appeal of the defendant upon transfer to this court was consolidated with the appeal of the State. We will first address the appeal of the defendant. Edward and Lesa Sippel awoke at their home in Wichita on the morning of May 2, 1984, to find their 1977 Toyota Célica automobile missing. It had been parked and locked at the Sippel home at approximately 11:15 p.m. the previous evening. Mrs. Sippel testified she had placed her keys, along with her purse, on the couch in their home. The next morning the key ring and purse remained where she had placed them, but the Toyota key was missing. The automobile was found on May 11,1984, parked at the intersection of 17th Street and Poplar in Wichita, approxi mately two to three blocks from where Louis Keeler, Jr., resided. Bill Britten lived in the basement of the Sipple residence and was employed at an Amoco service station. On the night of May 1, 1984, Keeler, an acquaintance of Britten, came into Britten’s place of employment and asked for a ride to the apartment of Diana Finley, a friend of Keeler. When Britten got off work shortly after midnight he drove Keeler to the Farmington Square Apartments; however, Miss Finley was not at home. The two then proceeded to Britten’s room in the basement of the Sippel home with the idea that Keeler would wait for Miss Finley to get home and then he would return to the Finley apartment. Upon Miss Finley’s return home, Britten attempted to secure a taxicab to transport Keeler to the Finley apartment. Keeler was upstairs in the Sippel home for a period of five to ten minutes while Britten was attempting to get a cab for him. Subsequently, Britten wanted to go to bed and Keeler said he would go outside to wait for the cab. Keeler testifed that upon the failure of the taxicab to show up, he decided to walk to the Farmington Square Apartments, a distance of approximately three miles. Miss Finley testified Keeler arrived at her apartment 20 to 25 minutes after he first called her that morning. She also testified she did not see Keeler as he arrived, did not at anytime see him in possession of the Toyota, and drove him home later in the day. Miss Sherry Alford worked with Britten at the Amoco station and noticed the Sippel Toyota automobile parked near 17th Street and Poplar during the two-day period prior to May 11, 1984. It was not parked in the same place throughout the period, indicating that someone was using the Toyota. She inquired of Britten about the Sippel automobile being parked there and that led to the recovery of the Toyota by Mr. and Mrs. Sippel. Keeler raises several points on appeal. Appellant’s first issue on appeal is that the verdict is not supported by the evidence. K.S.A. 1984 Supp. 21-3701 provides in part: “Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner’s property: (a) Obtaining or exerting unauthorized control over property.” The attack upon the evidence is twofold: first, that there was insufficient evidence to support a finding of an intent to permanently deprive the Sippels of the possession, use or benefit of the Toyota and second, in the alternative, that appellant was so intoxicated he could not form the specific intent to permanently deprive as required by the statute. It is true that the State’s case was built solely on circumstantial evidence. There were no witnesses produced who saw Keeler in or near the Toyota during the nine or ten days it was missing. The main defense asserted by Keeler was that he had nothing to do with the disappearance of the Sippel Toyota and knew absolutely nothing about it. In State v. Zuniga, 237 Kan. 788, 703 P.2d 805 (1985), the court stated the scope of review on appeal when a criminal defendant challenges a verdict based on the sufficiency of the evidence; “In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained.” 237 Kan. 788, Syl. ¶ 5. The defendant argues that no intent to permanently deprive was demonstrated by the evidence. K.S.A. 21-3110(6)(a) defines “to deprive permanently” as taking from the owner the possession, use or benefit of his or her property, without an intent to restore the same. Appellant contends that, at best, the evidence only shows the borrowing or taking of the car for the purpose of getting to Miss Finley’s home and then across town to go home. The facts adduced at trial, when viewed in the light most favorable to the prosecution, showed that Keeler obtained unauthorized control of the Sippels’ Toyota, used it for several days and then abandoned it on the streets of Wichita. There was nothing to indicate the defendant intended to return the automobile at the time it was appropriated. During the several days before it was recovered defendant made no effort to return the automobile, or to alert the Sippels as to its whereabouts. We agree that theft under K.S.A. 1984 Supp. 21-3701 is a specific intent crime; however, such an intent may be, and ordinarily must be, proved by circumstantial evidence. 21 Am. Jur. 2d, Criminal Law § 130. Specific intent as an element of the crime charged is normally a question of fact for the jury and may be shown by acts, circumstances and inferences reasonably deducible therefrom and need not be established by direct proof. State v. Dubish, 234 Kan. 708, Syl. ¶ 8, 675 P.2d 877 (1984). The facts and circumstances amply support the jury’s implicit finding of an intent to permanently deprive. Cf. State v. Warren, 221 Kan. 10, 557 P.2d 1248 (1976). In the alternative, Keeler argues that because of his intoxicated state on May 2, 1984, he was incapable of forming the specific intent required by statute. K.S.A. 21-3208(2) provides: “An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.” Where the crime charged requires a specific intent, voluntary intoxication may be a defense and an instruction thereon is required where there is evidence to support that defense. State v. Sterling, 235 Kan. 526, Syl. ¶ 2, 680 P.2d 301 (1984). The defendant has the burden of showing that he was so intoxicated that he was robbed of his mental faculties, and whether he was drunk to such extent is a question for the trier of the facts to decide, under proper instructions. 21 Am. Jur. 2d, Criminal Law § 155; State v. Falke, 237 Kan. 668, 703 P.2d 1362 (1985). There was evidence that appellant had been drinking alcoholic beverages on May 1, 1984, and in addition he had some beers while with Britten in the Sippel home. However, there is little, if any, evidence that Keeler was so intoxicated that he could not formulate a specific intent as required by the statute. Britten testified that when he first saw Keeler at the Amoco station about 10:00 p.m., “he looked like he might have had a little bit to drink, but to no excess.” When questioned as to Keeler’s condition upon his return two hours later, when they left the station, Britten testified that he “[s]eemed to be the same as he was before [át 10:00 p.m.]” and that Keeler’s condition had not changed. Keeler, in his testimony in referring to his condition at the time he supposedly left the Sippel residence to walk to Miss Finley’s, stated: “I wouldn’t say I was drunk, now.” The trial court instructed the jury in accordance with PIK Crim. 2d 54.12, which provides: “Voluntary intoxication is not a defense to a criminal charge, but when a particular intent or other state of mind is a necessary element of the offense charged, intoxication may be taken into consideration in determining whether the accused was capable of forming the necessary intent or state of mind.” The jury heard all the evidence, was properly instructed and its verdict is supported by the evidence. Next, appellant asserts error in the court’s instructions to the jury. He contends that the court improperly instructed on the burden of proof and was in error in failing to instruct on the lesser offense of unlawful deprivation of property. On the burden of proof issue, the court instructed: “The law places the burden upon the State to prove the defendant is guilty. The law does not require the defendant to prove his or her innocence. Accordingly, you must assume that the defendant is innocent unless you are convinced, from all of the evidence, that he is guilty. “You should evaluate the evidence admitted in this case and determine the innocence or guilt of the defendant entirely in accordance with these instructions. The test you must use is this: if you have no reasonable doubt as to any of the claims made by the State, you should find the defendant guilty as charged; or if you have a reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant not guilty.” (Emphasis added.) This instruction was approved in State v. Laughlin, 232 Kan. 110, 652 P.2d 690 (1982); and State v. Mack, 228 Kan. 83, 612 P.2d 158 (1980); and was taken from PIK Crim. 52.02. It is the appellant’s position that, by using the words “innocent” and “innocence,” the jury may be misled as to the proper burden of proof. Keeler requested a modified version of PIK Crim. 2d 52.02, which read: “The law places the burden upon the State to prove the defendant is guilty. The law does not require the defendant to prove he is not guilty. Accordingly, the defendant need not prove anything; and you must assume that the defendant is not guilty unless you are convinced from all of the evidence in the case that he is guilty beyond a reasonable doubt. “You should evaluate the evidence admitted in this case and determine whether the defendant is guilty or not guilty entirely in accordance with these instructions. The test you must use is this: If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty. If you have a reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant not guilty.” PIK Crim. 2d 52.02 has retained the use of the words innocent and innocence in its first paragraph but has substituted the words “not guilty” for the word “innocence” in the second paragraph. It is true that the defendant does not have to prove his innocence and that the burden is upon the State to prove a defendant guilty beyond a reasonable doubt. Failure to do so requires a jury to find the defendant not guilty under the evidence; it does not require the jury to find the defendant is innocent. In the instant case the confusion between the terms not guilty and innocent is compounded by the court’s final instruction on the duty of the jury, which included: “You are instructed that your only consideration in this case is the guilt or innocence of the defendant.” In discussing the use of the word “innocent” in a criminal trial, one authority has stated: “Whenever the terms guilty, not guilty, and innocent are used in a criminal trial, it is essential that their specific meanings be defined to, and understood by, the jury. It is also essential that the usage of these terms by the court and counsel during a trial be consistent with the definitions stated. Any incorrect or contradictory language may result in the jury being misled and confused as to its role in the trial. “In common usage, the word guilty is a specific factual description of a reality. It describes a person who committed the act or crime. Whether the prosecution can prove that he actually did it is a separate question to be determined at trial. A second meaning of the word guilty refers to the subjective conclusion of the jury in the form of a verdict in a criminal trial. This conclusion comes into existence only at the end of the trial, and only if the prosecution has convinced the jury of the factual guilt of the defendant beyond a reasonable doubt. “In common usage, the word innocent, as with the word guilty, is a specific factual description of a reality. It describes a person who did not commit the act or crime. A person who is innocent is defined, in both common and legal usage, as one who is ‘free from guilt.’ Whether or not he is convicted or acquitted is a separate question to be determined at trial. As in factual guilt, the factual innocence exists regardless of the subjective conclusion of the jury. Unlike the word guilty, the word innocent has no court verdict counterpart in American criminal law. ‘Innocent’ is not one of the possible verdicts that a jury may return. A defendant who is not proven guilty beyond a reasonable doubt is found to be ‘Not Guilty.’ “In ordinary lay usage, the term not guilty is often considered to be synonymous with innocent. In American criminal jurisprudence, however, they are not totally synonymous. ‘Not Guilty’ is a legal finding by the jury that the prosecution has not met its burden of proof. A ‘Not Guilty’ verdict can result from either of two states of mind on the part of the jury: that they believe the defendant is factually innocent and did not commit the crime; or, although they do not necessarily believe he is innocent, and even ‘tend’ to believe he did commit the crime, the prosecution’s case was not sufficiently strong to convince them of his guilt beyond a reasonable doubt. “Within this second state of mind (reasonable doubt) resulting in a ‘Not Guilty’ verdict lies the distinction between the terms not guilty and innocent. “Since a ‘Not Guilty’ verdict can be predicated on that ‘gray zone’ of uncertainty somewhere between a belief in innocence and the required proof of guilt, it would be incorrect to state that a conclusion of ‘Not Guilty’ means that the jury believes the defendant is innocent. Although a verdict of ‘Not Guilty’ certainly maybe based upon a belief in the defendant’s innocence, it just as certainly may be based on a hesitation in belief of guilty which amounts to a reasonable doubt in the minds of the jury. “Inasmuch as the terms not guilty and innocent have for the most part been used interchangeably throughout the years by lay people as well as by the legal profession, instead of the correct term ‘Guilty or Not Guilty’ being used exclusively, the far more common, but incorrect term ‘Guilt or Innocence’ has insidiously crept into the American language and consciousness. “While a defendant’s guilt or innocence obviously is the most important moral issue at every criminal trial, and could not possibly be more legally relevant (since if a jury believes a defendant is innocent they must find him ‘Not Guilty’), the issue for the jury to determine is not the defendant’s guilt or innocence. It is whether or not the prosecution has met its legal burden of proving guilt beyond a reasonable doubt. If the jury answers in the negative, they must conclude that the defendant is ‘Not Guilty,’ even in those situations where they tend to believe he did commit the crime.” Bugliosi, Not Guilty and Innocent: The Problem Children of Reasonable Doubt, Vol. 20, No. 2, Court Review 16 (1983). The frequent confusion as to the proper terms to be used in instructing the jury is borne out in the instant case by the defendant’s requested instructions which used the words “not guilty” rather than “innocent” in the burden of proof instruction and then in requested instruction No. 5 stated: “ Your only concern in this case is determining the guilt or innocence of the defendant. The disposition of the case thereafter is a matter for determination by the Court.” (Emphasis added.) The Advisory Committee on Criminal Jury Instructions recognized the problem in part and now PIK. Crim. 2d 52.02 refers to a determination of “whether the defendant is guilty or not guilty” rather than the earlier version which directs the jury to “determine the innocence or guilt of the defendant.” A very similar issue was raised in State v. Maxwell, 10 Kan. App. 2d 62, 691 P.2d 1316, rev. denied 236 Kan. 876 (1984), where the defendant complained of the use of the word “innocence” instead of “not guilty” in the instruction. The court affirmed the trial court’s instruction, stating “although the present wording of PIK Crim. 2d 52.02 (1983 Supp.) may be preferred, it still remains that the Kansas Supreme Court has previously approved PIK Crim. 52.02. Accordingly, use of this instruction was not erroneous.” 10 Kan. App. 2d at 69. The questionable use of the term innocent in referring to the State’s burden of proof has not been confined to state trial and appellate courts. In the oft-cited case of Jackson v. Denno, 378 U.S. 368, 12 L.Ed.2d 908, 84 S.Ct. 1774 (1964), the Supreme Court referred to the “guilt or innocence” of the defendant on numerous occasions. 378 U.S. at 374, 379, 387, 394. As additional examples, see Taylor v. Kentucky, 436 U.S. 478, 485, 56 L.Ed.2d 468, 98 S.Ct. 1930 (1978); Williams v. Florida, 399 U.S. 78, 82, 26 L.Ed.2d 446, 90 S.Ct. 1893 (1970). We conclude that while the proper use of the term “not guilty” rather than the term “innocent” is certainly preferable in a trial court’s instruction to the jury, the use of PIK Crim. 2d 52.02 and' the earlier version when read in conjunction with other appropriate instructions does not constitute reversible error. Here, when the instructions are read together and as a whole the substance of the State’s burden of proof and the duty of the jury was adequately covered. See State v. Abu-Isba, 235 Kan. 851, 685 P.2d 856 (1984). Appellant’s other complaint about the instructions is the failure of the court to instruct upon the lesser included offense or lesser offense of unlawful deprivation of property, K.S.A. 21-3705. The statute provides in part: “Unlawful deprivation of property is obtaining or exerting unauthorized control over property, with intent to deprive the owner of the temporary use thereof, without the owner’s consent but not with the intent of depriving the owner permanently of the possession, use or benefit of his property.” K.S.A. 1984 Supp. 21-3107(3) requires the trial court to instruct the jury on lesser crimes of which the accused might be convicted under the information and upon the evidence presented. Keeler maintains unlawful deprivation of property is a lesser included offense or, in the alternative, is a lesser crime pursuant to K.S.A. 1984 Supp. 21-3107(3) and requested the trial court to instruct on unlawful deprivation of property as a lesser included offense. This request was denied. An offense is a lesser included offense under K.S.A. 1984 Supp. 21-3107(2)(d) when all elements necessary to prove the lesser offense are present and required to establish the elements of the greater offense charged. State v. Coberly, 233 Kan. 100, 661 P.2d 383 (1983). In State v. Burnett, 4 Kan. App. 2d 412, 607 P.2d 88 (1980), the Court of Appeals held that unlawful deprivation of property is not a lesser included offense of theft. In Burnett the court determined that an intent to permanently deprive and an intent to temporarily deprive were distinctly separate elements and not merely differing points on a continuum and, therefore, unlawful deprivation was not a lesser included offense of theft. We think otherwise. Both statutes have as an element of each offense the requirement of an intent to deprive the owner of the use of his property. In K.S.A. 21-3705 the intent is to deprive temporarily while in K.S.A. 1984 Supp. 21-3701 the intent is to deprive permanently. In State v. Long, 234 Kan. 580, 588, 675 P.2d 832 (1984), this court appeared to accept the holding of Burnett when it was cited along with several other cases as examples of various crimes which had been held not to be lesser included offenses. In State v. Andrews, 218 Kan. 156, 157-58, 542 P.2d 325 (1975), although not an issue directly before the court, we recognized unlawful deprivation of property as a lesser included offense of theft. In State v. Moore, 220 Kan. 707, 556 P.2d 409 (1976), the defendant was prosecuted for theft and on appeal asserted it was error for the trial court not to have instructed on unlawful temporary deprivation as a lesser included offense. This court affirmed the trial court not on the basis that temporary deprivation of property was not a lesser included offense of theft but for the reason there was no evidence to support an instruction on the lesser crime. In his dissenting opinion in Burnett, Judge Abbott (now Chief Judge) states: “It seems to me that unlawful deprivation of property and theft involve a different degree of intent; i.e., the intent to temporarily deprive versus the intent to permanently deprive. Thus, there is not a different element involved in unlawful deprivation. All of the essential elements are the same. Other jurisdictions that have considered whether ‘joyriding’ is a lesser included offense-of theft, e.g. State v. O’Brien, 114 N.H. 233, 317 A.2d 783 (1974), and Commonwealth v. Nace, 222 Pa. Super. Ct. 329, 295 A.2d 87 (1972), are in accord with what I believe to be the rule in Kansas.” 4 Kan. App. 2d at 419. We agree it is difficult to discern how an intent to permanently deprive does not include the intent to temporarily deprive and, in the alternative, how an intent to temporarily deprive is not an inherent part of an intent to permanently deprive. We hold that the crime of unlawful deprivation of property under K.S.A. 21-3705 is a lesser included offense of theft under K.S.A. 1984 Supp. 21-3701. The holding to the contrary in Burnett is overruled and similar language in Long is disapproved. However, our holding on this point does not necessarily mandate reversal in this case. It is well-settled in Kansas that the duty to instruct on lesser crimes arises only when there is evidence upon which a defendant might reasonably be convicted of the lesser crime. State v. Davis, 236 Kan. 538, Syl. ¶ 7, 694 P.2d 418 (1985). Keeler took the stand and denied any involvement in the theft of the Sippels’ Toyota. The only version of the offense presented at trial was that offered by the State. Nothing is contained in the record to indicate any evidence was produced to show the defendant intended to restore the Toyota to its owner. Under the theories presented at trial Keeler was either guilty of theft or not guilty. Cf. State v. Royal, 234 Kan. 218, 670 P.2d 1337 (1983); State v. Warren, 221 Kan. 10; and State v. Winters, 120 Kan. 166, 241 Pac. 1083 (1926). No error is shown from the trial court’s refusal to instruct on unlawful deprivation of property. Next, appellant asserts the trial court erred when it denied his motions to dismiss based upon the insufficiency of the affidavit filed to secure the warrant for arrest and filed in support of the complaint. It is argued that the affidavit and the evidence at the preliminary hearing were insufficient to establish probable cause that a theft, i.e. an intent to permanently deprive, had occurred. We have carefully examined the record and find no merit in appellant’s contention. Finally, appellant asserts error in the court’s overruling of his motion at the close of the State’s evidence for acquittal or, in the alternative, that the charges be reduced to unlawful deprivation of property. What has been said heretofore adequately shows this issue to be without merit. In case No. 57,732, the judgment of conviction is affirmed. We now turn to the appeal of the State of Kansas which is based upon the sentencing of Keeler. At the time of the theft in this case, Keeler was free on a suspended sentence for burglary imposed by Judge Hodge of the Sedgwick County District Court. After conviction herein, sentence in the prior case was imposed by Judge Hodge and Keeler was ordered incarcerated. Thereafter, on August 30, 1984, Judge Kimmel, in this case, sentenced Keeler to imprisonment for a term of one to five years and ordered the sentence to run consecutively to the prior case as required by K.S.A. 1984 Supp. 21-4608(3). See State v. Ashley, 236 Kan. 551, 693 P.2d 1168 (1985); State v. Kerley, 236 Kan. 863, 696 P.2d 975 (1985). However, the court then went on to order that Keeler be released to the custody of the Sedgwick County Community Corrections Program effective upon completion of the prior sentence imposed by Judge Hodge. The State raises three questions about Judge Kimmel’s sentencing orders: “1. Whether the sentencing court upon committing a defendant to the custody of the Secretary of Corrections has the power to then direct that such defendant be placed pursuant to such commitment in a residential facility supervised by the local community corrections department? “2. Whether the district court can place a felony offender in a community corrections program absent a grant of probation or suspension of sentence? “3. Whether the sentencing court erred in failing to order the defendant transported to the custody of the Secretary of Corrections pursuant to his conviction and sentence?” The first two questions have recently been dealt with at length in State v. Fowler 238 Kan. 326, 708 P.2d 539, 1985. In a scholarly opinion, Justice Prager reviewed sentencing procedures and alternatives under our statutes and the court held: “In a criminal case where a defendant has been convicted of a felony and the trial court desires to commit the defendant, K.S.A. 1984 Supp. 21-4603(2)(a) requires that he be committed to the custody of the Secretary of Corrections. There is no statutory authority for a district court in a felony case to commit the defendant to the custody of a community corrections center.” Syl. ¶ 1. “If a trial court actually imposes a sentence of commitment and desires to place the defendant in a community corrections center, it may do so only by placing the defendant on probation and making confinement in the community corrections center a condition of his probation.” Syl^ 2. “If a defendant in a felony case is committed under a sentence, the commitment must be made to the custody of the Secretary of Corrections who may then utilize community corrections facilities by contract in carrying out programs to rehabilitate a convicted felon.” Syl. ¶ 3. In the instant case the journal entry of judgment provides in part: “IT IS THE SENTENCE OF THIS COURT AND IT IS HEREBY CONSIDERED, ORDERED, ADJUDGED AND DECREED that the defendant is hereby committed to the custody of the Secretary of Corrections for imprisonment for a period of not less that one (1) year nor more than five (5) years on the charge of Theft, contrary to K.S.A. 21-3701(a) and in accordance with K.S.A. 21-4501(d). Said sentence shall run consecutive to the sentence imposed in Case No. 83 CR 908 [Judge Hodge’s case] and the defendant shall pay the costs of this action to the Clerk of this Court, including witness fees and miscellaneous expenses.” (Emphasis added.) The court then went on to authorize “the Sheriff of Sedgwick County to release the defendant to the care, custody and control of the Sedgwick County Community Corrections Program and its representatives for the purpose of serving the sentence hereby imposed.” Having already sentenced Keeler to the custody of the Secretary of Corrections, the court had no power to direct his sentence be served in community corrections absent probation. State v. Fowler, 238 Kan. 326. As held in Fowler, a district court may only place a person in a community corrections center as a condition of probation or suspension of sentence. The trial court erred in directing that Keeler be placed in the Sedgwick County Community Corrections Center. The broader issue raised by the State’s appeal is whether a district court, sentencing a defendant under K.S.A. 1984 Supp. 21-4608(3) for a crime committed “while on probation, parole or conditional release,” has the power to grant probation in the later crime or whether the defendant must serve his consecutive sentence by incarceration. The statute provides: “Any person who is convicted and sentenced for a crime committed while on probation, parole or conditional release for a felony shall serve the sentence consecutively to the term or terms under which the person was on probation or released.” The State, without citing any relevant authority, contends that the term “serve” as contained in the statute means incarcerate and that the only way the sentence in the later case may be served is by actual imprisonment. The State relies upon the cases of State v. Johnson, 6 Kan. App. 2d 750, 634 P.2d 1137, rev. denied 230 Kan. 819 (1981), and Esters v. State, 1 Kan. App. 2d 503, 571 P.2d 32 (1977), for its argument that “serve” actually means incarceration. The State’s reliance on Johnson and Esters is misplaced. In those two cases the court was dealing with mandatory sentencing under K.S.A. 21-4618 for the use of a firearm during the commission of certain crimes. The present version of that statute provides “Probation or suspension of sentence shall not be granted . . . .” To serve a sentence imposed under K.S.A. 21-4618 clearly requires incarceration. The cases cited and the statute they construed are not authority for the proposition that “serve” as used in K.S.A. 1984 Supp. 21-4608 means incarceration. To the contrary, those authorities and the firearm statute make it clear that the legislature can and will, when it so desires, make it abundantly clear when probation is to be absolutely denied. We find nothing in the statutes that mandates that the court (Judge Hodge in this case) revoke probation upon conviction of a felony which occurred while the defendant was on probation. The judge in the later case certainly cannot dictate that earlier probation be revoked. While it would be highly unusual that a judge who had granted probation would not revoke that probation upon commission of the later felony, circumstances which might justify such action are not inconceivable. In K.S.A. 1984 Supp. 21-4608(6)(e), the statute refers to “the amount of time served on probation, parole or conditional release . . . .” Thus it appears that the legislature has not equated the term “serve” with incarceration and we cannot read such a restricted meaning into the word. If a person can serve his sentence while on probation under one section of the statute, it would seem that the same meaning should be applied to the same word in another section of the statute. We hold that K.S.A. 1984 Supp. 21-4608(3) does not preclude the granting of probation under appropriate circumstances, however remote such a possibility might be. Unfortunately this does not finally dispose of the case before us. Judge Kimmel, in his colloquy with counsel, is unclear as to what he did intend. He appears to have intended commitment to the Secretary of Corrections and no probation. He states: “But, this brings up the old problem that I’ll refer to as the ‘Sanborn question’ and that is: Are people put on probation when they go to Community Corrections, his theory being no, resoundingly so. As a matter of fact, I feel that they are committed to Community Corrections and that this is not probation.” He then goes on to talk about probation to Community Corrections but the journal entry signed by the judge quite clearly states that Keeler was “committed to the custody of the Secretary of Corrections for imprisonment” and no mention of probation, as such, appears therein. We conclude that the sentence imposed was .improper and that the case must be remanded for resentencing. The conviction in case No. 57,732, the appeal of Louis Keeler, Jr., is affirmed. Case No. 57,789, the appeal of the State, is reversed and the case is remanded for resentencing in accordance with the statutes and the views expressed herein.	[ -48, -32, -3, 62, 58, -32, 42, -72, 96, -11, 115, -45, -85, -63, 5, 121, 95, 31, 85, 105, -99, -73, 7, -79, -38, -69, -15, -44, -13, 90, 102, -42, 14, 112, -126, 93, 38, -54, 71, 80, -116, 5, 80, -16, 89, 74, 36, 106, -74, 14, 113, -114, -29, 47, 26, 82, 72, 40, 91, 61, 16, -80, -85, 15, -49, 54, -93, -124, -100, 5, -16, 63, -100, 49, 0, -8, 115, -90, -126, 101, 79, -101, -116, 102, 98, 33, 13, -21, -84, -119, 46, 50, -65, -89, 56, 72, 0, 101, -97, -97, 116, 50, 9, -4, -17, -122, 93, -20, -117, -50, -108, -111, 9, 116, 18, -72, -5, -91, 34, 113, -56, 34, 92, 118, 114, -69, -50, -42 ]
The opinion of the court was delivered by Lockett, J.: This case is here on certification from the Tenth Circuit Court of Appeals. The United States appealed from a judgment of the United States District Court for the District of Kansas in which the district court had determined that under Kansas law the life tenant under a will did not have the right to consume the corpus of the life estate, and, therefore, the value of the life estate was not taxable as a part of the life tenant’s estate upon her death. Gaskill v. United States, 561 F. Supp. 73 (D. Kan. 1983). After oral argument, the Tenth Circuit Court of Appeals, pursuant to the certification procedures set forth in K.S.A. 60-3201 et seq., certified the following question to the Kansas Supreme Court: “Does a life tenant of property given to her in a will which authorizes her to dispose of the property as provided in Article III [of the Gaskill will] have a right under Kansas law to consume the corpus where Article IV of the [Gaskill] will gives the remainder ‘subject to the life estate’?” E. L. Gaskill died testate in 1952. His wife, Sophie R. Gaskill, died in 1979. Under the terms of her husband’s will, she received certain property interests. Paragraph III of the will provided: “If my said wife survive me I give, devise and bequeath her a life estate in and to all of the rest, residue and remainder of my estate, real, personal and mixed, wheresoever situated or located, with full rights, powers and authorities to sell, convey, exchange, lease for oil and gas and otherwise, assign, transfer, deliver and otherwise dispose of any part or all of said estate during her lifetime, all without authority of or order from any Court.” Paragraph IV of the will stated in part: “Subject to said life estate I give, devise and bequeath all of the remainder of my estate, or if my wife not survive me then all of the rest, residue and remainder of my estate after payment of all items in Paragraph II hereof unto my children . . . equally, share and share alike, in fee simple Although the executor/taxpayer originally included the value of the life estate in the gross estate, the executor subsequently filed an amended return claiming a refund of $90,306.62 in estate taxes. Upon the denial of the claim for refund, the executor filed suit in the federal district court for refund. Pursuant to cross-motions for summary judgment, the district court held that, although the will granted the decedent far-reaching powers to dispose of the life estate, under Kansas law the decedent had a “correlative duty on her to make any such dispositions for full consideration and to hold the proceeds as a quasi-trustee for the remaindermen.” According to the court, the decedent did not possess under state law the power to appoint any of the life estate either to herself or to her creditors, and, therefore, did not have a general power of appointment under Section 2041 of the Internal Revenue Cbde of 1954 such that the value of the life estate should be included in her gross estate. The United States argues that the language of the Gaskill will gave Sophie Gaskill the right to consume the entire corpus of the life estate, subject to the sole limitation that she could not give the property away. It contends that the phrase “all of the remainder” should be interpreted to mean “whatever is left,” suggesting that the testator gave Sophie the right to consume any part of the property in the life estate, with whatever was left going to the remaindermen. The executor argues, however, that the power to dispose of the property did not include the power to consume, and that Sophie Gaskill held the property in a quasi-trust for the remain dermen, subject to any powers of consumption she had in the life estate. When construing the provisions of a will this court is required to place itself in the shoes of the testator at the time he made the will and determine as best it can the purpose and intentions he endeavored to convey by the language used. The tools in aid of the search for the testators intention are the language contained within the four corners of the document, plus any .extraneous circumstances surrounding its execution which assist in understanding his true intent and purpose. In re Estate of Lehner, 219 Kan. 100, 547 P.2d 365 (1976). The United States District Court, in reaching its decision, reviewed three prior Kansas cases: In re Estate of Lehner, 219 Kan. 100, in which the will granted a life estate with power of disposition in “all of the rest, residue and remainder” of the testator’s property, and provided that “the remainder of such residue remaining” at the death of the life tenant should go to the remaindermen. Pearson v. Orcutt, 106 Kan. 610, 189 Pac. 160 (1920), in which the testator granted a life estate with power of disposition in “all property, real, personal, and mixed,” with an additional provision directing that, in the event the life tenant “shall not have sold or disposed of all of my property prior to*her death . . . then out of such of my estate as shall remain,” a sum certain was to be paid to an identified recipient and the remainder was to go to the remaindermen. Condon Nat. Bank of Coffeyville, Kan. v. United States, 349 F. Supp. 755, 756 (D. Kan. 1972), in which the will provided: “ ‘SECOND: All of the rest and residue of my property, real, personal or mixed, whatsoever and wheresoever situated, in which I may have any interest at the time of my death, I give, devise, and bequeath unto my beloved wife, HELEN F. BROWN, with full power to sell or dispose of the same or any part thereof as to her shall seem best: PROVIDED That whatever of my said property, if any, shall remain undisposed of at the time of the death of my wife, HELEN F. BROWN, I give, devise and bequeath the same, one-half to my heirs then surviving, and one-half to the heirs of my wife then surviving.’ ” The United States District Court determined that: “The distinction between the language in E. L. Gaskill’s will and the language ir^ the wills in these three cases is immediately apparent. In the latter three cases, the testators explicitly recognized the possibility that the property held by the life tenants would diminish in quantity and value before that property found its way into the hands of the remaindermen by the use of language such as ‘the remainder of such residue remaining,’ ‘such of my estate as shall remain,’ and ‘whatever of my said property, if any . . .’ The Gaskill will, in strong contrast, unambiguously directs that all of the life estate property shall go to the remaindermen at the life tenant’s death.” 561 F. Supp. at 77. The United States District Court’s holding follows the majority rule in other jurisdictions. Where there are no clear provisions governing disposition of the proceeds of a sale by a life tenant in the will, the proceeds of a sale or disposition by a life tenant take the place of the property sold, so that title thereto is in the remaindermen, subject to such rights of possession, user, investment, reinvestment, expenditure, or consumption as may have been given the life tenant under the will. Annot., 47 A.L.R.3d 1078, 1082. See also 51 Am. Jur. 2d, Life Tenants and Remaindermen § 68. A power of sale is not property, but is a personal authority. It is not inconsistent with a life estate. Its existence does not enlarge a life estate, nor does it change the relation to the remaindermen when annexed to the life estate. A life tenant with power to sell real property devised to her for life with remainder to designated persons is a trustee or quasi-trustee and occupies a fiduciary relation to the remaindermen, and .in the exercise of that power, the life tenant owes to remaindermen the highest duty to act honestly and in good faith by selling the property to a bona fide purchaser for the best price offered. Windscheffel v. Wright, 187 Kan. 679, 360 P.2d 178 (1961), 89 A.L.R.2d 636. If the power of sale or disposal by a life tenant under the will is merely the ordinary one bestowed on a custodian of property, and no words suggesting that the remaindermen may be compelled to take less than the entire corpus are employed, the will is construed to permit the life tenant to have only the income derived from the life estate. Windscheffel was reaffirmed in Noel v. Noel, 212 Kan. 583, 512 P.2d 324 (1973), where the court said that the duty of a life tenant was the same whether or not the will specifically required the life tenant to hold the proceeds of any sale for the remainderman. The existence or extent of the privilege of a life tenant with a power of sale or disposition, or both, to use or consume the proceeds of a sale or disposition effected thereunder, and thereby reduce or eliminate the remaindermen’s eventual acquisition, is dependent upon the intent of the testator. The duty to conserve the proceeds of a sale exists whether explicit or implicit; if there is a right to consume it means only that the trust will be limited to that portion of the corpus which is not expended by the life tenant. Here E. L. Gaskill stated in Paragraph I of his will that if his wife survived him, he gave to her in fee simple certain real and personal property plus an undivided one-half interest in the rest, residue and remainder of his estate. Gaskill’s purpose in this paragraph was to take full advantage of the marital deduction allowed by law when transferring one half of the property to his wife in fee simple. In Paragraph III Gaskill provided that if Sophie survived him she would have a life estate in the remaining balance of his estate not given to her in fee simple by Paragraph I of his will. The widow was then given the right “to sell, convey, exchange, lease . . ., assign, transfer, deliver and otherwise dispose of . . .” the property composing her life estate. In Paragraph IV, the testator gave “all of the remainder,” the property that composed the widow’s life estate, to his children in fee simple. Gaskill’s purpose here was to ensure his children received the greatest estate one can possess. When a testator provides that the remaindermen receive the remainder of the estate in fee simple, he implies an unlimited estate of inheritance subject only to the provisions of the life estate. Parker v. Conrad, 74 Kan. 111, 85 Pac. 810 (1906). Paragraph III of the will does not expressly grant the life tenant the power to consume. When the power to consume is not expressly granted by the will to the life tenant, it must be implied by the testator within the instrument. We do not find that the testator implied that the life tenant have the right to consume the corpus of the life estate. The United States District Court correctly determined under Kansas law that the E. L. Gaskill will did not express or imply that the life tenant had the right to consume the life estate property, that Sophie Gaskill was a life tenant with the power of disposition, and that she was a trustee or quasi-trustee for the remaindermen. She was obligated to preserve the life estate property for the remaindermen. She could not dispose of the corpus of the life estate by will, gift or for less than adequate consideration. The will granted the life tenant only the income generated by the life estate property during her life. The answer to the question certified by the United States Court of Appeals for the Tenth Circuit is simply “No.”	[ -45, 106, -43, 63, 8, 112, 122, -104, 114, -25, 37, 83, 103, -38, 21, 41, -13, 21, 81, 104, -57, -73, 23, -127, -34, -69, -103, -35, -79, 93, 109, -42, 72, 97, 98, -43, -58, -53, 73, 24, -116, 74, -120, -15, -33, 0, 48, 107, 114, 11, 81, -38, 51, 57, 25, -17, -56, 46, 89, -91, -52, -72, -85, -121, 123, 22, 18, 6, -108, -55, 64, -118, -106, -39, 0, -24, 115, 54, -58, 116, 47, -119, -87, 98, 115, 50, 5, -19, -96, -120, 15, -38, -115, -89, -102, 88, 99, 8, -100, 29, 124, 4, 47, 116, -26, 20, 95, -3, 12, -113, -42, -79, 9, 124, -112, -117, -9, 69, 32, 81, -54, -86, 92, 7, 124, -101, -113, -14 ]
The opinion of the court was delivered by Herd, J.: This is a mortgage foreclosure action wherein two actions were consolidated — one filed by appellee Bank of Whitewater, and one filed by Bank of Mid-America. After extensive discovery, Associates Financial Services of Kansas, Inc. (Associates); Avco Financial Services of Topeka, Inc. (AVCO); and Bank of Mid-America amended their answers to raise the issue of fraud as a defense to the prior recorded mortgages of the Bank of Whitewater. In addition to asking that their mortgages be adjudged prior, they prayed for actual and punitive damages against the Bank of Whitewater, Karl Umbach, J. Scott Stuber and Stephen A. Decker. Several mechanics’ lien claimants also claimed a first lien on some of the properties being foreclosed upon. The validity of these liens and the dates upon which they attached were issues bifurcated from the main trial and determined at an earlier setting. The trial court found the mortgages held by the Bank of Whitewater on the property in question to be prior to the claims of Associates, AVCO and the Bank of Mid-America. The court did not find any fraud or wrongdoing on the part of the Bank of Whitewater or its vice-president, Karl Umbach. Associates, AVCO and the Bank of Mid-America appealed. The Bank of Mid-America has since voluntarily dismissed its appeal. _ _ AVCO and Associates appeal on several issues. Primarily, they claim the trial court erred in failing to hold their mortgages first and prior liens senior to all other interests and in failing to find that Karl Umbach and the Bank of Whitewater committed fraud upon the appellants. Let us first identify the parties and their relationship. AVCO and Associates are financial lending institutions incorporated in the State of Kansas with offices located in Wichita, Kansas. The Bank of Whitewater is a banking corporation organized under the laws of the State of Kansas with its principal place of business in Whitewater, Kansas. John Umbach was the president and operating head of the Bank of Whitewater. His wife, Marilyn Umbach, served as a secretary of the bank and their son, Karl Umbach, served as the bank’s executive vice-president. Ninety-eight percent of the bank’s stock was owned by the Umbach family. The Bank of Whitewater was operating under a Consent Agreement issued on August 28, 1975, by the Federal Deposit Insurance Corporation relative to unsound banking practices, which included: excess lending outside of its loan territory; inadequate margin of security on collateral loans; unsatisfactory performance of a borrower; weak financial position; collateral with questionable liquidation value; loan concentration of credit; and improper supervision of loans. J. Scott Stuber and Stephen A. Decker (hereinafter Stuber and Decker) were residents of Sedgwick County, Kansas. Mr. Decker was the president of Decker Investments, Inc.; Decker and Associates, Inc.; and Compass Developments, Inc. Mr. Stuber is a real estate developer. Stuber and Decker began doing business together in the latter part of 1978, dealing primarily in real estate investments. Stuber and Decker were partners in the transactions involved in this lawsuit. The partnership operated in the name of Stephen Decker in order to avoid judgment creditors of Stuber. During the latter part of 1979, Stuber and Decker began doing business with the Bank of Whitewater. From 1979 until March of 1981, Stuber and Decker engaged in over 30 lending transactions with the Bank of Whitewater involving over $300,000. As Stuber and Decker reached their loan limits at the bank, several other companies were formed to alleviate loan concentrations at the Bank of Whitewater and to obtain outside financing with other-institutions. Among these companies were Decker Investments, Inc.; Decker and Associates, Inc.; Compass Developments, Inc.; and Darnell Investments, Inc. In addition to the creation of these corporations, defendants Stuber and Decker brought in outside individuals, who were all friends or employees of Decker, to obtain financing. These individuals included James and Carol Darnell, David and Alice Bell, and Joan and Richard Shaw. Stuber and Decker formed a limited partnership with these couples to finance construction of new homes. On or about February 9,1980, Stuber and Decker, in the name of Decker Investments, Inc., executed and delivered to the Bank of Whitewater a note in the original sum of $47,883.37. In order to secure this note, Decker Investments executed and delivered to the Bank of Whitewater a mortgage on real property located at 2903 East Douglas in Wichita. A few months later, on April 24, 1980, a release of record on the East Douglas property was filed in the office of the register of deeds in Sedgwick County. The release purportedly bore the signatures of John Umbach, Marilyn Umbach and the signature and notary seal of LaVerne Mosiman, the bank’s vice-president and cashier. Max Regier, who was employed by Stuber and Decker, took the original release to the register of deeds for filing. Stuber testified the release originated at the bank as a result of a conversation had between Stuber, Decker and Karl Umbach in which Umbach was told a release was necessary in order to use the property as security for another loan. Less than one week after the release on the East Douglas property was filed, Decker, acting individually and on behalf of Decker Investments, Inc., borrowed $49,338.13 from Associates Financial Services of Kansas, Inc. Associates took the East Douglas property as security and filed its mortgage of record on April 30, 1980. The trial court determined the signatures on the release filed on the East Douglas property were forged and neither the bank nor any of its officers, agents or employees had knowledge of the purported release until at least one year after it was recorded. Accordingly, the trial court determined the Bank of Whitewater’s mortgage was a valid lien on the real estate with a priority date of February 13, 1980. The mortgage held by Associates on the East Douglas property was held by the trial court to be junior and inferior to the mortgage of the Bank of Whitewater and also to a mortgage of the Wichita State Bank. On January 7, 1981, Bank of Whitewater refinanced earlier notes of Compass Developments and loaned Compass $150,000. It took as security real property owned by Compass Developments located at 331 Lark, Wichita, Kansas, and described as follows: Lot 7, Block 10, Westlink. 17th Addition Wichita, Sedgwick County, Kansas. On January 19, 1981, a release of mortgage on the Westlink property on a Bank of Whitewater form was filed in the office of the register of deeds in Sedgwick County. Less than one month after this release was filed, David and Alice Bell borrowed $48,746.88 from AVCO. AVCO took as security for the loan a mortgage on the Westlink property (Lot 7, Block 10). This mortgage was filed of record on February 23, 1981. The trial court found the signatures on the release filed on the Westlink property were forged by or caused to be forged by Stuber and Decker in order that they could use the Westlink property as security to obtain a loan in the name of David and Alice Bell from AVCO. Accordingly, the trial court found the Bank of Whitewater to be entitled to. the proceeds of the sale of the Westlink property, subject, however, to a number of mechanics’ liens which had priority over the bank’s mortgage. AVCO’s lien, while valid, was subject to the prior mechanics’ liens and mortgage. Shortly before this transaction occurred, Stuber and Decker installed tape-recording devices in the telephone and ceiling of their office. About the middle of February 1981, Stuber gave $5,000 in cash to Karl Umbach as a bribe and in an attempt by Stuber to obtain preferential illegal treatment on insufficient fund checks drawn on the Bank of Whitewater. The conversation surrounding the payment of the bribe was tape-recorded in the office of Stuber and Decker. The trial court found that in exchange for the bribe Karl Umbach agreed to hold checks which were insufficient at the Bank of Whitewater for the maximum period of time and then to return the checks for verification of endorsement rather than returning them as insufficient. This maneuver would give Stuber additional time to cover the checks. The court found it was anticipated the proceeds received from the AVCO loan to David and Alice Bell would be used in this maneuver. On February 27, 1981, Karl Umbach credited his $5,000 bribe received from Stuber on the obligation of Darnell Investments, Inc., at the Bank of Whitewater and dated back the credit to February 25, 1981. On March 1, 1981, Mr. Stuber called Karl Umbach and told him that Stephen Decker needed money and he threatened to disclose to John Umbach the taped conversations of the bribe. This was the first Karl Umbach was aware his conversation had been recorded. Stuber requested a meeting with the bank attorneys, which was scheduled for March 2, 1981. At that meeting Stuber told Karl Umbach and the bank attorneys he had taped conversations. Karl Umbach resigned his position with the Bank of Whitewater on March 4, 1981. On April 1, 1981, the Bank of Whitewater brought suit to foreclose its various mortgages. On May 18, 1981, Bank of Mid-America brought suit to foreclose its mortgage. On December 16, 1982, appellants AVCO and Associates filed their amended answers, counterclaims and cross-claims as previously stated. They requested trial by jury both in their amended answers and at the pretrial conference held "in the case on April 1, 1983. The lower court bifurcated the trial of the action. The court ordered issues raised by the mechanics’ liens claimants to be heard on August 3, 1983. The trial of the fraud and conspiracy issues began November 21, 1983. The court issued its findings of fact and conclusions of law on July 20,1984. It held the Bank of Whitewater had a first and prior mortgage on the East Douglas and Westlink properties subject to the liens previously discussed. The court found no wrongdoing on the part of the Bank of Whitewater or Karl Umbach affecting the issues in this case. It did grant punitive damages against defendants Stuber and Decker in favor of AVCO. This appeal by AVCO and Associates from the judgment of the trial court followed. I. The first issue raised by appellants on appeal is whether the trial court erred in failing to grant appellants’ motion for a jury trial on the issues of fraud and misrepresentation. The trial court denied appellants’ request for a jury trial on the ground that a mortgage foreclosure proceeding is equitable in nature. Appellants argue the legal questions they raised con cerning conspiracy to defraud and misrepresentation were not incidental to the mortgage foreclosure proceeding. The general rule regarding the availability of a jury trial under these circumstances is that in the absence of a statute or rule of procedure dictating a contrary result, the asserting of a counterclaim of a legal nature by a defendant in an equitable action gives him no right to a jury trial. Annot., 17 A.L.R.3d 1321. This rule applies both when the defendant seeks a jury trial of the case generally, or when the defendant requests a jury trial only of the issues raised by the counterclaim. The Kansas rule is consistent with the general rule. In First National Bank of Olathe v. Clark, 226 Kan. 619, 602 P.2d 1299 (1979), we held a party is not entitled to a jury trial as a matter of right in a suit in equity, both at common law and under the Kansas Constitution. In determining whether an action is one in equity, the test is whether the essential nature of the action is grounded on equitable rights and is one in which equitable relief is sought. Therefore, we must determine whether the present action is essentially equitable in nature. Karnes Enterprises, Inc. v. Quan, 221 Kan. 596, 600, 561 P.2d 825 (1977). As we pointed out in First National Bank of Olathe v. Clark, 226 Kan. at 623, a mortgage foreclosure action is equitable in nature and the existence of legal claims does not alter the essential nature of it. Additionally, in McMurray v. Crawford, 3 Kan. App. 2d 329, 330, 594 P.2d 1109 (1979), the Court of Appeals held that a foreclosure action is essentially equitable in nature and the defendant’s insertion of forgery, misrepresentation and fraud claims into the action does not require a jury trial. The trial court properly denied appellants’ request for a jury trial on the legal issues raised in their counterclaims. II. The appellants next assert the trial court abused its discretion by failing to grant their motion for default judgment against defendant Karl Umbach on their claims of misrepresentation and conspiracy to defraud. On January 27, 1983, defendant Karl Umbach was served with the amended answers of the appellants which named Karl Umbach as a third-party defendant and asserted cross-claims against Stephen Decker, Scott Stuber and Karl Umbach. Umbach’s attorney was served with a copy of the amended answers and cross-claims on December 16, 1982. No answer was filed by Karl Umbach and on July 15, 1983, appellants filed a motion for default judgment. Defendant Karl Umbach then filed a motion for enlargement of time in which to answer cross-claims. This motion was heard and granted by the trial court on July 20, 1983. In support of the motion, defendant Umbach argued he did not realize the documents he received contained a claim for relief against him. Mr. Umbach’s attorney, Jack Focht, did not deny he received a copy of the amended answers and cross-claims, but simply argued he didn’t pay a “great deal of attention” to them since his client, Karl Umbach, was not a party to the case. Mr. Focht, at the hearing on the motion for enlargement, stated he first became aware of the claims made against his client on July 1,1983. On that date, he ran into appellants’ counsel, Patrick Dougherty, in the clerk’s office. Mr. Dougherty was examining a document and Mr. Focht asked him what he was looking at. Mr. Focht claims he then read the document, learned a cross-claim had been filed against his client, and immediately filed a motion to answer out of time. The trial court, after listening to arguments from both sides, granted defendant Karl Umbach’s motion to answer out of time. K.S.A. 60-206(b)(2) gives the trial court discretion to extend the time in which pleadings are to be filed, where the failure to act was the result of “excusable neglect.” As we pointed out in Tyler v. Cowen Construction, Inc., 216 Kan. 401, 406, 532 P.2d 1276 (1975), “excusable neglect” is a nebulous term, not susceptible to a clear and exact definition. Whether or not excusable neglect exists must be determined by the trial court on a case-by-case basis considering all the facts presented. In the absence of a showing of abuse of discretion by the trial court, its decision should be affirmed. We find no showing of abuse of discretion upon the facts presented here. III. Appellants next contend the failure of the trial court to find the plaintiff Bank of Whitewater and defendant Karl Umbach guilty of misrepresentation and conspiracy to defraud was contrary to the evidence and an abuse of discretion motivated by passion and prejudice. The trial court made the following finding of fact with regard to appellants’ charges of misrepresentation and conspiracy to defraud: “That there is no evidence of a conspiracy to defraud any of the defendants by the Bank of Whitewater or its employees and officers, and that, to the allegations and affirmative defenses raised by Bank of Mid-America, AVCO Financial Services of Topeka, Incorporated, and Associates Financial Services of Topeka, Incorporated to the mortgages of the Bank of Whitewater, the Court finds in favor of the Bank of Whitewater, as the defendants have failed to prove any conspiracy, fraud, or other misconduct on the part of the Bank of Whitewater which would void the mortgages held by the Bank of Whitewater and which are a part of the subject matter of this action.” We have held the existence of fraud is ordinarily a question of fact. An appellate court’s review is limited to determining whether the trial court’s finding is supported by substantial competent evidence when the evidence is reviewed in a light most favorable to the party prevailing below. It is not the function of this court to weigh the evidence or pass on the credibility of the witnesses and the trier of fact, not the appellate court, has the responsibility of determining what testimony should be believed. Weigand v. Union Nat’l Bank of Wichita, 227 Kan. 747, 756-57, 610 P.2d 572 (1980). Appellants, in support of their contentions of fraud and misrepresentation, suggest the Bank of Whitewater and Karl Umbach caused mortgage releases to be signed and filed in order to allow defendants Stuber and Decker to use the released property as security to obtain additional capital from the appellants. This capital would in turn .be applied to outstanding notes at the Bank of Whitewater. There is no support in the record for this contention. In fact, the trial court specifically found the mortgage release on the East Douglas property was forged by or caused to be forged by Stuber and Decker, stating: “On or about April 24, 1980, a release of the mortgage filed on February 13, 1980, and referred to in paragraph 25 [East Douglas Property], was filed of record in the office of the Register of Deeds of Sedgwick County, Kansas. From testimony adduced, the court finds that the signatures on the mortgage release are forgeries, and from all of the circumstances and evidence that the preparation of the forged release and filing thereof was either done by J. Scott Stuber or Stephen A. Decker or procured to be done by them. That the Bank of Whitewater used forms purchased from Duke Printing Co. Inc. which had the notation at the bottom of the form “Duke Printing Inc.” and that this notation is not on the forged release which was denominated Bank of Whitewater Exhibit 9a. That there are four signatures on the forged release. That there was a conflict in the evidence as to the validity of the signature of John C. Umbach, in that John C. Umbach denied the signature, but James Maloney testified that it was a genuine signature. Marilyn N. Umbach denied her signature and James Maloney testified that her signature might or might not be genuine. The signature of LaVerne Mosiman was on the forged release twice. Mr. Maloney testified that these signatures were not genuine. The notary seal on this release was not the seal of LaVerne Mosiman, but is a duplicate. The Court considers the evidence that J. Scott Stuber had a forged release from the Bank of Mid-America in his possession and showed the same to Bud White in connection with a loan from Bud White to J. Scott Stuber. The evidence further showed that the Bank of Whitewater had a title company file their mortgage releases, but that Bank of Whitewater Exhibit 9a, 8a, 8b and 8c were filed with the Register of Deeds by Max Regier, an employee of J. Scott Stuber and Stephen Decker. The Court specifically finds that Bank of Whitewater exhibits 8a, 8b, 8c and 9a are all forgeries, either done by J. Scott Stuber or Stephen A. Decker or procured to be done by them without involvement by the Bank of Whitewater or its employees. The original releases were to be returned to Max Regier and are not in evidence, having been lost, misplaced, or in all probability destroyed by the forger.” The court made the same findings of fact with respect to the release of the Westlink property, which was used as security to obtain a loan from AVCO to David and Alice Bell. The trial judge had the opportunity to view the witnesses and judge the credibility of their testimony with respect to the validity of the releases in question. There is substantial competent evidence to support the trial court’s finding the releases were forged and that finding will not be disturbed on appeal. Appellants have transcribed various segments of tape-recorded conversations between Umbach and Stuber which they claim are evidence of fraud on the part of the Bank of Whitewater and Karl Umbach. The conversations allegedly include a discussion between Umbach and Stuber regarding the use of the proceeds of a loan from AVCO to David and Alice Bell. There are some problems with considering such conversation to be evidence of fraud. First, it is difficult to discern exactly what Karl Umbach and Stuber are talking about in their taped conversations. Secondly, even if they were discussing the proceeds of the AVCO loan to the Bells, that does not necessarily indicate fraud on the part of the Bank or Karl Umbach. There is no evidence, tape-recorded or otherwise, indicating either the bank or Karl Umbach had knowledge the releases in question were filed. Appellants also place great emphasis on other segments of the tape-recorded conversation which are transcribed and in their brief. While it is true this conversation relates to the covering of overdrafts and the $5,000 payment from Stuber to Karl Umbach, and is reprehensible, the appellants have failed to connect this taped conversation to any loss suffered by either AVCO or Associates. The $5,000 payment was first credited by the Bank of Whitewater to the note of Darnell Investments. This entry was later reversed and the $5,000 was returned to Stuber. It is significant that the taped conversations with Karl Umbach occurred on February 16, 1981; the Bank of Whitewater mortgage releases were all recorded January 19, 1981, and prior thereto. Thus, there is no evidence of a connection between the transactions. The elements of actionable fraud were set out in Nordstrom, v. Miller, 227 Kan. 59, 65, 605 P.2d 545 (1980): “Actionable fraud includes an untrue statement of fact, known to be untrue by the party making it, made with the intent to deceive or recklessly made with disregard for the truth, where another party justifiably relies on the statement and acts to his injury and damage. [Citations omitted.] “We have held fraud is never presumed and must be proven by clear and convincing evidence.” There is no clear and convincing evidence that the Bank of Whitewater or Karl Umbach committed fraud upon the appellants, or that any misrepresentations were made by them that either AVCO or Associates relied upon to their detriment. It is significant that the trial court found “overwhelming evidence” to substantiate the appellants’ fraud claims against Stuber and Decker and awarded punitive damages in favor of AVCO against Stuber and Decker. IV. As their fourth point on appeal, appellants argue the trial court erred in failing to find the mortgages held by them on the East Douglas and Westlink properties as first and prior liens senior to all other interests. Specifically, appellants assert the mechanics’ lien statements signed by the various lien creditors were incorrectly completed and verified. After the dismissal of the Bank of Mid-America as an appellant, only the Westlink property remains affected by the mechanics’ liens in the present appeal. Appellants argue the trial court erred in finding the mechanics’ liens filed on the Westlink property to be valid liens entitled to priority over appellant AVCO’s mortgage. Their primary contention is that the mechanics’ lien statements filed by J & J Enterprises, A. B. Masonry Construction, Inc. and Maurice Caster were invalid because the verifications failed to show the nature of the agency or authority of the person signing the statement. In Trane Co. v. Bakkalapulo, 234 Kan. 348, 352, 672 P.2d 586 (1983), we held that in determining the validity of a lien statement, both the body and verification together must be considered in their entirety. The lien statement’s validity must be ascertained from its four corners. Applying this rule to the facts at hand, the trial court properly determined the liens to be valid. V. The appellants next allege the trial judge erred in failing to disqualify himself from the proceedings in this case. The factual basis for the appellants’ motion to change judges is as follows. At a discovery conference in the office of the trial judge, Robert C. Helsel, Patrick Dougherty, as counsel for appellants, informed the court he intended to take the depositions of the officers of certain mechanics’ lien claimants for the purpose of discussing the validity of such liens. Judge Helsel advised Mr. Dougherty that such depositions were unnecessary and the priority of mechanics’ lien claimants should be established by agreement of the parties. The judge noted that while such depositions are not unlawful, he thought they were unnecessary and thus would be the proper subject of sanctions against the attorney taking them. In view of this conversation, appellants argued the information and evidence elicited by such depositions would not be given a fair hearing or unbiased consideration by the trial judge. The administrative judge examined the affidavit filed by Mr. Dougherty in support of the motion and determined none of the grounds set out at K.S.A. 20-311d(b) were present and therefore a change of judge was not proper. The only ground for disqualification which might be applicable is K.S.A. 20-311d(b)(5) which applies to bias, prejudice or interest on the part of the trial judge. However, we have held the words “bias” and “prejudice,” as used in connection with the disqualification of a judge, refer to the mental attitude or disposition of the judge toward a party to the litigation and not to any views he might have regarding the subject matter of the litigation. State v. Foy, 227 Kan. 405, 411, 607 P.2d 481 (1980). In Foy, we stated views relating to legal questions do not amount to personal bias as required by K.S.A. 20-311d(b)(5). Here, the trial judge expressed his views regarding the necessity of discovery of the mechanics’ liens claimants. The judge displayed no personal bias or prejudice toward appellants or their counsel. Appellants’ motion to disqualify the trial judge was properly denied. VI. Appellants next argue the trial court erred in failing to grant their motion for dismissal made at the close of plaintiff s case. At the close of plaintiff s case, appellants moved to dismiss the case on the ground that no evidence was presented at trial as to the amounts due and owing the Bank of Whitewater as of the time of trial. The record discloses that on April 1, 1983, a pretrial conference was held. On that date a journal entry was entered, granting the Bank of Whitewater partial judgment. The journal entry established the principal amount due on each note held by the Bank of Whitewater, the interest rate each note bore and the date from which interest was to be calculated. Based upon the journal entry, the amount due at any particular date could be calculated. Since the amounts due and owing had already been reduced to judgment, this issue is without merit. VII. Appellants’ final argument on appeal is that the trial court erred in several rulings made regarding the admission of testimony and exhibits offered by the respective parties. Appellants first claim the trial court erred in admitting the testimony of Max Regier regarding the mortgage releases in question. Max Regier testified that one of two people, Scott Stuber or Stephen Decker, gave him the releases which the trial court later determined to be forged. Appellants argue this testimony was “speculative” and should not have been admitted. Any error in admitting such testimony was harmless error since there was substantial other evidence supporting the trial court’s finding that the releases were forged. Appellants next claim the court erred in admitting, over objection, Bank of Whitewater Exhibit 18e without counsel having been provided a copy of the documents prior to trial. Appellants fail to show any prejudice resulting from this action by the trial court and any error was harmless. Appellants argue the trial court erred in allowing Karl Umbach to testify with respect to a conversation he had with Mr. Eugene Webb of Security Abstract and Title Company. Appellants claim Mr. Umbach’s testimony constituted hearsay. Mr. Umbach testified as to statements he made to Mr. Webb regarding his lack of knowledge of the releases filed of record. Even if Mr. Umbach’s remarks constituted hearsay, no prejudice resulted since his testimony was corroborated by Bank of Whitewater Exhibit No. 8, which was evidence of the conversation between Mr. Webb and Mr. Umbach. Appellants next argue the trial court erred in allowing defendant Karl Umbach to testify with respect to the guarantee and verification of checks. The testimony to which appellants objected was Mr. Umbach’s explanation of his bank’s check-clearing process and the fact that an oral statement as to whether a check would clear could be no more than an oral verification of the balance in an account at any given time. Appellants objected to this testimony as speculative. Appellants make no claim that the allowance of this testimony prejudiced them in any manner and we find no error in its admission. Finally, appellants claim error in the trial court’s refusal to admit Bank of Mid-America’s Exhibit PP. The exhibit contained a letter written by attorney Ted Peters on behalf of his client, J. Scott Stuber, and addressed to the United States Attorney’s Office. The letter contained a recollection of events involving defendants Stuber, Decker and Karl Umbach. The trial court determined that Mr. Stuber could refer to the letter to refresh his memory, but that the letter would not be admitted into evidence. The letter contained self-serving hearsay and appellants have failed to show how the trial court’s refusal to admit the letter resulted in prejudice to the appellants. Admission of the letter was properly denied. The judgment of the trial court is affirmed. Lockett, J., not participating.	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The opinion of the court was delivered by Prager, J.: This is an action brought by the sellers of real estate against the buyer for the construction and reformation of certain deeds and for the recovery of actual and punitive damages for alleged misrepresentation and fraud on the part of the defendant/buyer. The plaintiffs/sellers are the members of the Andres family. The defendant/buyer is Roland L. Claassen. In the course of the proceedings, the buyer filed a third-party petition against Donald D. Dannar and his wife, Mary B. Dannar, and against the Kansas Department of Transportation (KDOT) to quiet his title to certain land which the buyer contended was included in the purchase of real estate from the Andres family. The case was tried to the court as a proceeding in equity. The trial court held in favor of the plaintiffs on their petition, granting reformation of the deeds but denying recovery of damages on the plaintiffs’ claim of fraud. The buyer appealed and the sellers cross-appealed. The facts in the case were not greatly in dispute. The trial court made comprehensive findings of fact and conclusions of law. The factual situation may be summarized as follows: The plaintiffs, the Andres family, for a number of years had been the owners of real estate located in the city of Newton in the NW xk of Section 28, Township 23 South, Range 1 East in Harvey County. The land is bordered on the west by what is known locally as old U.S. Highway 81 and on the east by 1-135. The property was located with such close proximity to old U.S. Highway 81 and the new 1-135 that it was in time subjected to five separate condemnation actions after old U.S. Highway 81 was expanded from a two-lane highway to a four-lane highway. After these various condemnation actions and a private sale to an individual, the Andres family owned the fee interest in a small frontage property located to the north of U.S. Highway 50, and along old U.S. Highway 81. This tract will be referred to in the course of the opinion as the “frontage property.” The defendant Claassen was the owner of a lumber yard immediately east of this frontage property. Claassen had previously purchased this lumber yard property from the Andres family prior to 1972. In addition to the frontage property, the plaintiffs owned a reversionary interest in a tract of land of about 44 acres lying south of Highway 50, which had been acquired by KDOT in the eminent domain proceedings mentioned heretofore. It is this 44-acre tract which is the subject of dispute in this litigation. For a number of years prior to February 1979, the plaintiffs had attempted to sell the frontage property to the defendant, Roland D. Claassen. Attempts to sell the property occurred in 1970, 1972, and 1974. In 1974, the defendant made a written offer to purchase the frontage property, but the parties could not reach an agreement. In February 1979, the negotiations for sale of the frontage property occurred which brought about the present litigation. The plaintiffs listed the frontage property with a real tor, Jim Klaassen, with instructions to sell it for $90,400 to whomever wished to buy it. The realtor made numerous attempts to sell the property to the defendant, Roland D. Claassen. The defendant’s response was that the asking price was too much money. At no time did the defendant and the real estate agent discuss the sale of any real estate other than the frontage property lying north of Plighway 50. During the month of July 1979, the defendant told the real estate agent that he would make an offer to purchase the property for the sum of $87,500, and told the real estate agent to prepare the contract. A contract describing the frontage property was prepared and delivered to defendant, who advised the real estate agent that he wished to have his attorney examine the same and took the contract to him for that purpose. When the defendant Claassen returned the contract to the real estate agent, he had made several minor changes therein not material in this case and, in addition, the following language was added to the description of the land to be sold: “This proposal includes all land owned by sellers in above NW %, whether described herein or not.” At no time did the defendant make it known to the real estate agent or to the plaintiffs that the added language was to increase the quantity of real estate being sold by including the plaintiffs’ reversionary interest in the 44-acre tract lying south of Plighway 50. The attorney’s suggested language used the words “including any reversion,” but that language was changed to “and improvements thereon” when the contract was rewritten and retyped. At no time did the defendant advise the real estate agent that the quantity of land had been increased. The real estate agent discussed the additional language with the defendant and concluded that the change in language was to clarify the existing description. The real estate agent then took the revised contract to the plaintiffs, who signed the same. Prior to signing the revised contract, the plaintiffs discussed the added language with the real estate agent, who informed them that it was for the purpose of clearing up any misdescription in the property to be conveyed. The trial court found that, at the time of the execution of the contract, plaintiffs owned no other land in the Northwest Quarter, but did have the possibility of a reverter in the 44 acres which had been condemned by the state of Kansas in the various condemnation cases. The plaintiffs did not understand the extent or nature of their actual rights in the 44 acres but believed that the Highway Department at some time in the future might reconvey the land to them. The plaintiffs did not understand that their “rights” amounted to the ownership of “land.” On November 28, 1979, the real estate transaction was closed, and plaintiffs delivered to the defendant two warranty deeds which had been prepared at the direction of defendant or his attorney. One deed contained in the description clause the following language: “Together with any and all right, title or interest, present or contingent in the Northwest Quarter (NW lA) of Section 28, Township 23 South, Range 1 East of the 6th P.M.” The trial court found that it was not the intention of the plaintiffs to convey any interest in the possible reversionary rights in the 44-acre tract lying south of Highway 50 which had been taken for highway purposes. The defendant Claassen testified it was his intent that the language include the reversionary interest south of the highway and that is the reason why the additional language was added by his attorney in the disputed contract and deed. The trial court found that at no time in any of the negotiations for the purchase of the frontage property down through the years did the defendant make known that it was his intention to include the reversionary interest in the land lying south of the highway. At no time in the negotiations with the real estate agent, Jim Klaassen, that culminated in the sale did the defendant make his intentions known. The trial court found that the land lying south of Highway 50 was never a part of the negotiations between the parties and that plaintiffs listed for sale only the frontage property north of Highway 50 with the realtor. This land was the land the realtor knew was for sale and which he discussed with the defendant at numerous times and which the defendant purchased. The trial court concluded that it was the intent of the parties at this stage of the negotiations that the plaintiffs intended to sell and the defendant intended to buy only the frontage property. Only the price was yet to be nego tiated. The plaintiffs offered to sell the frontage land for $90,400. The defendant offered to buy for $87,500. Defendant Claassen testified, in substance, that in all negotiations he knew that the realtor had for sale the frontage property and that he never mentioned the reversionary rights of the Andres family in the 44 acre highway tract. He testified that he had many opportunities to mention to the realtor that it was his intent to purchase not only the frontage property but the rights of the Andres family in the highway property to the south but he never discussed it. His explanation was that he “didn’t feel it was necessary” or “it was none of his business.” The trial court construed the language added to the contract by the defendant to mean that it was for the purpose of correcting any possible defects of language in the description of the “frontage property” and did not include the reversionary interest in the land lying to the south of the highway. The court found that by reason of the intentions of the plaintiffs and the intentions and/or actions of the defendant, the plaintiffs were entitled to an order of the court construing and reforming the warranty deed to exclude from the conveyance any interest in the real estate lying to the south of Highway 50. Before turning to the legal issues in the case, additional factual circumstances should be noted. The deeds in this case were signed on November 28, 1979, and thereafter, on October 2, 1980, the third-party defendants and appellees, Donald D. Dannar, and his wife, Mary B. Dannar, contracted to buy the interest of the Andres family in the disputed 44-acre tract south of the highway. On December 10, 1980, the Andres family gave the Dannars a warranty deed subject to the rights of the Kansas Department of Transportation. On January 23,1981, the Dannars received a quitclaim deed to the property from KDOT. It was at this point that the conflicting claim of defendant Claassen to the 44-acre tract was discovered. On August 25,1981,'this action was filed, and the Dannars and KDOT were later brought in as third-party defendants. As noted heretofore, following trial to the court, the court entered judgment in favor of the plaintiffs construing and reforming the deed to exclude the 44-acre tract south of the highway. The trial court denied to plaintiffs a recovery of damages on their claim of fraud. On the appeal, the defendant raises the following issues: (1) The trial court’s findings of fact are not supported by the evidence. (2) The trial court erred in construing and/or reforming the deed by excluding the 44-acre tract south of the highway from the conveyance. (3) The' defendant’s title to the disputed 44-acre tract should be quieted against the Dannars and KDOT, (4) The trial court’s finding that KDOT had acted reasonably was not supported by the evidence. Plaintiffs raise two issues. They first contend that the defendant failed to perfect his appeal in time and, therefore, the Supreme Court lacks jurisdiction of the appeal. In their cross-appeal, the plaintiffs contend that the trial court erred in failing to award compensatory and punitive damages to the plaintiffs because of the defendant’s misrepresentations and fraud. We will first consider the jurisdictional issue raised by the plaintiffs that the appeal was not timely filed. We find no merit in this contention. The court filed its original journal entry of judgment in the case on December 12, 1984. On the same day, defendant Claassen filed objections to the proposed journal entry. Oral argument was held on the defendant’s objections. On December 27, 1984, a journal entry was filed on defendant’s objections, Notice of appeal was filed January 14, 1985. Under these circumstances, the notice of appeal was filed within the statutory 30-day period following the entry of final judgment. The objections to the journal entry constituted, in effect, a post-judgment motion to alter or amend the judgment. It was filed within ten days of the entry of judgment as required by K,S,A. 60-252 and 60-259. The filing of the post-judgment motion extended the time for filing the notice of appeal. Because the notice of appeal was filed within 30 days after the judgment disposing of defendant’s objections to the journal entry, the appeal was timely filed, and this court has jurisdiction to consider the issues raised on the appeal. We will next consider the defendant’s contention that the trial court’s findings of fact are not supported by the evidence. The established rule is that where the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. The trial court’s conclusions of law will not be set aside unless clearly erroneous. Woods v. Midwest Conveyor Co., 236 Kan. 734, Syl. ¶ 2, 697 P.2d 52 (1985). When a verdict or judgment is attacked for insufficiency of the evidence, the duty of the appellate court extends only to a search of the record for the purpose of determining whether there is any substantial competent evidence to support the findings. The appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances, the reviewing court must review the evidence in the light most favorable to the party prevailing below. Toumberlin v. Haas, 236 Kan. 138, 689 P.2d 808 (1984). Upon appellate review, this court accepts as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings in the trial court, and disregards any conflicting evidence or other inferences which might be drawn therefrom. Marcotte Realty & Auction, Inc. v. Schumacher, 229 Kan. 252, Syl. ¶ 2, 624 P.2d 420 (1981). Applying these standards for appellate review to the record now before us, we have no hesitancy in holding that the findings of fact of the trial court are supported by substantial competent evidence. The defendant’s next point raised on the appeal is that the trial court erred in construing or in reforming the deed to exclude from the operation of the deed the 44 acres of land lying to the south of Highway 50. The defendant argues that the language used in the written deed was clear and unambiguous and included in the conveyance the title to any property owned by the Andres family located in the quarter section. The defendant also maintains in his brief that the trial court did not properly apply the remedy of reformation because, even if there was a mistake on the part of the plaintiffs as to the land to be conveyed, reformation could not be granted because there was never a meeting of the minds since the defendant/buyer at all times intended that the conveyance was to include the land lying south of the highway. Simply stated, the defendant maintains that equity cannot, under the guise of reformation, make an agreement of the parties where there was never a meeting of the minds. The defendant/buyer blames any misunderstanding on the negligence or recklessness of the Andres family in signing the deed without determining the meaning of the added language. The defendant further argues that there was no evidence or any finding by the trial court of a unilateral mistake on the part of the plaintiffs, or any evidence showing fraud on his part. Defendant denies any surprise or any fraudulent concealment of his desire to purchase the reversionary interest. In its conclusions of law the trial court stated: “6. That the plaintiffs not intending to sell any interest in the land South of the Highway and the fact that defendant knew this was the intent of the plaintiffs and kept silent about the effect of the added language upon the quantity of land described, the want of mutuality in the matter of the mistake can not stay the hand of a Court of equity to correct the documents. “7. That the defendant knew the nature of plaintiffs’ interest in the land South of the Highway and did know that they wanted to sell only the land North of the Highway.” The trial court in its opinion stated several factors which led it to the conclusion that the deed should be construed and reformed to convey only the frontage property and not to convey any interest in the 44-acre tract lying south of Highway 50. These factors were: (1) Although defendant knew that it was the intent of the parties to sell only the frontage property, he never mentioned the property south of Highway 50 to either the plaintiffs or their real estate agent. (2) Knowing that the plaintiffs intended to sell only the frontage property, defendant placed into the contract something that was not negotiated or discussed between the parties. (3) The defendant demanded title evidence in the way of a title binder which covered only the land north of the highway, and no title evidence was ever requested or supplied as to any land located south of the highway. The defendant made no effort to make a title search as to plaintiffs’ reversionary interest in the 44-acre tract south of the highway. (4)The real estate purchase contract between the parties which was signed on July 28, 1979, contained the following provision: “Undersigned agree that the value of the land and improvements on this commercially zoned property is as follows: “Station $ 8,930.00 “Restaurant 7,440.00 ‘Machine Shop 9,680.00 ‘Land 61,450.00 ‘Total $87,500.00.” The only commercial property was the frontage property. The property south of the highway was zoned residential. The $87,500 purchase price was thus allocated to cover only the value of the land and improvements on the frontage property. We have considered the entire evidentiary record before us and the findings of fact and conclusions of law of the trial court. We have concluded that the district court properly determined the issues in the case and construed and reformed the deed to exclude from the operation of the deed any interest of the plaintiffs in the 44-acre tract south of the highway which was then held by KDOT. It has long been the law that a written instrument may be reformed where there is ignorance or a mistake on one side and fraud or inequitable conduct on the other, as where one party to an instrument has made a mistake and the other knows it and fails to inform him of the mistake or conceals the truth from him. Where, unknown to one of the parties, an instrument contains a mistake rendering it at variance with the prior understanding and agreement of the parties, and the other party learns of this mistake at the time of the execution of the instrument and later seeks to take advantage of it, equity will reform the instrument so as to make it conform to the prior understanding. Thus, unilateral mistake may be the basis for relief when it is accompanied by the fraud of, or is known to, the other party. 66 Am. Jur. 2d, Reformation of Instruments § 28. The Kansas cases have long adhered to the principle that an instrument may be reformed where there is ignorance or mistake on one side and fraud or inequitable conduct on the other. Silence by one party to a contract, with knowledge that the other party is mistaken and that the instrument as written does not express the true intention of the parties, may constitute a misrepresentation amounting to constructive fraud. In the early case of Nairn v. Ewalt, 51 Kan. 355, 32 Pac. 1110 (1893), this court stated: “ ‘Misrepresentation may consist as well in the concealment of what is true as in the assertion of what is false. If a man conceals a fact that is material to the transaction, knowing that the other party acts on the presumption that no such fact exists, it is as much a fraud as if the existence of such fact were expressly denied or the reverse of it expressly stated.’ ” pp. 358-59. Other cases supporting these principles are Cox v. Beard, 75 Kan. 369, 89 Pac. 671 (1907); Atkinson v. Darling, 107 Kan. 229, 191 Pac. 486 (1920); Hickman v. Cave, 115 Kan. 701, 224 Pac. 57 (1924); Federal Land Bank v. Bailey, 156 Kan. 464, 134 P.2d 409 (1943). In Russell v. Ely, 133 Kan. 318, 299 Pac. 619 (1931), it was held that an instrument, prepared by one party, not in accord with a prior written agreement of the parties as to its terms, when executed by the other without observing the mistake in the instrument, may be reformed where it is clearly shown that there was mistake on the part of one party and inequitable conduct of the other. The same rule is followed in Mid-West Lumber Co. v. Wagner, 133 Kan. 405, 300 Pac. 1067 (1931). In the present case, the trial court found, in substance, that the plaintiffs never intended to sell their reversionary interest in the property south of the highway and that the defendant knew it. However, the defendant took the contract to his attorney and had language placed in the contract covering property not negotiated or discussed by the parties. He then remained silent and the plaintiffs were misled. We have no hesitancy in holding that there was evidence to establish ignorance and mistake on the part of the plaintiffs and, at the very least, inequitable conduct on the part of the defendant. We hold that the trial court did not err in construing and reforming the deed to exclude from the conveyance the 44-acre tract lying south of Highway 50. In view of the court’s determination of these issues, we hold that it is unnecessary to consider the other issues raised by the defendant pertaining to the third-party defendants, Donald D. Dannar and Mary B. Dannar, his wife, and the Kansas Department of Transportation. On their cross-appeal, the plaintiffs contend that since the trial court found that the conduct of the defendant Claassen amounted to misrepresentation and fraud, it was error not to award compensatory and punitive damages to the Andres family. We construe the findings of fact and conclusions of law of the trial court to mean that the court did not find actual fraud on the part of the defendant but rather constructive fraud or inequitable conduct. Actual fraud has been defined as an intentional fraud, and the intent to deceive is an essential element thereof. Con structive fraud is a breach of a legal or equitable duty which, irrespective of the moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty of purpose or intent to deceive is necessary. Loucks v. McCormick, 198 Kan. 351, 424 P.2d 555 (1967). We cannot say that the trial court erred in holding, in substance, that the conduct of the defendant amounted to constructive fraud or inequitable misconduct rather than actual fraud. In order to recover damages for actual fraud, it is necessary to show that the defendant had the intent to deceive. Because the trial court did not find specifically that the defendant had an intent to deceive the plaintiffs, we hold that the trial court did not err in denying to plaintiffs recovery of actual and punitive damages. The judgment of the district court is affirmed on both the appeal and cross-appeal. Schroeder, C.J., not participating.	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The opinion of the court was delivered by McFarland, J.: This is a medical malpractice action in which plaintiff Mary Jane Morris was awarded the aggregate sum of $1,250,000 against defendant physician W. David Francisco. Defendant appeals from the judgment. The facts in this case are quite complex. As certain issues require in-depth discussions of various facets of the evidence, we will, at this point, provide only a brief overview of the relevant facts. Mary Jane Morris has been a victim of cerebral palsy since her birth, which was approximately 1961 (exact date not provided). Between 1965 and 1978 she was a patient of the defendant physician at the Cerebral Palsy Clinic at the University of Kansas Medical Center. During that period of time, Ms. Morris underwent multiple operations and extensive therapy in treating her affliction. In the spring of 1978, Dr. Francisco determined that Ms. Morris needed additional surgery on her hips and ankles to enhance and preserve her ability to walk. The ankle surgery was scheduled for September 1,1978, with the hip surgery to occur on September 15, 1978. On September 1, 1978, Dr. Francisco learned that three orthopedic resident physicians would be available to assist him with the surgery rather than the one resident usually scheduled. Dr. Francisco then decided to perform all the surgical procedures (hips and ankles) on September 1. Dr. Francisco believed this was advantageous to the patient as the need for a second general anesthetic would be eliminated and the recovery period would be reduced by two weeks. The surgery commenced with Dr. Francisco directing and assisting resident physician Stitt in the performance of a psoas tenotomy on the patient’s right hip. After this was completed, Dr. Francisco told Dr. Stitt to perform the same surgery on the left hip. Dr. Francisco and the other two residents then performed the ankle surgeries while Dr. Stitt proceeded with the left hip surgery. Sometime after surgery it became apparent that something had gone wrong. The patient, ambulatory before surgery, was unable to walk. The problem was ultimately identified as damage to the left femoral nerve. Although now able to walk a few steps, Ms. Morris has been, postsurgically, essentially non-ambulatory and will have to rely permanently on a wheelchair. Ms. Morris filed suit against Dr. Francisco alleging the damage to her left femoral nerve was the result of Dr. Francisco’s negligence in permitting a resident to perform the left hip surgery without proper supervision. At trial the jury returned a verdict in favor of plaintiff in the aggregate amount of $1,250,000. Dr. Francisco appeals therefrom. We turn now to the issues. For his first issue, defendant contends the trial court erred in allowing the refiling of this case after the dismissal of a prior action. The facts relative to this issue are as follows. The first action was filed on October 2, 1980. Service was'not obtained on the Commissioner of Insurance for the Kansas Health Care Stabilization Fund within ten days as required by K.S.A. 1984 Supp. 40-3409 and plaintiff voluntarily dismissed the action, refiling the same on December 23, 1980. In this second action (80-C-13723), plaintiff was ordered, in the January 19, 1982, pretrial order, to list her expert witnesses on or before April 15, 1982. Plaintiff did not do so as she was having difficulty locating an appropriate expert. The case was scheduled for trial by jury commencing August 23, 1982. On May 12, 1982, plaintiff filed a motion to amend the pretrial order to extend the time for listing her expert witnesses until June 15, 1982. This motion was denied on June 25, 1982. On August 13, 1982, the following action was taken by the trial court: “2. That the plaintiff s oral motion to reconsider the Court’s Order of June 25, 1982 overruling plaintiffs Motion to Amend the Pretrial Order should be overruled based upon the fact that the trial of the above-captioned case is scheduled to commence on Monday, August 23, 1982 and that as a result thereof there is insufficient time for all parties to complete discovery if the plaintiff is allowed to amend the Pretrial Order for the purpose of listing witnesses, including expert witnesses, all of whom would have to be subject to depositions prior to trial. “3. That in the interest of justice to all parties and in the interest of proceeding to a final determination on the merits of the cause of action stated in the above-captioned action, an involuntary dismissal pursuant to K.S.A. 1981 Supp. 60-241(b) should be entered and further that the plaintiff be allowed to refile her cause of action. “4. That the dismissal pursuant to K.S.A. 1981 Supp. 60-241(b) should be, in the interest of justice, without prejudice and should not operate as an adjudication upon the merits. “5. That as further terms and conditions of the dismissal, the plaintiff shall be specifically entitled to and may refile said cause of action, however, the refiling of said cause of action must be accomplished by the plaintiff filing a petition in the District Court of Wyandotte County, Kansas on or before October 15, 1982, and further that on the date of refiling the plaintiff must provide defendants’ counsel with the identity of the expert witnesses that are expected to testify on behalf of the plaintiff at the time of trial. “6. That all court costs of the above-captioned action should be assessed to the plaintiff, including costs of all original depositions taken to date.” The second refiling of the action occurred on October 15, 1982. Defendant does not contend plaintiff failed to meet the conditions of refiling set forth in the August 13,1982, decision. Rather, defendant contends such order was not proper as it did not comply with the requirement of K.S.A. 60-241(b). That is, none of the statutory conditions existed that could properly trigger entry of an involuntary dismissal with right to refile. Plaintiff argues that, inasmuch as defendant did not appeal from the involuntary dismissal entered in case number 80-C-13723, he cannot raise the issue on his appeal herein which is from the judgment entered in a subsequent case (82-C-3520). The point is well taken. Defendant is attempting to appeal an order entered in one case through the vehicle of an appeal in another case. The court lacks jurisdiction to determine this issue. For his second issue, defendant contends the trial court erred in failing to sustain his motion for a directed verdict on the issue of causation. The scope of appellate review on a motion for a directed verdict is that all facts and inferences are to be resolved in favor of the party against whom the ruling is sought. If the evidence is such that reasonable minds could reach different conclusions thereon, the motion should be denied. Iola State Bank v. Bolan, 235 Kan. 175, 187, 679 P.2d 720 (1984); Casement v. Gearhart, 189 Kan. 442, 445, 370 P.2d 95 (1962). Rulings on motions for directed verdicts are left to the sound discretion of the trial court and will not be disturbed absent a showing of abuse of discretion. State v. Stellwagen, 232 Kan. 744, 659 P.2d 167 (1983). The pertinent facts must be examined in some detail. Dr. Francisco decided that the ankle and hip surgeries would all be performed during the one operation. Specifically, these procedures were the following: Ankles: Bilateral heel cord lengthening, right split anterior tibialis transfer, and left posterior tibialis transfer to the lateral side of both feet. Hips: Intrapelvic psoas tenotomy and a tensor fascia lata release to both hips. As previously noted, Dr. Francisco directed and assisted resi dent Stitt in the psoas tenotomy of the right hip. Following completion thereof, he, in essence, advised Stitt to perform the same operation to the left hip while he and the remaining two residents commenced the ankle surgeries. The injury to the left femoral nerve occurred during the left psoas tenotomy which was performed by Stitt. Dr. Francisco sought a directed verdict on the issue of causation. His theory is that the damage sustained by Mary Jane Morris was caused by the portion of her operation performed exclusively by the orthopedic resident, Dr. Ronald Stitt. Dr. Francisco contends he could be found negligent only on the theory of respondeat superior either in failing to use due care in selecting his agent or employee, or if the agent or employee was negligent in the operation on the patient. Voss v. Bridwell, 188 Kan. 643, 364 P.2d 955 (1961). Appellant maintains both of Ms. Morris’ expert witnesses testified Dr. Stitt was not negligent because the standard by which an inexperienced resident orthopedic physician is judged does not impose fault on Stitt. Dr. Francisco argues that, inasmuch as there is no evidence of negligence by Stitt, none can therefore be imputed to him as Stitt’s principal or employer. Francisco’s argument avoids the theory of the case. The issue of Dr. Francisco’s own negligence was submitted to the jury. The jury was charged with determining whether Dr. Francisco was negligent in deciding to perform four different surgical procedures in the same operation with only the assistance of three inexperienced resident surgeons; in failing to properly supervise Dr. Stitt while he was performing the operation which caused the injury; in failing to properly identify and teach Dr. Stitt the proper retraction method of the femoral nerve; in failing to provide for Ms. Morris’ maximum surgical safety; and in recommending and performing the psoas tenotomy in the absence of appropriate medical indications. No issues of negligence by Dr. Stitt were submitted to the jury. The jury found Dr. Francisco negligent and found his negligence caused the injury to Mary Jane Morris. The verdict is supported by the evidence. Dr. Gamble, appellee’s expert, testified Dr. Francisco “did not take the proper precautions and did in fact deviate from the standard in terms of his supervision of the operative procedure and his teaching of the operative procedure.” We conclude the trial court did not err in denying appellant’s motion for a directed verdict. The final two issues concern the awarding of damages for loss of time or income to date of tidal and in the future. Defendant contends: (1) Neither of these damage elements should have been submitted to the jury; and (2) the awards for these elements of damage are excessive as they are not supported by the evidence. The jury verdict reflects the following breakdown of damages awarded to the plaintiff: “(a) Pain, suffering, disabilities, disfigurement, and any accompanying mental anguish suffered by plaintiff to date: ANSWER: 82,000 “(b) Pain, suffering, disabilities, disfigurement, and any accompanying mental anguish plaintiff is reasonably certain to experience in the future: ANSWER: 108,000 “(c) Loss of time or income to date by reason of her disabilities: ANSWER: 70,000 “(d) Loss of time or income which is reasonably certain to be lost in the future: ANSWER: 990,000 TOTAL DAMAGES: ,250,000 The challenge in the issues before us is confined to elements (c) and (d), loss of time or income to date of trial and future loss of same. There is no claim that the awards for elements (a) and (b) for pain, suffering, etc. to date and in the future are excessive. Preliminarily, the following should be noted. Without question, the evidence established plaintiff Mary Jane Morris is a remarkable young woman. She was placed for adoption but rejected by her would-be adoptive parents as an infant when it was learned she was not developing properly. Mary Jane, at age one, was diagnosed as being mentally retarded. Subsequently, this diagnosis was found to be incorrect. Her problem was cerebral palsy with spastic quadriplegia. Between 1962 and 1978, Mary Jane underwent numerous operations and extensive therapy at the Cerebral Palsy Clinic at the University of Kansas Medical Center (under the care of defendant Francisco). Mary Jane remained in foster care throughout her childhood. Despite difficulty in walking, speech defects, some upper body (arm and hand) disabilities, and difficulty in controlling facial muscles, Mary Jane attended public schools and performed satisfactorily. Mary Jane did not let her handicaps overwhelm her and maintained a good attitude and a desire to be financially and physically independent. In high school, Mary Jane expressed a desire to become a kindergarten teacher or a teacher of handicapped children. During two summers prior to her 1978 surgery, Mary Jane worked as a teacher’s aid in immigrant schools. After her 1978 surgery, Mary Jane was confined to an electric wheelchair (her preexisting upper body disabilities precluded use of a manual wheelchair). Her loss of mobility was a tragedy for this courageous young woman. In her wheelchair, she sought and obtained clerical work and was so employed at the time of trial. She is to be commended for her spirit in the face of multiple physical problems that would have daunted many persons. Nevertheless, the issues raised herein relative to submission of these elements of damage to the jury and the propriety of the jury’s awards for loss of past and future earnings must be looked at objectively and the proper legal standards applied. As far as the submission of these elements of damage to the jury is concerned, attention is directed to Garrison v. Marlatt, 224 Kan. 390, 580 P.2d 885 (1978), wherein we stated: “In an action for personal injuries, the trial court should instruct the jury only on those items of damage upon which there is some evidence to base an award. It is not proper to give a general instruction on damages for ‘any of the following shown by the evidence,’ when there is no evidence to support an award for a particular item.” Syl. ¶ 1. See also Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 662 P.2d 1214 (1983), wherein we held that in a negligence action, recovery may be had only where there is evidence showing with reasonable certainty the damage was sustained as a result of the complained-of negligence. As a corollary, recovery may not be had where the alleged damages are too conjectural or speculative to form a basis for measurement. In reviewing awards for pain, suffering and other subjective elements of damage, the following standard as iterated in Ratterree v. Bartlett, 238 Kan. 11, 707 P.2d 1063 (1985) applies: “ ‘Pain and suffering have no known dimensions, mathematical or financial. There is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries suffered, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence.’ ” Such awards are overturned only if the collective conscience of the appellate court is shocked. Merando v. A.T. & S.F. Rly. Co., 232 Kan. 404, 656 P.2d 154 (1982). Awards for objective elements of damage, such as loss of past and future income, are subject to a different standard of appellate review as they are grounded in mathematical calculation. As noted in 18 A.L.R.3d 88, Evidence — Impaired Earning Capacity § 2[a], p. 97: “[Djamages for impairment of earning capacity cannot be recovered in a personal injury action where there is no evidence of such impairment or no evidence from which damages therefor can be calculated. Although the evidence need not show conclusively or with absolute certainty that earning capacity has been impaired, mere conjecture or speculation does not warrant an award of damages therefor in personal injury actions. All damages, however, are subject to some uncertainties and contingencies, especially those that seek to compensate for future injuries. Accordingly, most courts hold that in order to warrant a recovery for impairment of earning capacity in personal injury actions, the impairment of earning capacity must be shown with reasonable certainty or reasonable probability, and there must be evidence which will permit the jury to arrive at a pecuniary value of the loss.” See also 22 Am. Jur. 2d, Damages § 93, as follows: “The process of ascertaining the amount of compensation to be awarded for impairment of the capacity to work or to earn requires (1) the determination of the extent to which such capacity has been diminished, (2) the determination of the permanency of the decrease in earning capacity, and (3) the fixing of the amount of money which will compensate for the determined extent and length of the impairment, including a reduction of the award to its present worth. Evidence of substantial personal injuries is insufficient, of itself, to show a loss of earning capacity or to warrant an instruction on that subject. “There is no fixed rule for estimating the amount of damages to be recovered for loss or diminution of earning capacity. The jury should award a fair and reasonable compensation, taking into consideration what the plaintiff s income would probably have been, how long it would have lasted, and all the contingencies to which it was liable. As bearing on these matters, the nature and extent of the plaintiffs business, profession, or employment, his skill and ability in his occupation or profession, the loss or diminution of his capacity to follow it, as a consequence of the injury, and the damages he has sustained by reason of such loss or diminution may be shown and taken into consideration. The plaintiff s position in life may be taken into consideration, and the jury may consider the possibility of future increases in income, based upon plaintiff s character, intelligence, ability, and work record. The extent and seriousness of the plaintiff s injury may be shown, and as a basis for comparison, proof as to his condition since the injury is admissible.” (Emphasis supplied.) • Thus, we see the extent of the diminution or impairment of earning capacity is a relevant consideration and is arrived at by comparing what the injured party was capable of earning at or before the time of the injury with what the party is capable of earning after the injury. This is recovery for injury to the capacity to earn and is relevant in calculating a party’s loss of earnings. In addition, in determining the amount to be awarded for decreased earning capacity, the jury should consider the health of the injured party and the party’s physical ability to maintain herself before the injury, as compared with her condition in these respects afterward. 22 Am. Jur. 2d, Damages § 95. In reviewing an award for an objective element of damages such as loss of past and future income, an appellate court must look to the record to see if there is evidence to support the jury’s calculation of pecuniary loss. What evidence is there to support the verdict for loss of past and future income, that is, Ms. Morris’ “before” and “after” earning capacity? Ms. Morris was a high school student at the time of the injury involved herein. She had multiple existing handicaps — upper body limitations involving use of her arms, a speech defect making it difficult for her to be understood, limited facial muscle control, and problems with walking that made falls likely. She had worked as a teacher’s aide the previous two summers. She had a desire to become a kindergarten teacher or a teacher of handicapped children. There is no evidence concerning: (a) whether her desire to become a teacher was a realistic expectation; (2) the anticipated income of such a teacher; (3) what effect her preexisting disabilities would have on her employability as a teacher; or (4) whether her post-injury condition affected her stated goal to become a teacher by reducing her employability in such capacity and if so, by how much loss of income. Ms. Morris, as a high school-age student, could handle only unskilled jobs. This was true both before and after the injury. She had difficulty in obtaining a clerical job, but did ultimately obtain such a job which paid approximately $10,000 per year. There is no evidence she could have obtained a higher-paying job without the additional handicap of the wheelchair — only that her placement was more difficult by virtue of her lack of mobility. That she is employable is undisputed. She was employed at trial and had been for some time. When her present job terminates (it is a temporary job), she will be likely to have some “downtime” before gaining new employment, although her employment record has certainly been enhanced by the job experience. She now has evidence to show prospective employers that she can handle clerical employment. Ms. Morris testified she plans to attend night school and become a certified public accountant. There was no evidence that this was not a realistic and achievable goal. The vocational counselors who testified that her lack of mobility made job placement more difficult were considering the matter from the perspective of placing her in an unskilled position comparable to her present employment. The record is silent on her employment prospects with such additional skills. At the time of the preparation of jury instructions, defense counsel objected to the inclusion in the damage instruction of the element of future loss of income. It was certainly a legitimate question to raise. The trial court was concerned and directed the verdict form be split into separate awards for the different elements of damages in order that one could readily see how much was allowed for each element. The problems relative to the evidence of loss of income were apparent to court and counsel at the instruction conference attended by Warren McCamish (defendant’s counsel) and Lynn Johnson (plaintiffs counsel). Although lengthy, the following exchange at the hearing is worthy of inclusion: “THE COURT: . . . The difficulty as I see in this case, we have a young lady whose aspirations were to be a kindergarten teacher or someone in some capacity to aid or help disabled children. We have ho evidence in this case whatsoever as to what such a person could expect to receive by way of income if she had achieved those aspirations. We’ve had no evidence in this case as to what her prospects of employment would have been in that type of endeavor because of her dexterity problems in her upper limbs, her upper extremities and her speech impairment. It’s — she apparently is not only employable but employed at the present time. And her current employer is apparently extremely happy with her. “MR. JOHNSON: Temporary. “THE COURT: So we don’t know whether her future is any less impaired from the standpoint of income than it was without the — or with the mobility in the lower extremities. I think if this jury would come in with say for instance a half a million dollars for loss of wages, it would most likely — I don’t know if I could say it would shock my conscience, but it would at least give me second thoughts on wanting to look at that. “MR. JOHNSON: I think the difference, Judge, is that — and perhaps the instruction doesn’t state it right, but what we’re really talking about here is not a specific amount of loss of income, because we knew that we were not going to be able to put anybody really on the stand like an economist or anybody who could really go to that issue; but what we’re really talking about here is loss of earning capacity, loss of the ability to have the opportunity to have the same job opportunities and income producing opportunities that she had before. “And we had evidence from Shirley Heard, who I think is an experienced person, that her mobility is what is her primary limitation in finding jobs, and it does — in fact, I used those words, does that impair her future earning capacity? And she said yes. So I don’t think that an amount — and I don’t know what the amount might be that they would put down there — would necessarily have to be directly related to, quote, what she would have made as a kindergarten teacher as opposed to what she’s making now. “THE COURT: If you get into — and the only factor we’re dealing with here is loss of income. Either past, present or future. If you’re getting into the other aspects that you mentioned, then that goes into the — to what they’re going to give her for her disability, for her suffering, disabilities, any accompanying mental anguish. “MR. JOHNSON: No, the loss of income is derived from the reduced earning capacity. And so— “THE COURT: But is there any reduced earning capacity? “MR. JOHNSON: Yes. “THE COURT: Is it more probably true than not to believe that she has suffered some loss of income? “MR. JOHNSON: Yes, there’s been evidence — there’s been evidence of that and there’s been no contrary evidence. I mean, I can’t have any better evidence than to have— “THE COURT: There has been possibly some circumstantial evidence, at least, if we consider what her aspirations were— “MR. JOHNSON: I asked Shirley Heard that direct question, Your Honor. I said, based upon your knowledge, experience and training in vocational work, do you have an opinion as to whether this limitation has impaired Amy Morris’s earning power compared to what it was? I mean. I couldn’t ask the question any different way than that, you know, to get— “THE COURT: But what is the element of damage? What is the standard of damage? How does this jury arrive at some figure to compensate, other than pure speculation? “MR. McCAMISH: That’s my objection. “MR. JOHNSON: I don’t think they have to engage in pure speculation. They can put down a figure that they believe — and I’ll suggest to them a figure. I’m going to suggest to them what she’s making now — and her job is going to end as of June, which is what Mrs. Waddle said. She’s temporary. She’ll be there one year. “THE COURT: Not necessarily. “MR. JOHNSON: Not necessarily. But again, that’s one of the inferences that can reasonably be drawn from the testimony, which they’re entitled to do. How long will it take her to get another job? Another six months? Another year? And is $10,000 a year that she’s making at that job what she would have been able to have made before? Well, we know she would have been able to have made more because of the testimony that her earning capacity has been impaired. “It’s not too difficult to present an argument that will give the jury some basis or foundation for coming up with a reasonable determination of what that might be. “THE COURT: I’m going to let it go to the jury, and then I’ll worry about it when they come back. At least this way we have a barometer on what damages they have awarded for those elements than if we just submit a general verdict form we have absolutely no idea. “MR. JOHNSON: I frankly feel that the major element of her damages will be in the — what we call general damage area, and— “THE COURT: I agree with you. “MR. JOHNSON: Regardless of what testimony we might or might not have put on.” Clearly, the court and plaintiffs counsel anticipated, based upon the evidence, that the bulk of any damage award would be in the subjective categories as pain and suffering — referred to by plaintiff s counsel as the “general damage area.” This was not the case. Out of a total damage award of $1,250,000 only $190,000 was in the “general damage area.” The loss of income award totalled $1,060,000. We do not know what post-trial motions were made relative to these awards or the trial court’s rationale in disposing of them. After having carefully reviewed the record, we conclude that it was not error for the trial court to instruct on elements (c) and (d), loss of time or income to date and future loss of same. The evidence, although scanty relative to these elements of damage, was sufficient for submission to the jury. However, we must conclude that the awarding of $70,000 for loss of time or income to date and $990,000.00 for future loss of time or income are not supported by the evidence and are excessive. We affirm the jury’s determination of the liability of defendant, but reverse the award of damages. Rather than singling out the two elements relative to loss of income for determination upon retrial, it would appear fairer to all concerned to direct retrial of all damage issues. The parties are free to agree, however, to limit the damage issue upon retrial to the loss of income elements, thereby, in effect, affirming the unchallenged portions of the damage award. (Pain, suffering and mental anguish, past and future.) Before concluding, we direct the attention of the trial court and counsel to the lead-in paragraph of the elements of damage verdict form utilized herein. “If you have answered question^] number 1 and 3 [issue of liability] in the affirmative, what amount of damages do you find the plaintiff, Mary Jane Morris, entitled as the result of the negligence of defendant in the following respects: [herein follow categories of damages.]” PIK Civ. 2d 9.01 provides: “If you find for the plaintiff you will then determine the amount of [her] recovery. You should allow [her] such amount of money as will reasonably compensate [her] for [her] injuries and losses resulting from the occurrence in question including any of the following shown by the evidence.” Although the instruction on damages followed PIK Civ. 2d. 9.01, the verdict form on the elements of damage could have led the jury into thinking an award must be made in each category. PIK Civ. 2d. 9.01 makes it clear that such is not the case. No issue was raised on appeal relative to this aspect of the instruction, but we raise it to facilitate the new trial. The judgment of the district court is affirmed as to liability of the defendant and reversed as to all awards of damages. The case is remanded for new trial on the issue of damages only. Herd, J., concurring in part and dissenting in part. I concur with the majority on the question of liability and dissent on the questions of damages. I find adequate evidence to support every element of damages awarded by the jury. In a personal injury case it is unnecessary to introduce evidence of loss of time, earning capacity and earnings which will mathematically calculate out to the amount of the verdict. 22 Am. Jur. 2d, Damages § 89, p. 130, states: “In a personal injury action, the plaintiff is entitled to recover the value of the time which he has lost because of the injury. . . . “Simply because the plaintiff was not employed at the time of the injury, and thus had no earnings, is no bar to a recovery for the time lost. Inability of plaintiff to follow his ordinary pursuits is a proper element of damages regardless of whether he had actually been receiving compensation therefor.” In this case there is much evidence of the nature and extent of Ms. Morris’ injury resulting from the operation. Her loss of time is unquestioned. The fact that she was ambulatory prior to the operation and is now unable to walk is important evidence of the change in her earning capacity. The majority opinion ignores loss of time and earning capacity as elements of Ms. Morris’ damages. 22 Am Jur. 2d, Damages § 92, p. 134, comments: “In a personal injury action, the second element of damages for impairment of the plaintiffs earning ability is the decrease in his earning capacity. This is a recovery for injury to the capacity to earn and not for the plaintiffs loss in earnings; thus, an unemployed plaintiff can be compensated for this element even though he can show no specific loss of earnings. Also, an injured minor will not be denied recovery for loss of earning power or for prospective loss of earnings simply because he has no history of earnings.” Here there is evidence of actual monetary loss from loss of past and future earnings in addition to the evidence of loss of time and earning capacity. From all of this evidence the jury was justified in reaching its verdict. I would respect the jury as the appropriate finder of fact in our system and affirm the trial court. Prager and Lockett, JJ., join the foregoing concurring and dissenting opinion.	[ -48, 104, 93, 46, 26, 99, 10, 26, 115, -125, 117, 83, -83, -95, -123, 109, 103, 125, 64, 117, 87, 49, 67, -117, -110, -13, -70, 87, -79, -3, 100, -75, 77, 56, -126, -107, -26, 67, -35, 80, -54, -110, -117, -55, 73, -126, -80, 43, 28, 14, 49, 15, -120, 44, 60, -57, 104, 42, 106, 53, -75, -79, -117, -91, 77, 0, -96, 36, -66, 71, -36, 28, -48, -80, 32, -24, 18, -10, -62, 116, 71, -103, 4, 97, 98, -95, 125, -3, -8, -72, 15, 30, -115, -92, -85, 25, -40, 1, -97, -68, 100, 28, 10, 88, -11, 92, 14, 108, 12, -114, -44, -79, 79, 114, -100, 11, -25, 15, 0, 81, -35, -30, 93, 2, 58, -101, 126, -78 ]
The opinion of the court was delivered by Lockett, J.: Defendants, William M. Lewis and Randy L. Rakestraw, appeal from their convictions for aggravated battery (K.S.A. 21-3414) and aggravated robbery (K.S.A. 21-3427). Both claim that the district court erred when it consolidated their cases for a joint trial and then failed to grant them a new trial when the former county attorney who prosecuted this action did not disclose to defense counsel during trial that his expert chemist would testify contrary to her written report. While sleeping in his home on the morning of January 14, 1984, Thomas Gardner was awakened by pounding on his door. Opening the door, Gardner recognized one of the two men as Lewis, a fellow employee for whom he had previously procured marijuana and cocaine. The two men forced their way into the house, placed a knife to Gardner’s throat and demanded money. (Lewis wanted to be reimbursed for bad marijuana that Gardner had previously procured for him). When he refused to return any money, Gardner was beaten, pushed to the floor and kicked, and his head was pounded against the wall. During the altercation, Gardner was cut on the arm and had much of his hair pulled out. Gardner was then dragged into a bedroom where money was taken from his billfold and from his roommate’s dresser drawer. Gardner managed to escape and ran to a nearby store where he telephoned the police. Gardner told police he did not know the identity of the individuals who robbed him but gave an accurate description qf the two assailants to the officers. Pittsburg police officers arrested Lewis and Rakestraw approximately 40 minutes after the incident. Gardner then admitted to the police that he knew Lewis. A search warrant was obtained to search Lewis’ car. During the search a large buck-type knife belonging to Rakestraw and a clump of hair were found in the car. A smaller buck-type knife was taken from Lewis’ pocket. Prior to their joint trial both defense attorneys filed motions for discovery and inspection. K.S.A. 22-3212. Each requested production of all police reports and any subsequent reports produced during the course of the investigation. In response, the county attorney provided each defense attorney with a laboratory report from the Kansas Bureau of Investigation prepared by Eileen Burnau, a forensic examiner. The report stated that tests performed by the examiner on two jackets taken from the defendants and on a large buck knife found during the search of Lewis’ car indicated the victim’s blood appeared upon each of the defendant’s jackets, but that no blood was detected on the large buck knife. Prior to trial each defendant admitted to his attorney that he was present in the victim’s apartment, that Gardner and Lewis had an argument, that Gardner struck Lewis, that Rakestraw attempted to separate the combatants, and that during the fight Gardner was cut by broken glass which caused blood to be smeared upon their jackets. They claimed that because Gardner was a spiteful man, he was seeking revenge by stating that the defendants had beaten and robbed him. At trial, each defense attorney in his' opening statement to the jury referred to the lack of blood on the buck knife. Each inferred that if Gardner’s story was true, there must be blood on the knife that cut him, and that the State’s own expert witness would testify that there was no blood found on the buck knife. During the trial the State introduced the knife into evidence, claiming it had been used to cut Gardner during the robbery and battery. The State prepared to present its expert witness to the jury. Before testifying, Eileen Burnau, the State’s expert witness, informed the county attorney that blood had been found on the knife, and that her written report given to the defendants’ attorneys was wrong. The county attorney failed to inform the judge or opposing counsel of this fact. Instead, he had the witness sworn and proceeded with his direct examination. The prosecutor skillfully led his expert witness through her direct testimony, waiting until his last question to the witness to reveal his newly found evidence. He asked the witness the results of her examination of the buck knife. Eileen Burnau testified that her examination of the buck knife showed the presence of blood on the knife! After cross-examination of the expert witness was completed, the surprised defense counsel each requested a mistrial. The court instead ruled to strike the evidence and gave a limiting instruction to the jury that they were to disregard any testimony as to the presence of blood on the knife. On May 22,1984, the jury found both defendants guilty of each of the two charges. The defendants now appeal from that decision, raising multiple issues. The defendants argue that their cases were improperly consolidated for trial because the defendants had antagonistic defenses. Statements made by Rakestraw were contrary to statements made by Lewis. The State contends that the trials of both defendants were properly consolidated into one trial, because each defendant was charged with the same offenses arising from the same set of circumstances. In State v. Martin, 234 Kan. 548, 549-50, 673 P.2d 104 (1983), this court discussed the requirements for joinder, stating that it was subject to a showing of prejudice to either defendant. In determining whether there is sufficient prejudice to mandate severance, a trial court must consider: (1) whether the defendants have antagonistic defenses; (2) whether important evidence admissible in favor of one of the defendants at a separate trial would be allowed in a joint trial; (3) whether evidence incom petent as to one defendant and introducible against another would work prejudicially to the former with the jury; (4) if a confession by one defendant is introduced and proved, whether it would prejudice the jury against the others; or (5) whether one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants. 75 Am. Jur. 2d, Trial § 20. See also State v. Cameron & Bentley, 216 Kan. 644, 649, 533 P.2d 1255 (1975). Here both defendants admitted that the altercation occurred, that only one defendant had been involved in the fight and that he had acted in self-defense. None of the grounds requiring the defendants be granted separate trials applies. The district court properly granted consolidation of the two cases. Defendants claim that they are entitled to a new trial, first, because prosecutorial misconduct occurred when the State failed to disclose to defense counsel how the oral testimony of the State’s chemist would differ from her written report, and second, because the testimony of. the State’s chemist regarding blood found on one of the knives was so inherently prejudicial that it could not be cured by a limiting instruction. The defendants claim that each of these occurrences created a legal defect in the trial which made the convictions by the jury reversible as a matter of law. K.S.A. 22-3423(l)(b). The granting of a mistrial is a matter within the discretion of the trial court. The judge’s power to declare a mistrial is to be used only with great caution, under proper circumstances, to insure that all parties receive a fair trial. To insure that the trial judge has properly applied his discretion in granting or failing to grant a new trial, his actions are subject to review by appellate courts. It is necessary when justice so requires to declare a mistrial where there is some fundamental failure of the proceeding. When an event of prejudicial misconduct, the damaging effect of which cannot be removed by admonition and instruction, is presented to the jury, the trial judge must declare a mistrial. In the present case, the State’s introduction of evidence, of which the defendants’ counsel were unaware and which destroyed the defense strategy, is such an event requiring a mistrial. The defendants claim prosecutorial misconduct. State v. Thompson, 221 Kan. 176, 183, 558 P.2d 93 (1976), lists three factors that should be weighed by the reviewing court in determining whether there was prosecutorial misconduct. First, is the misconduct so gross and flagrant as to deny the accused a fair trial (i.e., are the objectionable statements likely to affect the jurors to the defendant’s prejudice)? Second, do the remarks show ill will on the prosecutor’s part? Third, is the evidence against the defendant of such a direct and overwhelming nature that it can be said that the prejudicial remarks of the prosecutor were likely to have little weight in the minds of the jurors? Here, defendants claim that all three of these criteria are met. They contend the witness’ statements were so prejudicial that they were denied a fair trial, that the introduction of the evidence showed ill will on the part of the prosecutor, and that the evidence against the defendants was not so overwhelming that the prejudicial remarks did not affect the results of the trial. The State claims there was no prosecutorial misconduct. It argues that the evidence was incriminating, rather than exculpatory, and therefore, while the State now admits the prosecutor at trial was remiss in not disclosing it to the defense attorneys, the duty to disclose incriminating evidence is less than the duty to disclose exculpatory evidence. We agree that prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant, and that the withholding of such evidence is clearly prejudicial to the defendant and a deprivation of rights guaranteed the defendant by the federal Constitution. Pyle v. Kansas, 317 U.S. 213, 87 L.Ed. 214, 63 S.Ct. 177 (1942). Here the prosecutor’s breach of duty was not failure to disclose incriminating evidence but failure to perform a duty imposed by the legislature. When requested, a prosecutor is required to permit a defendant to inspect and copy the results of the scientific test or experiments made in connection with the particular case which are known, or by the exercise of due diligence may become known, to the prosecuting attorney. K.S.A. 22-3212(l)(b). This he failed to do. Under the facts of this case the county attorney’s conduct caused a fundamental failure in the trial process which necessitated the granting of a new trial. The defendant also argues that while the court issued a limiting instruction concerning the statements by the State’s witness, the fact that the statements were made resulted in such prejudice that no limiting instruction could overcome it. This court has stated a number of times that an admonition to the jury normally cures prejudice from an improper admission of evidence. State v. Mick, 229 Kan. 157, 161, 621 P.2d 1006 (1981); State v. McGhee, 226 Kan. 698, 702, 602 P.2d 1339 (1979). In this case, however, both defense counsel had based their defense strategies partially on the belief that the State’s expert witness would testify that her examination determined that there was no blood on either knife. In opening statements each defense counsel emphasized this glaring fact to the jury. If Gardner had been cut by a knife, as he claimed, blood would be found on the knife used to attack Gardner. After opening statements were made, during the trial and in the presence of the jury, the State used the corrected report to defeat the defense theory. Such a disclosure could hardly go unnoticed by the jury. Prosecutorial misconduct occurs when the county attorney fails to disclose to both the trial judge and the defense counsel that he intends to introduce into evidence a report which he failed to inform the defense counsel had been corrected. If the corrected statement changes the theory of defense as presented to the jury in opening statement, then neither admonition nor instructions by the trial judge can cure the resulting prejudice. The trial court abused its discretion when it failed to grant each defendant a new trial. Neither admonition nor instruction by the trial judge could insure that the defendants would receive a fair trial. It was necessaiy for the judge to protect the defendants’ fundamental rights by granting a new trial. Since this court has granted a new trial to defendants, other issues presented will not be discussed. Resolution of those issues depends upon further proceedings. The district court is reversed and the case remanded for a new trial.	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The opinion of the court was delivered by Schroeder, C.J.: This is an appeal in a criminal case by the defendant, Jack L. Pursley, from his conviction of first-degree murder (K.S.A. 21-3401) following a jury trial in Butler County. The defendant raises three issues on appeal. He claims the trial court erred by overruling his motion to suppress his confession, by denying his motion for mistrial due to prosecutorial misconduct in the closing argument, and by denying his motion for mistrial based on the prosecutor’s comments on the defendant’s right not to take the stand in his own behalf. On December 21, 1982, at approximately 4:00 p.m., Lawrence Hay was found shot to death in his home near Douglass, Butler County, Kansas. During the early portions of their investigation, officers of the sheriff s department learned that on December 20 and 21, the defendant had some “unusual” conversations at odd hours with Frank Becker, Jerry Hill, and Eddie Dean in which he had talked of a “duel” he was to be involved in. He indicated that the duel was to be with an individual whose last name began with an “H” who lived near Douglass, Kansas. The sheriffs officers also learned that Pursley was a friend of Hay’s and had been to his home on the evening of December 20. Based on this information, Pursley was arrested on December 21 under suspicion of murder. Prior to his arrest, Pursley had been living with his fiancee, Sara Stephens, and had been operating his own scaffolding business. At 2:00 a.m. on December 20, the defendant phoned an El Dorado police officer, Jerry Hill, for whom he had once done some undercover police work, and asked Hill to meet him in a remote location. Hill met with the defendant, who was armed with an unloaded revolver. The defendant told Hill of a schoolteacher who he believed was dealing in narcotics. The defendant said he planned to “smoke” this person. On the night before the shooting, December 20, the defendant went to Larry Hay’s house to watch the Monday night football game with him. 'Rebecca Laughlin, who was living with Larry Hay, testified that Larry told her the defendant had asked him to go out drinking after the game, but Larry turned him down. The defendant testified that while he was at Hay’s house they agreed they would have to have a duel (the reason is unclear). Hay told the defendant to check back the next day on the time and place for the duel. About 3:00 a.m. on December 21, the defendant phoned Frank Becker, an El Dorado banker for whom his fiancee worked, and said he urgently needed to meet with him. Becker agreed that the defendant could come over to his house to talk. He talked with Becker of the Mafia, the secret service, and of a “confrontation” he was to have in which there would be only “one survivor.” Becker recalled the defendant said the confrontation was to take place near Douglass. He could not remember the name of the other participant, except that it started with the letter “H.” Following this meeting with Becker, the defendant phoned his friend, Eddie Dean, and said he needed to talk to him. In their conversation, the defendant told Dean that he was involved with the Mafia and that he was to be in a “duel.” On the night the defendant was arrested, at about 11:00 p.m., the police officers conducted their first interview with him. At that time, the defendant signed a waiver of his Miranda rights. He then denied being -at Hay’s home earlier that day, and claimed he knew nothing of Hay’s death. When asked about the revolver he had been carrying, the defendant turned, stared toward the wall, and would say nothing else. Oh December 22 at 10:30 a.m., the defendant was again interviewed after he orally waived his Miranda rights. The defendant changed his previous statement by admitting he had been at Hay’s home on December 21, but that no one had been home. When he was asked specifically if he had shot Hay, the defendant requested a chance to think. The defendant was granted his request and sent back to his cell. Forty-five minutes later he was re-questioned after again being advised of his Miranda rights. However, the defendant made no further statement. Later that day, Dr. Girod, an El Dorado physician, visited the defendant for purposes of determining his mental condition and whether he was dangerous to himself or others. His evaluation was used as a basis for the filing of an incompetency petition against the defendant on December 23. That petition was dismissed on December 28. During the evening of December 22, the defendant was allowed to confer with an attorney, Charles Green. They talked for 25 minutes. The defendant also met with Green the next morning. At around noon on December 23, Eddie Dean came to the jail to visit the defendant. During their conversation, the defendant admitted shooting Larry Hay. Dean asked the defendant if he wanted him to tell the sheriff. The defendant agreed. He subsequently gave a confession to the police after being advised of and waiving his Miranda rights. According to the defendant’s statement, when he pulled up in front of Hay’s house on the afternoon of December 21, Hay had come out of the house waving a sawed-off shotgun at the defendant. The defendant fired a couple of shots from his revolver in Hay’s direction, missing both times. A struggle ensued during which the defendant took the sawed-off shotgun away from Hay. The struggle moved into the house as Hay tried to make his way to another gun. Defendant then aimed the shotgun at Hay. Hay yelled, “My God, Jack, that gun is loaded.” The defendant then, in his words, “squeezed one off.” The defendant said that after-wards he had fled because he was scared. He dumped the guns somewhere on his way back to El Dorado. According to testimony at trial, there were no signs of struggle at the Hay residence. Although a search was conducted, the murder weapon was never located. The defendant initially contends the trial court erred by overruling his motion to suppress his confession to his friend, Eddie Dean, and his subsequent confessions to the police. The de fendant argues that the confessions should have been suppressed for a number of reasons, including: the defendant was not mentally competent at the time of the confession and, therefore, did not voluntarily waive his rights; the defendant was not informed of his Miranda rights prior to his conversation with Eddie Dean; the defendant did not effectively waive his right to counsel before making his statement to the police officers; and the county attorney acted unethically in procuring the defendant’s confession. The defendant first argues that any statement he gave on December 23 was involuntary because of his mental status. At the time these statements were made, an incompetency petition (K.S.A. 59-2913) was pending against the defendant. This petition was based on Officer Ron Morrison’s belief that the defendant was dangerous to himself and to others (Office Morrison had been present during each interview of the defendant), and on Dr. Girod’s evaluation in which he concluded that although the defendant was “definitely not psychotic” he was paranoid and capable of unpredictable behavior, including violence. Toward the end of defendant’s second statement to the police, the defendant stood, said something in broken Spanish, and then declared, “let there be peace in our village.” Immediately after making his confessions on December 23, the defendant talked to his mother and sister and told them he had told the officers what they wanted to hear. He also told his mother there would be a quick conviction and he would then apparently be sent to Lansing but would not actually go there; instead his “face would be changed” and he would be sent away to continue his ündercover work for the CIA. The defendant argues that under these circumstances, he was not mentally competent to voluntarily waive his Miranda rights and to understand the significance thereof. The evidence in this case is undisputed that the defendant was properly advised of his Miranda rights and no threats or promises were made to him.' The defendant told the court reporter prior to giving his statement that he was “all right” and said, “I know what I’m doing.” The defendant then gave a detailed statement to police in which he admitted he had shot Larry Hay. In reaching its conclusion on the defendant’s motion to suppress due to his mental incompetency, the trial court considered the following factors: the defendant’s conversations with Frank Becker, Jerry Hill and Eddie Dean prior to the shooting; his unusual behavior during his first interview with the police following their questioning him about his gun; the filing of the incompetency petition; Dr. Girod’s evaluation; the police officers’ impression that the defendant was improved and was responsive and cooperative when he confessed; the defendant’s statement to the court reporter that he knew what he was doing; defendant’s bizarre declaration at the end of his second statement; defendants statements to his mother on December 23; defendant’s psychologist’s opinion that the defendant did not know what he was doing when he confessed; the State’s psychiatrist’s opinion that the defendant did know what he was doing when he confessed. The trial court concluded that although the defendant had displayed some unusual behavior, under the “totality of the circumstances” the defendant had failed to overcome the presumption that he was sane. The court therefore refused to suppress on this ground. In a criminal case there is a presumption of sanity, and if the accused attacks the voluntariness of his confession on the ground of mental incompetency at the time the confession was given it is incumbent that he overcome the presumption by substantial competent evidence to substantiate his claim. State v. Gilder, 223 Kan. 220, 574 P.2d 196 (1977). In State v. Boan, 235 Kan. 800, 804, 686 P.2d 160 (1984), this court stated: “The question as to the effect of mental illness on the voluntariness of a confession has been before this court on several occasions. In State v. Pyle, 216 Kan. 423, 440, 532 P.2d 1309 (1975), it was held that the test for determining whether a suspect has the mental capacity to make a voluntary confession is the same as the test for determining his criminal responsibility for committing the crime. In absence of insanity meeting the M’Naghten test, the mental condition of a defendant at the .time he makes a statement is relevant to the issue of voluntariness but is not necessarily conclusive; its weight is for the trier of fact. A trial court’s finding, after a Jackson v. Denno hearing, that the defendant was sane and made his confessions knowingly and voluntarily is binding on appellate review if supported by substantial competent evidence. More recent cases in accord with this position are State v. Gilder, 223 Kan. 220, 574 P.2d 196 (1977); State v. Buckner, 221 Kan. 117, 120, 558 P.2d 1102 (1976); State v. Wright, 219 Kan. 808, 549 P.2d 958 (1976).” In the instant case, three experts testified at trial as to defendant’s mental status at the time of the crime and at the time of the confession. Only the defendant’s psychologist testified that the defendant was criminally insane. He diagnosed the defendant as a paranoid schizophrenic. However, he was unable to conclusively state that the defendant did not know right from wrong during the crucial period. He also admitted that the results of one of the tests which he administered to the defendant indicated that he was not suffering from paranoid schizophrenia. On the other hand, the State’s experts — a psychiatrist and a psychologist — testified that the defendant was sane both on the day of the killing and the day he confessed. They opined that although the defendant suffered from a mental disturbance, he did know right from wrong, and he appreciated the nature and seriousness of his behavior. Also, Dr. Girod, who examined the defendant prior to the filing of the incompetency petition, concluded he was “definitely not psychotic. His thinking is coordinated, rational and coherent. There is no indication of mental impairment or mental defect.” The police officers and Eddie Dean testified that the defendant’s condition was apparently improved at the time he confessed. Moreover, the defendant, in his statements to the police, described the events surrounding the killing in great detail. Under all the circumstances, we find there was substantial competent evidence to support the trial court’s finding that the defendant did not overcome the presumption of sanity. Accordingly, we find the trial court did not err by finding the confession was voluntary and by refusing to suppress on the basis of the defendant’s sanity. The defendant next contends the trial court erred by refusing to suppress his confession to Eddie Dean because the conversation was tantamount to a custodial interrogation and he had not been advised of his Miranda rights. The Miranda warning was designed to protect a putative defendant against the compulsion to incriminate himself arising from an official custodial interrogation. Battie v. Estelle, 655 F. 2d 692 (5th Cir. 1981). A “custodial interrogation” is defined as “questioning initiated by law enforcement officers after a person has been taken into custody.” Miranda v. Arizona, 384 U.S. 436, 444, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966); State v. Frizzell, 207 Kan. 393, Syl. ¶ 1, 485 P.2d 160 (Y971). Therefore, the requirements of Miranda apply only when the suspect is interrogated by law enforcement officers or their agents. United States v. Parr-Pla, 549 F.2d 660 (9th Cir. 1977). Conversely, the Miranda rules do not apply to situations where the suspect makes incriminating statements to a private citizen who is not an agent of law enforcement officers. State v. Stuart, 205 Kan. 174, 468 P.2d 240 (1970); State v. Little, 201 Kan. 94, 439 P.2d 387 (1968). In this case, Eddie Dean was a friend of the defendant’s, having known him socially for three to four years prior to December 1982. From 1968 until 1973, Dean worked for the Department of Public Safety in El Dorado. Although he no longer worked there in 1982, he and the sheriff had remained friends. Also, in 1980, Dean had recommended to Captain Jerry Hill that the defendant would be a good undercover agent for the El Dorado police. He later introduced the defendant to Captain Hill. In the early hours of December 21, 1982, the defendant called Dean and said he had to talk with him. They met and the defendant talked of the Mafia and his upcoming duel. The next day, Dean contacted Captain Hill, Sara Stephens (defendant’s fiancee), and Frank Becker to talk over the implications of his conversation with the defendant. Also on December 21, Dean phoned a psychiatrist through a mental health center hot line and told him about the defendant. The doctor advised Dean that the defendant might be dangerous and that he should contact the police. Thereafter, Dean called Officer Morrison at the sheriff s department and together they determined that the defendant might be connected with the shooting death of Larry Hay. Around noon on December 23, Dean went to the sheriffs office in order to talk with the defendant. He testified that his reason for wanting to talk with the defendant was that he was curious as to what had happened. He asked the sheriff s permission to see the defendant. The sheriff checked with the county attorney and with the defendant, both of whom agreed to the visit. Dean also testified that before he saw the defendant, the sheriff told him, “So there’ll be no misunderstanding, I’m not asking you to talk to the defendant.” Eddie Dean told the defendant that he was upset about what had happened, that something must have made him do whát he did, that he felt he could have prevented it and that he really wanted to know what had happened. The defendant then pro ceeded to describe the shooting and the events surrounding it. Dean then said, “Jack, I am the only one that knows it, except— you and I are the only ones that know. What should we do from now on? Do you want me to talk to the Sheriff?” The defendant said he did. He subsequently gave a full confession to the police. Following the suppression hearing, the trial court concluded that Dean was not an agent for law enforcement and that the defendant’s conversation with Dean was neither instigated nor initiated by any law enforcement officer. Therefore, the trial court concluded that no Miranda warnings were required and refused to suppress the defendant’s statement to Dean. In order to have established the existence of an agency relationship, the defendant would had to have shown that the officers intended Dean to act on their behalf, and also that Dean intended to accept the authority delegated to him. See United States v. Henry, 447 U.S. 264, 65 L.Ed. 2d 115, 100 S.Ct. 2183 (1980). The United States Supreme Court has found an agency relationship existed when a fellow inmate of the accused was a paid government informant, United States v. Henry, 447 U.S. 264, and when a psychiatrist was court-appointed. Estelle v. Smith, 451 U.S. 454, 68 L.Ed. 2d 359, 101 S.Ct. 1866 (1981). The United States Court of Appeals for the Seventh Circuit recently determined that an accused’s older brother, whom police had placed in the accused’s jail cell with the knowledge that the brother planned to talk the defendant into confessing, was not an “agent of law enforcement” and, therefore, the resulting confession was not the product of a custodial interrogation. United States ex rel. Church v. De Robertis, 771 F.2d 1015 (7th Cir. 1985). For other cases dealing with when an agency relationship with law enforcement exists, see Annot., 31 A.L.R. 3d 565, 647-76. The record in this case reveals that Eddie Dean talked with the defendant on his own initiative. The authorities did not plant in Dean’s mind the notion to persuade the defendant to confess. Nor did the police initiate the idea of a consultation with the defendant. They provided only the opportunity for Dean to confer with the defendant. The spontaneous confession that resulted was the work of the defendant’s friend, not of custodial interrogation. The fact that Dean had once been a police officer is irrelevant. Therefore, we hold that Eddie Dean was not an agent of the State, and, as such, no Miranda warnings were required before he talked with the defendant. Accordingly, we find the trial court did not err by refusing to suppress the defendant’s statement to Dean. The defendant next contends that he had not effectively waived his Sixth Amendment right to counsel prior to confessing to the police, and, therefore, the trial court erred in refusing to suppress his statements to the police on December 23. At around noon on December 23, Sheriff Williams received a call from Charles O’Hara in Wichita, informing him that O’Hara had been retained by defendant’s mother to represent the defendant, and that he would arrive in El Dorado to visit with the defendant at or about 2:00 that afternoon. At the time of the phone call, the defendant was talking with attorney Charles Green. The sheriff phoned the county attorney to inform him of O’Hara’s call. The county attorney expressed that he had thought Green was the defendant’s attorney. The sheriff then interrupted the meeting between the defendant and Green to inform them of O’Hara’s message. The sheriff told Green that under the circumstances, Green should leave. Green did leave, and at 12:30, Dean arrived and had his conversation with the defendant. Following this, Dean informed the sheriff that the defendant wanted to make a statement. The defendant was advised of and waived his Miranda rights. He then gave a statement in the presence of the sheriff, Officer Morrison, and Dean. This was at 1:00. After being re-advised of his Miranda rights and again waiving the same, the defendant gave a second statement at 2:00, which was recorded by the court reporter and heard by Dean, Williams, and Morrison. The court reporter testified that he was called to take the statement by “someone in the sheriff s office” who asked him to hurry because “there’s a lawyer on the way.” O’Hara arrived just as the defendant was completing his second statement. The defendant now argues that it was error for the trial court to admit into evidence the statements he made to the officers when they knew he was represented by counsel and counsel was not present, although his presence was known to be forthcoming. This court was met with a similar situation in State v. Costa, 228 Kan. 308, 314, 613 P.2d 1359 (1980). In that case, the defendant was being held on suspicion of murder. He had retained counsel after his arrest and the police captain knew that he was represented. On the next day following his first meeting with his counsel, the defendant initiated a conversation with the police captain. The defendant was advised of and waived his Miranda rights. His counsel was not present at the time. The defendant then gave an incriminating statement. In addressing the defendant’s argument on appeal that the statement should have been suppressed, as it was taken in violation of his right to counsel, this court stated: “An accused may effectively waive the right to have counsel present during any police interrogation. The fact that he has previously retained counsel does not necessarily make inadmissible a voluntary statement made by the defendant in his counsel’s absence. State v. Johnson, 223 Kan. 237, 243, 573 P.2d 994 (1977); State v. Taylor, 217 Kan. 706, Syl. ¶ 5, 538 P.2d 1375 (1975); see State v. Jones, 220 Kan. 136, 138-39, 551 P.2d 801 (1976).” 228 Kan. at 314. In this case, the defendant does not challenge the voluntariness of his confession (except as to the effect of his mental status), he only challenges the alleged denial of his right to counsel. The trial court conducted a Jackson v. Denno hearing and found the defendant had waived his right to have counsel present. We must uphold this finding if it is supported by substantial competent evidence. State v. Porter, 223 Kan. 114, 118, 574 P.2d 187 (1977). The record reveals that the defendant was advised of his Miranda rights — including his right to counsel — and waived these rights each time before giving a statement to the law enforcement officers on December 23. Prior to making these statements, he had twice conferred with an attorney — Charles Green. He had also been informed that another attorney had been retained and was planning to meet with him that afternoon. Prior to making his second statement, the defendant told the court reporter, “I know what I’m doing.” Based on these factors, we hold there is substantial competent evidence to support the trial court’s finding that the defendant effectively waived his right to counsel. The defendant’s statements to the police on December 23 were properly admitted into evidence. The defendant’s final argument for suppression of his confession is that, due to the unethical conduct of the prosecutor, defendant’s statements on December 23 should have been suppressed. The defendant’s argument is that the county attorney, by giving permission for Eddie Dean to talk to the defendant, out of the presence of defendant’s counsel, caused another to communicate on the subject of the representation with a party he knows to be represented by a lawyer without prior consent of the other lawyer in violation of DR 7-104(A)(l). 235 Kan. cxlviii. This canon of ethical conduct has been held to be applicable to prosecutors as well as other lawyers. State v. Morgan, 231 Kan. 472, 646 P.2d 1064 (1982). This argument fails for two reasons. First, the county attorney did not violate DR 7-104(A)(l) by allowing Eddie Dean to talk with the defendant because Dean was not an agent of the state, and, as such, the prosecutor was not causing another to communicate with the defendant on the subject of the representation. Second, even if Dean had been an agent of the state, this court has previously held, in State v. Morgan, 231 Kan. at 479, that the provisions of the Code of Professional Responsibility are unrelated to the admission of evidence. In that case, the defendant— outside the presence of his counsel — made incriminating statements to the prosecutor after waiving his Miranda rights. The court held that although the prosecutor had clearly violated DR 7-104(A)(l), the trial court did not err by admitting the defendant’s statement. See also Annot., 26 A.L.R. 4th. 102, 134-38. We reiterate our statement in Morgan: “Sanctions for violation of DR 7-104(A)(l) are irrelevant to this case.” 231 Kan. at 479. Accordingly we affirm the trial court’s admissipn into evidence of all of the defendant’s statements on December 23. The defendant next contends that he was denied a fair trial because of prejudicial remarks by the prosecutor during closing arguments. The first remark which the defendant claims was prejudicial was as follow^: “This man, the man who wants you to believe his story, is the same man who told Jerry Hill that he doesn’t do women and he doesn’t do children, with regard to assaults and eliminating people. Well, that’s great if you are a woman or child, I guess. But if you are a man in the community, that’s bad news.” The defense counsel objected and requested a mistrial. The trial court denied the mistrial, but admonished the jury to disre gard “any comments with respect to the effects upon the community.” The next objectionable statement came at the conclusion of the State’s closing: “Ladies and Gentlemen, I think that a key phrase in this case has been the defendant’s own statement, ‘Let there be peace in your village.’ And there has been much made of that, and there have been statements that, perhaps, this was an expression of his relief, that, having extinguished this person, was causing personal conflict within himself. I would urge you, Ladies and Gentlemen, based on the evidence in this case, to go into the jury room and return a verdict of guilty of first degree murder. So that there can be peace in this village.” (Emphasis added.) Defense counsel again entered an objection and moved for a mistrial. The trial court denied the motion, but again admonished the jury “not to consider this case and the evidence in this case with regard to effect upon the community.” On appeal, defendant argues that by invoking the fear of the jurors as to the effect a “not guilty” verdict would have, the prosecutor’s statements clearly prejudiced his right to a fair trial. He contends the prejudice was so great that the court’s admonishments to the jury could not cure the harm done. We disagree. The trial court promptly recognized the objectionable aspects of the prosecutor’s statements. This prompt action by the trial court cured any possible prejudice to the defendant. In this connection we stated in State v. Warbrittan, 215 Kan. 534, Syl. ¶ 1, 527 P.2d 1050 (1974), and reiterated in State v. Perales, 220 Kan. 777, 780, 556 P.2d 172 (1976), the following: “Improper remarks made by the prosecuting attorney in his summation to the jury will not provide a basis for reversal where the jury has been instructed to disregard the same, unless the remarks were so prejudicial as to be incurable.” See also State v. Johnson, 229 Kan. 42, 45-46, 621 P.2d 992 (1981); State v. Mick, 229 Kan. 157, Syl. ¶3, 621 P.2d 1006 (1981). Moreover, due to the overwhelming evidence against the defendant in this case, there is little likelihood the absence of the errors would have changed the outcome of the case, and, as such, the errors were harmless. State v. Folkerts, 229 Kan. 608, 629 P.2d 173, cert. denied 454 U.S. 1125 (1981). Finally, the defendant contends the trial court erroneously failed to grant a mistrial based on the prosecutor’s comments on the defendant’s right to not testify. The defendant’s defense against the murder charge was that he was insane at the time of the killing. In seeking to establish his insanity, the defendant called several witnesses who testified about various bizarre statements the defendant had made to them prior to the shooting. As the defendant had not taken the stand, the prosecutor objected to these statements on the ground that it was hearsay unless the defendant waived his Fifth Amendment right and took the stand. The prosecutor made this objection three different times. Each time the trial court properly overruled the objection. The testimony was not hearsay because it was not offered for the truth of the defendant’s statements, but to show his mental state at the time he made the statements. See K.S.A. 60-460; State v. Phipps, 224 Kan. 158, 578 P.2d 709 (1978). After the second objection by the prosecutor, the defense counsel moved for a mistrial which was denied by the trial court. Following this — when the prosecutor objected for the third time on the offering of such testimony — he stated only that he was objecting for the same reason he had objected earlier; he did not reiterate the fact that the defendant had not taken the stand. Later in the defendant’s presentation of evidence, the defendant did take the stand, thereby waiving his Fifth Amendment privilege against self-incrimination. We note that the defendant, in arguing he was prejudiced by the prosecutor’s comments, cites no authority in support of his position. We recognize that comments by the prosecutor upon defendant’s failure to testify violate the defendant’s constitutional right against self-incrimination. Griffin v. California, 380 U.S. 609, 14 L.Ed. 2d 106, 85 S.Ct. 1229 (1965); State v. Reeves, 224 Kan. 90, 93, 577 P.2d 1175 (1978); K.S.A. 60-439. Comment is not, however, per se a violation requiring reversal. If we find comment is harmless by taking into consideration the nature and extent of the comment in comparison with the strength of the evidence of defendant’s guilt, then reversal will not be required. State v. Henderson, 226 Kan. 726, 736, 603 P.2d 613 (1979). See Annot., 24 A.L.R. 3d 1093. Here, the defendant, by taking the stand, effectively removed any possible prejudice from the minds of the jurors. The error, if any, is held to be harmless. Accordingly, we find the trial court did not err by refusing to grant a mistrial based on the prosecutor’s comments. The judgment of the trial court is affirmed. Holmes, J., dissenting.	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The opinion of the court was delivered by McFarland, J.: This is an appeal by the State from the district court’s dismissal of a charge against defendant, Leroy Powell, alleging violation of the State’s fishing regulations. Barton County owns property from which it extracts sand for use on county roads.The removal of such material has created a depression which has filled with water. Defendant placed five setlines in the water which were not tagged with his name and address. K.A.R. 23-3-10 provides in pertinent part: “(a) It shall be lawful for a person to operate or have set two (2) lines with not more than two (2) baited hooks or artificial lures per line, one (1) trotline, or eight (8) setlines. Trotlines and setlines shall not be used on state fishing lakes unless the lake is posted to allow their use. All lines, trotlines and setlines shall be checked at least once every twenty-four (24) hours. “(b) Each trotline, setline, tip-up and unattended line shall have a tag or label securely attached designating the name and address of the operator. It shall be lawful to use a trotline or setline one hundred and fifty (150) yards or more from any dam or one hundred and fifty (150) yards or more from the mouth of any stream.” The Kansas Fishing Regulations pamphlet distributed by the Kansas Fish and Game Commission provides in pertinent part: “Each fisherman is limited to two lines with not more than two baited hooks (single or treble) or artificial lures per line. Casting plugs, lures, and flies may be used. “In addition to two lines, a fisherman may set one trotline containing not more than 25 hooks. Or, instead of a trotline, a fisherman may set eight setlines containing not more than two hooks each. Trotlines and setlines cannot be set within 150 yards of any dam or within 150 yards of the mouth of any creek or river. Setlines, trotlines, or any unattended line must be checked at least once every 24 hours by the person fishing with them. “Bank lines, limb lines, trotlines, and unattended lines must be tagged securely and plainly with the fisherman’s name and address. This provision does not apply to privately owned ponds or strip pits.” Defendant was charged with having setlines that were not properly tagged. He was convicted of such violation by a district magistrate judge following a bench trial. He appealed to the district court. Defendant filed a pretrial Motion for Judgment of Dismissal which was sustained. The State appeals from said dismissal. The district court held the water in the sand pit constituted: (1) a privately owned pond or strip pit within the purview of the Kansas Fishing Regulations; and (2) a private fishing impoundment within the purview of K.S.A. 32-172a and that, accordingly, there was no requirement that setlines had to be tagged. We do not agree with either categorization of the sand pit. The property on which the setlines were placed was owned by Barton County. It was, therefore, owned by a political subdivision of the state and constitutes publicly owned property. The fact that it was used by the county as a source of material for county road construction and maintenance and is not open to the general public does not make the property “privately owned” within the scope of the Kansas Fishing Regulations. We turn now to whether the property constituted a “private water fishing impoundment” within the purview of K.S.A. 32-172a. Said statute provides: “A ‘private water fishing impoundment’ as used in this act is defined as being a water impoundment, constructed by man rather than natural, located wholly within the boundary of the lands owned or leased by the person operating the private water impoundment. Further, the impoundment must be entirely isolated from other surface water; that is, the private impoundment must not have any connection either continuously or at intervals, except during periods of floods, with streams or other bodies of water so as to permit the fish to move between the two places: Provided, however, The private impoundment may be connected with a stream or other body of water by a pipe or conduit no larger than eight inches in diameter if the flow is screened at all times to the extent necessary to prevent fish from moving between the two bodies of waters. The owner or tenant having possession and control of such private fishing impoundments as hereinabove defined and desiring to use the same for the propagation or rearing of fish for private use or to be sold or used commercially may do so without securing or holding any state license or permit and without being limited as to numbers, time, or manner of taking fish from such impoundments: Provided, however, It shall be unlawful to use any manner or means which may escape from such private impoundment and kill or endanger fish in other private impoundments or public waters: Provided further, It shall be unlawful to remove fish from such private impoundment without the consent of the owner or tenant having possession and control: Provided further, The general public is not required to have a state license to fish such private water.” The district court leapt upon the requirements that a “private water fishing impoundment” must be man-made and “isolated from other surface water” in making its determination. The leap was improvident. The statute permits private owners of land to build artificial lakes or ponds (subject to the isolation requirement) for purposes of the propagation or rearing of fish, and the owners thereof may harvest or otherwise exercise control over their fish without regard to the fishing laws. Fish in qualified impoundments of water, such as commercial fish farms, pay fishing lakes, and farm ponds are not subject to the Kansas fishing laws and regulations. The body of water herein was not privately owned and was not impounded for purposes of fish propagation or rearing. K.S.A. 32-172a is clearly inapplicable to the property in question herein. We conclude the district court erred in dismissing the charge herein. The judgment of the district court is reversed and the case is remanded for further proceedings.	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The opinion of the court was delivered by Holmes, J.: This is an appeal in a products liability action by two defendants from a jury verdict awarding damages for personal injuries. The appellants, Deere & Company and John Deere Industrial Equipment Company, are related corporations which were treated as one entity in the trial court. We will do the same and the two appealing defendants will be referred to collectively as Deere or appellants. Deere was found to be 40% at fault for plaintiff s injuries and the total amount of his damages was determined by the jury to be $945,000.00. The facts are essentially undisputed. In October 1971, Deere, through its local dealer the defendant Capital Equipment, Inc., sold a 1971 Model 450B Crawler Loader to Power Constructors, Inc., the employer of the plaintiff Dwight C. Long. At the time of the original sale, the crawler loader was not equipped with a roll-over protective structure (ROPS), nor was it equipped with a seatbelt. A crawler loader is a piece of heavy machinery used in earth-moving operations during road building, excavation and similar construction projects. A ROPS is a protective cage used on heavy machinery such as the crawler loader involved here, tractors, bulldozers and similar machines. Its purpose is to provide a protective enclosure to confine and protect the machine operator in the event the machine rolls over while in use. In February of 1973, Capital Equipment sold a Deere ROPS to Power Constructors for installation on the crawler loader. The ROPS kit consisted of the protective cage and a seat belt, both of which were installed at that time. Plaintiff, Dwight C. Long, was employed by Power Constructors in May 1976, and among his duties was the operation of the crawler loader. In January of 1977, while operating the crawler loader, it slid on an embankment and rolled over, and the plaintiff, who was thrown from the operator’s seat, was pinned between the ROPS and the frozen ground. Plaintiff suffered severe permanent injuries which will be covered in more detail later in this opinion. In January 1979, Long filed suit against Deere & Company, John Deere Industrial Equipment Company and Capital Equipment, Inc. Following extensive discovery the case eventually went to trial in October 1984. Although not a party to the litigation, the fault of Power Constructors, Inc., as Long’s employer, was submitted to the jury for its consideration. The jury returned a special verdict determining fault in connection with the accident to be: (1) Deere and Company and John Deere Industrial Equipment Company .....................40% (2) Capital Equipment, Inc......................22% (3) Dwight C. Long ........................... 5% (4) Power Constructors, Inc......................33% The jury further found the total amount of damages Long sustained to be nine hundred forty-five thousand dollars ($945,000.00). Deere filed post-judgment motions for judgment notwithstanding the verdict and/or a new trial. These motions were denied by the trial court and Deere has appealed, raising numerous issues primarily factual in nature which have been determined adversely to Deere by the jury. In negotiations following the trial, Capital Equipment and plaintiff reached a settlement and as a result Capital Equipment is not a party to this appeal. The action was tried upon theories of strict liability and negligence. A special verdict form consisting of twelve questions was submitted to and answered by the jury as follows: “We, the jury, present the following answers to the questions submitted by the Court: 1. We find the defendants, Deere & Company and John Deere Industrial Equipment Company: (check one) Yes at fault on theory of negligence. _not at fault on negligence theory. (number of jurors agreeing 12) 2. We find the defendants, Deere & Company and John Deere Industrial Equipment Company: (check one) _at fault on theory of strict liability. X not at fault on theory of strict liability. (number of jurors agreeing 11) 3. If the jury finds that the defendant, Deere & Company and John Deere Industrial Equipment Company, are liable on either the theory of negligence or the theory of strict liability, state in which one or more of the following respects such defendants are at fault: (check one or more; do not answer unless the jury finds the defendants to be liable under one or both of the foregoing theories.) _(1) in failing to design and/or provide a seat belt, the existence of which would be reasonably apparent or known to users. (number of jurors agreeing:_) X (2) in failing to provide adequate warnings of hazards and risks involved in the use of the unit equipped with a ROPS without using a seat belt. (number of jurors agreeing: 12) _ (3) in failing to design and/or provide pinion or bull gears of adequate strength for all reasonably foreseeable uses. (number of jurors agreeing:_) 4. We find the defendant, Capital Equipment, Inc.,: (check one) Yes at fault on theory of negligence. _not at fault on negligence theory. (number of jurors agreeing 11) 5. We find the defendant, Capital Equipment, Inc.,: (check one) _at fault on theory of strict liability. X not at fault on theory of strict liability. (number of jurors agreeing LI) 6. If the jury finds that the defendant, Capital Equipment, Inc., is liable on either the theory of negligence or the theory of strict liability, state in which one or more of the following particulars such defendant is at fault: (check one or more; do not answer unless the jury finds that such defendant is at fault on one or both of the above theories) _(1) in failing to design and/or provide a seat belt, the existence of which would be reasonably apparent or known to users. (number of jurors agreeing:_) Yes (2) in failing to provide adequate warnings of hazards and risks involved in the use of the unit equipped with a ROPS without using a seat belt. (number of jurors agreeing: 11.) _ (3) in failing to design and/or provide pinion or bull gears of adequate strength for all reasonably forseeable uses. (number of jurors agreeing:_) 7. We find the plaintiff: (check one) Yes at fault. _not at fault. (number of jurors agreeing: 10) 8. If the jury finds that the plaintiff is at fault, state in which one or more of the following respects plaintiff is at fault: _(1) in failing to use an available seat belt. (number of jurors agreeing:_) Yes (2) in failing to look for and/or inquire about a seat belt. (number of jurors agreeing 10) _(3) in failing to report to his employer that a seat belt appeared to be missing. (number of jurors agreeing:_) _(4) in causing the model 450B to tip by improper handling under the circumstances of terrain and weather, (number of jurors agreeing:_) 9. We find the plaintiffs employer, Power Constructors, Inc., (check one) Yes at fault. _not at fault. (number of jurors agreeing 12) 10.If the jury finds that Power Constructors, Inc., is at fault, state in which one or more of the following respects such employer is at fault: (check one or more; do not answer unless the jury finds such employer to be at fault) _ (1) in allowing plaintiff to operate the model 450B when such employer knew or should have known that plaintiff was not qualified, (number of jurors agreeing: _) _ (2) in removing the seat belt from the unit after it had been installed by Charles Stewart. (number of jurors agreeing_) _(3) or, if not removed, in allowing the seat belt to become hidden from view. (number of jurors agreeing: __) _(4) in failing to adequately train plaintiff to operate the unit under the conditions of weather and terrain in question. (number of jurors agreeing_) Yes (5) in failing to instruct the plaintiff concerning the availability and necessity of using seat belts with the unit equipped with a ROPS. (number of jurors agreeing 12) 11. Considering all of the fault at 100%, what percentage of the total fault is attributable to each of the following: (1) Deere & Company and John Deere Industrial Equipment Company (0% to 100%) 40% (2) Capital Equipment, Inc. (0% to 100%) 22% (3) Dwight C. Long (0% to 100%) 5% (4) Power Constructors, Inc. (0% to 100%) 33% (number of jurors agreeing 10) 12. Without considering the percentage of fault found in the foregoing questions, state total amount of damages you find was sustained by the plaintiff. (Write in dollar amounts in words and numbers.) Nine hundred forty-five thousand dollars_ $945,000. (number of jurors agreeing 10)” Plaintiff testified that he had never seen a seat belt in the crawler loader, that he was aware of what seat belts were for, that if he had seen one he would have used it, and that he had never been instructed to use a seat belt on units equipped with a ROPS. He also testified he had seen no warnings about using a seat belt on the crawler loader itself and had read no manuals or other documents which advised using seat belts. It is not disputed that when machinery such as that used here does not have a ROPS, it is advisable to not have or use a seat belt so the operator may be able to jump free and avoid injury in case the machine rolls over. On the other hand, it is equally clear that when the machine is equipped with a ROPS then use of a seat belt is almost always advisable to keep the operator within the protective structure in case of a roll over and thereby avoid injury such as was suffered by plaintiff. It was shown that when equipped with a ROPS it is nearly impossible to jump or be thrown free in the event of a roll over and injury or death is almost inevitable unless the operator is restrained within the protective structure by a seat belt. The jury found for Deere on the theory of strict liability but found negligence upon Deere “in failing to provide adequate warnings of hazards and risks involved in the use of the unit equipped with a ROPS without using a seat belt.” Thus the principal issues now before this court are whether Deere was under a duty to provide any warnings on use of seat belts and, if so, whether the warnings provided were adequate. It appears to be clear from the evidence, and there is no serious contention to the contrary, that at the time of the accident the crawler loader was equipped with the recommended seat belt that came with the ROPS installation kit. The evidence also supports the conclusion that the seat belt was not readily visible or available to the operator in that it had either slipped down between the seat cushion and the back of the seat or had been deliberately stowed beneath the seat cushion. In either event, the seat belt would not be available to the operator without some investigation to locate and properly position the belt in the seat cushion area. While plaintiff testified that if he had seen the belt or known of its existence he would have used it, he also testified he did not know this particular machine was equipped with a seat belt and had not been advised or warned by anyone that its use was imperative. Deere provided three statements or warnings concerning the use of seat belts. At the time of the initial purchase of the crawler loader, Power Constructors received an owner’s or operator’s manual covering the care and operation of the machine. In the section describing the seat belt the manual states: “Seat Belt A seat belt is available as special equipment for your crawler. ! CAUTION: Under almost all operating conditions: 1. The use of a seat belt with the optional John Deere canopy is recommended. 2. Use of a seat belt without roll-over protective equipment is not recommended.” The installation instructions which accompanied the ROPS kit included the same cautionary statement found in the manual. The seat belt itself had a label attached to the buckle which read: “CAUTION “Under almost all operating conditions, belt should not be used on tractor which is not equipped with roll over protection.” Plaintiff testified he had never seen the operator’s manual or the ROPS kit instructions and had never been advised of the cautionary statements contained therein. As plaintiff had not seen the seat belt and did not know it existed, he likewise was unaware of the statement on the belt buckle. The numerous and sometimes overlapping and confusing issues raised on appeal will be addressed in the order set forth in appellants’ brief. Appellants’ many contentions and arguments are primarily an attack upon the evidence and an assertion that there was insufficient evidence to support the verdict in the various areas raised on appeal. It is also asserted appellants’ motion for judgment notwithstanding the verdict should have been sustained. When a verdict is attacked on the ground it is contrary to the evidence, it is not the function of the court on appeal to weigh the evidence or pass on the credibility of the witnesses. Under these circumstances, the reviewing court must review the evidence in the light most favorable to the party prevailing below. Toumberlin v. Haas, 236 Kan. 138, 689 P.2d 808 (1984). Appellants’ first major contention on appeal is that they were under no duty to warn plaintiff of the advisability or necessity of using a seat belt when the crawler loader is equipped with a ROPS. Several arguments are presented. Deere first asserts it was under no duty to warn against risks or hazards which are open or obvious and which should have been realized by a reasonable user or consumer. The jury was so instructed by the trial court. It is contended that as the risks of not using seat belts in automobiles is well known and as the possibility for equipment of the type here to roll over is generally known by operators, the hazards are open or obvious and no duty exists. Appellants rely upon testimony from Long and one other operator that they knew the reasons and purposes for seat belts. However, at no time did plaintiff testify that he knew of or had ever been warned of the extreme danger of injury or death in the event of a roll over if the unit was equipped with a ROPS and a seat belt was not being used. While plaintiff testified that if he had seen a seat belt or known one was there he would have used it, there is no showing that he appreciated or had knowledge of the extreme danger in operating the crawler loader without using the seat belt. The general rule regarding a manufacturer’s duty to warn is stated in the Restatement (Second) of Torts § 388 (1963): “§ 388. Chattel Known to be Dangerous for Intended Use. One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.” See also Sell v. Bertsch and Co., Inc., 577 F, Supp. 1393 (D. Kan. 1984); Jones v. Hittle Service, Inc., 219 Kan. 627, 549 P.2d 1383 (1976); and Prosser and Keeton on Torts § 96 (5th Ed. 1984). As with most rules, the above rule requiring a manufacturer to warn is not without exception. One such exception was recognized in Jones v. Hittle Service, Inc., 219 Kan. 627, where the court stated, “ ‘There is no duty to warn of dangers actually known to the user of a product, regardless of whether the duty rests in negligence ... or on strict liability.’ ” 219 Kan. 639-40, quoting Garrett v. Nissen Corporation, 84 N.M. 16, 21, 498 P.2d 1359 (1972). (Emphasis added.) A similar rule is found at 63 Am. Jur. 2d, Products Liability § 341. “It would seem to be an obvious truism to state that there is no duty on the part of a manufacturer or seller to give a warning of a product-connected danger where the person who claims to be entitled to the warning actually knows of the danger. The case law also clearly supports the view that a person is not entitled to be warned about something he already knows. Similarly, there is no duty to warn employees of the purchaser of a product, where it appears that such employees knew of the danger to which the warning would have related.” (Emphasis added.) See also Annot., 76 A.L.R.2d 9. The testimony of the plaintiff about his knowledge of seat belts and the risk of not using them, while perhaps tending to show knowledge of the specific risk involved here, is not specific or conclusive. This factual issue was submitted to the jury under an instruction from the court and the jury decided the issue adversely to the appellants. Next, Deere contends that where the risks are commonly known and warnings would be futile there is no need to provide any warning at all. Two arguments are made in support of this proposition. The first is that the common knowledge of the alleged advisability of using seat belts in automobiles is so widespread and the public reluctance to using them is so great that further warnings would be useless. Appellants cite a number of decisions and authorities which recognize the reluctance of the American public to use seat belts in their automobiles but, assuming that is true and that knowledge of such reluctance is widespread, it does not address the issue before us. Plaintiff testified that if he had known of the specific danger involved and that a seat belt was available he would have used it. It is not a question of whether the public is reluctant to utilize available seat belts when driving or riding in an automobile but whether plaintiff knew or should have known of the hazards involved in operating the crawler loader and whether, if warned, he would have conducted himself differently. The operation of a crawler loader is far different from the everyday operation of an automobile on the highways. To say, based upon the habits of the motoring public, that in the present case a warning would not be heeded by plaintiff is nothing but sheer speculation. In fact, he testified to the contrary. We cannot say as a matter of law that the risks here were so commonly known that a warning would have been futile. The factual determination of that issue was determined adversely to appellants. As a part of this general argument, appellants assert that by reason of our decision in Hampton v. State Highway Commission, 209 Kan. 565, 498 P.2d 236 (1972), and its progeny, Deere was under no duty to warn of the risks involved in operating the crawler loader. In Hampton the defendant attempted to introduce evidence that the plaintiff automobile driver was not using a seat belt to show negligence on behalf of plaintiff and a failure to mitigate damages. The action involved a claim by plaintiff of a road defect which caused injury to him as driver of an automobile on the highway. This court held: “A driver has no legal duty to use an available seat belt, and evidence of nonuse is inadmissible either on the issue of contributory negligence or in mitigation of damages.” Syl. ¶ 9. Hampton was followed by Taplin v. Clark, 6 Kan. App. 2d 66, 626 P.2d 1198 (1981), wherein the rule was determined to apply to a passenger in an action after comparative negligence was adopted. Next to consider the issue were the recent cases of Ratterree v. Bartlett, 238 Kan. 11, 707 P.2d 1063 (1985), and Rollins v. Kansas Dept. of Transportation, 238 Kan. 453, 707 P.2d 1063 (1985). The rules set forth in Hampton and Taplin were reaffirmed in those cases. Appellants contend that our decisions in the automobile cases establish as a matter of law that there is no duty to use seat belts in Kansas. The reliance upon the automobile cases is misplaced. Nothing in our automobile seat belt decisions has any bearing upon the negligence, or lack thereof, or the duty to warn, or lack thereof, in a construction setting where the vehicles involved are construction machines having no comparison or relationship to automobiles on the highways and which in many cases, as here, are specifically precluded from use of the highways. The duties of the motoring, public in using the highways of Kansas have been addressed by the legislature and are encompassed in the uniforrh act regulating traffic on the highways, K.S.A. 8-2204 et seq., and statutes included therein. There are no comparable statutes regulating the operation of construction machinery. The determination that the motoring public has no duty under present law to use seat belts is a far cry from the determination of whether a duty may exist to warn the operator of heavy construction machinery of the necessity of using a seat belt under conditions which admittedly will result in death or injury in a roll over unless seat belts are used. In a brief supporting a motion in limine filed prior to trial by Deere, the distinction between the automobile cases and the present case was clearly recognized. Deere stated, inter alia: “Defendant will contend that this case is distinguishable from Hampton and Taplin .... 1. The vehicles in Hampton and Taplin were highway vehicles where tip-overs are not significant risk. In Hampton the Court observed: ‘So likewise the traveler has the right to assume the highway is reasonably safe for travel . . . .’ This certainly is not true for off-highway full track vehicles. Their utility is their ability to negotiate terrain so rough that wheel vehicles cannot be used for the same tasks. The roughness of such terrain, combined with load carrying capacity, increases the risk of lateral instability, and the need for a seat belt if the vehicle is equipped with a ROPS. There is a duty, therefore, to use an available seat belt on a 450R [the crawler loader here involved].” Our prior decisions relating to the use of automobiles do not establish as a matter of law the lack of a duty on the part of operators of heavy construction machinery nor the lack of any duty to warn them of the risks of not using seat belts. In its contentions that no duty to warn existed on the part of Deere, it is next asserted that admission of certain expert testimony was error. It appears to be the contention of the appellants that the allowance of expert testimony on the scope of the manufacturers’ duty to warn and whether there was such a duty constituted error and invaded the province of the jury. Much of the testimony complained of related to the issue of whether the crawler loader and the ROPS were defectively designed under plaintiff s theory of strict liability in tort which the jury resolved in the appellants’ favor. While there was testimony by plaintiff s experts as to the duty to warn based upon the danger existing when seat belts are not used, and on the need for and adequacy of the warning in this case, we do not find any reversible error; In an annotation appearing at 26 A.L.R. 4th 377, entitled Products Liability: Admissibility of Expert or Opinion Evidence as to Adequacy of Warning Provided to User of Product, it is stated: “The admissibility of expert testimony in a products liability case is subject to the same rules governing such evidence generally. Thus, where the courts have found the witness to be qualified to testify, or have concluded that such testimony did not invade the province of the jury, or have determined that the subject, was not one of common knowledge, the courts have held expert testimony as to the adequacy of warnings provided a user of a product to be admissible. Conversely, where the courts have determined that the proposed witness was not qualified in the area of the proposed testimony or where the court determined that the subject matter was one of common knowledge to which the use of expert testimony would add little to the understanding of the jury, the courts have held expert testimony as to the adequacy of a warning provided a user of a product to be inadmissible.” pp. 378-79. In this case one of the issues to be decided was the adequacy of the warnings provided by Deere. As could be expected, the experts for each side testified in support of their respective positions. The transcript reveals that each of plaintiffs experts detailed the criteria they considered in examining the sufficiency of a warning and then concluded that Deere’s warning in this case fell short of that standard. In a products liability action it is not error to allow an expert to testify as to an ultimate issue of fact if it will be of special help to the jury on technical subjects as to which the jury is not familiar, if such testimony will assist the jury in arriving at a reasonable factual conclusion from the evidence. Siruta v. Hesston Corp., 232 Kan. 654, 665, 659 P.2d 799 (1983); Pape v. Kansas Power & Light Co., 231 Kan. 441, 445, 647 P.2d 320 (1982). The admission of expert testimony lies within the sound discretion of the trial court and we find no abuse of that discretion here, Douglas v. Lombardino, 236 Kan. 471, Syl. ¶ 5, 693 P.2d 1138 (1985). Appellant’s next major category on appeal is that if any duty did exist to warn of the danger of operating this machine, which was equipped with a ROPS, without using a seat belt, then that duty was adequately met and satisfied by the various warning and caution statements set forth earlier in the opinion. As indicated, there was a cautionary statement contained in the owner’s manual, the ROPS installation instructions and on a label affixed to the seat belt buckle. It is undisputed that the plaintiff never saw any of them and obviously had never read them. Much is made about the actual written content of the warnings and their adequacy. None of them provided a direct warning of the serious consequences that would in all probability result from a roll over without using the seat belt. The appellants in their brief explain: “The warning was somewhat ‘soft’ because there are some uses in which a seat belt would provide a definite risk, such as on frozen lakes or near a body of water where the operator could be trapped and drown.” As with the previous major issue, appellants assert several arguments in support of their position that if a duty to warn existed it was satisfied. Plaintiff contended at trial that an additional, more specific warning should have been attached to the machine itself in a location where it would be obvious to the operator. Expert testimony to that effect was presented. Plaintiff also contends that the written content of the warnings was unclear and actually constituted a non-warning as there was nothing to indicate under what conditions the use of the belt should be avoided or when the belt should be used. Appellants assert that there are a myriad of dangers involved in the operation of this type of machinery and that if warning labels were attached as .to all of them, the sheer volume of the warnings would make them worthless; that as plaintiff could not remember the contents of some of the warnings which were attached, he evidently didn’t read them, and wouldn’t have followed the warning if he had; and that as plaintiff was aware of the extent of the risk and still didn’t use the available seat belt it would have been useless to try to warn him. The problem with all these arguments is that there was conflicting evidence on each point and the jury found Deere failed “to provide adequate warnings of hazards and risks involved.” Whether the tragic injuries suffered here might not have occurred if a label, as recommended by plaintiff s experts, had been attached in an appropriate location to the structure of the machine, no one will ever know, but it was an appropriate issue to be considered by the jury. Likewise, whether the rather vague and inconclusive language of the warnings that were supplied was adequate was an issue for the jury. Appellants contend that the failure to provide an adequate warning was not a proximate cause of the injuries received by plaintiff. It is argued that when the warning is inadequate there is only a presumption of causation between such warning and the ultimate injury which is subject to rebuttal. See Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, Syl. ¶ 11, 681 P.2d 1038 (1984). The argument that plaintiff wouldn’t have read a warning label even if he had seen it appears to be based upon plaintiff s inability to recall the content of at least one warning label, on other hazards, which was attached to the dashboard. Plaintiff testified he remembered a label on the dashboard, undoubtedly read it, but could not recall what it said. Appellants argue he must not have even read it. The trial took place in October 1984 while the accident occurred in January 1977, almost eight years earlier, and plaintiff s inability to remember what he read is understandable. The contention that plaintiff would not have even read an obvious warning is not supported by the evidence. Next, appellants argue that the warnings here, if inadequate, were not a proximate cause of the injury because plaintiff learned how to use the crawler loader from his employer and fellow workers and not from the manual and instructions which contained the cautionary statements. Thus, it is argued that due to plaintiff s reliance on others to instruct him in the operation of the machine and in getting the “feel” of it and his failure to read the manual, which he didn’t even know existed, appellants were relieved of providing an adequate warning, or at least the lack of warning was not the proximate cause of the injuries. Additionally, appellants contend that the cause of plaintiff s injuries, in addition to his own fault, was the result of a superseding cause in that the employer “breached its duty of ordinary care owed its employee which in turn required it to provide safe and suitable tools and machinery, sufficient and capable employees, and instruction concerning the use of tools and machines for their own safety.” The foregoing issues on proximate cause were covered in comprehensive jury instructions to which appellants had no objection. The issues were thoroughly tried and argued by both parties during the trial and were appropriately submitted to the jury for determination. In its determination that appellants failed to provide adequate warnings, we do not know whether the jury based its decision on the inadequacy of the language used or on the failure to put a warning on the machine where it would be obvious to the operator, or both. Either conclusion is supported by the evidence. Next, appellants present a number of points in contending their motion for a new trial should have been sustained by the trial court. Many of the points are a rehash of earlier ones raised in their brief and have already been covered herein. One point not covered is appellants’ contention the jury’s verdict, in its answers to special questions, is inconsistent. The jury found the appellants negligent, in its response to question number three, for failing to provide adequate warnings of hazards and risks involved in the use of the unit equipped with a ROPS without using a seat belt. The jury also found, in question number ten, plaintiff s employer, Power Constructors, negligent for failing to instruct the plaintiff concerning the availability and necessity of using seat belts with the unit equipped with a ROPS. Deere contends these findings are inconsistent. Examination of the record indicates the jury was informed injury instruction No. 18 that a manufacturer has a duty to warn regarding known dangers from use of its product. Instruction No. 23 explained several duties owed by an employer to its employees including the duty to instruct employees who are in need of such instruction for their own safety. It is argued that before Power Constructors could be negligent in failing to warn plaintiff, it must have had an adequate warning from Deere or it could not be negligent in failing to warn plaintiff. Appellants rely upon Reed v. Chaffin, 205 Kan. 815, 473 P.2d 102 (1970), and Rohr v. Henderson, 207 Kan. 123, 483 P.2d 1089 (1971), in support of their position. Those cases are clearly distinguishable from the instant cases and the argument lacks merit. Both Deere and Power Constructors could be found negligent in failing to provide sufficient information or warnings to plaintiff and failure on the part of one does not preclude failure on the part of the other. Finally, it is contended the monetary verdict was excessive, that the jury was influenced by passion and prejudice, that it is not supported by the evidence and that the court erred in excluding evidence on future earnings. As the damage element of the verdict was general, we have no way of knowing what amount the jury awarded for any particular element of damage, such as loss of future wages or pain and suffering. Plaintiff suffered severe and painful injuries, including an open fracture of the left femur, an open fracture of the left humerus, severe damage to major arteries and veins, and loss of his left bicep muscle. He has undergone three surgeries and at the time of trial faced still further surgery. He also faces an increased risk of future vascular problems. The amount of the verdict does not shock the conscience of the court and is supported by the evidence. This case was diligently prepared and well tried by conscientious and competent counsel on both sides, who presented all relevant issues to the jury under a comprehensive set of instructions approved by appellants. We have considered all points raised on appeal, whether specifically set forth herein or not, and find no reversible error. 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The opinion of the court was delivered by Prager, J.: This is an action brought by the plaintiff, Lorraine Alvarado, to recover damages for false arrest, assault, defamation, and violation of civil rights under 42 U.S.C. § 1983 (1982). The case was submitted to a jury which brought in a verdict in favor of the defendants. Plaintiff appealed to the Court of Appeals which reversed and remanded the case for a new trial (Alvarado v. City of Dodge City, 10 Kan. App. 2d 363, 702 P.2d 935 [1985]). The defendants Aleo Discount Stores and Robert Fox then filed a petition for review which was granted by the Supreme Court. The plaintiff s claim arose as a result of her detention as a suspected shoplifter at the Aleo Discount Store in Dodge City on January 16, 1982, by Robert Fox, an off-duty police officer, who at the time was working as a security guard at Aleo. The facts in the case were disputed. The plaintiff s evidence was essentially as follows; On Saturday, January 16, 1982, the plaintiff, Lorraine Alvarado, a 35-year-old Hispanic woman, was shopping at the Aleo store in Dodge City. She was accompanied by her sister, Barbara Garcia. After entering the store, she shopped for approximately two hours, during which period plaintiff, purchased a pair of ladies shoes, a pair of children’s shoes, a pair of pajamas, and some flashlight batteries for her husband. After making those selections, she went to the checkout stand at the front of the store with the articles and paid cash for the same. Following the practice of the store, her shopping bag was stapled shut at the top with the sales ticket on the upper corner. The evidence was undisputed that plaintiff paid for each and every item selected and that she was not a shoplifter. After plaintiff went through Alco’s checkout stand, she left the store with the items purchased. She was outside the store in the direction of the parking lot when she was approached by Fox, who asked her to return to the store. According to the plaintiff, she asked him why, and he told her, “We have proof you stole the shoes you are wearing.” He asked her to return to the store, and she refused, stating that she didn’t steal them but had paid for them. Fox then announced to her that, if she did not return to the store voluntarily, he would have to use force and place her under arrest, and he showed her his police badge. Plaintiff testified she used profanity, calling him a damned liar. Officer-Fox then said for her to consider herself under arrest, took hold of her left arm, and forced her back toward the door. She then agreed to return on her own if he would let go of her, which he did. She was walked the length of the public portion of the store to a table in the storage area in the rear. There Fox demanded that she remove her shoes, and she did. Officer Fox showed the shoes to one of the clerks, Tana Freel, who stated to Fox that she did not get those shoes there. Officer Fox then told the clerk to check anyway. Tana Freel and another clerk each took a shoe and checked the entire ladies shoe display and found nothing resembling those shoes. Tana Freel also stated the shoes were obviously worn and not new. The clerk then returned to the back room and informed Officer Fox that the shoes did not come from the store. While Tana was checking the shoes, Officer Fox requested plaintiff to open her shopping bag, which was stapled shut. She refused, telling him if he wanted it open, he would have to open it himself. Officer Fox tore the bag open and found a new pair of ladies shoes and the various items mentioned above which he carefully checked against the register ticket. Fox then requested that she empty out her purse, and she refused, stating he would have to do it himself. Fox then proceeded to search through her purse, finding nothing incriminating. The plaintiff estimated that 25 to 30 minutes elapsed between her arrest and her release. Officer Fox prepared and filed an arrest report for the city police department and also a report for Aleo. After Fox had completed his search of her purse and had been advised that the shoes had not been purchased at the store, he told the plaintiff, “I guess I made a mistake.” Shortly thereafter, her husband arrived to find out what the trouble was. Plaintiff then left the store. The defendant Fox had a different version of what occurred. He testified that he first observed the plaintiff and her sister standing in the center aisle by some shoes that were on sale. The plaintiff stood there for approximately five minutes holding the shoes in her hand and turning them over and over and looking around. He thought that that appeared to be somewhat unusual. He then saw them leave the area and go to a more concealed area of the store. He saw plaintiff picking at the price tag on the pair of shoes and then saw her bend down and put a shoe on her foot. He saw her leave that area of the store. Fox then went to the area where she had been standing and found an Aleo sales tag lying on the floor. Fox then went to the service counter and asked the clerk if the sales tag was like the ones on the shoes in the center aisle. He was advised by the clerk that she thought so. The sales tag, which was admitted into evidence, was in the amount of $2. Fox testified that he observed the plaintiff walking around the store wearing either slacks or a dress which covered up the shoes she was wearing. He saw her go through the checkout counter. Fox admitted he never called the store’s office to check the number on the tag to see if it was from the ladies shoe department, and further admitted that he never checked with the cashier to see what items plaintiff had paid for. At this point, Fox said he reasonably believed Mrs. Alvarado to be a shoplifter and, therefore, followed her out the door. Fox also had a different version of what happened outside of the store on the way to the parking lot. According to Fox, he called to Mrs. Alvarado and told her that he suspected her of taking the shoes that she was wearing, or that she had been wearing. He asked her to come back into the store and she refused, stating that he would have to arrest her. He then placed her under arrest and took her back into the store. He admitted taking hold of her arm. They then proceeded back into the store and he had the clerks check the shoes which were found not to be shoes purchased from the store. He admitted searching her shopping bag and her purse. It was his judgment that he detained the plaintiff for a total of ten minutes. According to Fox, he told plaintiff that he had made a mistake and was sorry. On the arrest report, Fox stated that he had “unarrested” Mrs. Alvarado. The plaintiff called her sister, Rarbara Garcia, to the stand. She testified on cross-examination that after she and her sister walked out of the store, Officer Fox said “Ma’am” in a normal voice. Fox asked her sister twice if she would cooperate and go back in the store and finally said, “If you will not cooperate, I will have to arrest you.” At that point, Mrs. Alvarado said he would have to arrest her. Fox then arrested her and took her back in the store. Ms. Garcia testified that the whole incident took about ten to fifteen minutes. As noted above, the plaintiff raises four claims against the three defendants: False imprisonment, assault and battery, defamation, and violation of her civil rights under 42 U.S.C. § 1983. The city moved for summary judgment on the civil rights claim, and the trial court granted summary judgment on that claim in favor of all three defendants without making any findings of fact or conclusions of law. The trial court dismissed all other claims against the city of Dodge City before trial. The false imprisonment, assault and battery, and defamation claims against Fox and Aleo were then tried to a jury. The jury found for the defendants, and the court entered judgment accordingly. The plaintiff appealed. The first point raised on the appeal is that the trial court erred in granting summary judgment and dismissing plaintiff s civil rights claim against all of the defendants. Her action was based on 42 U.S.C. § 1983, which provides in part as follows: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” The Court of Appeals held that the trial court erred in dismissing the civil rights claim as against defendant Fox but not as against defendants Aleo and the city of Dodge City. The court stated that there are two essential elements to a civil rights claim under that statute: “(1) that the conduct complained of was committed by a person acting under color of state law, and (2) that the conduct deprived a person of rights, privileges or immunities secured by the Constitution and laws of the United States.” 10 Kan. App. 2d at 366. The Court of Appeals concluded, and in our judgment correctly so, that Fox, as an off-duty police officer working as a private security guard, acted under color of state law when he detained plaintiff as a suspected shoplifter, displayed his police badge, told plaintiff she was under arrest, and later filed an arrest report with the police department. The Court of Appeals also concluded that, in restraining and searching plaintiff, Fox’s conduct, if tortious, deprived plaintiff of rights, privileges, or immunities secured by the Constitution and the laws of the United States. It has been held that arrest and search without probable cause may be grounds for a civil rights claim under 42 U.S.C. § 1983. Monroe v. Pape, 365 U.S. 167, 5 L.Ed.2d 492, 81 S.Ct. 473 (1961), overruled on other grounds, Monell v. New York City Dept. of Social Services, 436 U.S. 658, 56 L.Ed.2d 611, 98 S.Ct. 2018 (1978). Standing alone, however, these elements do not establish a § 1983 claim for violation of due process under the Fourteenth Amendment to the United States Constitution. In Parratt v. Taylor, 451 U.S. 527, 537, 68 L.Ed. 2d 420, 101 S.Ct. 1908 (1981), it was held that the Fourteenth Amendment protects only against deprivations “without due process of law” and that nothing in the Fourteenth Amendment protects against all deprivations of life, liberty, or property by the State. The Parratt court held that when a state provides an adequate remedy in tort for a negligent deprivation of property, that remedy itself constitutes the due process required by the Fourteenth Amendment, p. 544. The scope and application of the Parratt holding has perplexed the federal district and circuit courts. See, e.g., Gilmere v. City of Atlanta; Ga., 737 F.2d 894 (11th Cir. 1984); Guenther v. Holmgreen, 738 F.2d 879 (7th Cir. 1984); Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423 (10th Cir. 1984). Since Parratt, the federal courts have addressed the issue whether particular state tort remedies, provided as a means of redress for property or liberty deprivations, satisfied the requirements of due process. The Supreme Court stated in Parratt that a postdeprivation remedy will not suffice if the deprivation was pursuant to some established state procedure and a mean ingful predeprivation process could be afforded before any actual deprivation took place. The Supreme Court held, however, that a postdeprivation remedy can satisfy due process when provision for predeprivation process is impracticable and the postdeprivation remedy is afforded at a meaningful time and in a meaningful manner. An adequate postdeprivation remedy will suffice if the deprivation is caused by a random and unauthorized state act for which prior process is impracticable or impossible. In the recent case of Hanson v. Larkin, 605 F.Supp. 1020 (D. Minn. 1985), the plaintiff brought an action pursuant to 42 U.S.C. § 1983 for deprivation of his civil rights arising out of an alleged battery and false arrest suffered by him at the hands of a police officer. Although the police officer was not on duty at the time, he was in full uniform and working as a security guard át a beer garden. The plaintiff, Hanson, was arrested and struck in the forehead with a flashlight. The plaintiff then brought an action for deprivation of his civil rights. The court in Hanson held that when a state provides an adequate postdeprivation remedy in tort for an unauthorized deprivation, whether intentional or negligent, of a property or liberty interest, that remedy itself constitutes the due process required by the Fourteenth Amendment. The controlling question is whether the state can provide a meaningful predeprivation hearing, which due process requires where the state is able to provide such a hearing. The court concluded that when deprivation of a property or liberty interest results from a random and unauthorized act by a state official, the state is simply unable to provide a meaningful predeprivation hearing, and, in such case, due process can only be satisfied through a meaningful postdeprivation hearing. The court then concluded that Minnesota tort law provided an adequate post-deprivation remedy by a cause of action in tort for false arrest and battery. Therefore, the plaintiff had no § 1983 claim against the police officer or the city. For a similar holding see Barnier v. Szentmiklosi, 565 F.Supp. 869 (E.D. Mich. 1983). Although the issue was not raised in Miller v. City of Overland Park, 231 Kan. 557, 562, 646 P.2d 1114 (1982), this court, in an action brought to recover damages for false arrest, stated that there may be no basis for a due process civil rights action under § 1983 when an adequate remedy is provided by state law. The court cited Parratt v. Taylor. It should be noted that the federal cases are not in agreement on this issue, some of the cases holding that where a liberty interest is involved, the availability of a state tort remedy does not deprive a plaintiff of his right to bring a civil action under § 1983 for a violation of his civil rights. In those cases some courts distinguish between liberty rights and property rights. See Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423. We have concluded that under the factual circumstances shown in this case, the Kansas tort actions for false imprisonment, battery, and defamation provide an adequate postdeprivation remedy sufficient to satisfy the requirements of due process under the Fourteenth Amendment. Clearly in this case, any deprivation of a liberty interest of the plaintiff resulted from a random and unauthorized act by an off-duty police officer and there is no way that the State could have provided a meaningful predeprivation hearing. Hence, due process can be satisfied through a meaningful postdeprivation hearing. We hold that the trial court properly dismissed the civil rights claim of the plaintiff against the defendant Fox. The Court of Appeals erred in holding to the contrary. As to the plaintiff s civil rights claim against the city of Dodge City, the Court of Appeals held that the trial court did not err in dismissing that claim for the reason that a local government cannot be held liable for civil rights violations of its agents under a respondeat superior theory. Local governments are liable only when execution of a government policy or custom inflicts the injury. Monell v. New York City Dept. of Social Services, 436 U.S. at 660-64. In this case, the plaintiff alleged only that Fox was a police officer employed by the city and did not allege that Fox was following a city policy or custom. The Court of Appeals noted that the summary judgment record contained nothing to support the existence of a city policy or custom. We affirm the Court of Appeals in its holding that the trial court did not err in entering summary judgment in favor of the city. We also agree with the Court of Appeals that the district court did not err in granting summary judgment on plaintiff s civil rights claim against Aleo. The record here shows that Aleo did nothing more than hire Fox as a security guard. There is nothing indicating that Aleo authorized, encouraged, or approved any illegal actions on his part. Another point raised by the plaintiff on the appeal is that the trial court erred in instructing the jury on a merchant’s right to detain a suspected shoplifter under K.S.A. 21-3424 where an actual arrest was admitted. In order to put this issue in proper perspective, it would be helpful at the outset to review some of the basic principles of law pertaining to this subject and the effect of the merchant’s defense in civil actions seeking to recover damages for false imprisonment. At common law, if a person observed another relieving him of his belongings, he was permitted to use reasonable force to retake the goods. However, there was no room for mistake, and if one was made and the dispossessed person could not prove that the party he had detained had actually taken his belongings, any detention of the suspected thief was not justified and the detaining party would be subject to liability in an action for false imprisonment. Thus, the merchant of days past, who owned a small shop and kept all of his goods stacked on shelves behind him or in a counter between him and his customers, may have been adequately protected by the common-law rule, because there could be no doubt in his mind when someone was stealing from him. That situation changed, however, when modern methods of marketing goods came into existence. In modern department stores or supermarkets, where nearly all of the goods are on open shelves within reach of the customer, and where the shopper is expected to pick up and examine the goods before purchasing them, it is difficult for a merchant to be sure, even under apparently obvious circumstances, that a particular customer is pilfering from the shelves. Under these circumstances, the common-law rule did not work. Annot., 47 A.L.R.3d 998. In the late 1950’s, the need for a change in the law became clear. Several courts recognized the problem and adopted a rule that a merchant should have the right to detain a person who he has reasonable cause to believe is shoplifting. This rule was later embodied in Restatement (Second) of Torts § 120A (1965), which states as follows: “§ 120 A. Temporary Detention for Investigation ‘One who reasonably believes that another has tortiously taken a chattel upon his premises, or has failed to make due cash payment for a chattel purchased or services rendered there, is privileged, without arresting the other, to detain him on the premises for the time necessary for a reasonable investigation of the facts.” In comment a to this section, it is stated: “The privilege stated in this Section is necessary for the protection of a shopkeeper against the dilemma in which he would otherwise find himself when he reasonably believes that a shoplifter has taken goods from his counter. If there were no such privilege, he must either permit the suspected person to walk out of the premises and disappear, or must arrest him, at the risk of liability for false arrest if the theft could not be proved.” In addition to court decisions, many state legislatures recognized the need for a change in the common-law rule by enacting statutes specifically giving a merchant a qualified privilege to detain suspected shoplifters. The various state statutes vary somewhat in form but they all are consistent in providing that merchants or their employees or agents may detain in good faith and upon probable cause or reasonable grounds any person who it is believed was removing goods for sale from the store without paying for them, provided that such detention is for a reasonable time and is conducted in a reasonable manner. These statutes usually expressly provide that probable cause or reasonable grounds for the detention will be a valid defense to any suit for false imprisonment or false arrest arising therefrom, assuming that the accused was detained for a reasonable time and in a reasonable manner. The fact that under the statute the merchant can act upon probable cause or reasonable grounds leaves room for honest mistake. Under these statutes, the question of whether the merchant or his employee had reasonable grounds or probable cause for the detention of the suspected shoplifter is the issue most frequently arising in false arrest cases involving suspected shoplifters. The State of Kansas adopted such a statute in 1959, which will be discussed later. Since the beginning of statehood, the courts of Kansas have recognized a right of action for false arrest. The earliest Kansas case on the subject was handed down in February of 1862 in the case of Mayberry and others v. Kelly, 1 Kan. 116 (1862). Then, in Prell v. M’Donald, 7 Kan. *426 (1871), it was held that when an officer arrests a person without authority or exceeds his authority, he is liable to the party injured, whether the officer acted maliciously or in good faith. This was the common-law rule mentioned above. Cases through the years have continued to recognize this cause of action. Torson v. Baehni, 134 Kan. 188, 5 P.2d 813 (1931); Garnier v. Squires, 62 Kan. 321, 62 Pac. 1005 (1900). A case involving the unlawful detention of a suspected shoplifter was Lewis v. Montgomery Ward & Co., 144 Kan. 656, 62 P.2d 875 (1936). An agent of defendant Montgomery Ward followed the plaintiff out of the store, believing that she had put two baby dresses in her shopping bag and not paid for them. The agent took her shopping bag and tore it open, and not finding the dresses, inquired in a loud voice where the baby dresses were that she took from the store. Twelve minutes later it was found that she was innocent and she was released. Plaintiff brought an action seeking to recover damages stating that she had been unlawfully detained from seven to twelve minutes by force. Defendant Montgomery Ward was held liable to plaintiff for damages for the acts of its agent. Hammargren v. Montgomery Ward & Co., 172 Kan. 484, 241 P.2d 1192 (1952), involved the unlawful detention of a shoplifter by an agent of Montgomery Ward. She was taken to the police station where she was restricted of her liberty for a period of more than one hour and was then released. A verdict against the defendant merchant was upheld. In 1959, the legislature enacted K.S.A. 21-535a (Corrick), which created the crime of shoplifting and willful concealment of merchandise. K.S.A. 21-535b (Corrick) created for the first time the merchant’s defense in Kansas and provided as follows: “21-535b. Same; defense to actions by persons detained for questioning. In an action for assault, false arrest, false imprisonment, unlawful detention, defamation or slander, brought by any person by reason of having been detained for questioning on the premises of, or in the immediate vicinity of a store or other mercantile establishment, it shall be a defense to such action if such person was detained in a reasonable manner and for not more than a reasonable length of time by a merchant or his authorized employee and if there were reasonable grounds for believing that such person was committing the offense of shoplifting as defined in section 1 [21-535a] of this act.” It should be noted that under the statute, where a civil action is brought to recover damages as a result of a person having been detained on the premises of a store or other mercantile establishment, the merchant has a defense provided three conditions are satisfied: (1) The person must be detained in a reasonable manner; (2) the person must be detained for a reasonable time; and (3) there must be reasonable grounds for believing that person was committing the offense of shoplifting. The first case which came before the Supreme Court involving the merchant’s defense was Sweaney v. United Loan & Finance Co., 205 Kan. 66, 468 P.2d 124 (1970). The court held that K.S.A. 21-535b (Corrick) was not applicable -in the case because that statute contemplates the detention of a person for questioning in a reasonable manner immediately after the suspected shoplifting and before the person leaves the premises, or the vicinity thereof — not several days later. In the Sweaney case, the theft of a car had been committed at least two days before and probably longer before the person was detained, and there was no question of immediate detention or pursuit of the person in question. Therefore, the statute was not applicable. Sweaney was clearly not a shoplifting case. In 1969,. the legislature enacted the present Kansas criminal code, K.S.A. 21-3424, which created the new offense of unlawful restraint, and in subsection (3) reenacted the merchant’s defense. The Judicial Council noted that the exception for merchants is a relocation of the substance of former K.S.A. 21-535b (Corrick). K.S.A. 21-3424 now provides: “21-3424. Unlawful restraint. (1) Unlawful restraint is knowingly and without legal authority restraining another so as to interfere substantially with his liberty. “(2) This section shall not apply to acts done in the performance of duty by any law enforcement officer of the state of Kansas or any political subdivision thereof. “(3) Any merchant, his agent or employee, who has probable cause to believe that a person has actual possession of and (a) has wrongfully taken, or (b) is about to wrongfully take merchandise from a mercantile establishment, may detain such person (a) on the premises or (b) in the immediate vicinity thereof, in a reasonable manner and for a reasonable period of time for the purpose of investigating the circumstances of such possession. Such reasonable detention shall not constitute an arrest nor an unlawful restraint. “(4) Unlawful restraint is a class A misdemeanor.” It should be noted that subsection (1) defines the crime of unlawful restraint as knowingly and without legal authority restraining another so as to interfere substantially with his liberty. K.S.A. 21-3424(2) provides that this section shall not apply to acts of any law enforcement officers of the state of Kansas or of any subdivision thereof. K.S.A. 21-3424(3) then provides for the detention of a shoplifter by a merchant, his agent, or employee provided three conditions are met: (1) the merchant, his agent or employee have probable cause to believe that the person have actual possession of and has wrongfully taken, or is about to wrongfully take merchandise; (2) the detention of the person must be on the premises or in the immediate vicinity thereof; (3) the detention must be in a reasonable manner and for a reasonable period of time and for the purpose of investigating the circumstances of the possession. The statute then declares that such reasonable detention shall not constitute an arrest nor an unlawful restraint. K.S.A. 21-3424(2) does not state whether the exclusion of acts done in the performance of duty by law enforcement officers applies in criminal or civil cases. Nor does it state in K.S.A. 21-3424(3) whether the merchant’s defense is applicable in civil cases as well as in criminal cases. The question of the applicability of subsection (3) to civil actions for false imprisonment was determined in Codner v. Skaggs Drug Centers, Inc., 224 Kan. 531, 533, 581 P.2d 387 (1978). The court in Codner held that the merchant’s defense, as set forth in K.S.A. 21-3424(3), is applicable in a civil action for false imprisonment. This clearly has been the law in Kansas since 1959. We have no reason to hold to the contrary in the present case. We construe K.S.A. 21-3424(2) to mean that the crime of unlawful restraint is not applicable to acts done in the performance of a duty by any law enforcement officer of the state or of any political subdivision thereof. However, the merchant’s defense in subsection (3) is applicable in a civil case involving an off-duty law enforcement officer who is employed by a merchant as a security officer. The merchant’s defense was created to avoid the injustice of the common-law rule which is discussed above. It was designed to protect a merchant and his agents or employees in situations where a suspected shoplifter takes property of the store into his possession and has wrongfully taken or is about to wrongfully take the merchandise from the store. The fact that the agent or employee is an off-duty policeman should not deprive either him or his merchant employer of the merchant’s defense if that defense is applicable under the factual circumstances of the case. In the case now before us, Aleo hired an off-duty Dodge City police officer as a security officer. At the time of the incident involving plaintiff, he was out of uniform and working for Aleo as a private employee. He was being paid by Aleo under a contract with the Police Officers’ Renefit Association which is not an agent or entity of the city of Dodge City. In the course of his duty as a security guard, he observed the plaintiff handling some shoes that were on sale. He then observed what he believed to be the plaintiff picking at the price tag on the shoes and then appearing to reach down to put the shoes on her feet. After she left the area, Fox went to the area where the plaintiff had been standing and found a green clearance tag. Fox then went to the information desk and asked if the tag was like those on shoes and was so advised. Fox then waited until the plaintiff left the store and stopped her in the parking lot outside. According to his evidence, he asked her to come back in the store. She refused, using profane language, and said that she would only go back in the store if she was forced to do so. She then went back to the store involuntarily, the shoes were checked, and plaintiff was released. It cannot be denied that defendant Fox was acting in the scope of his duty as a security officer for Aleo. Although he displayed his police identification and stated that he was a police officer, the transaction involved the detention of a. suspected shoplifter which was within the contemplation of the merchant’s defense statute. Although the word “arrest” was used by Fox and although an arrest report was completed and filed, the. restraint of plaintiff involved a “detention” rather than an “arrest.” In K.S.A. 1984 Supp. 22-2202, the definition section of the Code of Criminal Procedure, “detention” is defined to mean the temporary restraint of a person by a law enforcement officer. “Arrest” is defined as the taking of a person into custody in order that the person may be forthcoming to answer for the commission of a crime. Under the facts in this case, the plaintiff was detained by Fox for a period of time on the merchant’s premises for the purpose of investigating the circumstances of the possession of merchandise by plaintiff. The plaintiff was not taken into custody for the purpose of charging her with the commission of a crime and in order that she might be taken before a magistrate; nor was she removed from the premises and taken elsewhere for confinement. The merchant’s defense would not be applicable under those circumstances. The situation present in this case could happen often on occasions where a suspected shoplifter is stopped and requested to remain on the premises for the purpose of investigating the circumstances of his or her possession of merchandise. If the suspected shoplifter refuses to stay on the premises or refuses to go back into the store for questioning, then the agent or employee of the merchant has the right to use reasonable force to detain the suspected shoplifter. In the present case, plaintiff not only advised Fox that she would not go back into the store but told him to go ahead and arrest her. As we see it, he then restrained plaintiff on the premises for the purpose of investigating the circumstances of her possession of merchandise. We agree with the Court of Appeals that the evidence in this case presented factual issues for the jury to determine. There was no question that plaintiff was detained in a way which substantially interfered with her liberty. There was clearly a temporary restraint of her person by a law enforcement officer. The issues to be determined by the jury in our judgment were twofold: (1) Did Fox as the agent or employee of Aleo have probable cause to believe that the plaintiff had actual possession of and had wrongfully taken merchandise from the store; and (2) was the plaintiff detained in a reasonable manner and for a reasonable period of time for the purpose of investigating the circumstances of such possession. Although the plaintiff argues on appeal that the detention of her person was unlawful as a matter of law, we cannot agree. It was up to the jury to determine the fact issues which are mentioned above. On this point, we, therefore, hold that the trial court did not err in instructing the jury on the merchant’s defense (K.S.A. 21-3424[3]). This holding is contrary to the conclusion adopted by the Court of Appeals. In Syllabus ¶ 13 of the Court of Appeals opinion, it is held that the merchant’s privilege to detain suspected shoplifters does not apply to acts done in the performance of duty by law enforcement officers. The Court of Appeals further held in Syllabus ¶ 14 that, under the facts and circumstances of this case, an off-duty police officer working as a private security guard is acting as a police officer when detaining a suspected shoplifter and, therefore, 21-3424(3) is not applicable. We disagree and reverse that holding. We hold that, under the facts and circumstances of this case, an off-duty police officer working as a private security guard for a merchant employer is entitled to assert the merchant’s defense provided by K.S.A. 21-3424(3). Another point raised by the plaintiff on the appeal is that the trial court erred in excluding evidence of Alco’s own standards for detaining suspected shoplifters. The plaintiff offered a poster and Alco’s shoplifters manual setting out the company’s policy in some detail. Aleo instructed its employees that, before apprehending a shoplifter, the employee must see him take the item, see him conceal it, see that he does not pay for it, and apprehend him outside the store. These standards are obviously stricter than the probable cause test required by K.S.A. 21-3424. We agree with the Court of Appeals that a merchant’s liability for false arrest should depend on the minimum legal standards established by statute rather than the merchant’s own standards. A merchant should not be penalized for establishing higher standards for its employees than the applicable statutory standards. This is the holding in Jones v. Montgomery Ward & Co., Inc., 49 Or. App. 231, 236-237, 619 P.2d 907 (1980). This issue is also discussed in an annotation at 31 A.L.R.3d 705, where cases are cited on both sides of the issue. We agree with the Court of Appeals that the trial court did not err in excluding this evidence. The last point raised by the plaintiff on the appeal is that the trial court erred in refusing to give the plaintiff s requested instruction defining probable cause. As noted above, one of the primary issues in the case was whether defendant Fox had probable cause to believe that the plaintiff Alvarado had wrongfully taken merchandise from the Aleo store. The instructions given by the court at no place explained or defined for the jury the meaning of probable cause. We agree with the Court of Appeals that this was reversible error. The jury was entitled to an instruction on that subject. A proper instruction defining probable cause would have aided the jurors in determining whether Fox’s actions were reasonable. We suggest that on retrial the court should give an instruction based upon the definition of probable cause set forth in State v. Abu-Isba, 235 Kan. 851, 685 P.2d 856 (1984). At page 854 of the opinion, this court defined probable cause as follows: “Probable cause exists if the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed.” State v. Press, 9 Kan. App. 2d 589, Syl. ¶ 2, 685 P.2d 887 (1984), and State v. Weigel, 228 Kan. 194, 612 P.2d 636 (1980). For the reasons set forth above, the judgment of the district court is affirmed in part and reversed in part and the case is remanded for a new trial. The judgment of the Court of Appeals is affirmed in part and reversed in part for the reasons set forth in this opinion.	[ -48, 106, -8, 45, 56, -32, 42, -70, 51, -93, 55, 83, -89, 66, 20, 121, 123, 109, -44, 105, -121, -90, 65, 35, -10, -69, -69, -59, -80, 91, -28, -12, 95, 48, -62, 85, 38, -40, -27, 94, -102, 33, -69, 80, -47, 4, 52, 42, 48, 15, -15, -84, -13, 42, 16, -49, 41, 44, 107, 63, 96, -5, -69, 29, -1, 22, -109, 36, -65, -121, -40, 11, -104, 49, 0, 104, 115, -74, -122, 116, 101, -101, -124, 96, 98, 33, 37, -89, 124, -127, -66, 119, -115, -89, -48, 72, 105, 37, -74, -100, 108, -128, 11, -56, -2, 76, 95, 108, 13, -122, -76, -79, -51, 114, 86, -21, -49, 55, -78, 113, -49, -30, 92, 86, 49, -109, 78, -43 ]
The opinion of the court was delivered by Lockett, J.: This case involves the respective rights of parties to personal property sold by a receiver. The City of Moran filed an action alleging that under a statutory lease-purchase agreement it held a superior interest in the sales proceeds, because the original equipment was purchased with money from industrial revenue bonds issued through the City. K.S.A. 12-1741. The Wichita Bank for Cooperatives claimed a perfected security interest in the same proceeds under the Uniform Commercial Code. The district court granted judgment for the City. On August 1, 1973, the City of Moran, Kansas, (City) issued industrial revenue bonds in the amount of $225,000. The bonds were issued pursuant to K.S.A. 12-1740 et seq., for the purpose of providing funds for the purchase of land and existing buildings, and to construct, furnish and equip the facility which was to be leased to The Farmers Cooperative Association (Cooperative). The City pledged the facility and the net earnings of the Cooperative to the payment of the bonds, the interest and the premium. The principal and interest on the bonds were secured by a first lien on the real and personal property and the net revenues to be derived from the facility. The City entered a lease-purchase agreement dated August 1, 1973, with the City as the landlord and the Cooperative as the tenant. The City owned the facility under the lease-purchase agreement until the Cooperative exercised its right to purchase the facility. Section 30 of the lease provided that the facility “shall consist of land, buildings and only such equipment and fixtures as may be necessary to render the Facility operable.” To protect the interest of the bondholders, the lease provided that such items within the scope of Article 9 of the Uniform Commercial Code (UCC) would be covered by a financing agreement. The trustee was the Allen County State Bank, Iola, Kansas, and the paying agent was Iola State Bank, Iola, Kansas. On September 10, 1973, the City filed a financing statement with the Secretary of State covering all equipment, machinery and fixtures now owned or later acquired by the Cooperative which constituted a part of the facility. A statement was also filed on September 12, 1973, with the Allen County Office of the Register of Deeds. On March 4, 1980, the Cooperative, in need of operating capital, delivered a promissory note in the amount of $300,000 to the Wichita Bank for Cooperatives (Bank). Subsequent notes from the Cooperative were executed to the Bank for loans totaling more than $1,174,572. The Cooperative executed security agreements with the Bank as collateral for the notes. On February 6, 1980, the Bank filed local and central financing statements covering all the equipment now owned or thereafter acquired or defined by Section 9-109(2) of the UCC, including equipment, fixtures, inventories, accounts and investments whether presently owned or thereafter acquired by the Cooperative. On March 7, 1980, the City and Allen County Bank and Trust filed their second financing statements with the identical language used by the City in its 1973 financing statements. Three separate actions were filed by various parties. The pleadings and claims of the parties in the three actions are simplified for the sake of clarity. On March 24, 1983, the first action was filed when the Kansas State Grain Inspection Department filed a verified petition for appointment of a special receiver for the Cooperative, alleging that a grain shortage existed at the warehouse facility and that the Cooperative was insolvent. At a hearing on the petition, the court appointed a grain receiver and permitted the warehouse bonding company to intervene. On March 31,1983, a second action was begun when the Bank filed a petition in the district court to foreclose its mortgage and security interests in the Cooperative. Notice was given to all creditors to file claims against the Cooperative. The Bank filed its claim in the amount of $1,174,572 plus interest for C stock subscription obligations and the reasonable costs of collection. At a hearing on April 28, 1983, the court addressed several issues involving prospective intervenors, attorney fees and certain creditors’ claims. At the hearing, there was a discussion concerning bids which had been received for purchase of the Cooperative facility. BROTE, a partnership, had bid on the facility, but subsequently reduced its bid due to a dispute as to whether certain equipment belonged to the City by virtue of its bond issue for the Cooperative. At the hearing, the grain receiver made an oral motion to abandon to the City any right, title or interest of the Cooperative in the lease-purchase agreement as of May 1, 1983. The order to abandon was filed on May 19, 1983. On September 28, 1983, a third action was commenced when the City filed a Petition for Instructions requesting that the court make a determination as to ownership of certain equipment because a dispute existed between the City and the Bank as to what equipment was subject to the bond ordinance and lease-purchase agreement. The City also alleged that the proceeds of the property which had been sold to BROTE were improperly forwarded by the receiver to the Bank pursuant to the Bank’s security agreements with the Cooperative. The City’s petition stated that all of the proceeds should have gone to the City to satisfy bondholders. The Bank was served with a summons on the petition for instructions. The Bank filed a motion to dismiss due to insufficiency of process. When the court did not address the Bank’s motion, the Bank filed an answer alleging that the City’s petition failed to state a claim on which relief could be granted, laches on the part of the City, and a counterclaim for amounts owed to the Bank. The original receivership and foreclosure actions were settled among the parties on September 28, 1984. In order to release the receiver, the Bank signed an agreement whereby it agreed to indemnify the receiver in the event that the petition for instructions matter developed into a lawsuit for conversion. On December 12, 1984, the district court entered judgment in favor of the City on its petition for instructions. The court ruled that the City held title to the disputed equipment, except for a 1979 Chevrolet % ton truck, which had been titled in the Cooperative. The court found that the Cooperative had granted a security interest in the truck to the Bank, because title to the truck had been registered to the Cooperative. The court also found that the Kansas industrial revenue bond statutes authorize the City to enter into a lease or lease-purchase agreement, not an installment sales contract covered by the UCC. The Bank appeals those rulings. The Bank argues that a “petition for instructions” is an administrative pleading used under our previous probate code. It contends that the statutory authority for such a petition was repealed in 1977, and, therefore, the City should have brought this action as a declaratory judgment. The City argues that a petition for instructions is proper despite the 1977 changes in the court system. A petition for instructions was a procedure under our prior probate code available for administrators and executors who wished to ask a court having jurisdiction for advice to enable them to carry out their duties when they were in doubt as to the extent of their powers and duties relating to the administration of an estate. It was not an adversarial proceeding. With the repeal of K.S.A. 59-301 (Corrick) in 1976, there is no longer any statutory authority for such a proceeding. Under our present civil code this action should have been brought as a declaratory judgment rather than as a petition for instructions. K.S.A. 60-102 provides, however, that the code of civil procedure should be liberally construed to provide for a just, speedy and inexpensive determination of every action. The district court treated the petition for instructions as a request for declaratory judgment without requiring that it be refiled. The Bank contends, however, that the petition was inadequate and that it was denied the right of due process. The meaning of procedural due process is that parties whose rights are to be affected are entitled to be heard, and, in order that they may enjoy that right, they must first be notified. It is equally fundamental that the right to notice and the opportunity to be heard must be granted at a meaningful time and in a meaningful manner. Dedeke v. Rural Water Dist. No. 5,229 Kan. 242, 623 P.2d 1324 (1981). The Bank was aware of the proceedings despite the incorrect form used. The Bank filed a responsive pleading to the petition and appeared and participated in the fact-finding hearing. Under the circumstances, the Bank was notified; it took advantage of the opportunity to be heard and received a meaningful hearing. The Bank’s claim that it did not receive due process is without merit. The Bank argues that the trial court’s procedure deprived it of the right to trial by jury as provided under K.S.A. 60-238 and 60-239. The right to a jury trial in a civil proceeding in Kansas is not absolute. Constitutional and statutory provisions establish general principles to be followed by the courts in determining whether one is entitled to a jury trial. The right to a jury trial refers to that right as it existed under the common law. At common law and under the Kansas constitution, a party is not entitled to a trial by jury as a matter of right in a suit in equity. Waggener v. Seever Systems, Inc., 233 Kan. 517, 664 P.2d 813 (1983). The procedure for obtaining a declaratory judgment (K.S.A. 60-257) provides for the right of a jury trial in the same manner as provided by K.S.A. 60-238 and 60-239. Therefore, the right to a jury trial in an action for a declaratory judgment is not absolute. It must first be determined whether the declaratory judgment action is equitable in nature or one at common law. In determining whether the action for a declaratory judgment is one in equity, the test is whether the essential nature of the action is grounded on equitable rights and is one in which equitable relief is sought. Karnes Enterprises, Inc. v. Quan, 221 Kan. 596, 561 P.2d 825 (1977). In the present case, the Bank was requesting that the court determine the priority of security liens. The City was claiming that the legislature had precluded the lease-purchase agreement from the Code. The facts were not disputed. Therefore, the resolution of either question did not entitle the parties to a jury trial at common law. The Bank was not denied its right to a jury trial. The Bank claims that the equipment was never intended to be purchased with bond funds and that there was insufficient evidence to support a finding that the equipment was purchased with bond funds. In his memorandum decision, the trial judge carefully set out the testimony of the witnesses. The witnesses testified that the equipment was either originally purchased with the bond money or bought as a replacement for the original equipment. Reviewing all the .evidence in the light most favorable to the City, there was substantial evidence to support the trial court’s findings that the property in dispute was purchased with industrial revenue bond funds. The Bank’s charge of insufficient evidence is without merit. The Bank contends that the lease-purchase agreement between the City and the Cooperative was actually an installment sale covered by the filing and perfection requirements of the UCC. It claims that industrial revenue bond statutes intended that such transactions would be covered by Article 9 of the UCC and that the district court erred in construing them to exclude the lease-purchase agreement from Article 9. The UCC applies to security interests created by contract, including pledge, assignment, chattel mortgage, chattel trust, trust deed, factor’s lien, equipment trust, conditional sale, trust receipt, other lien or title retention contract and lease or consignment intended as security. Whether a lease is intended as security is to be determined by the facts of each case. The inclusion of an option to purchase does not of itself make the lease one intended for security. However, an agreement that, upon compliance with the terms of the lease, the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security. K.S.A. 84-1-201(37). The Bank claims when the City filed its first financing statement in September 1973, its interest in the equipment was protected for five years under the UCC. Prior to the expiration of the five year period, the City failed to file a continuation statement and the effectiveness of its original financing statement lapsed. K.S.A. 84-9-403. When the Bank filed its financial statement on February 6, 1980, covering the equipment, the City was no longer protected by its original financing statement. The City’s subsequent filing of a second financing statement was after the Bank’s filing. Therefore, the Bank contends it had priority at time of filing. K.S.A. 84-9-312(5)(a) since amended. The Bank’s reasoning is correct if the lease-purchase agreement is subject to the UCC. Even though a transaction falls within the general scope of K.S.A. 84-9-102 of the UCC, it still may be excluded from Article9 as a matter of public policy by the legislature. K.S.A. 84-9-104 includes a list of express exclusions from Article 9. It does not specifically exclude the type of transaction involved in the present case. It is therefore necessary to look at the industrial revenue bond statutes, K.S.A. 12-1740 et seq., to determine whether the legislature intended that such transactions should be excluded. Generally, in construing a statute, words and phrases should be construed according to the context and approved usage of the language, and words in common use are to be given their natural and ordinary meaning. Jackson v. City of Kansas City, 235 Kan. 278, 680 P.2d 877 (1984). In determining legislative intent, courts are not bound to an examination of the language alone but may properly look into the causes which impel the statute’s adoption, the objective sought to be attained, the statute’s historical background and the effect the statute may have under the various constructions suggested. State, ex rel., v. City of Overland Park, 215 Kan. 700, 527 P.2d 1340 (1974). One of the stated purposes of industrial revenue bonds under the Economic Development Revenue Bond Act (K.S.A. 12-1740 et seq.) is to develop the economic prosperity of the state by providing greater employment opportunities and developing industry. The Act states that the term “facility” shall include the site and the necessary site preparation, structures, easements, rights-of-way and appurtenances necessary and convenient to the particular type of facilities being financed. K.S.A. 12-1740. The Act authorizes cities and counties to issue revenue bonds to pay all or a part of the cost of purchasing, acquiring, constructing, reconstructing, improving, equipping, furnishing, repairing, enlarging or remodeling the facilities. A city has the power by ordinance to enter into leases or lease-purchase agreements for the facilities. K.S.A. 12-1741. A city or county can neither contract nor incur any obligation for the payment of the revenue bonds. The bonds cannot be general obligation bonds of the city or county, nor payable by taxation. The revenue bonds must be paid from the rentals received from the facilities. K.S.A. 12-1743. A city by ordinance or a county by resolution may pledge the facility and the net earnings from the facility to pay the bondholders. K.S.A. 12-1744. The lease or lease-purchase agreement of the facility may provide that payment of or security for the revenue bonds may include the land, the buildings, the furnishings and the equipment used by the facility. K.S.A. 12-1747. The Bank states that to protect creditors from fraudulent transactions by the lessee having possession of the lessor’s property, the lease-purchase agreement entered into by the City and the Cooperative must be considered as an installment contract subject to the UCC. In the Act, the legislature described the transaction as a “lease-purchase agreement.” The industrial revenue bond stat utes were enacted prior to the enactment of the UCC. The legislature, therefore, at the time the UCC was enacted, could have included the industrial revenue bond lease-purchase agreements as a security interest subject to the filing requirements of the UCC. The legislature, however, did not choose to specifically include the lease-purchase agreements when it enacted the UCC. Under the Act, a lease-purchase agreement of a facility which includes realty, furnishings and equipment is to be viewed as a single transaction and as one created by the legislature. Obviously, there were policy reasons the legislature intended that the transaction be characterized as a lease-purchase agreement and not subject to Article 9 of the UCC. To do otherwise would certainly discourage bondholders who would be dependent upon the city or the county to protect their interest by filing a financing statement. The recording of the deed and the lease-purchase agreement of the realty solves any problems created by the lessee having possession of the realty. Unfortunately, a lease or lease-purchase agreement which allows the lessee to have possession of personal property, i.e., the equipment or furnishings, fails to give notice to creditors or innocent purchasers that the lessee having possession is not the owner of the equipment or furnishings. The mere fact that the lessor has entrusted the lessee with possession of the lessor’s property does not preclude the lessor from later asserting his title. Generally, one entrusted with property cannot pledge the property as security for a debt or sell the property and convey title unless he lawfully represents the owner. Jordan v. Kancel, 188 Kan. 292, 361 P.2d 894 (1961); K.S.A. 84-2-403. Under the lease-purchase agreement, the City neither parted with its title to the equipment nor clothed the Cooperative with the apparent authority to pledge it as security for the loan from the Bank. The Bank acquired no superior interest in the equipment to which the City held title. Though the pickup truck was purchased with bond money, title to the truck was registered in the name of the Cooperative. The City clothed the Cooperative with apparent authority to pledge the truck as security for the loan obtained from the Bank. The Bank’s security interest in the truck is superior to that of the City. Where a city or county, under the Economic Development Revenue Bond Act, owns a facility which includes the land, furnishings and equipment, and leases it for a period of years at a stipulated rental under a lease-purchase agreement which contains a stipulation that the lessee shall have the right, during or at the expiration of the agreement, to purchase the facility, if the lessee so elects, at a fixed price, there is no complete sale. The lessee does not acquire an estate beyond the lease interest until he has elected to accept the offer and has paid or tendered the purchase price set out in the lease-purchase agreement. A lease-purchase agreement created under the Economic Development Revenue Bond Act is not subject to the filing requirements of the ucc. Affirmed.	[ -44, 107, -40, 76, 30, 64, 58, -101, 107, -75, 38, 19, -23, 74, 21, 107, -57, 125, 68, 104, -58, -78, 35, -21, -112, -69, -39, -59, -70, 95, -92, -58, 76, 52, -54, 29, -90, -126, -59, 92, -50, 0, -118, 80, -35, 64, 52, 111, 50, 8, 81, 5, -13, 41, 25, 66, 97, 44, 105, 47, 81, -7, 43, -59, -1, 23, 3, 68, -108, 69, -8, 10, -112, 57, 8, -24, 114, 38, -114, -76, 13, -117, 45, 34, 98, 35, 52, -21, -44, 40, 14, -45, -99, -25, -106, 88, 34, 11, -75, 28, 85, 18, 65, -4, -10, -124, 31, 108, 7, -50, -42, -109, 15, 120, -102, 19, -1, -76, 48, 96, -51, -92, 95, 71, 114, 19, -114, -103 ]
Paul R. Hess, of Overland Park and formerly of Wichita, an attorney admitted to the practice of law in the State of Kansas, has asked this court to accept the voluntary surrender of his license to practice law pursuant to Supreme Court Rule 217 (235 Kan. cxxxii). On November 16, 1985, Mr. Hess was charged in the District Court of Johnson County, Kansas, with two counts of felony theft in violation of K.S.A. 1984 Supp. 21-3701. The charges grew out of allegations that Mr. Hess had misappropriated funds belonging to clients and received by Mr. Hess in the course of representing those clients. On the 7th day of January, 1986, Mr. Hess, pursuant to a plea agreement, pled guilty in the Johnson County District Court to one count of felony theft. The other count was dismissed. Prior to the charges in Johnson County, disciplinary proceedings against Mr. Hess were pending before the Kansas Board for Discipline of Attorneys. Mr. Hess has now surrendered his license to practice law and the Court unanimously accepts it. IT IS THEREFORE ORDERED that Paul R. Hess be and he is hereby disbarred from the practice of law in the State of Kansas and the Clerk of the Appellate Courts is directed to strike his name from the rolls of attorneys authorized to practice law in the State of Kansas. IT IS FURTHER ORDERED that Paul R. Hess shall forthwith comply with the provisions of Supreme Court Rule 218 (235 Kan. cxxxii). IT IS FURTHER ORDERED that this order shall be published in the official Kansas Reports. IT IS FURTHER ORDERED that any proceedings pending before the Kansas Board for Discipline of Attorneys shall be terminated as to Paul R. Hess only, and the costs of such proceedings are assessed to Mr. Hess. Effective this 6th day of February, 1986.	[ -16, -21, -3, 108, 26, -32, 56, -120, 121, -25, 103, 83, -19, -50, 5, 121, 66, 93, 116, 121, -52, -74, 123, 73, -122, -69, -47, -59, -72, 95, -28, -11, 93, -80, 90, -43, 6, -54, -127, 92, -98, 0, 9, -48, -38, 4, 52, 9, 16, 11, 113, 30, -13, 106, 63, 97, 40, 44, -117, -83, 17, -111, -71, 85, 111, 27, -127, 0, -36, -121, 80, 111, -104, 57, 41, -8, 115, 38, 6, 118, 71, -85, -124, 98, 102, 34, 49, -89, -84, -56, 14, 123, -99, -94, -47, 88, 66, -120, -98, -99, 101, 18, 3, -4, -19, 6, 21, -20, 14, -53, -28, -79, -49, 117, -114, -101, -5, -91, 32, 85, -126, -10, 76, 115, 58, -97, -34, -11 ]
The opinion of the court was delivered by Herd, J.: This is a criminal action resulting in Christopher Haines, appellant, entering a plea of guilty to two counts of aggravated criminal sodomy (K.S.A. 1984 Supp. 21-3506), one count of rape (K.S.A. 1984 Supp. 21-3502), and one count of kidnapping (K.S.A. 21-3420). The trial court sentenced Haines to fifteen years to life on each count of aggravated sodomy to run consecutively, and fifteen years to life for rape and fifteen years to life for kidnapping, with the latter sentences to run concurrently with each other as well as with the aggravated sodomy sentences. The court also directed these sentences to run consecutively with any sentence for a previous rape conviction reinstated upon Haines’ parole revocation. Haines filed a direct appeal, arguing the district court’s refusal to grant probation and the imposition of maximum sentences constituted an abuse of discretion which violated the constitutional prohibition against cruel and unusual punishment. He makes no allegation the sentence was the result of partiality, prejudice or corrupt motive or that it is outside the statutory limits. Thus no issue on sentencing is raised. The only remaining issue is one of jurisdiction. K.S.A. 22-3602(a) provides: “An appeal to the appellate court having jurisdiction of the appeal may be taken by the defendant as a matter of right from any judgment against said defendant in the district court and upon appeal any decision of the district court or intermediate order made in the progress of the case may be reviewed, except that no appeal shall be taken by the defendant from a judgment of conviction before a district judge or associate district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507.” (Emphasis added.) By pleading guilty to the charges against him, appellant Haines falls squarely within the exception emphasized above and has no right of direct appeal of a denial of probation; appellant’s only remedy to challenge his sentence is through a K.S.A. 60-1507 motion. It is a cardinal rule of statutory construction that a clear, unambiguous, constitutional statute is not subject to judicial construction. K.S.A. 22-3602(a) meets that test. Appellate review of trial court proceedings is not a fundamental right and must have its genesis in either the constitution or statute. The constitution has no provision creating appellate jurisdiction and the foregoing statute clearly denies a direct appeal here. Thus, we do not have jurisdiction of this appeal. Any statements in State v. Yost, 232 Kan. 370, 654 P.2d 458 (1982), or State v. Green, 233 Kan. 1007, 666 P.2d 716 (1983), inconsistent with this opinion are overruled. The appeal is dismissed.	[ 80, -30, -99, 63, 27, 98, 123, 16, 1, -13, -27, 115, -87, -50, 4, 123, -37, 45, 85, 121, -47, -73, 39, -63, -77, 123, -7, -44, -77, 79, -4, -76, 8, -80, 10, 101, 70, -118, 101, 94, -114, 7, -71, -15, -64, 2, 32, 71, 19, 15, 49, 15, -5, 40, 30, -62, 9, 44, 91, 109, -128, -71, -38, 23, 94, 52, -93, -90, -108, 67, 120, 38, -40, -71, 1, -24, 114, -110, -126, 117, 73, -101, -124, 102, 98, -127, 13, -50, 45, -127, 14, 95, -67, -90, -104, 80, 41, 37, -106, -35, 118, 86, 15, 126, -17, -116, 85, 108, -126, -34, -108, -111, -49, 53, 2, -38, -45, 53, 0, 113, -51, -30, 92, 87, 120, -45, -114, -74 ]
The opinion of the court was delivered by Holmes, J.: This is an appeal by the State Board of Pharmacy of the State of Kansas (Board) and a cross-appeal by the plaintiffs James B. Brasel and Revco Discount Drug Store No. 932 (Revco) from a decision of the district court wherein an order of the Board was affirmed in part and reversed in part. The Board had suspended the licenses of Mr. Brasel and Revco to sell schedule II drugs for alleged violations of the Kansas uniform • controlled substances act, K.S.A. 65-4101 et seq., and certain Board regulations, K.A.R. 68-20-1 et seq. The facts are not in dispute. James B. Brasel at all times material herein was the pharmacist in charge and store manager of Revco located in Johnson County. Both Mr. Brasel and Revco are registered with the Board as required by law. Mr. Brasel is a licensed pharmacist who had been employed by the Revco Discount Drug Store chain for approximately nine years. He had no prior complaints or pro ceedings filed against him and his store had continuously enjoyed an “A” rating from the Board based upon periodic examinations by an inspector for the Board. Reveo fills about 3,000 prescriptions per month. Between April 13, 1982, and September 6, 1982, a Class (schedule) II drug, demerol injectable, was sold by Mr. Brasel to a Dr. Serling, a podiatrist duly licensed by the State Board of Healing Arts. There were six separate sales of small amounts of demerol during the five-month period which were recorded by Mr. Brasel on a form furnished by his employer and entitled Reveo Receipt. The form includes the date, drug sold, doctor’s name, DEA number issued by the federal drug enforcement agency (DEA) and, in each case, Dr. Serling was required to sign the form indicating receipt of the demerol. The receipts for the six sales to Dr. Serling indicate sales prices ranging from $10.83 to $13.69. Although Dr. Serling had indicated that the demerol was being purchased for use in his office as a part of his medical practice, Mr. Brasel became suspicious that he might be purchasing it for personal use. Mr. Brasel then called the DEA to verify Dr. Serling’s authority and was advised that Dr. Serling was not authorized to handle schedule II drugs. No further sales were ever made by Mr. Brasel or Reveo to Dr. Serling. As a result of Mr. Bras el’s inquiry to the DEA, the Kansas State Board of Healing Arts was notified and it, in turn, notified the State Board of Pharmacy, which undertook an investigation ostensibly of Dr. Serling’s actions. In this investigation approximately 35,300 separate prescriptions were examined at Reveo. Thereafter, charges were filed against Mr. Brasel and Reveo, alleging certain violations of Kansas statutes and Board regulations. Both were found to have violated the uniform controlled substances act and certain Board regulations, and the Board ordered their suspension from the sale of schedule II items for six months. Plaintiffs then brought an action in the nature of an administrative appeal in the district court, which upheld some of the findings of the Board and reversed others. The district court also ordered the matter remanded to the Board for a reconsideration of the penalties assessed in view of its judgment that the more serious violations were not supported by substantial evidence. The Board has appealed certain portions of the judgment and plaintiffs have cross-appealed from others. The violations found by the Board, which are before us for consideration, are six violations of K.S.A. 65-4122 for using an improper form in selling a schedule II controlled substance (demerol) to Dr. Serling; one violation of K.S.A. 65-4123(c) for refilling a prescription more than six months after the date thereon; and four violations of K.A.R. 68-20-18(C)(l) for failure to include the practitioner’s address on a prescription form and, in one instance, a violation of the same regulation for failure to include the practitioner’s DEA number on the prescription form. The violations of K.S.A. 65-4123(c) and K.A.R. 68-20-18(C)(l) did not involve Dr. Serling and were discovered by the DEA inspector in his review of the 35,300 prescriptions on file at Reveo. The pertinent parts of the statutes and regulations provide: K.S.A. 65-4122: “Controlled substances in schedules I and II shall be distributed by a registrant to another registrant only pursuant to an order form. Compliance with the provisions of federal law respecting order forms shall be deemed compliance with this section.” K.S.A. 65-4123(c): “Except when dispensed by a practitioner, other than a pharmacy, to an ultimate user, a controlled substance included in schedule III or IV which is a prescription drug shall not be dispensed without a written or oral prescription of a practitioner. The prescription shall not be filled or refilled more than six months after the date thereof or be refilled more than five times.” K.A.R. 68-20-18(C)(l): “All prescriptions for controlled substances shall be dated as of, and signed on, the day when issued and shall bear the full name and address, and registration number of the practitioner.” At the outset we will again iterate the oft-stated scope of review applicable to the district court and the appellate courts in appeals of administrative decisions. The court’s scope of review is restricted to considering whether, as a matter of law: (1) the administrative tribunal acted fraudulently, arbitrarily or capriciously; (2) the order is substantially supported by the evidence; and (3) the tribunal’s actions were within the scope of its authority. Pioneer Container Corp. v. Beshears, 235 Kan. 745, 684 P.2d 396 (1984). In the present case, the Board found that plaintiffs had violated K.S.A. 65-4122 on six occasions by transferring a schedule II drug (demerol injectable) to another registrant (Dr. Serling) on an improper form. The Board found that use of the Reveo receipt, rather than federal DEA form 222, constituted a violation of K.S.A. 65-4122. It is the position of the Board that the statute requires use of the federal form and that no other form or document is acceptable. The trial court set aside the six findings of a violation of K.S.A. 65-4122 for two reasons: (1) the transaction did not occur between “registrants,” as Dr. Serling was specifically exempt from registration under K.S.A. 65-4116(c)(5); and (2) the Reveo receipt form met the requirements of the statute and use of a federal DEA form 222 was not mandatory under the statute. The Board has appealed this portion of the district court judgment. We agree with the district court that K.S.A. 65-4122 and K.A.R. 68-20-17, the regulation in support thereof, do not require the use of federal DEA form 222. The statute is clear and needs no construction of the provision, “Compliance with the provisions of federal law respecting order forms shall be deemed compliance with this section.” (Emphasis added.) When judging whether a statute is clear or ambiguous, the courts must give words in common usage their ordinary meaning. Szoboszlay v. Glessner, 233 Kan. 475, 478, 664 P.2d 1327 (1983); Stephens v. Van Arsdale, 227 Kan. 676, 684, 608 P.2d 972 (1980); Lakeview Gardens, Inc. v. State, ex rel. Schneider, 221 Kan. 211, Syl. ¶ 1, 557 P.2d 1286 (1976). Where the language of the statute is plain and unambiguous, the court’s responsibility is to give effect to the intent of the Legislature as expressed, and the Court should not rearrange the Legislature’s work to express what the court thinks the law should or should not be. Szoboszlay v. Glessner, 233 Kan. at 478; Kansas State Bd. of Pharmacy v. Wilson, 8 Kan. App. 2d 359, 361, 657 P.2d 83 (1983); Randall v. Seemann, 228 Kan. 395, 397, 613 P.2d 1376 (1980). The district court, in its opinion, stated: “K.S.A. § 65-4122 states that controlled substances in Schedules I and II shall be distributed by a registrant to another registrant only pursuant to an order form. The Board found plaintiffs had violated the statute in six instances when plaintiff Brasel had sold Demerol to a Dr. Serling. After reviewing Dr. Selling’s credentials, plaintiff Brasel dispensed the Demerol to Dr. Serling and recorded the sale on a yellow Reveo order form labeled ‘Reveo Receipt.’ Included on the form was Dr. Selling’s name, address, and DEA number, the date of the sale, and a description of the drug dispensed. (Since all the Schedule II drugs that Reveo stores dispense are ordered through Revco’s Ohio headquarters, plaintiff Brasel had no special federal form on which to record the transaction.) Plaintiff Brasel used these forms to differentiate the sales to Dr. Serling and kept these special orders in his locked narcotics cabinet rather than with the regular prescriptions. “Even if Dr. Serling were considered a “registrant,” the distribution can be characterized as being 'pursuant to an order form’ as mandated by K.S.A. § 65-4122, and the Board’s purported finding of a violation is unsupported by evidence. While the statute states that ‘(c)ompliance with the provisions of federal law respecting order forms shall be deemed compliance with this section,’ no particular order form is required by the statute. Plaintiff Brasel recorded all the transactions on the ‘Reveo Receipts’ as reported supra. Such recordation complies with the purpose and aim of the requiring of order forms — the monitoring of dangerous drugs within the state — and will be deemed to be compliance with the statute itself.” While both the statute and the regulation provide that compliance with the applicable federal law (in this instance use of DEA form 222) is compliance with the Kansas statute, neither states that compliance with the federal law is required for compliance with our statute. Quite simply, “deemed” is a word of common understanding and we have found no authority for the position of the Board that it means “required.” The form utilized by Reveo amply fulfills the apparent purpose of the Kansas uniform controlled substances act. It shows who bought the drug, where and when it was bought, the quantity purchased and the sale price. Reveo also requires the practitioner to sign the form acknowledging receipt of the drug and that his DEA number be included. The form is part of the permanent business records of Reveo and subject to the Board inspection process. K.S.A. 65-4102(a) gives the Board power to adopt rules and regulations but it has not seen fit to adopt or furnish any particular form. It cannot now complain that the form utilized by Reveo was insufficient or a violation of the statute. The district court was correct in finding no violation of K.S.A. 65-4122. In view of our determination that the use of the Reveo form satisfies the requirements of K.S.A. 65-4122, there is no need to consider whether Dr. Serling was a “registrant” under the act. Whether he was or not, there was no violation. However, we feel justified in expressing a caveat. The Kansas uniform controlled substances act is confusing as to whether a practitioner exempt from registration with the Board is nevertheless considered a registrant for purposes of enforcement of the act. We leave that determination for another day but it might be well for the Board to address the issue and seek clarification of the apparent inconsistencies in the act. We now turn to the cross-appeal of the plaintiffs. The district court found that plaintiffs were in violation of K.S.A. 65-4123(c) for refilling one prescription for a schedule III or IV drug more than six months after its initial date and found five violations of K.A.R. 68-20-18(C)(l) in that four prescription forms were found in Revco’s records that did not include the prescribing doctor’s address, and one of these also lacked the doctor’s DEA number. Plaintiffs do not, and cannot, make any serious contention that these violations did not occur and are not supported by substantial evidence. Mr. Brasel candidly admitted to the deficiencies and could only explain they were oversights on his or his employees’ part. As indicated earlier, the Board’s inspector examined approximately 35,300 prescription forms in Revco’s records and could only find five prescription blanks that were lacking in required information. Mr. Brasel and his assistants are only human and a record of 35,300 prescriptions with only six deficiencies would appear admirable to anyone required to keep detailed records. Be that as it may, the district court was correct in finding they constituted violations. Next, the plaintiffs contend in their cross-appeal that the six-month suspension ordered by the Board must be reversed. The suspension originally ordered by the Board was based upon alleged violations far more severe than those finally determined to be valid. Plaintiffs were found by the Board to have additional violations which were reversed by the district court for lack of substantial evidence. The judgment on those particular violations was not appealed by the Board, which is understandable from a careful consideration of the record. The district court ordered that the matter be remanded to the Board for reconsideration of the sanctions which were imposed in view of the court’s findings and conclusions. We find that such a remand would be proper and that the Board should reconsider its sanctions in light of the judgment of the trial court and the views expressed herein. The judgment is affirmed in all respects and the case is remanded for further proceedings. Schroeder, C.J., dissenting.	[ -76, -18, -10, 12, 24, -32, 56, 18, 91, -77, 117, 115, -17, -30, 5, 123, -49, 45, -44, 120, -61, -74, 115, -86, -58, -5, -37, -59, -71, 95, -26, -43, 12, 48, 10, 53, -26, 64, -32, 92, -122, 1, -119, -15, -45, -128, -80, 42, -46, 11, 33, 12, -11, 45, 30, -33, 9, 44, -21, 61, -55, -79, -102, 23, 109, 20, 17, 4, -99, -121, -40, 47, -102, 57, 8, -8, 115, -90, -62, 52, 11, 9, 12, 34, 98, 34, 17, -19, 108, -84, 62, -37, -115, -89, -72, 72, 96, 12, -106, -99, 124, 26, 3, -2, -5, -107, 79, -68, 0, -34, -106, -109, 15, 113, -106, -117, -1, 69, -111, 85, -57, -28, 84, 87, 54, 23, 14, -76 ]
The opinion of the court was delivered by Schroeder, C.J.: Jay D. Breazeale (defendant-appellant) appeals from convictions by a Sedgwick County jury of three counts of aggravated burglary (K.S.A. 21-3716), one count of attempted aggravated burglary (K.S.A. 21-3301, 21-3716), three counts of aggravated sodomy (K.S.A. 21-3506[a]), one count of attempted rape (K.S.A. 21-3301 and 21-3502), and two counts of unlawful possession of a firearm (K.S.A. 21-4204). The defendant was also acquitted on charges of aggravated kidnapping, kidnapping, attempted aggravated robbery, aggravated sodomy and unlawful possession of a firearm. The charges arose from five separate incidents in southeast Wichita between February 3, 1982 and October 14, 1982. These incidents are summarized as follows: I FEBRUARY 3, 1982: THE “MRS. X” INCIDENT At 8:45 a.m. on February 3, 1982, Mrs. X was home with her eighteen-month old daughter when a man she did not know knocked on her front door. The man was wearing a ski mask and a gray hooded sweat shirt. He claimed to be looking for his lost dog. When she said she had not seen the dog, he persuaded her to open her door so he could give her his phone number which he had written on a piece of paper. As soon as she opened the door, the man pulled a small handgun out of the front pocket of his sweat shirt and forced his way into her house. The man ordered Mrs. X to put her child in the crib. He then ordered her to take off all of her clothes and to give him all of her money. She took off her jeans, shirt and socks and told the man she only had three dollars, but that he should take it and leave. The man then forced Mrs. X into her bedroom, where he removed her bra and threw her onto her bed. While pointing his gun at her head, the man unzipped his jeans and forced his penis into Mrs. X’s mouth. He eventually ejaculated in her mouth and she spit this out on the carpet. As soon as the man left, Mrs. X bolted her doors and then called the police. Mrs. X attended a lineup on May 6, 1983, in which all five participants wore ski masks, gray hooded sweat shirts and blue jeans. Each man was required to say, “Do as I say and you won’t get hurt.” Mrs. X positively identified the defendant from his voice, his visible facial features, and his body build. Seminal fluid, removed from Mrs. X’s carpet, indicated it came from a nonsecretor — that is, an individual whose body fluids do not identify an ABO blood type; nonsecretors make up 20-24% of the population. The defendant is a nonsecretor. In connection with this incident, the defendant was convicted of aggravated sodomy, aggravated burglary, and unlawful possession of a firearm, but was acquitted on the charge of attempted aggravated robbery. II MARCH 26, 1982: THE “MISS Y” INCIDENT On March 26, 1982, a fifteen-year-old junior high school student, Miss Y, was home alone. At approximately 2:00 p.m., a man walked into the house through the front door which she had neglected to close all the way. He approached Miss Y while pointing a small gun at her. He was wearing a ski mask, a blue sweat shirt, blue jeans and gloves. He forced her into the bedroom and made her undress; he apparently became impatient and removed part of her clothing himself. He then attempted sexual intercourse, but was unable to achieve penetration. He next made Miss Y pose in various positions and took pictures of her with a Polaroid camera which he had kept in the front pocket of his sweat shirt. He then forced her to kneel and perform oral sex on him in front of a full-length mirror while he took more pictures. He ejaculated in her mouth and she spit this onto the floor. He then forced her to lie on the bed where he covered her face with a pillow and performed oral sex upon her. Refere he left, he threatened to spread the photographs all around her school if she told anyone what had happened. After the man left, Miss Y ran to her school for help. Miss Y attended the May 6, 1983, lineup which Mrs. X also attended. Miss Y positively identified the defendant based on his voice, body weight and build, and his mustache, which was visible through the ski mask. In connection with this incident, the defendant was convicted of aggravated burglary, two counts of aggravated sodomy, attempted rape and unlawful possession of a firearm. III OCTORER 4, 1982: THE DRYDALE INCIDENT On October 4, 1982, at 7:20 a.m., fifteen-year-old Douglas Drydale and his thirteen-year-old sister, Amy, were home alone getting ready for school. Douglas looked out a side door in the house and noticed a man, who was wearing a ski mask and a stocking cap, walking down the street and staring at the Drydale house. A few minutes later, Douglas noticed the man had opened their front screen door and was attempting to open the inside door. Douglas and his sister ran from the side door of the house and hid in some bushes in a neighbor’s yard. A few minutes later, Douglas saw the man running away from his house. Douglas returned to his house. He discovered that nothing was missing, but doors were open which had previously been closed. A neighbor drove Douglas around the block in an attempt to catch the man, but they did not find him. Douglas then called his mother who called the police. At the same time that Douglas and Amy Drydale were hiding in the bushes, a friend of theirs — Jeanette Arthurs — was walking down the street toward the Drydale house on her way to school. She observed a man who was wearing a stocking cap running up the street from the general direction of the Drydale residence. He seemed to be concealing his face from her; she saw him get into a brown 1979 or 1980 Camaro or Trans Am and drive away. Because she thought his behavior was unusual, she copied down his license plate number onto a piece of paper which she gave to Douglas Drydale who gave it to the police. It was later learned that the license number which Jeanette copied was registered to the defendant’s 1979 brown Camaro. When questioned by police, both Douglas and Jeanette said they thought the man might have been black. The police went to the defendant’s residence at 8:00 a.m. that morning. His car was in the driveway and they noticed the hood was still warm. The defendant answered the door and advised the police that he had been home all morning. The defendant was convicted of aggravated burglary in connection with this incident. IV OCTOBER 14. 1982: THE CARRILLO INCIDENT At approximately 1:00 p.m. on October 14, 1982, a man wearing a gray jogging suit parked his sporty, brown, two-door car in the rear parking lot of a church and walked down an alley. This was observed by Joan Todd, a secretary in the church, when she happened to look out a window. As she thought the man’s behavior seemed unusual, she told Pat Anderson, who also worked in the church, what she had seen. At about this same time, a woman who lived down the block from the church observed a man in a gray jogging suit cut across Charlotte Carrillo’s yard toward Mrs. Carrillo’s front door. A few minutes later, she observed the man returning in the same direction he had come. Mrs. Carrillo was home alone with her small daughter and saw the man as he approached her house. His face was hidden by a mask or Halloween-like makeup. He stared at her window for awhile and then moved towards her door. As she heard the locked door rattling, she called the police. The man fled while she was on the phone. Following this, Pat Anderson looked out the church window and saw a man in a gray sweat shirt running down the alley toward the back of the church. Believing him to be the same man Joan Todd had told her about, she looked at him carefully. She was later able to pick the defendant’s picture from a photographic lineup. At 1:15 p.m., a Wichita police officer who was on patrol in the vicinity of the Carrillo home responded to the dispatcher’s call to go to that residence. When he was within a mile of her home, he observed the defendant in his brown Camaro coming from that direction. The police officer turned and followed the defendant and then pulled him over. The officer observed a gray sweat shirt inside the defendant’s car. The defendant told the officer that he had just been driving around. A short time later, Mrs. Carrillo was brought to where the defendant was stopped and was asked if she could identify him. She could not, although she said his build was similar. The defendant was convicted of attempted aggravated burglary in connection with this incident. The defendant was also charged with aggravated kidnapping, kidnapping, aggravated sodomy and unlawful possession of a firearm in connection with an incident where two young women were accosted in an otherwise deserted dance studio. The jury acquitted the defendant of each of the charges in connection with this incident. All of the charges against the defendant from these five incidents were consolidated in one trial. This trial lasted for three weeks. After the verdicts were received, the trial court sentenced the defendant to not less than 119 years and not more than life. The defendant first contends the trial court erred in refusing to grant a mistrial after admitting testimony, pursuant to K.S.A. 60-455, from two victims of the defendant’s previous sexual offenses in Colorado. The defendant argues this evidence was not relevant to the purposes for which it was admitted, and that its prejudicial effect outweighed its probative value. K.S.A. 60-455, which provides for the exclusion of evidence tending to show the defendant’s general disposition to commit crime, reads as follows: “Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” Admissibility of other crimes under 60-455 is to be determined by the trial judge prior to the trial and outside the presence of the jury. See State v. Wasinger, 220 Kan. 599, 602-03, 556 P.2d 189 (1976). In ruling on the admissibility of the proffered evidence, the trial court must: (1) determine it is relevant to prove one of the facts specified in the statute; (2) determine that fact is a disputed, material fact, and (3) balance the probative value of the prior conviction evidence against its tendency to prejudice the jury. State v. Myrick & Nelms, 228 Kan. 406, 420, 616 P.2d 1066 (1980); State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974). In the case at bar, the trial court conducted a lengthy pretrial hearing on the prosecution’s motion requesting admission of evidence of the defendant’s convictions in 1973 for rape and deviant sexual intercourse in order to prove motive, intent and identity. The victims did not testify at the pretrial hearing. Instead, the defense and prosecution submitted the facts of the prior convictions to the court based upon the testimony presented at the preliminary hearing (mainly from the detective who had investigated the previous crimes) and the police reports. Both counsel filed lengthy briefs which discussed the application of the three-prong test for admissibility. The court ruled the Colorado convictions were admissible only to prove intent and identity in the Drydale and Carrillo incidents, and identity in the other incidents. The defendant is not appealing the procedure used in the pretrial hearing. Rather, the defendant claims his motion for mistrial was improperly denied after the victims from the previous crimes were allowed to testify. Miss P and Mrs. S testified at trial concerning the sex offenses committed against them by the defendant in Colorado in 1972. The trial court gave a contemporaneous oral instruction prior to the introduction of this testimony as to the purposes for which it could be considered by the jury. Their testimony is summarized as follows: Miss P On September 30, 1972, at approximately 6:15 p.m., a man knocked on the door at Miss P’s home in Lakewood, Colorado. The man was Jay D. Breazeale, the defendant. The defendant asked her several questions. He asked if her husband was home, and she responded that he was not. He then asked if this was the residence of a particular person, and again she said “no.” The defendant then asked if he could use her telephone. Although she had no phone, she offered to get him her phone directory. As she turned to get the phone book, the defendant walked in, put a gun to her head and forced her into the kitchen. He then ordered her to undress and forced her to perform oral copulation on him. He then forced her to have sexual intercourse. The defendant’s only disguise was a pair of sunglasses. Miss P picked the defendant out of a lineup two months later. Mrs. S On November 10, 1972, at 2:25 p.m., Mrs. S was alone in her home near Denver, Colorado, when a man came to the door and asked if he was at a certain person’s residence. Mrs. S informed him he had the wrong address. He asked if there was some way he could check the address. She told him she would get the phone book and look it up for him. She shut the door, leaving the defendant on the porch, and walked to her kitchen to get the phone book. The defendant slipped in unnoticed while she looked for the book. He pointed a gun at her and forced her to go upstairs. She tried to talk her way out of the situation, but the defendant threatened to shoot her. The defendant tore off her clothes and she finally submitted to sexual intercourse. She later-identified the defendant as her assailant. The defendant pled guilty to the charges in both of these crimes. Following the victims’ testimony, the defendant moved the court for a mistrial as the evidence concerning the Colorado rapes was not sufficient to satisfy the requirements of K.S.A. 60-455. The court denied the motion and made the additional observation that all the victims were attractive, young and slender women. Before turning to an examination of whether the three re quirements for admissibility were met, we note that there is no requirement under K.S.A. 60-455 that the witnesses who testify at trial about the prior crimes must first testify in person in the pretrial hearing. State v. Wood, 230 Kan. 477, 479, 638 P.2d 908 (1982). It is enough that the prosecutor state for the court, in substance, the evidence as to the other crimes or civil wrongs which he or she intends to introduce at trial. (1) Relevancy. The trial court found the evidence of the defendant’s prior crimes was relevant to prove identity in all of the charged crimes (except for unlawful possession of a firearm) and to prove intent in the Dry dale and Carrillo incidents. Where a prior conviction is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the offense to raise a reasonable inference that the defendant committed both offenses. State v. Williams, 234 Kan. 233, 670 P.2d 1348 (1983); State v. Bly, 215 Kan. at 177. Similarity must be shown in order to establish relevancy. State v. Henson, 221 Kan. 635, 644, 562 P.3d 51 (1977). It is not sufficient simply to show that the offenses were violations of the same or similar statutes; there should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable inference that the same person committed both offenses. State v. Bly, 215 Kan. at 178. In general see Comment, Evidence: Admissibility of Similar Offenses as Evidence of Identity in a Criminal Trial, 14 Washburn L.J. 367 (1975). However, the prior offenses need only be similar, not identical in nature. State v. Williams, 234 Kan. at 234. In this case, we find the prior crimes were sufficiently similar to the present offenses so as to raise a reasonable inference that the defendant committed all of the offenses. The victim in each case was a young, attractive, white woman. Each attack occurred at the victim’s residence when she was home alone. The perpetrator gained entry through the front door. In the Colorado cases, and the incident with Mrs. X, he did this by tricking the victim. In the other cases, the front door was unlocked so he simply walked in. In each of the cases where the perpetrator gained entry, he held a small gun to the victim’s head and forced her to disrobe. In the incidents involving Miss P, Mrs. X, and Miss Y, he unzipped his pants, then forced the victim to kneel and perform oral copulation upon him. In the incidents involving Mrs. S and Miss Y, he performed (or attempted to perform) sexual intercourse with the victim. The perpetrator did not strike any of the victims, nor did he fire his gun. He took no money or property from the victims’ homes. All of the crimes occurred during the daylight hours rather than at night. The defendant points to the dissimilarities in these cases, and argues the Colorado crimes bear only a “superficial similarity” to the Kansas incidents. In each of the Kansas cases, the perpetrator of the offenses wore a ski mask and a hooded sweat shirt. In the Colorado cases, the defendant wore no disguise aside from sunglasses. We find this difference to be insignificant in light of the many similarities in the actual crimes involved and also in consideration of the length of time between the incidents (which included prison time served by the defendant). Any other dissimilarities in the Colorado crimes, as compared to the Kansas crimes, are also found to be insignificant. Admittedly, the facts present a close question on whether there were sufficient similarities between the crimes for purposes of K.S.A. 60-455. But, after carefully reviewing the record, we conclude the trial court did not err in finding the prior crimes were relevant to establish the identity of the perpetrator in the present offenses. The trial court further found the Colorado convictions were relevant to prove intent in the Drydale and Carrillo cases (where the perpetrator was unable to gain entry). Since burglary is a specific intent crime, the fact that the defendant had committed previous burglaries with the intent to commit rape (or other sexual offenses) was relevant to prove the defendant had the same intent in the Drydale and Carrillo incidents. See State v. Faulkner, 220 Kan. 153, 158, 551 P.2d 1247 (1976). The trial court did not err by so finding. (2) Disputed, Material Fact. The defendant concedes on appeal that the perpetrator’s identity was a substantial issue in each of the charged offenses, and that the perpetrator’s intent was a disputed and material issue in the Drydale and Carrillo cases. (3) Probative Value Versus Prejudicial Effect. Before prior crimes evidence becomes admissible under K.S.A. 60-455, the trial court must find that the probative value of the evidence — for the limited purpose for which it is offered — outweighs its prejudicial effect. State v. Marquez, 222 Kan. 441, 445, 565 P.2d 245 (1977); K.S.A. 60-445. If the potential for natural bias and prejudice overbalances the contribution to the rational development of the case, the evidence must be barred. State v. Bly, 215 Kan. at 175. The remoteness in time of a previous conviction (in this case, ten years) affects the weight of the prior crimes evidence rather than its admissibility. State v. Cross, 216 Kan. 511, 522, 532 P.2d 1357 (1975). Clearly, the relevancy diminishes as the time interval between crimes lengthens. In the case at bar, the evidence showed the Colorado crimes were very similar to the Kansas offenses, thus, the evidence was clearly relevant. Moreover, the evidence was not merely cumulative as the identity of the perpetrator was a significant issue in each of the cases. The remoteness in time — ten years — is not significant in this case in light of the fact that the defendant spent the intervening time in prison. Although the prior crimes evidence was prejudicial to the defendant (as is all evidence against the accused in criminal actions), the trial court did not err in finding the probative value of the evidence outweighed its prejudicial effect. Accordingly, we hold the prior crimes evidence was properly admitted for the purposes specified. The defendant next argues the trial court erred in denying his motion to sever the charges of unlawful possession of a firearm (K.S.A. 21-4204), or, in the alternative, to limit the evidence of the prior convictions so that the nature of those convictions would be excluded from evidence, thereby avoiding unnecessary prejudice to the defendant. Since the trial court granted the prosecution’s motion to admit evidence of the defendant’s prior convictions under K.S.A. 60-455, the motion to sever or limit evidence in connection with gun charges was rendered moot and was denied. Because we have affirmed the trial court’s admission of the prior convictions evidence under 60-455, this issue is moot. The defendant next contends the complaint affidavit in the Drydale and Carrillo cases would have been insufficient to support a finding of probable cause if the affidavit had included certain material information which was deliberately omitted. Based on the original complaint and supporting affidavit issued on May 5, 1983, a probable cause finding was made and an arrest warrant was issued for the defendant’s arrest on charges of aggravated burglary (Drydale) and attempted aggravated burglary (Carrillo). The defendant was arrested on May 6, 1983. Prior to the preliminary hearing, the defendant filed a motion to dismiss the complaint and quash the arrest warrant. He claimed that material information had been omitted from the arrest warrant, and that such omission by the prosecution had been deliberate or in reckless disregard for the truth. The defendant claimed the following information was omitted: (1) In an initial interview with police on October 4, 1982, Douglas Drydale said he thought the man he saw was black. (2) Douglas Drydale was interviewed again on October 7, 1982, and again said he thought the man was black. (3) Jeanette Arthurs was interviewed on October 7, 1982, and she said she thought the man she saw was black. (4) On October 4, 1982, the defendant had a full beard and mustache. Neither Jeanette Arthurs nor Douglas Drydale reported the man they observed had a beard or mustache. (5) During most of 1982 and part of 1983, Wichita police officers conducted formal and informal surveillance of the defendant. It was observed by those officers that the defendant slept each night at his girlfriend’s home and drove his caito his own home at 549 South Delrose each morning. (6) On May 4, 1983, Mrs. Joan Todd was shown six photographs of cars, including one showing the brown Chevrolet Camaro which belonged to the defendant. The five other cars in the photographic display were red. Mrs. Todd had previously told police that the car she observed in the church parking lot was brown. After hearing the defendant’s preliminary offer of proof and arguments by counsel as to the procedure to be followed and the law to be applied, the court denied the defendant’s motion. The court concluded that even if the omitted information had been included in the original affidavit, it would still be sufficient to show probable cause for the issuance of an arrest warrant. The court thereby denied the defendant’s request for an evidentiary hearing on the motion. The defendant now contends the trial court erred in its finding that the omission was not material. Our scope of review on this issue is limited to determining whether the district court’s finding is supported by substantial evidence. If it is, such finding will not be disturbed on appeal. State v. Lockett, 232 Kan. 317, 319, 654 P.2d 433 (1982); State v. Strecker, 230 Kan. 602, 608, 641 P.2d 379 (1982). In State v. Jacques, 225 Kan. 38, 587 P.2d 861 (1978), this court, relying on Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), stated the general rules upon which defendant Breazeale based his motion to dismiss the complaint and quash the arrest warrant: “[T]here is a presumption of validity with respect to an affidavit supporting a search warrant and generally a party against whom a search warrant is directed may not dispute the matters alleged in the supporting affidavit or application. [Citation omitted.] “An exception to the above general rule is recognized if the challenger’s attack is supported by allegations and an offer of proof under oath that the affidavit or application for search warrant contains material statements of deliberate falsehood or of reckless disregard for the truth. Under this exception an evidentiary hearing would be required on a motion to suppress evidence obtained in the search. The challenger has a duty to point out specifically the portion of the warrant affidavit that is claimed to be false, and a statement of supporting reasons should accompany the motion to suppress.” 225 Kan. at 43-44. Under this rule, if the defendant can show that without the false information the affidavit is insufficient to support a finding of probable cause, then the defendant is entitled, under the Fourth and Fourteenth Amendments, to a full evidentiary hearing on the motion. Franks v. Delaware, 438 U.S. at 171-72. The Jacques opinion applies only to cases where false statements are contained in an affidavit for a search warrant. In State v. Lockett, 232 Kan. 317, this rule was extended to cases where there has been a deliberate omission of material facts from a search warrant affidavit. We now extend the holding in Lockett to cases involving affidavits to support arrest warrants. Under Lockett, when the defendant attacks the affidavit he must show (1) the omission was deliberate, and (2) the omission was material. An omission is material if the original affidavit together with the previously omitted information would not support a finding of probable cause. In the instant case, the trial court found that the affidavit, modified by the addition of the omitted information, was sufficient to support a finding of probable cause. In State v. Abu-Isba, 235 Kan. 851, 853-54, 685 P.2d 856 (1984), this court discussed the probable cause requirement for an arrest warrant: “Before a warrant for arrest or search may be issued, there must be a finding of probable cause by a neutral and detached magistrate. The complaint should supply the magistrate with sufficient factual information to support an independent judgment that probable cause exists. Mere conclusions are not sufficient to support such a finding. Wilbanks v. State, 224 Kan. 66, Syl. ¶¶ 1, 3, 579 P.2d 132 (1978). Probable cause is the reasonable ground for belief that a specific crime has been committed and that the defendant has committed or is committing it. Under K.S.A. 1983 Supp. 22-2302(1) probable cause information may be set forth in separate affidavits filed with the complaint. Probable cause does not require specific evidence of each element of the offense as would be needed to support a conviction. Probable cause exists if the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed. State v. Weigel, 228 Kan. 194, 197, 612 P.2d 636 (1980), and cases cited therein.” In Abu-Isba, the court adopted the “totality of the circumstances” approach of Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983), to ascertain whether — based on the totality of the circumstances set forth in the affidavit — -a fair probability exists that a crime has been committed and that the defendant committed it. We find there was substantial evidence to support the trial court’s conclusion. In other words, we agree that the omissions from the affidavit (whether or not deliberate) were not material. While it is true that Douglas Drydale told the police he believed the burglar was a black male, this information becomes less significant when it is learned that the man was wearing a ski mask and stocking cap and that Douglas did not get a good look at him. Douglas told police that he would not be able to identify the man. The existence of the ski mask also lessens the significance of Douglas’ failure to report that the man had a mustache or a beard. Similarly, Jeanette Arthurs only caught a glimpse of the defendant’s face (he had removed the mask) and she thought he was a black man. However, Jeanette told the police that the man concealed his face from her view. More significant than Jeanette’s brief glimpse of the man’s face was her ability to view the model and color of his car and its license plate number. The defendant argues that it is much easier for one person to be mistaken about a license plate number than it is for two people to independently make the same mistake about the race of a person, but common sense does not support this argument — especially in light of the fact that both had only brief glimpses of the man. The addition of the fact that police knew (due to their surveillance) that the defendant spent nights with his girlfriend is also relatively insignificant. Although the defendant contends this fact explains the observation by police that the defendant’s car was not at his home at the time of the Dry dale incident, when the police questioned the defendant about his whereabouts that morning, he claimed he had never left his home. The police felt the hood of his car and found it to be warm. When the totality of the information in the Drydale incident is examined, it is clear the omitted facts were immaterial and did not affect the basis for finding probable cause. Likewise, in the Carrillo case the omissions were immaterial to the finding of probable cause. Accordingly, we hold there was substantial evidence to support the trial court’s finding that any omissions from the affidavit to support the Dry dale/Carrillo complaint were immaterial. The trial court did not err in denying the defendant’s request for an evidentiary hearing. The defendant next argues that, if we find the arrest warrant defective, the lineup identifications obtained after his arrest were tainted and, therefore, the later arrest warrant which was based on these identifications must be quashed. Since we find the affidavit supporting the arrest warrant in the Carrillo/Dry-dale cases was not defective, this issue need not be addressed. The defendant next contends the trial court erred by failing to suppress all testimony concerning the photographic display of cars shown to Joan Todd (in connection with the Carrillo incident) as such display was unduly suggestive. On October 14, 1982 — the day of the Carrillo incident — at approximately 1:00 p.m., Joan Todd looked out the window of the church where she worked and observed a man parking his car in an unpaved parking lot at the rear of the church. (Mrs. Todd thought this was unusual behavior since a paved parking lot was available.) The car was dark brown and had two doors. Mrs. Todd observed a man get out of the car and walk down an alley. Although she could only see the man’s back, she noticed he was wearing a jogging outfit and that his hair was dark and balding in the back. She told another woman who worked in the church — Pat Anderson — about the suspicious car in the unpaved lot and about the man she had seen. Approximately fifteen minutes later, Pat Anderson looked out the window and saw a man who had a receding hairline and who was wearing a gray sweat shirt running down the alley towards the church. Mrs. Anderson got a good look at this man and later picked out the defendant’s picture from a photographic lineup. Mrs. Todd was unable to describe the make or year of the car when she was questioned by police. She only knew that the car was brown and had two doors. On May 4, 1983, Mrs. Todd was shown six photographs of various two-door cars. She was told to ignore the color of the cars and concentrate on their body styles. The pictures included the defendant’s brown Camaro and five red cars. Mrs. Todd chose the brown car as looking most like the car in the parking lot, but she made it clear that she could not positively identify any one car. Prior to trial, the defendant moved for suppression of any testimony concerning the photographic display of the cars. The defendant claimed the photo display was unduly suggestive. Following a hearing on the motion, the trial court ruled that the prosecution could produce testimony regarding the photographic array, but prohibited the prosecution from producing evidence that the brown car in the photograph was the defendant’s car. When Mrs. Todd testified at trial, she was again shown the six photos. She was unable to identify the car she had seen on October 14, 1982. She could only say that the photo of the brown car was the right color. The defendant argues that the standard for photographic lineups of people should apply in this case. That is, the totality of the circumstances surrounding the lineup must be analyzed to determine whether an identification is so impermissibly suggestive that it gives rise to a very substantial likelihood of irreparable misidentification. State v. Galloway, 235 Kan. 70, 89, 680 P.2d 268 (1984); State v. Ponds, 227 Kan. 627, 629, 608 P.2d 946 (1980). Although the procedure employed in this case may have been unduly suggestive, Mrs. Todd was never able to positively identify any of the cars. The jury was informed only that the car she saw was brown (the same color as the car in the photo) and that it had two doors. The jury was also informed that Pat Anderson positively identified the defendant as the man Mrs. Todd had seen leave the brown car. Therefore, even if there was error, it did not prejudice the substantial rights of the defendant. A judgment will not be reversed for nonprejudicial error. State v. Mitchell, 234 Kan. 185, 196, 672 P.3d 1 (1983). The remaining issues on appeal were raised by the defendant pro se in a supplemental brief. He first argues the trial court erred in consolidating the burglary and attempted burglary charges in the Drydale and Carrillo cases with the burglary, rape and sodomy charges in the remaining cases. K.S.A. 22-3203 governs consolidation for trial of separate complaints or informations: “The court may order two or more complaints, informations or indictments against a single defendant to be tried together if the crimes could have been joined in a single complaint, information or indictment.” Joinder in the same complaint or information is proper if the crimes charged: (1) are of the same or similar character, (2) are based on the same act or transaction, or (3) are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. K.S.A. 22-3202(1). Consolidation in the instant case rests on the same or similar character of the crimes involved. In State v. Bagby, 231 Kan. 176, 178, 642 P.2d 993 (1982), this court quoted from State v. Ralls, 213 Kan. 249, 256-57, 515 P.2d 1205 (1973), to further delineate the prerequisites for consolidation under these circumstances: “ ‘When all of the offenses are of the same general character, require the same mode of trial, the same kind of evidence and occur in the same jurisdiction the defendant may be hied upon several counts of one information or if separate informations have been filed they may be consolidated for trial at one and the same trial.’ ” Within these guidelines, the decision to consolidate rests within the sound discretion of the trial court and its holding will not be disturbed on appeal absent a clear showing of abuse of the exercise of that discretion. State v. Bagby, 231 Kan at 178; State v. Howell, 223 Kan. 282, 573 P.2d 1003 (1977). While there are certain recognized dangers which may prejudice a defendant when joinder is allowed, a careful review of the record in this case reveals that any prejudice resulting from the refusal to sever was minimal. Even if separate trials had been granted, evidence of one event could have been used in the trial of the other under K.S.A. 60-455. The trial court, in the instant case, instructed the jury that in order to establish intent in the Drydale and Carrillo cases, they could consider evidence from each of the other cases. Further, in order to determine identity in each separate case, they were allowed to consider evidence from all other cases. Also, evidence of prior crimes was allowed in under 60-455 to establish intent and identity. This evidence would have been allowed even if the trials had been separated. The offenses were handled separately and distinctly by counsel in their argument, by the court in its instructions, and in the presentation of evidence. Accordingly, we find no abuse of discretion by the trial court in not severing the Drydale and Carrillo cases from the other cases. The defendant next contends the trial court erred in refusing to suppress Pat Anderson’s pretrial identification and subsequent courtroom identification of the defendant from a photographic array. The defendant argues the police procedures in conducting the lineup and the photo array itself rendered the photo identifications impermissibly suggestive and created a substantial likelihood of misidentification. Prior to trial, following a hearing on the defendant’s, motion to suppress, the trial court found that under the totality of the circumstances, the photographic array and the procedure employed were not unduly suggestive and refused to suppress. There is nothing in the record before this court by which it can be determined whether the trial court erred in these findings. See State v. Bright, 229 Kan. 185, Syl. ¶ 6, 623 P.2d 917 (1981). At trial, Mrs. Anderson was again shown the same photographic array and again positively identified the defendant as the man she saw behind the church on October 14, 1982. The defendant failed to object to the introduction of the photos at trial or to Mrs. Anderson’s identification of the defendant from those photographs at trial. Since the defendant has failed to establish the proper foundation for this issue on appeal, we need not review the merits of the defendant’s argument. The defendant’s final point on appeal is whether the court erred in denying his motion to suppress all testimony concerning his “arrest” on October 14,1982, the day of the Carrillo incident. At approximately 1:15 p.m. on October 14, Officer Cheever was dispatched to the Carrillo residence to investigate an attempted burglary. The suspect was described as a white male, 150-60 pounds, 25-30 years old, wearing a gray hooded sweat shirt. As Officer Cheever approached the area, he observed the defendant in his brown Camaro coming from the vicinity of the Carrillo residence. The defendant fit the general description of the suspect; moreover, Office Cheever was aware of the defendant’s past crimes. Due to his suspicions, Officer Cheever pulled the defendant over. When he looked into the defendant’s car, he observed a gray sweat shirt on the seat. He asked the defendant what he had been doing, and the defendant said he had just been driving around. The defendant was detained until Mrs. Carrillo arrived, but she was unable to identify the defendant, so he was permitted to leave. Following the suppression hearing, the trial court found that the defendant was never placed under arrest and, therefore, the police officer had no duty to read him his Miranda rights. We agree with this finding. See State v. Boone, 220 Kan. 758, 556 P.2d 864 (1976). Officer Cheever had reasonable suspicion to stop the defendant. State v. Boone, 220 Kan. 758, Syl. ¶ 3; K.S.A. 22-2402. Officer Cheever’s observation of the gray sweat shirt, which was in plain view in the car, was not an unlawful search under the plain view doctrine. State v. Boone, 220 Kan. at 765. The trial court properly denied the defendant’s motion to suppress Officer Cheever’s testimony as to his observations. The remainder of the testimony regarding the October 14 stop was not prejudicial to the defendant. He did not make any incriminating statements; instead, he denied all involvement with the crime. Mrs. Carrillo was brought to the scene of the stop, but was unable to identify the defendant. Since the defendant was not prejudiced by this testimony, the court did not err by refusing to suppress the testimony. The judgment of the lower court is affirmed. Lockett, J., not participating.	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The opinion of the court was delivered by Lockett, J.: Jacqueline (Jackie) L. Osbey was convicted by a jury on one count of murder in the first degree and on a second count of unlawful possession of a firearm. Osbey appealed claiming (1) the judge improperly instructed the jury, and (2) she was prejudiced when the judge failed to impose the sentence for count two at the time of sentencing for count one. Testimony at trial established that Jackie was a victim of her husband Joel’s viplence throughout the two-year history of their marriage. Witnesses testified that on numerous occasions they had observed Joel strike her, knock her down and on one occasion pull a knife on her. During the marriage she regularly appeared with her eyes swollen and black, and her body cut and bruised. Jackie testified about their various altercations, including one where her husband had cut the tendons in her hands and leg, resulting in her being hospitalized for three weeks. She stated that Joel had threatened to kill her several times and, on one occasion while she was lyifig on the bed, he had pointed a shotgun at her and stated he was going to shoot her. Once when she had refused to give her husband money, he had attempted to run over her with his van. After Joel was laid off from work, he would often have friends over to the house to drink and play cards during the day. One of Joel’s “lady friends” who came over became involved in an altercation with Jackie, who subsequently hit the woman with a pistol. A complaint was signed and Jackie pleaded guilty to attempted aggravated battery. After being placed on probation, she gave her pistol to her brother and told him to keep it. Joel then began treating Jackie worse, because he knew she did not have a weapon and could not cause him any trouble while on probation. On June 10, 1983, Jackie’s father told her Joel had called him and had threatened to beat her up at work. That afternoon Shenina, Jackie’s daughter, told Jackie that Joel had been drinking and had been to her apartment to retrieve the gun he had loaned her the previous week. She said that he was angry with Jackie and was going to the plant to “beat her ass.” After work, Jackie went to visit a friend, Lillie. Joel was there and again threatened to kill her. Returning home together, Jackie tried to be agreeable with Joel, because she knew no one else was in the house to protect her. On June 11, 1983, Jackie attended a family gathering. While there, Jackie learned that Joel had attempted to have sexual intercourse with her sister. Later, a-s Jackie and her sister were leaving a friend’s home, Joel drove up. Jackie told him she didn’t want to be married to him any more, and that she just wanted him to move out. Following that conversation, Joel went to Jackie’s house where he removed some of his belongings. Later, at Lillie’s home, Joel told Lillie he was going to go back to Jackie’s and move back in. He said he was not going to give up that easily, because he had put too much money and time into her house and it would be either “me or her.” Joel showed Lillie the pistol he had obtained, and he repeatedly said that he was going to hurt Jackie, that he was going to kill her. Lillie later warned Jackie that Joel had a gun and cautioned her not to let Joel harm her. Later that evening, Jackie went to a birthday party. Before she left, she asked her brother for her pistol which she told him she needed to protect herself from Joel. Returning home, she found Joel’s van in the driveway. She entered the house and placed the unloaded pistol in a drawer. Joel came down the stairs and went outside. Jackie then went to the front door and asked if there was anything else inside he wanted. When he responded “No,” she threw a wicker chair out toward his van and said, “Well, here’s your chair.” Joel became angry and told Jackie “I’m sick of this shit,” picked up a shirt and some record albums from the van and approached the house. Closing the screen door and locking the main door, Jackie ran back to the drawer where she had placed the gun, retrieved it, loaded it and placed the revolver in her bra. Joel unlocked the front door and started inside, still carrying the record albums. Jackie warned him to stay back and told him that she did not want to hurt him. Joel stated he did not want to hurt her either. Joel reached behind the albums that he was carrying. Fearing he was reaching for a weapon, Jackie fired all five bullets in the revolver. She then called for an ambulance. Joel had been hit by two bullets, one in the chest and one in the left abdominal area. He died from hypothermic shock caused by massive bleeding. Officers who arrived at the scene found Joel’s body next to a vehicle in the driveway. Record albums he had been carrying at the time of the shooting were scattered from the front porch to the driveway where he lay. The police found that Jackie’s gun had been reloaded, though Jackie could not remember reloading it. At the trial, Jackie testified she shot Joel because she was tired of being beaten. She said she was scared and she did not trust him anymore. Since Osbey claimed she was defending herself when she killed Joel, the judge instructed the jury on self-defense. The jury had some question regarding premeditation and self-defense and requested clarification during its deliberations. They sent out the following written question: “We would like a better definition as to what constitutes premeditation and how that would apply to this case. “If this act is decided in the final few minutes, for protection, is it premeditated?” The judge responded by instructing the jury to reread the instructions. The jury found her guilty of both charges, and Osbey appealed. Osbey complains that the court erred by using PIK Crim. 2d 54.17 when instructing on self-defense. The PIK instruction uses the word “immediate,” rather than the statutory word “imminent.” K.S.A. 21-3211. PIK Crim. 2d 54.17 provides: “The defendant has claimed his conduct was justified as (se)f-defense) (the defense of another person). “A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s immediate use of unlawful force. Such justification requires both a belief on the part of defendant and the existence of facts that would persuade a reasonable person to that belief.” This instruction and the terms “immediate” and “imminent” are discussed at length in State v. Hundley, 236 Kan. 461, 693 P.2d 475 (1985). Under similar facts in Hundley, it was held that the PIK criminal self-defense instruction utilizing the word “immediate” instead of the statutory word “imminent” caused reversible error. Hundley was filed on January 11,1985. The trial of this case was held in May of 1984. Osbey was sentenced July 12, 1984. The sentence was subsequently corrected on January 18, 1985. The defendant’s appeal was filed on March 22, 1985. The present case falls within the procedure set out in State v. Choens, 224 Kan. 402, 580 P.2d 1298 (1978), which holds that a later overruling decision,should be applied retroactively to all similar cases pending at the time the decision was rendered. A conviction is not considered final until the judgment of conviction has been rendered, the availability of an appeal has been exhausted, and the time for any rehearing or final review has passed. This court determined Hundley prior to the appeal in this case. The facts in this case are sufficiently similar to those in Hundley, allowing Osbey to raise this issue on appeal. The State claims that since the defendant requested that the self-defense instruction be given, she cannot complain when it was used with the word “immediate” rather than with the word “imminent.” The general rule that one who requests an instruction cannot on appeal complain of its use has been followed in a number of Kansas cases, including Anderson v. Armour & Company, 205 Kan. 801, 473 P.2d 84 (1970); Atkins v. Morton, 164 Kan. 626, 191 P.2d 909 (1948); Schuette v. Ross, 164 Kan. 432, 190 P.2d 198 (1948); McGuire v. McGuire, 152 Kan. 237, 103 P.2d 884 (1940). Osbey did request a self-defense instruction, but j-equested a different instruction which was based upon State v. Blocker, 211 Kan. 185, 505 P.2d 1099 (1973). The self-defense instruction in Blocker used the term “imminent” and is basically the same as the instruction offered by the defendant in this case. In Hundley, the defendant had also requested a self-defense instruction. She had also submitted an instruction similar to the one used in Blocker employing the word “imminent” rather than the word “immediate.” The trial court, however, decided to go with the PIK instruction. This court did not find Hundley’s request for a self-defense instruction prevented her from challenging the use of a similar self-defense instruction on appeal, because the instruction she requested differed from the one actually used. As in Hundley, we conclude that the trial court’s use of PIK Grim. 2d 54.17, which departs from the statutory language, impermissibly excluded from the jury’s consideration the effect on the appellant of the history of violence toward her by the decedent. A defendant should not be prevented from challenging the self-defense instruction, although she requested one, where the instruction requested significantly differed from the one actually used. While only one word was involved, this word was critical to Osbey’s perception of the need to defend herself. That one word was sufficient to establish reversible error. The State further claims that since the defendant made no specific objection to the trial court’s instruction, review on appeal is limited to whether the instruction is clearly erroneous. K.S.A. 22-3414(3) provides that no party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous. State v. Craven, 215 Kan. 546, 550, 527 P.2d 1003 (1974). The State contends that the- instruction was not clearly erroneous because if the jury had believed the defendant, it would have found she was in immediate danger. The defendant argues, however, that it was clearly erroneous because it did not allow the jury to consider the victim’s past history of violence in determining whether the defendant was in danger. If the jury considered only the fact that Joel reached behind the record albums and the fact that he had not acted violently up to that point that afternoon, then it is understandable that they found Jackie guilty. If the jury believed that those were the only facts they could consider, then the instruction given was clearly erroneous. The trial court’s use of PIK Crim. 2d 54.17, whi'ch departed from the statutory language, impermissibly excluded from the jury’s consideration the effect of the history of violence inflicted on the appellant by the decedent. Here, as in Hundley, the instruction given was clearly erroneous. The defendant argues that even though she did not request a separate instruction on the burden of proof of an affirmative defense the trial court erred in failing to give the instruction. PIK Crim. 2d 52.08. K.S.A. 22-3414(3) provides that no party may assign as error the giving or failure to give an instruction unless he objects thereto. This court has’ clearly followed the statute in a number of cases. State v. Diaz & Altemay, 232 Kan. 307, 316, 654 P.2d 425 (1982), held that failure to give an eyewitness instruction was not error when the instruction was not requested. State v. Trujillo, 225 Kan. 320, 324, 590 P.2d 1027 (1979), held that it was not error to fail to give an instruction on lesser offenses when no objection was made at trial. State v. Bell, 224 Kan. 105, 108, 577 P.2d 1186 (1978), held that failure to give limiting instructions was not error where there was no timely objection. Even had the defendant objected-to the court’s failure to give the instruction, it does not seem likely that the jury would have returned a different verdict if such an instruction had been given. Instructions were given to the jury regarding defense of a person, reasonable doubt, the burden of proof, the definitions of the various legal terms relating to criminal intent, and that the prosecution’s burden to prove such intent never shifts to the defense. The fact that the court failed to use PIK Crim. 2d 52.08 will not be considered error when there were other instructions which made it clear that the burden of proof was on the State. Error cannot be predicated on the refusal to give specific instructions where those which were given cover and include the substance of those refused. State v. Peoples, 227 Kan. 127, 136, 605 P.2d 135 (1980); State v. Wilson, 221 Kan. 92, Syl. ¶ 3, 558 P.2d 141 (1976); State v. Taylor, 212 Kan. 780, Syl. ¶ 2, 512 P.2d 449 (1973). The defendant, in addition, argues that, even viewing the evidence favorably to the prosecution, the evidence of premeditation is not sufficient to sustain the defendant’s conviction of murder in the first degree. The jurors obviously had some problems with the meaning of premeditation, since they sent out a question asking that it be clarified. From their question to the judge, it seems that they were unsure whether procuring and loading a revolver to be used in self-defense was the same as premeditation. While use of a deadly weapon is not alone sufficient to infer premeditation, it is one of the circumstances which may be considered in determining whether a homicide was committed with deliberation. State v. Hamilton, 216 Kan. 559, 534 P.2d 226 (1975). Osbey did retrieve her pistol from her brother prior to the fateful altercation. When she saw Joel in the house, she did load the pistol. These facts certainly could infer premeditation by Osbey. There was sufficient evidence to establish premeditation, although if the term had been more fully explained to the jury, it might have reached a different conclusion. On July 12, 1984, when sentenced on the murder count, the judge neglected to sentence Osbey on the second count for unlawful possession of a firearm. On January 12, 1985, the State moved for correction of sentence pursuant to K.S.A. 22-3504. The judge then sentenced her on the second count to a minimum term for the Class D felony, to run concurrent to the mandatory life sentence previously imposed pursuant to K.S.A. 1984 Supp. 21-4501a and K.S.A. 21-4618. Osbey claims she was prejudiced when she was resentenced on January 18, 1985, since (1) she was not resentenced to all the counts at one time, (2) she was denied the right to make a statement on her own behalf pursuant to K.S.A 22-3424(4), and (3) she was not informed of her right to appeal, as required by K.S.A. 22-3424(5), at the second sentencing. She contends that the court’s failure to sentence on the second count of the information should be deemed an acquittal or discharge by the trial court. The State contends that the defendant was not prejudiced, because the second sentence runs concurrent to the life sentence. The general rule is stated in 24 C.J.S., Criminal Law § 1564(1): “Generally sentence may not be imposed in part and the imposition of the remainder deferred to a future day or term. Thus, where the court pronounces sentence as to one count of an indictment, it loses jurisdiction to impose sentence on the other counts at a subsequent term even though there has been a continuance, and a fortiori where there has been none.” See also People v. Garland, 215 Cal. App. 2d 582, 30 Cal. Rptr. 437 (1963); McArthur v. State, 330 So. 2d 548 (Fla. Dist. App. 1976). Other courts have found that where a defendant has never been legally sentenced, a proper sentence may later be imposed. In Com. ex rel. Michelotti v. Ashe, 162 Pa. Super. 18, 56 A.2d 313 (1948), the court had sentenced the defendant on charges of burglary and receiving stolen goods. Within the same term, the sentences were declared invalid. After the term had expired, Ashe was resentenced. Ashe claimed those sentences were also invalid. The court determined that where an invalid or void sentence has-been imposed, the defendant had never been legally sentenced, and proper sentence could be imposed at a later term. This court has not ruled specifically on this issue. In State v. Woodbury, 132 Kan. 22, 294 Pac. 928 (1931), the defendant appealed from a conviction and improper sentences for embezzlement on ten of the 31 counts charged in the information. The court affirmed the judgment, but. the cause was remanded to the district court with instructions to resentence the defendant because the sentences on seven of the. counts were improper. The district court resentenced the defendant on all ten counts. On rehearing at 133 Kan. 1, 298 Pac. 794 (1931), this court held that where a defendant is convicted on several counts of an information, the judge should pronounce a single judgment declaring the full measure of punishment to be imposed for all such offenses. In Kansas, sentencing of an individual is strictly controlled by statute. K.S.A. 21-4601 requires a judge to take into consideration the individual characteristics of one convicted. K.S.A. 1984 Supp. 21-4603 states the authorized dispositions in sentencing an individual, which are: (1) commit the defendant to the custody of the secretary of corrections; (2) impose a fine; (3) release the defendant on probation subject to such conditions imposed by the court; (4) suspend the imposition of the sentence; or (5) impose any appropriate combination of the authorized dispositions. None of the authorized dispositions allows a judge to intentionally or inadvertently fail to impose one of the statutory dispositions. The failure of the judge to impose a specific term when sentencing the defendant to the secretary of corrections for confinement is an “illegal sentence” within the meaning of K.S.A. 22-3504(1). The failure of the judge to state the term of the sentence the defendant was required to serve in count two was inadvertent and not prejudicial to the defendant. The judge properly imposed the sentence when the error was brought to his attention. Where a person convicted of a crime has never been legally sentenced, a proper sentence may later be imposed. Os bey’s claim is without merit. Osbey stipulated that she had been convicted of the offense of attempted aggravated battery with a firearm. During the trial, Osbey testified that she had possession of the pistol and explained why she possessed the gun. The defendant’s conviction and the judge’s sentence for unlawful possession of a firearm were supported by substantial, competent evidence. The trial court’s judgment and sentence for the offense of unlawful possession of a firearm is affirmed. The conviction and sentence for the offense of murder in the first degree is reversed and remanded for a new trial in accordance with this opinion.	[ 49, 98, -44, -1, 9, 96, -118, -72, 118, -126, -16, -13, -73, -17, 77, 105, 56, 107, 84, 97, -77, -77, 55, -31, -78, -5, 56, -43, -78, 110, -10, -11, 12, 114, -54, -43, 98, -53, -27, 88, -122, -75, -85, -16, -54, 2, 100, 63, -46, 14, 113, -100, -93, 106, 22, 94, -56, 120, 90, 63, -64, 32, 6, 13, -49, 50, -109, 33, -98, -123, -8, 63, -39, 53, 0, -22, 51, -74, -94, 116, 77, -118, 12, 102, 50, 20, -51, -49, 40, -119, -113, 126, -72, -121, 25, 73, 0, 44, -65, -35, 100, -12, 11, 116, -1, 76, 8, 96, -104, -53, -108, -71, 13, 120, -104, -86, -21, -89, 36, 112, -55, 34, 93, 52, 125, -77, 15, -109 ]
The opinion of the court was delivered by McFarland, J.: Robert Leslie Stormont applied to the Kansas Board for Admission of Attorneys for admission to the bar of Kansas without written examination under Supreme Court Rule 703 (235 Kan. clxxxiii and amendments 237 Kan. v [Adv. Sheet No. 2]). The Board has filed its written report with this court recommending denial of the application. Mr. Stormont has filed exceptions to the report and the matter is before us for decision. Supreme Court Rule 703 provides, in pertinent part: “(a) Any applicant for admission to the bar of Kansas who was duly admitted to the practice of law upon examination by the highest Court of another jurisdiction may be admitted to practice in this State without written examination, upon showing that the applicant: “(3) has, for a period of five years and continuously to within six months of making application for admission here, actively performed legal services for which a license to practice law is required in a jurisdiction in which the applicant held a valid license . . . .” 237 Kan. v (Adv. Sheet No. 2). The Board found that Mr. Stormont had not met the requirements of Rule 703(a)(3). The Board, after so finding, proceeded sua sponte to consider the application as one seeking admission to the bar upon examination pursuant to Supreme Court Rule 702 (235 Kan. clxxxi and amendments 237 Kan. iv [Adv. Sheet No. 2]). The bulk of the exceptions filed herein go to findings of the Board on the application as so converted. Mr. Stormont has stated before this court that he did not intend, nor does he desire, his application be considered as one filed under Rule 702. We will therefore confine this opinion to consideration of the application as filed under Rule 703. The issue is thereby confined to whether or not Mr. Stormont is in compliance with the requirements of Rule 703(a)(3). Mr. Stormont was admitted by examination to the bar of Oklahoma in 1966. He lived and practiced in Enid, Oklahoma, until 1981 when he closed his law office in Oklahoma and moved to Wichita, Kansas. He moved to Wichita to accept a $60,000 per year position with the Minor Emergency Center P.A. involving performance in Wichita of corporate managerial and legal activities and has continued in that employment. Mr. Stormont has retained a few of his Oklahoma clients and, between 1981 and the present, performed a smattering of legal services in Oklahoma for those clients. Mr. Stormont contends the remnants of his Oklahoma practice satisfy the requirements of Rule 703(a)(3) that the applicant “has, for a period of five years and continuously to within six months of making application for admission here, actively performed legal services for which a license to practice law is required in a jurisdiction in which the applicant held a valid license . . . .” The Board found otherwise and recommends denial of the application on that ground. We agree with the Board. Rule 703(a)(3) requires more than a showing of the performance of legal services in the foreign jurisdiction for the required period of time — the rule requires the applicant to have actively performed legal services. The reason for this requirement is manifestly apparent. Kansas has a valid interest in admitting individuals to the bar who have an acceptable level of professional ethics and knowledge — hence the bar examination requirement for all except those qualifying under Rule 703. In admitting individuals under Rule 703, experience in another jurisdiction is, inter alia, substituted for current testing of knowledge. The occasional practice of law in another jurisdiction is no assurance of competency and skills kept honed by experience. The Supreme Court of Arkansas was confronted with the determination of what constituted the active practice of law for admission to the bar on reciprocity without written examination in Undem v. State Bd. of Law Examiners, 266 Ark. 683, 587 S.W.2d 563 (1979). The court held: “The active practice of law means that the legal activities of the applicant must have been pursued on a full-time basis and constituted his regular business. Petition of Jackson, 95 R.I. 393, 187 A.2d 536 (1963).” 266 Ark. at 696. We agree with this definition and hold that the term “actively performed legal services” contained in Rule 703(a)(3) requires that the applicant must have pursued such legal activities in the jurisdiction in which he or she was admitted on a full-time basis and must have constituted the applicant’s regular business for the requisite time period. Under the facts herein, the Board was clearly correct in finding that Mr. Stormont had failed to show compliance with Rule 703(a)(3). We, therefore, accept the recommendation of the Board that Mr. Stormont’s application for admission to the bar without written examination be denied. Holmes, J., not participating.	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The opinion of the court was delivered by Holmes, J.: Devin T. Galloway appeals from his convictions by a jury of one count of rape (K.S.A. 1984 Supp. 21-3502) and one count of kidnapping (K.S.A. 21-3420). On the morning of March 23, 1984, Miss F., a Kansas University student, was in her apartment in Lawrence. Devin T. Galloway lived across the hall in the same apartment building, but the two were not acquainted. Galloway gained entrance to the apartment to use the telephone. After using the telephone he departed but returned shortly and was again admitted to the apartment. Miss F. testified that he was armed with a knife; he took her to a bedroom and forced her to disrobe; he bound her arms and legs and then raped her. Following the rape, Galloway strangled Miss F. and threatened to kill her. She lost consciousness on two occasions and, in addition, he attempted to smother her by placing a plastic bag over her head. She was finally able to convince Galloway to let her go upon payment of $400.00. The two then went to a local bank where Miss F. cashed a $400.00 check she had received that morning from her father. Galloway took the money and departed. The appellant had a different story as to what happened on his second visit to the apartment. He testified Miss F. attempted to seduce him and, although some sexual contact took place, he could not get an erection and no sexual intercourse occurred. He contended that Miss F. offered him money in an attempt to arouse his interest and make him forget about his wife and kids. He thought money might help but as she did not have enough cash, he insisted they go to the bank and obtain $50.00 cash. He told her they could then return to the apartment and make love. The two proceeded to the bank where she cashed a $400.00 check and he then decided he would rather have all the money than the loving. He took her $400.00 and departed. Appellant’s first point on appeal is that the court erred in not instructing the jury on the lesser included offense of attempted rape. In State v. Royal, 234 Kan. 218, Syl. ¶ 4, 670 P.2d 1337 (1983), the court held: “The duty of the trial court to instruct the jury on lesser crimes arises only when there is evidence upon which a defendant might reasonably be convicted of the lesser charge.” In the present case the victim testified that she was raped by the appellant. He testified that while she wanted sexual intercourse, all that took place was some kissing and “fooling around.” Either Miss F. was raped or there was only consensual sexual contact. There was no evidence of an attempted rape and there was no error in not giving the instruction. See State v. Everson, 229 Kan. 540, 626 P.2d 1189 (1981). Next, appellant asserts error in the failure of the trial court to instruct on sexual battery (K.S.A. 1984 Supp. 21-3517) and aggravated sexual battery (K.S.A. 1984 Supp. 21-3518) as lesser included offenses of rape. This court has not previously addressed the issue of whether these two crimes are lesser included crimes of rape. K.S.A. 1984 Supp. 21-3107(2)(d) defines an included crime as a “crime necessarily proved if the crime charged were proved.” In State v. Coberly, 233 Kan. 100, 661 P.2d 383 (1983), the court held that “an offense is considered a lesser included offense under K.S.A. 21-3107(2)(d) when all elements necessary to prove the lesser offense are present and required to establish the elements of the greater offense charged.” 233 Kan. at 107. Put differently, if the lesser offense requires an element to be proven that is not required of the greater offense, it is not a lesser included offense. State v. Daniels, 223 Kan. 266, 573 P.2d 607 (1977). K.S.A. 1984 Supp. 21-3502 provides: “(1) Rape is sexual intercourse with a person who does not consent to the sexual intercourse, under any of the following circumstances: “(a) When the victim is overcome by force or fear; “(b) when the victim is unconscious or physically powerless; “(c) when the victim is incapable of giving consent because of mental deficiency or disease, which condition was known by the offender or was reasonably apparent to the offender; or “(d) when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance administered to the victim by the offender, or by another person with the offender’s knowledge, unless the victim voluntarily consumes or allows the administration of the substance with knowledge of its nature. “(2) Rape is a class B felony.” K.S.A. 1984 Supp. 21-3517(1) provides: “(1) Sexual battery is the unlawful, intentional touching of the person of another who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another.” K.S.A. 1984 Supp. 21-3518 provides: “(1) Aggravated sexual battery is: “(a) The unlawful, intentional application of force to the person of another who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another; “(b) sexual battery, as defined in K.S.A. 1983 Supp. 21-3517 and amendments thereto, against a person under 16 years of age; “(c) sexual battery, as defined in K.S.A. 1983 Supp. 21-3517 and amendments thereto, committed in another’s dwelling by one who entered into or remained in the dwelling without authority; “(d) sexual battery, as defined in K.S.A. 1983 Supp. 21-3517 and amendments thereto, of a person who is unconscious or physically powerless; or “(e) sexual battery, as defined in K.S.A. 1983 Supp. 21-3517 and amendments thereto, of a person who is incapable of giving consent because of mental deficiency or disease, which condition was known by, or was reasonably apparent to, the offender. “(2) Aggravated sexual battery is a class D felony. “(3) This section shall be part of and supplemental to the Kansas criminal code.” The crime of rape requires proof the defendant had sexual intercourse with a person who does not consent, which was committed by force or fear, or under the other circumstances set forth in the statute. The elements of sexual battery require the State to prove, among other things, that the victim is not the spouse of the offender and that the act is done with the intent to arouse or satisfy the sexual desires of the offender or another. The same elements are required in the crime of aggravated sexual battery. Obviously, these elements required in sexual battery and aggravated sexual battery are not necessary elements in the proof of rape. We hold that the crimes of sexual battery as set forth in K.S.A. 1984 Supp. 21-3517 and aggravated sexual battery, K.S.A. 1984 Supp. 21-3518, are not lesser included crimes of the crime of rape. No error is shown. The next issue is whether the trial court abused its discretion by denying Galloway’s motion for a continuance on February 8, 1985. Appellant was represented by John Chappell, who was appointed on November 7, 1984. The, preliminary hearing was held November 12, at which time trial was set for January 23, 1985. On January 21, 1985, Galloway was granted a continuance to February 20, 1985. Early in February, Galloway became disenchanted with Mr. Chappell’s representation and wrote letters to the court seeking new counsel. Mr. Chappell then filed a motion seeking to be relieved of his appointment and a motion seeking a continuance. Roth motions were denied on February 8, 1985. The case proceeded to trial on February 20, 1985, with Mr. Chappell serving as defense counsel. K.S.A. 22-3401 provides that “[c]ontinuances may be granted to either party for good cause shown.” In State v. Thompson, 232 Kan. 364, 654 P.2d 453 (1982), the court stated: “The granting or denial of a continuance in a criminal case is a matter which rests in the sound discretion of the trial court. Absent a showing of prejudice to the defendant, and an abuse of the court’s discretion, the ruling of the trial court will not be disturbed on appeal.” p. 368. Discretion is abused only when no reasonable man would take the view adopted by the trial court; if reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said the court abused its discretion. State v. Haislip, 237 Kan. 461, 471, 701 P.2d 909 (1985). There has been no showing of any prejudice and nothing to indicate an abuse of discretion. The point lacks merit. The final issue is whether the trial court erred in admitting in evidence a pair of the victim’s panties. During testimony Miss F. identified them as being the ones she wore at the time of the rape. She also testified she saw blood on her thighs and on the panties while she was at the hospital. Defense counsel objected to the admission of the garment in evidence asserting a lack of relevance and foundation, apparently contending there was an insufficient showing that the stain on the garment was actually blood. 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The opinion of the court was delivered by McFarland, J.: The Kansas Department of Revenue (KDOR) appeals from a judgment of the district court holding K.S.A. 1983 Supp. 40-3104 unconstitutional for failing to provide due process of law under the Fourteenth Amendment to the United States Constitution. The facts are not in dispute and are summarized as follows. Dorothy M. Barnes possessed a valid driver’s license on July 6, 1983, the date an automobile owned by her was involved in an accident. Ms. Barnes had no automobile liability insurance policy in effect at the time of the accident. On September 16, 1983, an administrative hearing was held by a representative of KDOR pursuant to K.S.A. 1983 Supp. 40-3118(d). The KDOR representative entered the following order: “The respondent has failed to show evidence that an owned vehicle was insured on the date it was involved in an accident. “The vehicle registration and driving privileges shall be suspended until: (1) proof of current liability insurance, (2) a release of liability, or evidence that an agreement for payment of damages has been entered into, or evidence that the respondent has been finally adjudicated not [to] be liable in respect to such accident, and (3) payment of the appropriate reinstatement fee, have been furnished to the Director, Division of Vehicles. “The appropriate reinstatement fee is $25.00.” On November 15, 1983, Ms. Barnes brought this action seeking, inter alia, a stay on the suspension order and reinstatement of her driver’s license and automobile registration. Particularly, she challenged on due process grounds the constitutionality of K.S.A. 1983 Supp. 40-3104. In support of her due process challenge, Ms. Barnes relies on Bell v. Burson, 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971). The trial court, in reliance on the Bell case, held K.S.A. 1983 Supp. 40-3104 was unconstitutional as it violated the due process requirements of the Fourteenth Amendment to the United States Constitution and ordered Ms. Barnes’ driving privileges and registration reinstated upon “the demonstration of financial security and the payment of the reinstatement fee.” KDOR appeals from said judgment. K.S.A. 1983 Supp. 40-3104 is a part of the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq. The KAIRA was originally enacted in 1973 and has been repeatedly amended since its adoption. Although 1984 and 1985 amendments do not materially affect the issue before us, in this opinion we shall use the version of the Act contained in the 1983 supplement to volume 3A of Kansas Statutes Annotated which was in effect at the time. The statute held to be unconstitutional is K.S.A. 1983 Supp. 40-3104, which provides: “(a) Every owner shall provide motor vehicle liability insurance coverage in accordance with the provisions of this act for every motor vehicle owned by such person, unless such motor vehicle is included under an approved self-insurance plan as provided in subsection (d) or is expressly exempted from the provisions of this act. “(b) An owner of an uninsured motor vehicle shall not permit the operation thereof upon a highway or upon property open to use by the public, unless such motor vehicle is expressly exempted from the provisions of this act. “(c) No person shall knowingly drive an uninsured motor vehicle upon a highway or upon property open to use by the public, unless such motor vehicle is expressly exempted from the provisions of this act. “(d) Any person in whose name more than 25 motor vehicles are registered may qualify as a self-insurer by obtaining a certificate of self-insurance from the commissioner of insurance. Upon application of any such person, the commissioner of insurance may issue a certificate of self-insurance, if the commissioner is satisfied that such person is possessed and will continue to be possessed of ability to pay any judgment obtained against such person arising out of the ownership, operation, maintenance or use of any motor vehicle registered in such person’s name. “Upon not less than five days’ notice and a hearing pursuant to such notice, the commissioner of insurance may cancel a certificate of self-insurance upon reasonable grounds. Failure to pay any judgment against a self-insurer, arising out of the ownership, operation, maintenance or use of a motor vehicle registered in such self-insurer’s name, within 30 days after such judgment shall have become final, shall constitute reasonable grounds for cancellation of a certificate of self-insurance. “(e) Any person violating any provision of this section shall be guilty of a class B misdemeanor, except that any person convicted of violating any provision of this section within three years of any such prior conviction shall be guilty of a class A misdemeanor. “(f) In addition to any other penalities provided by this act for failure to have or maintain financial security in effect, the director, upon receipt of the accident report required by K.S.A. 8-1607, shall, upon notice and hearing as provided by K.S.A. 40-3118, and amendments thereto, suspend: “(1) The license of each driver in any manner involved in the accident; “(2) the license of the owner of each motor vehicle involved in such accident, unless the vehicle was stolen at the time of the accident; “(3) the registrations of all vehicles owned by the owner of each motor vehicle involved in such accident; “(4) if the driver is a nonresident, the privilege of operating a motor vehicle within this state; “(5) if such owner is a nonresident, the privilege of such owner to operate or permit the operation within this state of any motor vehicle owned by such owner. “(g) The suspension requirements in subsection (f) shall not apply: “(1) To the driver or owner if the owner had in effect at the time of the accident an automobile liability policy as required by K.S.A. 40-3107, and any amendments thereto, with respect to the vehicle involved in the accident; “(2) to the driver, if not the owner of the vehicle involved in the accident, if there was in effect at the time of the accident an automobile liability policy with respect to such driver’s driving of vehicles not owned by such driver; “(3) to any person qualified as a self-insurer under subsection (d) of this section; “(4) to any person who has been released from liability, has entered into an agreement for the payment of damages, or has been finally adjudicated not to be liable in respect to such accident. Evidence of any such fact may be filed with the director; “(5) to the driver or owner of any vehicle involved in the accident which was exempt from the provisions of this act pursuant to K.S.A. 40-3105. “(h) For the purposes of provisions (1) and (2) of subsection (g) of this section, the director may require verification by an owner’s or driver’s insurance company or agent thereof, that there was in effect at the time of the accident an automobile liability policy as required in this act. “Any suspension effected hereunder shall remain in effect until satisfactory proof of financial security has been filed with the director and such person has met the requirements under subsection (g) and has paid the reinstatement fee herein prescribed. Such reinstatement fee shall be in the amount of $25 except that if the registration of a motor vehicle of any owner is suspended within one year following a prior suspension of the registration of a motor vehicle of such owner under the provisions of this act such fee shall be in the amount of $75.” The district court, after holding the entire statute (K.S.A. 1983 Supp. 40-3104) unconstitutional, ordered: “Plaintiff should have her driving privileges and registration reinstated upon the demonstration of financial security and the payment of the reinstatement fee.” The result is that the district court applied a portion of the statute it had just invalidated by imposing restrictions on the reinstatement. This points out a threshold problem inherent in the district court’s resolution of the issues. Plaintiff s constitutional challenge to K.S.A. 1983 Supp. 40-3104 was not a broadside attack on the entire statute. Rather, only section (g)(4) of the statute was challenged as failing to meet due process requirements. K.S.A. 40-3121, applicable to 40-3104, provides: “If any provisions of this act, or the application thereof to any person or circumstance, is held unconstitutional, the remainder of this act and the application of such provision to other persons or circumstances shall not be affected thereby; and it shall be conclusively presumed that the legislature would have enacted the remainder of this act without such invalid or unconstitutional provision: Provided, That K.S.A. 40-3117 is expressly declared to be nonseverable.” K.S.A. 1983 Supp. 40-3104(g)(4) is an exception to the mandatory suspension requirements of earlier sections of the statute and is clearly severable under K.S.A. 40-3121. Hence, if section (g)(4) is held to be unconstitutional, the result is KDOR still is mandated by the statute to suspend plaintiffs license and registration. As a practical matter, it is rather self-defeating to seek destruction of the exemption one is trying to come within, but the issue of the validity of K.S.A. 1983 Supp. 40-3104(g)(4) is before us and we shall proceed to determine it. Before turning to the issue, however, certain basic principles should be stated. In State v. Huffman, 228 Kan. 186, Syl. ¶ 1, 612 P.2d 630 (1980), we held: “This court adheres to the proposition that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.” In addition, it should also be noted that deprivation of a driver’s license by the State constitutes a deprivation of property sufficient to necessitate application of the due process clause. Mackey v. Montrym, 443 U.S. 1, 61 L. Ed. 2d 321, 99 S. Ct. 2612 (1979); Dixon v. Love, 431 U.S. 105, 52 L. Ed. 2d 172, 97 S. Ct. 1723 (1977); Carson v. Division of Vehicles, 237 Kan. 166, 699 P.2d 447 (1985). The constitutional guarantee of procedural due process has always been understood to embody a presumptive requirement of notice and a meaningful opportunity to be heard, except in emergency situations, before the State acts finally to deprive a person of his property. Mackey v. Montrym, 443 U.S. 1; Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950); State v. Durst, 235 Kan. 62, 678 P.2d 1126 (1984). The trial court in its determination relied upon Bell v. Burson, 402 U.S. 535, in finding the statute defective for failure to provide any hearing to determine if there was “a reasonable possibility of a judgment being rendered against [Dorothy M. Barnes] as a result of the accident.” KDOR argues Bell involved a financial responsibility act as opposed to a compulsory insurance act and, hence, Bell is not controlling. We must examine Bell in some detail. The Georgia Motor Vehicle Safety Responsibility Act involved in Bell required any person involved in a motor vehicle accident to submit a report to the Director of Public Safety. Within 30 days after receipt of such a report, the Director was required to suspend licenses and registration certificates of all operators and owners of vehicles involved unless such owner or driver filed proof of financial responsibility — namely evidence of liability insurance in force at the time of the accident or the posting of security to cover the amount of damages claimed by aggrieved parties in reports of the accident. The administrative hearing conducted prior to suspension excluded consideration of the owner’s or driver’s fault or liability for the accident. Bell was a clergyman whose ministry required him to travel by car to rural Georgia communities. One day a five-year-old girl rode her bicycle into the side of the clergyman’s car. The child’s parents filed an accident report indicating $5,000 in damages. The Director informed Bell that unless he was covered by liability insurance in effect at the time of the accident, he must file a bond or cash security deposit of $5,000 or present a notarized release from liability, plus proof of future financial responsibility, or suffer the suspension of his driver’s license and vehicle registration. Bell requested an administrative hearing before the Director asserting that he was not liable as the accident was unavoidable, and stating also that he would be severely handicapped in the performance of his ministerial duties by a suspension of his licenses. A hearing was scheduled but the Director informed petitioner that “ ‘[t]he only evidence that the Department can accept and consider is: (a) was the petitioner or his vehicle involved in the accident; (b) has petitioner complied with the provisions of the Law as provided; or (c) does petitioner come within any of the exceptions of the Law.’ ” 402 U.S. at 537-38 At the administrative hearing the Director rejected petitioner’s proffer of evidence on liability, ascertained that petitioner was not within any of the statutory exceptions, and gave petitioner 30 days to comply with the security requirements or suffer suspension. In holding the Georgia Financial Responsibility Act violative of due process requirements, the United States Supreme Court reasoned: “If the statute barred the issuance of licenses to all motorists who did not carry liability insurance or who did not post security, the statute would not, under our cases, violate the Fourteenth Amendment. [Citations omitted.] It does not follow, however, that the amendment also permits the Georgia statutory scheme where not all motorists, but rather only motorists involved in accidents, are required to post security under penalty of loss of the licenses. [Citations omitted.] Once licenses are issued, as in petitioner’s case, . . . the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. [Citations omitted.] This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitle ment whether the entitlement is denominated a ‘right’ or a ‘privilege’. [Citations omitted.] . . Since the only purpose of the provisions before us is to obtain security from which to pay any judgments against the licensee resulting from the accident, we hold that procedural due process will be satisfied by an inquiry limited to the determination whether there is a reasonable possibility of judgments in the amounts claimed being rendered against the licensee. “The State argues that the licensee’s interest in avoiding the suspension of his licenses is outweighed by countervailing governmental interests and therefore that this procedural due process need not be afforded him. We disagree. In cases where there is no reasonable possibility of a judgment being rendered against a licensee, Georgia’s interest in protecting a claimant from the possibility of an unrecoverable judgment is not, within the context of the State’s fault-oriented scheme, a justification for denying the process due its citizens. . . . “The main thrust of Georgia’s argument is that it need not provide a hearing on liability because fault and liability are irrelevant to the statutory scheme. We may assume that were this so, the prior administrative hearing presently provided by the State would be ‘appropriate to the nature of the case.’ Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 [, 94 L. Ed. 865, 872, 70 S. Ct. 652] (1950). But ‘[i]n reviewing state action in this area . . . we look to substance, not to bare form, to determine whether constitutional mínimums have been honored.’ [Citation omitted.] And looking to the operation of the State’s statutory scheme, it is clear that liability, in the sense of an ultimate judicial determination of responsibility, plays a crucial role in the Safety Responsibility Act. If prior to suspension there is a release from liability executed by the injured party, no suspension is worked by the Act. Ga. Code Ann. § 92A-606 (1958). The same is true if prior to suspension there is an adjudication of nonliability. Ibid. Even after suspension has been declared, a release from liability or an adjudication of nonliability will lift the suspension. Ga. Code Ann. § 92A-607 (Supp. 1970). Moreover, other of the Act’s exceptions are developed around liability-related concepts. Thus, we are not dealing here with a no-fault scheme. Since the statutory scheme makes liability an important factor in the State’s determination to deprive an individual of his licenses, the State may not, consistently with due process, eliminate consideration of that factor in its prior hearing. “We hold, then, that under Georgia’s present statutory scheme, before the State may deprive petitioner of his driver’s license and vehicle registration it must provide a forum for the determination of the question whether there is a reasonable possibility of a judgment being rendered against him as a result of the accident. We deem it inappropriate in this case to do more than lay down this requirement. The alternative methods of compliance are several. Georgia may decide merely to include consideration of the question at the administrative hearing now provided, or it may elect to postpone such a consideration to the de novo judicial proceedings in the Superior Court. Georgia may decide to withhold suspension until adjudication of an action for damages brought by the injured party. Indeed, Georgia may elect to abandon its present scheme completely and pursue one of the various alternatives in force in other States. Finally, Georgia may reject all of the above and devise an entirely new regulatory scheme. The area of choice is wide: we hold only that the failure of the present Georgia scheme to afford the petitioner a prior hearing on liability of the nature we have defined denied him procedural due process in violation of the Fourteenth Amendment.” 402 U.S. at 539-43. (Emphasis supplied.) In a footnote relative to various acceptable alternatives, the Supreme Court stated: “The various alternatives include compulsory insurance plans, public or joint public-private unsatisfied judgment funds, and assigned claims plans.” 402 U.S. at 543 n. 6. (Emphasis supplied.) K.S.A. 1983 Supp. 40-3104(g)(4) is a part of the Kansas Automobile Injury Reparations Act. The purpose of the act is set forth in K.S.A. 40-3102 as follows: “The purpose of this act is to provide a means of compensating persons promptly for accidental bodily injury arising out of the ownership, operation, maintenance or use of motor vehicles in lieu of liability for damages to the extent provided herein.” The KAIRA is a compulsory insurance act applicable to all motorists and mandates certain minimum insurance coverage of all vehicles operated in the state, including personal injury protection (PIP) benefits. The Georgia Act before the United States Supreme Court in Bell was a financial security act requiring evidence of financial security (applicable insurance or the posting of security) only in the event of an accident. The Kansas Act is a compulsory insurance law. It is a crime under the Act to operate or permit an uninsured vehicle to be operated on the highways of Kansas regardless of whether or not an accident occurs. An owner’s license may be revoked and registration may be suspended under 40-3118 (the section of the Act dealing with registration of motor vehicles) upon a showing of failure to maintain continuing insurance without any accident having occurred. The United States Supreme Court in the Bell opinion recognized Georgia had choices in correcting the due process deficiency in its financial responsibility act — it could provide for a fáult determination at its suspension hearing or go to an entirely different type of law such as a “compulsory insurance plan.” To iterate, the Kansas Act is not a financial responsibility act — it is a compulsory insurance act. We do not believe Bell v. Burson, 402 U.S. 535, is controlling on the issue before us. Kansas, unlike Georgia, required the motorist to have automobile insurance on his or her vehicle before operating or permitting the vehicle to be operated on the highways of Kansas. Violation of the compulsory insurance law subjects the vehicle’s owner to suspension of his or her driver’s license, revocation of registration and criminal sanctions whether or not an accident has occurred. We conclude K.S.A. 1983 Supp. 40-3104(g)(4) is not violative of the due process requirements of the Fourteenth Amendment to the United States Constitution. The judgment of the district court is reversed.	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Two original proceedings in discipline filed with the Kansas Board for Discipline of Attorneys (Board) by Arno Windscheffel, disciplinary administrator, against Joseph Anderson of Mission, an attorney admitted to the practice of law in the State of Kansas, have been consolidated in this court. The panel of the Board which heard the complaints found violations of the Code of Professional Responsibility in each matter and recommended indefinite suspension. Case No. 58,666 is based upon respondent’s representation of Deborah Schlesselman in a divorce action. Respondent was retained on or about October 9, 1984, to file a divorce action. At that time Mrs. Schlesselman paid $500.00 as a fee and $55.00 for the court cost deposit. Thereafter, and before the divorce petition was filed, she contacted respondent and asked him to hold up filing the action due to her illness. On November 16, 1984, she again contacted respondent and asked that he proceed with the divorce action. She was advised it would be filed the following week. From November 16, 1984, until December 17, 1984, she attempted to contact respondent but was unable to do so. She left messages for respondent to contact her with a person who occasionally answered respondent’s telephone or on his answering device. Finally, on December 17, 1984, respondent contacted Mrs. Schlesselman and asked her to come in and sign the petition. She did so the same day and was told the petition would be filed the next day. It was not. On December 27, 1984, after being advised by the Clerk of the District Court that no action had been filed, she retained another attorney and a letter terminating respondent’s employment and demanding a refund of the $500.00 fee was delivered to respondent’s office. On January 8, 1985, respondent, ignoring the fact that his employment had been terminated, filed the petition in the Wyandotte County District Court. On January 17,1985, a second copy of the letter terminating respondent’s employment and demanding refund of the fee was delivered to respondent’s office. At that time Mrs. Schlesselman was informed by a secretary in an adjoining office that respondent had not been in his office for a month. Mrs. Schlesselman has had no further contact with respondent and no part of the $500.00 fee has been refunded. At the hearing before a panel of the Board, respondent acknowledged that he owed his former client at least $350.00 but that nothing had been paid. The panel concluded that respondent had neglected a legal matter entrusted to him in violation of DR 6-101(A)(3), 235 Kan. cxlvii, and had failed to refund money due his client in violation of DR 9-102(B)(4), 235 Kan. cliii. In Case No. 58,667, respondent was charged with neglecting a legal matter entrusted to him and with failure to refund an unearned fee. On October 22,1984, Arthur Swanegan, a resident of the federal penitentiary at Leavenworth, contacted respondent about representing him in certain criminal matters which were pending in the Wyandotte County District Court. Respondent agreed to confer with Mr. Swanegan for a fee of $250.00. A friend paid respondent the agreed fee and on October 26, 1984, respondent met with Mr. Swanegan. On or about November 13, 1984, respondent met again with Mr. Swanegan and advised him that he thought he could get the Wyandotte County charges dismissed based upon a “delayed arraignment” argument. Respondent agreed to represent Mr. Swanegan for a fee of $2,000.00 to be paid $1,000.00 forthwith and $1,000.00 after respondent got into the case. On or about November 20, 1984, respondent received the first $1,000.00 payment. Respondent did nothing further on behalf of his client and on December 2, 1984, his employment was terminated and Mr. Swanegan demanded a refund of the $1,000.00 fee. Further attempts to contact respondent were unsuccessful and respondent failed and refused to contact Mr. Swanegan. At the hearing before the panel respondent acknowledged that he owed Mr. Swanegan a refund of at least $800.00 but at the time of the hearing no part of it had been paid. The panel found respondent had neglected a legal matter entrusted to him and had failed to pay money due his former client. The panel recommended that respondent be suspended from the practice of law in Kansas. After carefully considering the record in this case the court concurs in the recommendation of the Board. IT IS THEREFORE ORDERED that Joseph Anderson be and he is hereby indefinitely suspended from the practice of law in the State of Kansas. IT IS FURTHER ORDERED that Joseph Anderson shall forthwith comply with the provisions of Supreme Court Rule 218 (235 Kan. cxxxii). IT IS FURTHER ORDERED that this order shall be published in the official Kansas Reports and that the costs of this action be assessed to the respondent. Effective this 21st day of February, 1986.	[ -80, -23, -72, 77, -118, 33, 58, 8, 91, -111, -75, 83, -19, -2, 13, 125, 90, 41, 16, 105, -61, -73, 127, -32, 102, -13, -15, 69, -78, 79, -12, -44, 73, -80, 10, -107, 70, -126, -127, -36, -122, 2, -117, -32, -39, 67, 48, 125, 22, 11, 49, 46, -13, 43, 55, 87, 108, 108, -33, 104, -63, -108, -93, 21, 127, 18, -95, -123, 30, -122, 88, 43, -120, 57, 34, -24, 49, -74, -126, 116, 75, -23, 5, 102, 66, 35, -107, -81, -76, -104, 78, 49, -99, -90, -39, 80, 3, 1, -74, 31, 117, 86, 3, -4, -32, 5, 29, -20, 10, -53, -44, -111, 78, 61, -50, 11, -1, -93, 48, 117, -119, -28, 94, 87, 58, 27, -114, -79 ]
The opinion of the court was delivered by Lockett, J.: Plaintiff drove his pickup truck over the end of a township road into a dry river bottom. He sued both the county and the township for injuries suffered, claiming they had failed to post proper warning signs. The district court granted summary judgment to the defendants after determining that under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., they were immune from liability because the signing of a road was a discretionary function. K.S.A. 75-6104. The plaintiff appeals. On February 5, 1982, plaintiff, Craig Finkbiner, was traveling in his pickup truck south on Clay County road No. 827. As he approached the intersection of Clay County roads No. 827 and No. 368 from the north, he viewed a cross-intersection sign. Clay County road No. 368 is a gravel road which goes west. The road going east from the intersection is a dirt road maintained by Mulberry Township. A “T” intersection sign, indicating no eastbound road, had been placed by the County on the highway for traffic going north on 827. Finkbiner turned east on the township road, a road he had not traveled previously, planning to connect with a southbound road a mile east. There were no signs or ditches along this stretch of the township road. Approximately three-quarters of a mile from the intersection, the township road terminated with a drop-off into the old riverbed of the Republic River. Finkbiner, who was driving approximately 45-50 miles per hour, drove over the end of the road into the river bottom, damaging his truck and suffering personal injuries. Finkbiner brought suit against both Clay County (County) and Mulberry Township (Township) claiming they failed to properly place warning signs in accordance with statutory requirements. The County and the Township filed separate motions for summary judgment, each alleging that the placement or the failure to place a warning sign by the local governmental entity was a discretionary act. Therefore, they contended K.S.A. 75-6104(d) of the Kansas Tort Claims Act prohibited this action against both the County and the Township. The district court sustained both motions for summary judgment, and the plaintiff appeals. Summary judgment is .proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. A trial court, in ruling on motions for summary judgment, should search the record to determine whether issues of material fact do exist. When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. McAlister v. Atlantic Richfield Co., 233 Kan. 252, 662 P.2d 1203 (1983). On appeal, Finkbiner raises two issues. He contends that the district court erred in finding that under K.S.A. 75-6104(d) the Township and the County were immune from suit for failure to place signs warning that the township road was a dead end. He also contends that the district court erred in finding that Clay County was not negligent in placing a cross-intersection sign for southbound traffic while placing a “T” intersection sign indicating no eastbound road for northbound traffic. Historically, the common law placed a duty on governmental entities to keep their streets reasonably safe for use. See Schmeck v. City of Shawnee, 232 Kan. 11, 17, 651 P.2d 585 (1982). Before 1887, counties and townships, being quasi-corporate subdivisions of the state, were not liable in damages for any injuries sustained because of the negligence of their officers or employees in the construction or maintenance of highways. In 1887, the legislature, by enactment of L. 1887, ch. 237, saw fit to make counties and townships liable, under certain enumerated circumstances. K.S.A. 68-301 (Weeks) (repealed, L. 1979, ch. 186, § 33) imposed liability for defects on county and township roads. See, e.g., Hampton v. State Highway Commission, 209 Kan. 565, 498 P.2d 236 (1972). In Grantham v. City of Topeka, 196 Kan. 393, Syl. ¶ 2, 411 P.2d 634 (1966), this court held that the means selected by the state or a city in the control and regulation of traffic under the police power is a governmental function. We said a governmental entity is not liable for the negligent acts of its officers or employees in the performance of a governmental function; however, an exception is recognized with respect to defects in public streets on the theory they are necessary for public use at all times and under all conditions. 196 Kan. 393, Syl. ¶ 3. Governmental liability is now covered by the Kansas Tort Claims Act (KTCA), enacted in 1979, which permits recovery of damages from a governmental entity when damages are “caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.” K.S.A. 75-6103. Exceptions to this general liability are set forth in K.S.A. 75-6104. Here, the district court determined that the County and Township were immune under 75-6104(d) of the KTCA from any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee. The plaintiff argues that it was not discretionary with the governmental entities to place the signs and that, based on the totality of the circumstances, the county and township had a statutory duty to place the proper warning signs to protect the public traveling on the roads. It is undisputed that Mulberry Township is responsible for the road going east of the intersection of county roads 827 and 368. Originally, there were two homesteads along the township road, but both were abandoned in the 1930’s. The road is used mainly by local farmers to get their equipment to land under cultivation. It was unknown if any accidents had ever occurred on the road. No citizens in the county had ever requested that the road be inspected for safety purposes or that signs be erected along the road. Because of limited funds available for road improvement, the township board determined on a priority basis what road improvements were scheduled each year. Due to the low volume of traffic on the township road, improvements on it would not have been scheduled. To determine whether or not the County’s and the Township’s liability for failure to place a sign is within the exercise of discretion which is excepted from liability by the KTCA, we first must examine the statutory duties imposed upon the County and the Township for placing and maintaining traffic-control devices upon their roads. The secretary of transportation is required by the legislature to adopt a manual and specifications for a statewide uniform system of traffic-control devices. K.S.A. 8-2003. To carry out the policy declared by the legislature, the secretary adopted the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) published by the United States Department of Transportation. Local authorities are required by the legislature to place and maintain such traffic-control devices upon the highways under their jurisdiction as they may deem necessary to indicate and carry out the provisions of the act or local traffic ordinances or to regulate, warn or guide traffic. K.S.A. 8-2005. When the district court determined that the County and Township were granted absolute immunity for the placement of signs upon their roads under the exception to KTCA for discretionary functions, it failed to distinguish this case from our prior statements in Carpenter v. Johnson, 231 Kan. 783, 649 P.2d 400 (1982). The Carpenter court determined that the governmental immunity exception of the KTCA for the placement of traffic control signs does not necessarily apply as a matter of law. Carpenter involved the failure of a county to post a warning sign for an approaching curve. This court held that state and local highway engineers are guided by the MUTCD, which contains rather detailed recommendations in the placement of warning signs. Whether or not the placement of a warning sign is discretionary or an exercise of professional judgment within established guidelines depends upon the totality of the circumstances involved and may not be determined as a matter of law. See also Toumberlin v. Haas, 236 Kan. 138, 142, 689 P.2d 808 (1984), in which this court reaffirmed that it was not strictly a discretionary act whether to erect a sign, but that “the totality of the circumstances” controlled in determining whether the decision with respect to any particular sign was discretionary in nature and exempt from liability. The 1978 edition of the MUTCD was in effect at the time of the accident in this case. The manual states: “Signs are essential where special regulations apply at specific places or at specific times only, or where hazards are not self evident.” Section 2A-1, “Functions of Signs.” The MUTCD provides the standards for placing signs. It is then a matter of professional judgment rather than governmental discretion as to whether a certain sign should be placed. Where a plaintiff claims both the county’s and the township’s failure to warn him, as required by the MUTCD, of a hazard that was not self-evident caused his injuries, it is necessary to determine: (1) what governmental entities are responsible for the safety of travelers upon the road; (2) whether or not a hazard exists; (3) whether or not the hazard is self-evident; and (4) if the hazard is not self-evident, whether the responsible governmental entity made the correct decision in determining the proper signs or barricades needed to warn travelers in order to provide adequate time for the driver to perceive, identify, decide, and perform any necessary maneuver. Under the facts of this case it cannot be determined as a matter of law that the hazard was not self-evident and that the local governmental entities were immune under the KTCA for their failure to place the proper signs or to erect a barricade. The trial court erred when it determined that both the County and the Township were immune from liability under K.S.A. 75-6104(d). Whether a governmental entity had a duty must be determined under the totality of the circumstances. This is a question of fact which must be determined by a jury. Since all parties agree that the Township alone was responsible for the township road, the County cannot be liable for failure to place signs warning of a dead end on the township road. A township, having the exclusive care and control of a street or road, has a duty to maintain that road or street for the safe passage of persons and property. Other governmental entities cannot be held liable for failure to maintain that road safely. City of Eudora v. Miller, 30 Kan. 494, 2 Pac. 685 (1883). Therefore, it is a question only as to the Township whether, under the totality of the circumstances, it should have placed a warning sign. The plaintiff also contends that Clay County was negligent in placing a cross-intersection sign for southbound traffic, while a T-intersection sign was placed for northbound traffic. Finkbiner claims that the cross-intersection sign implied that the eastbound township road was a through road, indicating that he could safely travel the township road to the next connecting north-south road. Finkbiner did not observe or rely on the “T” sign which the County had erected to warn northbound traffic on 827. The discrepancy in marking the southbound traffic with the cross-intersection sign and the northbound traffic with the T-intersection sign by the County is important only to show the confusion as to the proper sign required to guide and warn travelers approaching the intersection. Concerning the two types of signs, the MUTCD provides: 1). The crossroad sign is intended for use on a through highway to indicate the presence of an obscured crossroad intersection. 2). The side road sign is intended for use in advance of a side road intersection to indicate the presence of an obscured side road intersection. Since Clay County road 827, a north-south road, intersects with Clay County road 368, a westbound road, and Mulberry Township road, an eastbound road, the MUTCD indicates that the proper sign to erect would be the crossroad sign. Travelers on 827, a through road, would be warned that they were approaching an obscured crossroad intersection. The County followed the law as stated in the MUTCD. The district court properly found that the County had correctly followed the law by erecting a cross-intersection sign to warn drivers of oncoming traffic. The district court also found that the County’s action in placing the crossroad sign was not the proximate cause of the plaintiff s injuries because there was an efficient intervening cause, i.e., that the Township failed (1) to place a sign warning travelers on the county road that the township road terminated in a dead end, and (2) to erect a barricade where the road dead-ended into the dry river channel, thereby creating a nonevident hazard. An intervening act of negligence is one which actively operates in producing harm to another after the original act of negligence or omission has been committed. In determining issues of legal or direct cause, an intervening cause has been said to be material insofar as it supersedes a prior wrong as the direct cause of an injury by breaking the sequence of events between the original wrong and the injury received. One person’s negligence is not the proximate or direct cause of an injury where there is a new, separate, wholly independent, and efficient intervening cause of the injury and the loss. Citizens State Bank v. Martin, 227 Kan. 580, 609 P.2d 670 (1980). For negligence to exist there must be a duty and a breach thereof before the conduct becomes actionable. If no duty exists there can be no negligence. The County had a duty to keep its road in a condition reasonably safe for its intended use. Ry statute, it had a duty to erect warning signs in accordance with the MUTCD to provide to a driver unacquainted with the county road adequate time to perceive, identify, decide, and perform any necessary maneuver. The MUTCD indicates that the proper sign to be placed at the intersection of County Roads 827 and 368 was a crossroad sign. The crossroad sign placed on 827 indicates that 827 is a through highway and that the driver is approaching an obscured crossroad intersection. Because the County had placed the proper sign, it had fulfilled its legal duty and the question of an intervening act of negligence by the Township is not applicable to this case. Judgment of the district court is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion. McFarland, J., concurring in part and dissenting in part: I concur with the part of the majority opinion which affirms the entry of summary judgment in favor of defendant Clay County and dissent from the part of the opinion which reverses the summary judgment entered in favor of defendant Mulberry Township. In reversing the Mulberry Township judgment, the majority states the trial court “failed to distinguish this case from our prior statements in Carpenter v. Johnson, 231 Kan. 783, 649 P.2d 400 (1982).” In fact, the trial court very accurately distinguished the instant case from Carpenter. As noted in Carpenter, summary judgment was entered by the district court on the basis that erection of warning signs was wholly a matter of discretion and hence always cloaked with immunity. Further, under the facts in Carpenter, a professional engineer made the decision as to where to place and what type of traffic signs to use, applying a state manual premised upon the Manual on Uniform Traffic Control Devices. Under the circumstances in Carpenter, our court stated: “It is apparent from our reading of the Manual on Uniform Traffic Control Devices that state and local highway engineers are guided by rather detailed recommendations in placement of warning signs. The question becomes whether those employees are exercising discretion within the meaning of the [Kansas Tort Claims Act] or merely exercising professional judgment within established guidelines. Cases construing the Federal Tort Claims Act have made such a distinction.” 231 Kan. at 788. No professional engineering decision is involved in the case before us. There is no township engineer in charge of the Mulberry Township roads and the discretionary responsibility for sign erections is in the three Trustees of Mulberry Township — three lay persons. With very limited funds available, the Trustees decide what will be spent on each road in their care. In making their discretionary decision on allocation of funds, they consider such factors as volume of traffic, needs, prior accidents, etc. Plaintiffs sole engineering expert testified the road in question was the most primitive class of road in the state — a Type C road. He testified, in his deposition, he would have placed a dead end sign and barricaded the road, but it was not mandatory for the Trustees to do so. The Trustees, exercising their discretion, could have placed the sign and barricade, but they were not legally obligated to do so. The decision, hence, was discretionary rather than mandatory in nature. The case before us is much more akin to Toumberlin v. Haas, 236 Kan. 138, 689 P.2d 808 (1984) (a case which, incidentally, distinguished itself from Carpenter). In Toumberlin this court stated: “In the present case, the trial court’s ruling against the plaintiffs on the discretionary nature of the duty of Franklin County came after the conclusion of all the evidence. Plaintiffs had presented absolutely no engineering testimony that the placement of any type of sign at the intersection was warranted or required under the terms of the Manual on Uniform Traffic Control Devices. Plaintiffs presented no engineering studies or accident history regarding the intersection which would have justified any type of sign. The only engineer who did testify stated that no sign was required or justified at the intersection due to the low volume of traffic. Based on the total lack of evidence presented by the plaintiffs to support the proposition that some type of sign was mandated at this intersection, the trial court was clearly correct in ruling that there was insufficient evidence for the case to go to the jury on the issue of whether the placement of a sign was mandatory or discretionary. The only testimony heard by the court supported the proposition that signing at this particular intersection was discretionary.” 236 Kan. at 142. The Kansas Tort Claims Act (K.S.A. 75-6101 et seq.) provides exceptions from liability. They are found in K.S.A. 75-6104, which provides in pertinent part: “A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from: “(d) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion be abused; “(g) the malfunction, destruction or unauthorized removal of any traffic or road sign, signal or warning device unless it is not corrected by the governmental entity responsible within a reasonable time after actual or constructive notice of such malfunction, destruction or removal. Nothing herein shall give rise to liability arising from the act or omission of any governmental entity in placing or removing any of the above signs, signals or warning devices when such placement or removal is the result of a discretionary act of the governmental entity . . . .” Clearly, the legislature intended no liability for damages from a governmental entity exercising its discretion in deciding whether or not to place traffic signs or warning devices — even if the decision made may be the wrong one. Here the plaintiff s sole engineering expert testified the decision to sign, or not to sign, was not mandatory in nature, and was in the area of the Trustees’ discretion. Like Toumberlin, there was no evidence to take the case to the jury on whether the failure to sign involved mandatory or discretionary functions. The jury could, at most, only determine whether or not the discretion had been abused — having the advantage of hindsight knowledge that an accident had occurred. The net result of the majority decision relative to Mulberry Township is to destroy the immunity granted by K.S.A. 75-6104 based upon an incorrect application of Carpenter v. Johnson, 231 Kan. 783. The Manual on Uniform Traffic Control Devices is written by engineers for engineers. Interpretation thereof is necessary in court proceedings. To escape a summary judgment in cases involving liability of a governmental entity for failure to install signs, it is incumbent on the plaintiff to show at least some expert evidence that a sign was mandatory under the circumstances. I would affirm the district court across the board. Schroeder, C.J., and Miller, J., join the foregoing concurring and dissenting opinion.	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The opinion of the court was delivered by West, J.: The plaintiff bank sued upon a promissory note executed by the defendants to the Mid-Continent Loan Company, December 2, 1911, for $250 payable ninety days after date with six per cent interest, alleging that it purchased the note before maturity for value in the regular course of business, and that it was transferred by indorsement “Mid-Continent Loan Company by J. D. Mclnnes, Agt.” The answer contained a general denial, and averred that the note was secured without consideration, and that the inducement for its execution was a false, fraudulent and untrue statement of the loan company by its agent that it would make loans in Ellis county and pay the defendants commissions thereon, and that the company was to issue stock to the defendants for the amount of the note, which was not done; that the defendants received no consideration ; also a denial that the note was ever sold and delivered to the plaintiff by the loan company or any one for it with authority so to do. The answer was verified. The trial resulted in a judgment for the defendants, from which the plaintiff appeals. Error is assigned upon the refusal of the court to permit the cashier of the bank to testify who was the owner of the note, and in refusing testimony offered by the president as to a conversation had with Mclnnis touching his authority as to when the note was purchased, also in admitting the testimony offered by the defense. The jury were instructed that the burden was upon the plaintiff to show that it was the owner of the note fox'- value before maturity; that it was duly indorsed to the plaintiff by the loan company or some one authoi"ized thereby; and it is argued that if the plaintiff established the fact that the note was purchased for value before maturity in due course the question of indorsement is'out of the case. Complaint is also made of an instruction that as the defendants had by verified answer denied that the plaintiff was the legal owner or holder of the note it was necessary that plaintiff prove the indorsement of the original payee. It is suggested that a mere denial, without proof in support thereof, is insufficient to place this burden upon the plaintiff. The defendants have furnished no brief, and we are compelled to consider the case without the benefit of any suggestion from them. The cashier was asked who was the holder of the note, and an objection on the ground that the question called for a conclusion of the witness was sustained. A similar ruling was made touching questions as to who was the owner and whether the note was a part of the assets of the plaintiff bank, but finally the latter question was permitted to be answered. The modern notion of the admissibility of evidence is that it is more important to get the truth than to quibble over impractical distinctions. While in a very strict sense it may be giving a conclusion for the owner to say that he is the owner of a chattel or chose ixx action, surely he ought to know, and if he is mistaken it may be shown on cross-examination. Almost any answer might, when dissected with the scalpel of precise mental philosophy, be deemed wholly or partly a conclusion. The first stock question usually is, “Where do you reside?” and the courts have not yet found that a reply giving the location indicates only the witness’s conclusion as to his habitation, and yet no more preplexing question can arise than that of residence in some cases. In Simpson v. Smith & Barnes, 27 Kan. 565, the owner ship of real and personal property was the main question, and a witness was permitted to testify that the plaintiffs were “the absolute owners.” This was held error, but whether material error or not was left undecided. In Solomon Rld. Co. v. Jones, 34 Kan. 443, 8 Pac. 730, a question was permitted to be asked as to whose employ the plaintiff was in at the time of the injury, and it was held that as the witness in addition to the direct answer narrated in detail all the facts and circumstances connected with his employment, the error was not material, and that if the question had been merely preliminary it would not. have been erroneous. In Hite v. Stimmell, 45 Kan. 469, 25 Pac. 852, it was held incompetent for a witness to state that he thought the cattle in question belonged to another party, Simpson v. Smith & Barnes, supra, being quoted from and followed. In Sparks v. Bank, 68 Kan, 148, 74 Pac. 619, Hite v. Stimmell, supra, and Solomon Rid. Co. v. Jones, supra, were followed. In The State v. Rennaker, 75 Kan. 685, 90 Pac. 245, the question whether an answer that the witness had purchased intoxicating liquors from the defendant amounted to a conclusion was left undecided, and in McDonald v. Daniels, 76 Kan. 388, 92 Pac. 51, a direct statement by the witness that she owned property in controversy was held not to be prejudicial error, as it was followed by examination and cross-examination giving in detail the circumstances of her purchase and manner of acquiring the property. The supreme court of Alabama has twice held that ownership of personal property is a fact to which a witness may testify and may on cross-examination be required to state facts on which the claim of ownership, rests. (Steiner Bros. & Co. v. Tranum, 98 Ala. 315,13 South. 365; Hunnicutt v. Higginbotham, 138 Ala. 472, 35 South. 469, 100 Am. St. Rep. 45.) The supreme court of Iowa held that a statement by a witness that certain property in controversy belongs to him is not inadmissible as a conclusion since the question calls for a fact as well as an opinion. (Murphy v. Olberding, 107 Iowa, 547, 78 N. W. 205, and cases cited.) In New York it has been repeatedly held that such a question is competent. In DeWolf v. Williams, 69 N. Y. 621, it was said that the title to property is ordinarily a simple fact of which witnesses having a requisite knowledge can testify to directly. This was followed, in Piehler v. Reese, 171 N. Y. 577, 64 N. E. 441. Wharton, in his work on the Law of Evidence, says that ordinarily a witness can not be asked as to a conclusion of law and that sometimes this has been so far pressed as to involve the assumption that he can not be asked as to conclusions of fact, but that “the error of this assumption will be seen when we remember that there are few statements of fact that are not conclusions of fact.” (1 Wharton, Law of Ev., § 507.) In another section the author states that an inference necessarily involving certain facts may be stated without the facts, but when the facts áre not necessarily involved in the inference then they must be stated. “In other words, when the opinion is the mere short-hand rendering of the facts, then the opinion can be given, subject to cross-examination as to the facts on which it is based.” (§510.) In volume 1 of Greenleaf on Evidence, 16th ed., § 441, the author of that work, after discussing the rule as to facts and conclusions, says: “The absurdities which disfigure the application of the rule come chiefly from a too illiberal interpretation of the latter notion; .. . . A more liberal tendency in this respect seems to be making its way in recent times; but the reports are overloaded with decisions of the sort that ought never even to have been called for; and a prominent feature in the application of the rule is the petty and unprofitable quibbling to which it gives rise.” In answer to the objection that the witness must not usurp the functions of the jury, he says: “The answer is simply that he is not attempting to usurp them — not attempting to decide the issue and thus usurp their place, but merely to give evidence, which they may or may not accept, as they please.” (§ 441b.) The fact that the opinion is on the very issue before the jury would seem, he says, to be a very good reason for its admission. In' discussing this subject, Wig-more, in his work on Evidence, vol. 3, § 1960, says: “If a witness, in the course of his testimony, comes to mention that A ‘possessed’ or B ‘owned’ or C was ‘agent,’ let him not be made dumb under the law, and be compelled by evasions and circumlocutions to attain the simple object of expressing his natural thought. If there is a real -dispute as to the net effect of the facts, these may be brought out in detail on cross-examination.” The sense and reason of the matter as well as the authorities cited impel to the conclusion that it would have been proper to permit officers of the bank to state on their examination in chief who was the owner and holder of the note. No criticism whatever of the ruling is imputed or implied, for the trial court’s decision was not in conflict with prévious holdings of this court. No prejudice resulted in this case, as later the circumstances under which the bank took the note were quité fully shown, and the note itself was introduced in evidence. No error appears-in receiving evidence of statements made by the assumed agent, nor in admitting testimony offered, by the defendants. While numerous errors are urged regarding the instructions, it is not necessary to consider them, because of a fatal defect in the plaintiff’s proof which precluded a recovery in any event. There was no way to pass title by indorsement, unless the agent who attempted so to do was thereunto authorized. (3 R. C. L. p. 1101; Sparks v. The Dispatch Trans. Co., 104 Mo. 531, 15 S. W. 417, 12 L. R. A. 714, 24 Am. St. Rep. 315.) There is no evidence of such authority except certain statements made by him, which of course were not sufficient. (Fence-machine Co. v. Highleyman, 71 Kan. 347, 80 Pac. 568.) There is some evidence that he had authority to take notes for the company, but none that he was empowered to negotiate them. Section 30 of the negotiable instruments act provides that: “Where a signature is forged or made without authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.” (Gen. Stat. 1909, § 5276.) True, section 66 (Gen. Stat. 1909, § 5312) provides that every holder is deemed prima facie to be a holder in due course until it is shown that the title of the person who negotiated it was defective, but section 59 (Gen. Stat. 1909, § 5305) defines a holder in due course as one who took it in good faith and for value and who at the time it was negotiated to him had no notice of any defect in the title of the person negotiating it. It is naturally and logically urged that lack of authority or defective title can not be shown by a mere verified denial, but only by evidence. Ordinarily this may be true, but the civil code (§ 110) expressly provides that allegations of the execution of written instruments and indorsements thereon shall be taken as tr.ue unless the denial of the same be verified by the affidavit of the party, his agent or attorney. Such verified denial is held to put in issue the execution of such instrument or indorsement, and as a matter of practice places on the plaintiff the burden of proving such indorsement. (Threshing Machine Co. v. Peterson, 51 Kan. 713, 33 Pac. 470; Kurth v. Bank, 77 Kan. 475, 94 Pac. 798, 15 L. R. A., n. s., 612; White v. Smith, 79 Kan. 96, 101, 98 Pac. 766.) The court instructed that the burden of proof was upon the plaintiif to show that it was the owner of the note and gave value for it before maturity, and that the “note was duly indorsed to the plaintiif by the Mid-Continental Loan Company, or by some one duly and properly authorized by said company to transfer, sell and endorse the note in question to the plaintiif.” The quoted portion correctly stated the law and, regardless of any other alleged errors in the charge, the jury could not find for the plaintiif without proof of the agent’s authority. The judgment is aifirmed.	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The opinion of the court was delivered by West, J.: Bolin and Hopkins were doing business at Liberal, and the plaintiff, W. C. Stout, at Arkalon. Early in November, 1909, Mr- Bolin called on plaintiff to look at some cattle owned by the latter on his ranch, with the result that Bolin bargained for 100 of the 150 head at four and one-half cents a pound, the cattle to be selected on the following Wednesday, this being Saturday. On the next Tuesday Court Brown called at the plaintiff’s store with one Frank Griffith, a stranger, and asked to be connected by telephone with Mr. Bolin at Liberal. A long-distance conversation ensued, the effect of which was that Bolin, who had purchased seventy-five head from a Mr. Forbes, was to step from under both contracts, in favor of Griffith, in consideration of $100 profit on the two deals and a return of $500 he had paid on the Forbes cattle. Brown advised Stout that they had bought the Forbes cattle and his cattle, and that Bolin authorized turning the cattle over to Griffith, and Brown suggested that Griffith and Stout get together and see if they could guess off the weight. After some conversation it was agreed between Stout and Griffith that the cattle were to be taken at forty dollars a head, and after starting to the depot it was suggested to Griffith that a payment ought to be made on the cattle, and a check for $500 on a bank at Dalhart was turned over, bearing the statement, “Payment for 100 2 yr. steers, $40.00 a head.” .Later the remaining $3500 was received from Brown and the cattle shipped out in his name. The check came back protested, and when Stout notified Bolin to that effect Bolin replied that his check for $600 had also been dishonored, but he thought the matter would be settled, and if not adjusted within a week or ten days he would go to the commission house and see about it. Later he did go, and at his suggestion was' handed the $500 check, and returned with a check for $1100 in lieu of the two, which likewise went to protest. Stout then sued Bolin and Hopkins for $500, alleging that they had first bargained for' the cattle at four and one-half cents a pond and later changed the agreement to one at $40 a head, and alleging that Griffith was the' agent or purchaser of the defendants, and asked damages and protest' fees in addition to the $500. The answer alleged the mutual abandonment of the agreement to take the cattle by weight and a new contract between Stout and Griffith at $40 a head, and a supplemental answer contained a verified denial that Griffith was at any time their agent or employee. Brown testified that he was not acting on behalf of the defendants. Griffith testified that he was at all times acting for himself and at no time was he agent for the defendants, both of whom testified that no agency existed. A witness named Romer testified that the defendants at one time offered to sell him these cattle at five cents a pound, and later said they cost them four and one-half cents, but they lumped them off at $40 a head, and afterwards Hopkins said that “he had a man up there that sold or made that deal for the.m.” It was shown that Bolin' did not deny telling Brown over the phone to direct Stout to turn the cattle over to Griffith, but aside from whatever inferences are to be drawn from the facts and circumstances appearing from the evidence there is no testimony tending to show an agency, and certainly none indicating an agency to purchase the cattle on account of the defendants by the head and not by the pound. The .jury were told, among other things, that if Griffith through Brown acted for the defendants in carrying out the terms of the contract between the plaintiff and the defendants, “or that he was a purchaser of the cattle from the defendants, and that the plaintiff was authorized and directed by the defendants, or either of them, through said Brown, to turn the said cattle over to the said Griffith instead of to them, and that the contract between the plaintiff and defendants was never abandoned or canceled, and that defendants were to be responsible to the plaintiff thereunder,” then the plaintiff was entitled to recover. Of course, if Griffith through Brown acted for the defendants in carrying out the terms of the contract they had made with Stout they would be bound, but if Griffith was a purchaser of the cattle from the defendants, and after-wards made a new contract with the plaintiff to take them by the head instead of taking them by weight, it is impossible to see how the contract between the plaintiff and defendants could fail to have been adandoned or how they were to be responsible to the plaintiff thereunder^ A subsequent proper instruction was that if a new contract was made between the plaintiff and Griffith, to whom the cattle were delivered for his benefit, then the plaintiff could not recover. The jury asked of the court the question:, “Does the fact of the turning of said cattle over for $40 per head through a third party, instead of delivering them for four and one-half cents per pound, as the contract calls for, annul said contract?” It is apparent that if the contract for four and one-half cents a pound should be superseded by another for $40 per head, the inevitable result would be to annul the former contract, but the answer was that “in determining the question as- to whether or not the contract in question has been complied with by either of the parties, the law does not require that the same shall be performed strictly and to the letter in all of its details, but that there shall be simply a substantial compliance with the terms thereof in order to carry out the intention of both parties to the contract.” We think that in both quoted instructions there was a failure to state the law correctly as applied to the facts before the jury, and that in view of the evidence shown by the record it was highly essential that the points covered by the two instructions in question be clearly and properly covered. 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The opinion of the court was delivered by Larson, J.: This medical malpractice case raises questions of whether a patient’s failure to perform physical therapy prescribed by a physician may be utilized in comparing fault or can only be considered in mitigation of damages. Kimberly R. Cox sued Paul Lesko, M.D., alleging his negligent treatment of her shoulder injury resulted in permanent disability. Evidence showed Cox failed to perform physical therapy prescribed by Dr. Lesko. The trial court instructed the jury on failure to mitigate damages but also allowed the jury to compare the fault of Cox and Dr. Lesko. Cox was denied any recovery when the jury found her 70% at fault and Dr. Lesko 30% at fault. Cox appealed. The Court of Appeals held the trial court erred in allowing the jury to consider Cox’s failure to attend physical therapy as evidence of comparative fault. Cox v. Lesko, 23 Kan. App. 2d 794, 935 P.2d 1086 (1997). A new trial was ordered. We granted Dr. Lesko’s petition for review. The result we reach is fact-driven, so we set forth the known facts and the controverted testimony and medical opinions given in considerable detail. Factual background On November 30, 1990, Cox injured her left shoulder while at work by lifting a heavy, awkward object over her head. She was referred to Dr. Lesko, who first examined her on December 4, 1990. Cox failed to inform Dr. Lesko that about 10 years previously she had experienced left shoulder problems to the extent that surgery had been recommended. Based on the medical history Cox provided and his physical examination, Dr. Lesko diagnosed Cox as suffering a traumatic posterior subluxation in the left shoulder. A traumatic posterior subluxation occurs when a significant injury causes a shoulder joint to partially dislocate towards the back of the body. Dr. Lesko immobilized Cox’s shoulder in a spica cast to prevent it from continuing to sublux and further injuring the shoulder. On December 20, 1990, following complaints of pain, he replaced the cast with a type of sling called a gunslinger. Dr. Lesko testified he told Cox to wear the sling unless she was bathing or performing the strength exercises that he had instructed her to do. Cox did not recall Dr. Lesko telling her to perform any exercises at this time. The doctor’s notes do not refer to these instructions. On January 4, 1991, Cox informed Dr. Lesko her shoulder had again popped out of place while she was bathing. Within the next 4 days she experienced two more instances where her shoulder had slipped out of its socket. Dr. Lesko concluded physical therapy would not effectively treat Cox’s injury because the shoulder was too unstable and she was experiencing a significant and unusual amount of pain. On January 18, 1991, Dr. Lesko performed a posterior repair and glenoid osteotomy on Cox’s shoulder. In essence, Dr. Lesko tightened the shoulder socket and then inserted a bone wedge into the ball of the shoulder to keep the shoulder in place. Dr. Lesko also repaired a tear in Cox’s glenoid labrum, which had not been revealed on an MRI of Cox’s shoulder. The tear would not have healed if it had not been repaired and may have been the source of Cox’s pain. After the surgery, Cox’s shoulder was kept immobilized in another gunslinger for 6 weeks. On March 8, 1991, Cox was instructed to start physical therapy in order to strengthen the muscles and increase her shoulder’s range of motion. Although Dr. Lesko prescribed physical therapy three times per week, Cox did not return to her physical therapist until April 10, 1991, and from then to June 6, 1991, Cox only met with the therapist three times. Over the next several months, Cox continued to miss the majority of her physical therapy sessions. By October 1991, Cox’s shoulder was showing signs of instability, and Dr. Lesko recommended another surgery. Cox subsequently sought other medical advice. She was examined at various times by Dr. Harry Morris, Dr. Kenneth Jansson, and Dr. Mary Lynch. These doctors referred Cox to Dr. Charles Rockwood, a recognized authority in the field, for consultation and advice. All of these doctors diagnosed her shoulder as suffering from a multidirectional instability. Although Cox was placed on a rigorous physical therapy program, therapists indicated that Cox continued to lack consistency, and her condition failed to improve. In July 1993, Dr. Morris recommended an additional surgical procedure be performed on Cox which, if successful, he opined, would reduce Cox’s disability to 0%-5%. Dr. Morris estimated the chances of the surgery succeeding to be 50%, although Dr. Rock-wood later estimated the chances of success would be 85%-90%. This action was filed on August 31, 1993, alleging negligence in diagnosing and treating the injury. Cox alleged she was actually suffering from a congenital multidirectional laxity of her shoulder and the doctor’s failure to properly diagnose and treat this condition caused past and future medical care and expense, loss of income, disability, and pain and suffering. Dr. Lesko denied he was negligent and maintained Cox either caused or contributed to the alleged injuries by failing to follow his instructions and by failing to attend the physical therapy appointments. At trial, several doctors testified that the standard of care for either posterior or multidirectional instability is to first perform physical therapy. Dr. Lynch and Dr. Michael Skyhar, one of Cox’s nontreating experts, testified that Dr. Lesko’s method of treatment was a deviation from this standard of care because Cox should have experienced physical therapy and nonoperative treatment before surgery. Dr. Lynch primarily attributed Cox’s failure to heal to her prolonged period of immobilization resulting in muscle atrophy, as well as to damage necessarily done during the shoulder operation. Contrary testimony, however, indicated muscle atrophy is rarely permanent and the surgery caused no deformation which would have prevented Cox’s shoulder from healing. Dr. Lesko acknowledged therapy was generally pursued prior to surgery, but contended a deviation was necessary in this case because Cox was in extreme pain and her shoulder was too unstable for therapy to be effective. He also testified Cox’s failure to follow through with physical therapy lengthened her rehabilitation and prevented her shoulder from strengthening and tightening up. Dr. Lesko presented the expert testimony of Dr. Rockwood and Dr. John Albright. Both doctors opined that Dr. Lesko’s treatment and approach were within the acceptable standard of care. Dr. Albright testified that Dr. Lesko’s working diagnosis was within the appropriate standard of medical practice. Dr. Rockwood testified that Dr. Lesko’s treatment did not interfere with his subsequent efforts to rehabilitate Cox and would not hamper future treatment efforts. He stated Cox’s condition could be attributed to her failure to perform the prescribed exercises or to the congenital laxity in her shoulder capsule. Dr. Rock-wood doubted Cox’s immobilization prior to and following surgery had led to further instability. Cox acknowledged missing several physical therapy sessions, but claimed to have performed her designated exercises at home or at the gym. Several doctors testified that physical therapy was essential for rehabilitation. Even Cox’s experts noted it was important for a patient to perform physical therapy because the failure to comply with therapy could affect the patient’s results. Dr. Lynch acknowledged there is a window of opportunity in which the failure to perform rehabilitation will affect the end result. Dr. Morris, however, opined the physical therapy appointments Cox missed were relatively few and did not have an adverse effect. Several doctors testified shoulder laxity improves with age, as a shoulder naturally tightens up as a person grows older. The court, over objection, instructed the jury on comparative fault of both Dr. Lesko and Cox and also instructed on mitigation of damages. As we previously stated, the jury attributed 30% of the fault to Dr. Lesko and 70% of the fault to Cox. On appeal, the Court of Appeals held a patient’s failure to follow instructions does not defeat an action for malpractice if the alleged improper treatment occurred prior to the patient’s misconduct. The panel specifically found that Cox’s failure to attend physical therapy was not an issue of comparative fault but could only be considered when deciding mitigation of damages. The petition for review we granted was limited to these questions. Cox did not seek review of the Court of Appeals’ ruling that the trial court did not unduly restrict her cross-examination of Dr. Rockwood as to his preferred method of treatment. This issue was not dispositive but was answered by the Court of Appeals should it resurface in the retrial. The panel opined a doctor’s testimony as to his or her personal method of treatment is insufficient to establish the accepted standard of care. Additionally, the Court of Appeals held Cox had failed to designate an adequate record for this issue to be considered. For these reasons, this portion of the Court of Appeals’ opinion is not before us on review. In a medical malpractice case where the patient seeks damages for the doctors failure to properly diagnose and treat a preexisting condition, may the patient’s failure to follow the physician’s instructions constitute comparative fault or is the failure merely evidence to he considered in mitigation of damages? Cox makes two allegations as to the trial court’s error in giving an instruction on comparative fault. First, she contends “there was simply no evidence to support it.” Second, Cox claims even if there was evidence to support the instruction, the failure to attend physical therapy after the alleged improper treatment had already occurred cannot, as a matter of law, be used to substantiate a finding of fault by an injured patient. In considering whether a jury has been properly instructed in a civil trial, we have held: “A party is entitled to an instruction explaining its theory of the case where there is evidence to support it.” Guillan v. Watts, 249 Kan. 606, 617, 822 P.2d 582 (1991). We have further said: “Jury instructions are to be considered together and read as a whole, without isolating any one instruction.” Cerretti v. Flint Hills Rural Electric Co-op. Ass’n, 251 Kan. 347, 355, 837 P.2d 330 (1992). Even though the evidence supports the giving of an instruction, such an instruction must accurately and fairly state the law as applied to the facts of the case. This is a question of law, and we have unlimited review over such matters. See KPERS v. Reimer & Roger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997). The basis for this appeal results from the objection made by Cox’s counsel at the jury instruction conference when he stated: “MR. SCOTT: I have an objection to the Court’s inclusion of my client on the verdict form as a party whose fault can be compared. I think that what we’re really talking about here is the failure to mitigate damages and not fault. Everything that happens — once Dr. Lesko commits his negligent act of surgery, everything my client does after that point doesn’t contribute to the negligence but, instead, may be a failure to mitigate damages. So I have an objection to her inclusion in fault.” Although the specific wording of the instructions are not directly in issue, we set forth the following instructions given by the trial court for a better understanding of issues in this appeal: “INSTRUCTION NO. 6. “The defendant claims that Kimberly Cox was at fault in the following respects: “a. Failing to follow physician’s instructions; “b. Failing to comply with physical therapy treatments and appointments. “Defendant further claims that the plaintiff failed to mitigate her injuries and damages. “The plaintiff denies that she was at fault, denies that she caused or contributed to her condition, and generally denies all the defendant’s claims. “The defendant has the burden to prove his claims are more probably true than not true.” “INSTRUCTION NO. 13. “A physician has the right to expect a patient to follow reasonable advice. The failure of a patient to accept reasonable treatment or follow advice does not reheve the doctor from the results of an earlier malpractice. It only absolves him from liability for any increased injury caused by the patient’s failure to accept reasonable treatment and advice.” “INSTRUCTION NO. 20. “If you find that the plaintiff is entitled to recover damages for injury to her person, in fixing the amount thereof you should not include any loss which plaintiff could have prevented by reasonable care and diligence exercised by her after the loss occurred. “However, to the extent that you consider plaintiff to have been at fault for failing to follow her physician’s instructions or to comply with physical therapy treatments and appointments, you should not also consider such failure as failure to mitigate her loss.” We answer Cox’s first contention fairly simply and easily. There was clearly evidence that Dr. Lesko prescribed physical therapy post-operatively which Cox rarely attended. He designated specific exercises to be performed and had direct contact with the physical therapist as to die nature and extent of the therapy to be utilized. We make this determination by a review of the evidence in the light most favorable to Dr. Lesko. This is because in Pizel v. Whalen, 252 Kan. 384, 388, 845 P.2d 37 (1993), we said: “Where the question is whether or not contributory negligence should be submitted to the jury as opposed to being dropped from the issues in the case, it follows that the evidence must be considered in the light most favorable to the defendant asserting same as a defense.” The same rule applies to comparative negligence. The importance of physical therapy was shown by the testimony of Dr. Rockwood, who said immobilization following surgery would not affect Cox’s ability to regain stabilization of her shoulder if she performed her physical therapy and adhered to her rehabilitation program. Dr. Lynch, who testified on behalf of Cox, testified on cross-examination as follows: “Q. The rehabilitation of patients and their willingness to do the rehab program is very important in their recovery. “A. That’s correct. “Q. Now, is it a principle within rehab treatment that the missing of appointments or the failure to keep consistency in the train[ing] of your muscle affects the eventual outcome of that patient? A. That’s correct. “Q. So if the patient, where that window of opportunity exists, doesn’t do the rehab, its going to affect what the end result is, isn’t it Doctor? “A. Yes.” Most of the contentions made by either party in this case were subject to contrary evidence presented by the other. The experts who testified had different opinions. The nature and extent plus the location of the therapy which Cox did or did not perform was at issue. There was clearly evidence before the jury on the issue of the reasons for therapy, the nature and time of the therapy prescribed, and the manner utilized by Cox. The resolution of these issues was for the jury, but Cox’s contention that “there was simply no evidence to support it” is without merit. The more difficult question is the overriding one of whether it was proper for the jury to be instructed that Cox’s alleged fault could be compared to Dr. Lesko’s alleged fault. Our first task in evaluating this issue is to ascertain the injuries for which Cox sought to recover. Dr. Lesko had no involvement in the existence of Cox’s congenital or otherwise established shoulder instability. This existed prior to the time Dr. Lesko began treatment and was not caused by any of his actions. The injury for which Cox sought to recover damages was Dr. Lesko’s failure to properly evaluate, treat, and cure her preexisting condition which she presented to him at the time of his initial examination. This distinction is important because it indicates that Cox did not suffer an injury at one distinct point in time. Rather, she had no actionable injury or damages against Dr. Lesko until her shoulder failed to heal. This distinction was not recognized by the Court of Appeals when it stated: “The wrongful act was allegedly committed by Dr. Lesko, either with the diagnosis and treatment before or at the time of surgery on Cox’s shoulder. Any damage alleged occurred at those times.” 23 Kan. App. 2d at 797. This statement is inaccurate because although Dr. Lesko may have committed negligent acts in his diagnosis and treatment, these acts may not have resulted in any injury or damages if Cox’s shoulder had proceeded to heal. Although all decisions are of necessity limited to the facts upon which they are based, Dr. Lesko argues that under the Court of Appeals’ decision, a patient’s failure to follow instructions could never constitute comparative fault if such failure occurred after the physician’s negligence. Thus, once a jury found any negligence on a physician’s part, liability would have to exist even though a complete recovery would have resulted had the patient followed the instructions given or properly participated in the healing process. Dr. Lesko argues this would make a negligent physician liable for the entire injury even though the patient’s own fault was one of the principal causes of the injury. This is claimed to be contrary to the doctrine of proximate cause — that there can be more than one cause of an injury and that issues of causation are normally properly decided by a jury. See Trapp v. Standard Oil Co., 176 Kan. 39, 42, 269 P.2d 469 (1954). Dr. Lesko further contends the Court of Appeals’ ruling is contrary to the concept of comparative fault. See Cerretti v. Flint Hills Rural Electric Coop Ass’n, 251 Kan. at 371. (comparative fault statute imposes individual liability for damages based on proportionate fault of all parties to the occurrence which gave rise to injuries and damages). Cox argues that unnecessary surgery was performed, resulting in physical and economic damage by itself. She argues that regardless of how she recovered after the surgery, damages were fixed once the negligent surgery was performed. Additionally, Cox suggests that even if we were to adopt a rule which would allow the plaintiff’s conduct in failing to attend physical therapy to be comparative fault, it should be limited only to those items of damage where it may have bearing. Cox relies on Allman v. Holleman, 233 Kan. 781, 667 P.2d 296 (1983), where we found a plaintiff’s taking of birth control pills was not comparative fault in an action for wrongful death even though taking the birth control pills might have caused some of the same symptoms for which the decedent had sought treatment. With these contentions in mind, we look to whether the evidence presented here allows the comparison of fault under K.S.A. 60-258a or whether the alleged failure of Cox to make reasonable attempts at rehabilitation subsequent to the surgery only relates to mitigation of damages, which the Court of Appeals deemed to be the doctrine of avoidable consequences. In reaching this conclusion, the Court of Appeals quoted and relied upon a statement in 22 Am. Jur. 2d, Damages § 497, pp. 580-81, which described the relationship of avoidable consequences to contributory and comparative negligence and indicated that avoidable consequences arise after the wrongful act on the part of a defendant, while contributory negligence occurs either before or at the time of the wrongful act of the defendant. Due to our adoption of comparative fault, the wording of the paragraph following the one quoted by the Court of Appeals is more applicable to our situation. It states: “Otherwise stated, if the act of the injured party does not operate in causing the injury from which all damages ensued, but merely adds to the resulting damages, its only effect is to prevent the recovery of those damages which reasonable care would have prevented. However, if a statute provides that contributory negligence only diminishes the damages in proportion to the negligence attributable to the plaintiff, the results of the doctrines of contributory negligence and avoidable consequences are the same. Thus, it has been said that the unreasonable failure to mitigate consequential damages is ‘fault’ which can be apportioned under a state’s comparative fault statute.” 22 Am. Jur. 2d, Damages § 497, pp. 581-82. Thus, when evidence was admitted to show that Cox’s negligence in failing to attend therapy and follow instructions contributed to the failure of her shoulder to stabilize, her “fault” was subject to being compared. This of necessity requires the juiy to be permitted to consider whether Cox’s actions were a causal factor in her injury. That part of 61 Am. Jur. 2d, Physicians, Surgeons, Etc. § 303, p. 451, relied upon by the Court of Appeals for Syl. ¶ 1, which states: “[A] patient’s failure to follow a doctor’s instructions does not defeat an action for malpractice where the alleged improper professional treatment occurred prior to the patient’s own conduct,” seems intended to relate only to jurisdictions where any contributory negligence is a complete bar to recovery. Although this is obviously no longer the case in Kansas, the 61 Am. Jur. 2d, Physicians, Surgeons, Etc. § 303, provision continues on to say: “Likewise, the patient’s refusal of the suggested treatment has been held to excuse the physician from liability for malpractice, where the failure to take such treatment was a concurring cause of the injury for which recovery was sought.” The section of Am. Jur. 2d relied on by the Court of Appeals implies that the injury has been fully determined and resulted only from the alleged improper treatment prior to the time the patient fails to follow instructions. In our situation, however, there was evidence that the instructions were an integral part of the treat ment offered and that the actionable injury did not arise until later. It should be pointed out that concurrent does not necessarily mean concurrent in time, but rather may be concurrent in the cause of the injury, a distinction that becomes significant when we later discuss whether Dr. Lesko’s actions and those of Cox occur concurrently to produce her ultimate injury. All of the above statements from Am. Jur. 2d seem to be couched in terms of contributory negligence being a complete bar to recovery and should not become authority for any decision we now reach involving the application of comparative fault, which has been the law in Kansas since July 1, 1974. It is possible to find isolated statements out of the legal encyclopedias to justify the Court of Appeals’ result, but the analysis of any such statement is colored by the stated references to contributory negligence. It is only where the direct reference is to comparative negligence that credence should be given. If the holding of the Court of Appeals is the correct law of Kansas, it is suggested to us that we wrongly decided Wisker v. Hart, 244 Kan. 36, 766 P.2d 168 (1988). The issues we consider here are not identical to those set forth in the Wisker opinion, but they have sufficient similaries to require examination. Wisker had been injured in a motorcycle accident and was subsequently examined by Dr. Hart, who diagnosed a punctured liver causing internal bleeding. When Wisker was released, he was advised not to perform strenuous activities and to seek medical attention if his condition changed. Despite these instructions, Wisker returned to work and later that week reinjured himself. He left work pale, weak, and bent over in distress, but did not seek medical attention until about 3 hours later. He died from internal bleeding the following day after several unsuccessful surgeries. Wisker’s heirs sued his physician, the hospital, and his employer. We determined the verdict was not contrary to the evidence after the jury had been instructed to compare the fault of the parties and attributed 60% of the fault to Wisker and 40% to health care providers. Our opinion stated: “After suffering a serious injury, decedent ignored the advice of his physicians and engaged in strenuous physical labor. Such activity resulted in a dramatic de toriation of his condition, yet he failed to seek immediate medical attention as directed to do if such occurred. Instead, decedent went home. Three hours later he collapsed. The time so lost was critical and greatly reduced his chance of surviving.” 244 Kan. at 40-41. If the rule set forth in the isolated statement from 61 Am. Jur. 2d, Physicians, Surgeons, Etc. § 303, which was adopted by the Court of Appeals, had been applied, then Wisker s negligence should not have been compared when deciding upon fault, as his failure to follow the physician’s instructions apparently occurred subsequent to the alleged improper medical treatment. Our upholding of the verdict in Wisker, which compared the fault of the patient, indicates we have recognized the principle that when a patient’s negligence concurs in the cause of the injury, which may not have arisen but for that negligence, then the patient’s negligence may be considered when determining fault. This was applied in Wisker in that his death may have been avoided, despite the prior negligent acts of the physicians in the failure to properly diagnose and treat his condition, if he only had followed instructions. Wisker’s own negligence concurred in causing his death, the injury for which his survivors sought recovery. The Court of Appeals sought to distinguish Wisker on the grounds that “the event which caused Wisker’s eventual death and which precipitated the lawsuit was Wisker’s failure to heed the advice of physicians.” 23 Kan. App. 2d at 796. However, evidence in the present case could equally support the statement: “The event which caused Cox’s shoulder to not heal and which precipitated the lawsuit was Cox’s failure to heed the advice of her physicians and engage in physical therapy.” Wisker is not clearly distinguishable. Cox also cited George v. Shannon, 92 Kan. 801, 142 Pac. 967 (1914), which is not really applicable to this case and only holds that the discharge of a physician by a patient after believing he was injured by the physician’s negligence is not evidence of the patient’s negligence. More logically, it shows the patient’s good sense. It is not helpful or instructive to commence any analysis of the myriad of cases from other jurisdictions, for some involve contributory negligence as a complete bar and seemed designed to alie viate its harsh results. Some involve comparative negligence with different statutory underpinnings than our Kansas law. All involve different facts, and it is not really possible to compare failure to disclose proper history, failure to seek timely treatment, failure to remain in the hospital, refusing to submit to reasonable treatment, and application of the doctrine of the particularly susceptible victim to the issue we have here of alleged failure to follow reasonably prescribed therapy, which was an essential part of the healing process and critical to the patient’s obtaining the optimum recovery. For examples, however, see 1 Louisell & Williams, Medical Malpractice ¶ 9.03 (1997); 2 Zaremski & Goldstein, Medical and Hospital Negligence § 32.22 (1995); Harney, Medical Malpractice §§ 24.1-24.7 (3d ed. 1993); Comment, Defense of Patient’s Contribution to Fault in Medical Malpractice Actions, 25 Creighton L. Rev. 665 (1992); Annots., 50 A.L.R.2d 1043; 100 A.L.R.3d 723; 33 A.L.R.4th 790. This case in the final analysis is fact-sensitive and must be guided by principles of causation and damages as reflected in Kansas tort law. Those principles were clearly expressed in Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983): “Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Further, if recovery is to be had for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) he or she was damaged by the negligence. [Citation omitted.] . . . Further, whether there is a causal connection between the breached duty and the injuries sustained is also a question of fact. [Citation omitted.']” Our comparative negligence statute “requires a weighing of the causal negligence, if any, of all parties whose conduct brought about the harm, and the consequent imposition of individual liability for damages based upon the proportionate fault of each party to the occurrence.” Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 844-45, 610 P.2d 1107 (1980); see K.S.A. 60-258a. In addition, Kansas does not require that negligent acts occur simultaneously in order to be causally related. This is best stated in PIK Civ. 3d 104.02: “There may be more than one cause of an injury; that is, there may be concurrent causes, occurring independently or together, which combine to produce the injury. . . . “Concurrent causes do not always occur simultaneously. One cause may be continuous in operation and join with another cause occurring at a later time.” Dr. Lesko correctly points out this principle has been applied in numerous cases. See, e.g., Lenhart v. Owens, 211 Kan. 534, 507 P.2d 318 (1973) (faulty brake manufacture concurring with negligent driving to cause plaintiff’s damages); Neiswender v. Shawnee County Comm’rs, 151 Kan. 574, 577, 101 P.2d 226 (1940) (negligent driving and defective guardrail both combined to be the proximate cause of injury); Pinson v. Young, 100 Kan. 452, 455, 164 Pac. 1102 (1917) (negligent dynamite storage and fire both proximately caused Pinson’s death). In Acock v. Kansas City Power & Light Co., 135 Kan. 389, 398, 10 P.2d 877 (1932), we found both parties neghgent and declared: “While it is true that one succeeded the other in time, they are necessarily related and interwoven, and the death of Acock was the result of the concurrent negligence of both appellants.” Thus, because evidence existed to indicate Cox’s conduct helped to bring about the harm, despite the fact that the neghgent acts did not occur simultaneously, the comparative negligence statute applies. Under these circumstances, the jury was properly allowed to determine the factual questions regarding the causal connection between the negligence of the parties. In the present case, evidence in the record did indicate Cox may have healed despite Dr. Lesko’s alleged malpractice if she had performed her physical therapy. This presented a fact question as to whether Cox’s failure to attend therapy resulted in the failure of her shoulder to heal. There was almost no evidence that Dr. Lesko’s surgery prevented Cox’s shoulder from healing, although there was evidence the surgery may have been ineffectual and the immobilization may have contributed to muscle atrophy. However, when considering such evidence, it must be borne in mind that other testimony indicated that the surgery may have helped stabilize the shoulder, that a tear of Cox’s glenoid labrum was repaired during the surgery that otherwise would not have healed, and that the period of immobilization could not have resulted in Cox’s condition. These are precisely the type of factual differences which juries are uniquely qualified to resolve. The jury was properly instructed, as the instructions set forth earlier so show. Furthermore, instruction No. 13 fairly established the factors the jury was to utilize in balancing the actions of both Cox and Dr. Lesko. Although Cox does not explicitly so complain in her brief, she argued to us at oral argument that the jury was not instructed on the proper relationship between comparative fault and mitigation of damages. Instruction No. 20 shows this contention to be without merit, for the instruction states the separate nature of the concepts and forbids a double reduction. In this case, a double reduction could not have occurred because the jury never reached the question as to the amount of damages. We understand but cannot adopt Cox’s fail-back argument that we should allow a juiy to compare negligence for some of the claimed damages but not others, as is alluded to in Allman v. Holleman, 233 Kan. at 786. We have no statutory basis for such a piecemeal determination of litigation, nor does our civil code compel us to return to a time when endless special questions were often required. We have a proven system, and it does not require we separate out each of the alleged damage items for comparison with the negligence of both parties. This is also contrary to Instruction No. 8 given in this case, which states: “It is not necessary that each of you agree upon the specific negligent act so long as the requisite number of jurors agree the party was causally negligent.” See PIK Civ. 3d 106.01 (agreement as to which specific negligent act or omission is not required). If such a rule is to be instituted, it must be done so legislatively, as we are satisfied with the manner in which juries are presently instructed. It would be unduly cumbersome and highly confusing for the jury to consider each alleged item of damages separately for comparative negligence purposes, and we refuse to adopt Cox’s suggestion that we should do so. The jury was properly instructed. Sufficient evidence, although controverted, existed to justify the comparison of the fault of Cox and Dr. Lesko. The jury performed its assigned function and resolved the necessary issues. There was no reversible error. The judgment of the Court of Appeals reversing in part the district court and remanding for a new trial is reversed. The judgment of the Court of Appeals on the evidentiary issue is not properly before us and is therefore affirmed. The judgment of the trial court is affirmed. Lockett, J., not participating Richard W. Wahl, Senior Judge, assigned.	[ -48, 120, -35, -113, 12, -30, 40, 90, 48, -94, -9, 83, -81, -31, -67, 111, 41, -67, 64, 103, -98, -77, 87, 107, -10, -45, 114, 87, -79, -18, -12, -107, 93, 48, 2, 53, -26, 11, -51, 24, -128, -122, 27, 77, -103, -128, 48, 122, -108, 7, 49, 95, 82, 32, 28, -57, 104, 42, 91, -68, -48, -8, -62, 37, 91, 20, -96, 4, 28, 39, -40, 26, -104, 57, 0, -20, 112, -10, -126, 116, 73, -103, -124, 99, 98, 32, 93, -3, 120, -72, 15, 30, 29, -124, -101, 88, -7, 7, -74, -4, 100, 84, 28, 76, -19, 88, 95, 108, -54, -58, -110, -69, 79, 48, 28, -77, -9, -85, -128, 85, -36, -16, 92, -59, 83, -69, -6, -70 ]
The opinion of the court was delivered by Larson, j.: In this case of first impression involving the Fourth Amendment to the United States Constitution, we must determine whether Kansas should adopt the “plain feel” corollary of the plain view exception to the search warrant requirement. If we do, the question then becomes whether substantial competent evidence exists to uphold the trial court’s ruling that three baggies of marijuana discovered in Vernon Wonders’ pocket were immediately apparent to a law enforcement officer conducting a properly authorized pat-down search of Wonders. Wonders appealed his bench trial convictions of possession of marijuana, K.S.A. 1993 Supp. 65-4127b(a)(4), and possession of cocaine, K.S.A. 1993 Supp. 65-4127a(a), to the Court of Appeals. The panel reversed his convictions, finding the search exceeded the scope of a Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), search. 23 Kan. App. 2d 287. We granted the State’s petition for review. Factual statement On March 7, 1994, Harvey County Deputy Sheriff Kurt Ford legally stopped a vehicle driven by Albert Garcia for failing to properly use a turn indicator. There were three passengers in the vehicle. Deputy Ford detected the odor of alcohol emanating from the vehicle when he spoke to Garcia and asked him to exit the vehicle to perform sobriety tests. After Deputy Ford was satisfied that Garcia was not legally intoxicated, Ford told Garcia he was free to leave but asked him whether his vehicle contained any weapons or contraband. Garcia replied that it did not and consented to a search of his vehicle. Deputy Ford instructed the three passengers to exit the vehicle. Ford’s search revealed a hand scale, zigzag rolling papers, and two pipes emitting an odor of burnt marijuana. Based upon his training and experience, Ford testified he believed the items to be illegal drug paraphernalia. Deputy Ford had 6 years of field experience dealing with drugs and drug paraphernalia and had made numerous drug-related arrests while serving as a law enforcement officer. Ford had received training in drug detection during continuing education courses and had served as the Harvey County Sheriff’s Drug Abuse Resistance Education (DARE) officer. After finding the alleged drug paraphernalia, Ford decided to pat down each occupant of the vehicle, particularly because one of the passengers, Jason Beard, was known to Ford from prior contacts and was considered a possible danger. He said his primary purpose in conducting the pat-downs was to search for weapons but admitted he was aware of the possibility of finding other items based on the presence of drug paraphernalia in the car. While searching Wonders, one of the passengers, Ford felt a bulge in Wonders’ left front jeans pocket. Ford passed over the bulge and completed a full pat-down before returning to the bulge. Ford testified that when he first patted the bulge, it was immediately apparent to him that it was a bag of marijuana in the pocket. F ord returned and touched the pocket while asking Wonders about its contents. When Wonders did not respond, Ford reached in and removed rolling papers and three baggies of marijuana. Wonders was arrested, and a subsequent search of his person at the jail during booking revealed a plastic bag in his shirt pocket containing white rocks of crack cocaine. At his preliminary hearing, Wonders challenged several aspects of the search which produced the contraband evidence. Wonders first questioned whether Ford had an articulable suspicion to detain him. He then asserted that Ford did not have a reasonable fear for his safety in order to justify the pat-down searches. Finally, he alleged Ford exceeded the proper scope of a pat-down search by reaching into his pocket after knowing it did not contain a weapon. Deputy Ford testified at the preliminary hearing and related the events leading up to the pat-down search. He told the court he discovered marijuana in Wonders’ jeans pocket, placed him under arrest, and subsequently discovered the rocks of crack cocaine. During cross-examination, Wonders’ counsel questioned Ford about the setting of the seárch, Ford’s prior knowledge of Wonders, and the demeanor of the occupants in an attempt to establish that Ford had no reason to fear for his safety. When briefly asked about the pat-down itself, Ford answered, “[W]hat I did feel in his pants pocket was a bulge, and I did at that time ask Mr. Wonders what was in his pocket, there was no reply, and that’s when I did locate the marijuana in his pocket.” Although most of the redirect examination focused on establishing that Ford had reason to be apprehensive of Beard, the State asked Ford whether he had an idea of what the bulge was when he found it. Ford replied, “Initially, I did feel it to be baggies of content.” Ford was not questioned further regarding the actual pat-down at the preliminary hearing. The trial court bound Wonders over on the charges because the evidence clearly indicated he had been in possession of illegal substances. The court further recognized that a search and seizure issue existed, but pointed out that the purpose of the hearing was to determine probable cause, not to resolve every possible search and seizure issue. The court ruled the search and seizure issue should properly be addressed in a motion to suppress ánd it would be unfair to expect the State to respond to such issues at the preliminary hearing. Wonders filed a motion to suppress which generally alleged the stop, search, and arrest of his person were illegal and all physical evidence, statements by Wonders, and observations of law enforcement officers obtained as a result should be suppressed. At the hearing on the motion to suppress, Ford was again questioned about the events leading up to the search of Wonders and his reasons for conducting a pát-down search of the vehicle’s occupants. He stated he knew by experience what a bag of marijuana felt like and it had a consistent feel, which he could not put in words. Ford testified that when he first felt the bulge in Wonders’ pocket with the palm of his hand, he believed it to be a baggie of marijuana. He stated he did not manipulate the bulge to discover what it was because “[i]t was immediately apparent to me.” Ad ditionally, Ford reported lie gave Wonders an opportunity to explain the bulge before removing what he felt sure was marijuana. Prior to cross-examination, the court questioned Ford about the clothing Wonders had been wearing during the search and established that the contraband was discovered in the front pocket of Wonders’ jeans. Wonders’ counsel then quizzed Ford about the reasons for the pat-down search and confirmed that no weapon was found during the pat-down of Wonders. The entire search took 10 to 12 seconds, with a 3-second touch when Ford returned to Wonders’ jeans pocket where he had previously felt the bulge. Ford said he went inside the pocket after asking Wonder what it was. Following cross-examination, the court inquired about the second, 3-second pat-down of Wonders’ pocket. Ford responded that he had not squeezed or manipulated the object in the pocket and had been able to tell the size of the object from patting the outside of the pocket. In a nine-page written opinion, the trial court denied Wonders’ motion to suppress, finding that the search and seizure of Wonders was lawful. The court pointed out that the United States Supreme Court had recognized the “plain feel” corollary to the plain view exception to the search warrant requirement in Minnesota v. Dickerson, 508 U.S. 366, 124 L. Ed. 2d 334, 113 S. Ct. 2130 (1993), although it had declined to apply the exception under the facts of that case. Distinguishing the facts of Dickerson, the trial court focused on the fact that Ford immediately knew the bulge was marijuana and he had not engaged in the squeezing, sliding, or manipulating that had been prohibited by Dickerson. The trial court found it to be of critical importance that Ford was an experienced officer with training and practical experience from numerous arrests involving marijuana. The trial judge went on to specifically state: “In order for the Court to grant the motion to suppress, I would have to find that the testimony of the officer lacked credibility when he stated that it was immediately apparent to him when he was patting down the defendant that the bulge in his front pocket was a baggie of marijuana. I would likewise have to discredit his testimony that a baggie of marijuana in this situation has a ‘consistent feel.’ Given the training and experience of the officer, the Court cannot do this. If the arresting officer were new to his vocation or lacked experience and training in handling drug arrests, this would be an entirely different case. Here the officer is experienced and trained, and has had extensive contact with substances such as this in the course of his regular duties. Under all of the circumstances of the case, I find his testimony to be credible and I am satisfied that the bulge was apparent to the officer as marijuana in a baggie when he was patting down the defendant for weapons.” Wonders was subsequently convicted in a bench trial of possession of marijuana and cocaine. Wonders appealed to the Court of Appeals and argued the search violated his right against unreasonable searches and seizures because no reasonable suspicion existed to conduct a pat-down search and the search exceeded the scope of a permissible Terry search. Wonders did not challenge the initial stop of the vehicle, the DUI investigation, or the search of the car. The Court of Appeals first ruled Ford had an articulable suspicion that Wonders was involved in criminal activity after discovering drug paraphernalia inside the vehicle. The court then found Ford reasonably feared for his safety after finding evidence of drug activity in the vehicle such that a pat-down search of the occupants for weapons was warranted. Next, the court decided that recognition of the plain feel exception to the Fourth Amendment search warrant requirement recognized by the United States Supreme Court in Dickerson, 508 U.S. 366, was consistent with this court’s interpretation of § 15 of the Kansas Constitution Bill of Rights. After reaching these conclusions, the Court of Appeals found the pat-down search which produced the marijuana exceeded the scope of a permissible Terry search. We granted the State’s petition for review. Standard of Review When a motion to suppress evidence is filed, the State bears the burden of proving to the trial court the lawfulness of the search and seizure. State v. Damm, 246 Kan. 220, 222, 787 P.2d 1185 (1990) (citing Mincey v. Arizona, 437 U.S. 385, 390-91, 57 L. Ed. 2d 290, 98 S. Ct. 2408 [1978]). If the findings of the trial court on a motion to suppress evidence are based on substantial evidence, the appellate court must not substitute its view of the evidence for that of the trial court. State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979). Substantial evidence was recently described in State v. Haskins, 262 Kan. 728, Syl. ¶ 1, 942 P.2d 16 (1997): “Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” When the facts material to a motion to suppress evidence are not in dispute, the question of whether to suppress becomes a question of law, State v. Vandiver, 19 Kan. App. 2d 786, 788, 876 P.2d 205 (1994), aff’d 257 Kan. 53, 891 P.2d 350 (1995), upon which our scope of review is unlimited. State v. Heffelman, 256 Kan. 384, 386, 886 P.2d 823 (1994). Deputy Ford was the only witness at both the preliminary hearing and the hearing on the motion to suppress, and his credibility, competence, and ability to detect marijuana during the brief pat-down search were challenged by Wonders. The State contends in its petition for review that the Court of Appeals erroneously determined the facts were not in conflict in order to reweigh the evidence and disregard the trial court’s specific finding, based on substantial competent evidence, that it was immediately apparent to Ford, an experienced officer, that the bulge discovered in Wonders’ jeans pocket was baggies of marijuana. There is considerable merit to the State’s argument, particularly as the Court of Appeals’ opinion justifies its result by making factual findings contrary to those made by the trial court. The Court of Appeals’ opinion stated it could not have been immediately apparent to Ford that the bulge in Wonders’ pocket was marijuana because Ford lacked drug detection training, could not adequately describe what a baggie of marijuana felt like, and had asked Wonders what was in his pocket. The Court of Appeals’ finding regarding Ford’s credibility and experience is directly contrary to that made by the trial court. Wonders contends that we should not accept the plain feel exception in Kansas. However, if we should decide to do so, Wonders claims Ford exceeded its scope during the pat-down search. He asserted the ultimate question is one of law requiring independent appellate review, the standard of which is de novo. The question of whether Kansas should adopt the plain feel exception to the search warrant requirement of die Fourth Amendment is clearly a question of law over which our standard of review is unlimited. The trial court, however, viewed the witness; therefore, insofar as Ford’s credibility and discrepancies in his testimony are concerned, it is the best judge of the facts developed. We will not on appeal reweigh the evidence where the trial court’s findings are supported by substantial evidence. Plain feel exception Although Wonders asserted on appeal that Kansas should not adopt the plain feel exception of Dickerson, this issue was resolved against him by the Court of Appeals. He did not file a cross-petition for review, but as this issue is such an integral part of this appeal, we deem it necessary to be addressed. In Dickerson, 508 U.S. at 375, the United States Supreme Court decided the plain view exception to the Fourth Amendment search warrant requirement applied by analogy to objects discovered by the sense of touch. The ultimate result in the case turned on whether the- lump of contraband was “immediately apparent” to the officer making a search for weapons pursuant to Terry or whether such determination could be made only after “ ’squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket.’ ” 508 U.S. at 377-78. Minnesota’s refusal to extend the plain view doctrine to encompass a sense of touch, however, was expressly reversed by a unanimous United States Supreme Court. As to the plain view doctrine, the Dickerson Court stated: “Under that doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. [Citations omitted.] If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object — i.e., if ‘its incriminating character [is not] “immediately apparent,” ’ [citation omitted] — the plain-view doctrine cannot justify its seizure. [Citation omitted.]” 508 U.S. at 375. After explaining why such warrantless searches were justified, the Court went on to declare: “The same can be said of tactile discoveries of contraband. If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass' makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.” 508 U.S. at 375-76. In applying these rules to the Dickerson facts, the Court determined the officer who conducted the search had exceeded the lawful bounds of a Terry search by the time he gained probable cause to believe the object in the suspect’s jacket was contraband. The Court noted the district court had not made precise findings on this point, but went on to accept the Minnesota Supreme Court’s conclusion from a “ ‘close examination of the record’ ” that the officer did not immediately recognize the lump as crack cocaine, but only did so after “ ‘squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket’ — a pocket which the officer already knew contained no weapon.” 508 U.S. at 378. This finding was made by the Minnesota Supreme Court even though the officer had testified that he was “ ‘absolutely sure’ that the substance was crack cocaine.” State v. Dickerson, 481 N.W.2d 840, 849 (Minn. 1992). In applying this rule to Kansas, we commence with our holding regarding the sameness of the protections afforded under both the United States and the Kansas Constitutions. This rule was most recently recognized in State v. Ninci, 262 Kan. 21, 29-30, 936 P.2d 1364 (1997), where Justice Abbott stated: “The Fourth Amendment to the United States Constitution provides: ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ “Section 15 of the Kansas Constitution Bill of Rights provides: ‘The right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized.’ “Section 15 of the Kansas Constitution Bill of Rights provides protection identical to that provided under the Fourth Amendment to the United States Constitution. See State v. Johnson, 253 Kan. 356, 362, 856 P.2d 134 (1993) (‘[T]he wording and scope of the two sections are identical for all practical purposes. If conduct is prohibited by one it is prohibited by the other.’); State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993).” We have not historically construed the Kansas Constitution in a different manner than the United States Supreme Court has construed the United States Constitution in like provisions, and we are not inclined to do so in this instance. We have previously adopted the plain view exception to the search warrant requirement of the Fourth Amendment in State v. Galloway, 232 Kan. 87, Syl. ¶ 2, 652 P.2d 673 (1982), where we held: “The ‘plain view’ exception to the 4th Amendment applies when 1) the initial intrusion which afforded authorities the plain view is lawful; 2) the discovery of the evidence is inadvertent; and 3) the incriminating character of the article is immediately apparent to searching authorities.” It is consistent with our previous decisions to recognize the plain feel exception announced by the Court in Dickerson, and we expressly hold that the exception applies to lawful searches in Kansas. This is also consistent with the conclusion reached by almost all other states which have been asked to extend this exception to the Fourth Amendment search warrant requirement to include plain feel searches. See State v. Trine, 236 Conn. 216, 234, 673 A.2d 1098 (1996); State v. Rushing, 935 S.W.2d 30, 34 (Mo. 1996); Interest of B.C., 453 Pa. Super. 294, 310, 683 A.2d 919 (1996) (pointing out that only New York, in People v. Diaz, 81 N.Y.2d 106, 595 N.Y.S. 2d 940, 612 N.E. 2d 298 [1993], had rejected the plain feel doctrine, but prior to Dickerson). Even the Minnesota Court of Appeals, after the Dickerson decision, concluded there was no compelling reason why Minnesota should not adopt the plain feel exception to the Minnesota Constitution. State v. Burton, 556 N.W. 2d 600, 602-03, rev. denied February 26, 1997 (Minn. App. 1996). We see no persuasive reason to refuse to follow Dickerson. Scope of the search Having decided the plain feel exception applies in Kansas, we then must ascertain if the trial court correctly ruled the exception applied to the facts of the present case. In making this determination, we must rely upon tíre factual findings of the trial court if supported by substantial evidence. The trial court explicitly found that Ford “was experienced and trained in the recognition of and feeling of baggies of marijuana” and that although Ford could not put the feeling into words, they “did have a consistent feel.” The trial court emphasized that it would likely have decided the case differently if Ford had lacked experience and training in handling drug arrests. In discussing Ford’s credibility, the trial court stated: “Once again, the key factor is the credibility of the officer. Suffice it to say that I have carefully considered the testimony of Officer Ford in this case, and based upon his training and experience and the unshakable certainty of his comments about the identity of the bulge during his testimony, I am satisfied that there was probabl[e] cause for the seizure....” In denying the motion to suppress the evidence, the trial judge held: “Under all of the circumstances of the case, I find his testimony to be credible and I am satisfied that the bulge was apparent to the officer as marijuana in a baggie when he was patting down the defendant for weapons.” The trial court acknowledged that Ford had completed the pat-down before returning to the bulge a second time and had asked Wonders what was in his pocket before removing the baggies. Despite these factors, the trial court ruled the marijuana was immediately apparent to Ford upon the initial pat-down. Testimony in the record supports the trial court’s decision. Ford was first questioned regarding the pat-down during cross-examination at the preliminary hearing. He testified as follows: “Q. [Defense counsel] Okay. And when you patted him down did you first pat-down his chest? “A. Yes. “Q. And you didn’t find anything? “A. No. “Q. Then you started down to the lower body. Did you just pat him down completely first or did you go directly to his front pocket? “A. It was a complete pat-down initially. “Q. And during that initial pat-down of the lower body did you find any bulges that would make you think there was a weapon? “A. No. “Q. But you went back and then searched his pocket? “A. The — I felt — what I did feel in his pant pocket was a bulge, and I did at that time ask Mr. Wonders what was in his pocket, there was no reply, and that’s when I did locate the marijuana in his pocket. “Q. But it wasn’t a bulge that would indicate to you there was a weapon in the pocket? “A. No.” The following also occurred during redirect examination: “Q. [by prosecutor] Okay. When you found the bulge in Mr. Wonders’ pocket did you have an idea of what it might be? “A. Yes, I did. “Q. And what did you think it was when you felt it, initially? “A. Initially, I did feel it to be baggies of content.” During direct examination at the hearing on the motion to suppress, Ford stated that the primary purpose of the pat-down was to search for weapons, but he acknowledged he was aware that he could seize contraband discovered during such a search. Ford further testified: “Q. When you pat down Mr. Wonders can you tell me, did you follow standard procedure? “A. Yes. “Q. And when you came to the area where you felt the bulges in his front pocket— Was it in his front pocket? “A. Yes. “Q. What did you feel? “A. I felt what I believed to be a baggie of marijuana. “Q. And why did you believe it to be a baggie of marijuana? “A. My experience in finding that type of item before. “Q. And as you were doing the pat-down, how did you do the pat-down in that area? “A. Well, initially, it was the procedure to pat down with the palm of the hands . . . while he was in a position to be off balance. “Q. Okay. And when — when you felt the baggie did you do any other — when you initially felt the baggie did you do any other movement or pushing around to try to develop what that might be in his pocket? “A. No. “Q. And why not? “A. It was immediately apparent to me. “Q. After you felt the bulge in his pocket what did you do? “A. After I felt them, I gave him an opportunity and I asked him what it was in his pocket. “Q. And why did you do that? “A. Just inquiring. “Q. Okay. Were you sure at that point that it was marijuana in his pocket? “A. I felt sure. “Q. And what did he say? “A. He didn’t say anything. “Q. Okay. Then what did you do? “A. Then the marijuana was taken out of his pocket.” During cross-examination, Ford indicated that he completed an initial pat-down lasting 10 to 12 seconds and admitted he returned to the pocket and patted it down again for an additional 3 seconds. When questioned by the court, Ford replied that he had not manipulated or squeezed the pocket during either pat-down search. The trial court was in a unique position to evaluate Ford’s experience, training, and ability to detect and recognize marijuana. As the trial court’s findings on these matters are supported by substantial evidence, they may not be disturbed on appeal. Although cases have been cited where courts have rejected an officer’s testimony that contraband was immediately apparent to them, in none of these cases did an appeals court reject a trial court’s specific factual finding that the contraband was immediately apparent to the officer. See, e.g., United States v. Mitchell, 832 F. Supp. 1073 (N.D. Miss. 1993), and United States v. Winter, 826 F. Supp. 33 (D. Mass. 1993), aff’d 29 F.3d 6 (1st Cir. 1994). We are not a trial court, and if the trial court’s explicit finding that the marijuana was immediately apparent to Ford during the initial frisk is supported by substantial evidence, it logically follows that the subsequent seizure of the marijuana is allowed. We do not find that the rhetorical question Ford posed to Wonders about the contents of his pocket is inconsistent with his already knowing the pocket contained marijuana. Nor do we find it significant that Ford completed the pat-down before returning to the pocket to remove the marijuana, as such a practice is in the interest of the officer’s safety. That an officer may wish to confirm whether a suspect is carrying a weapon before revealing the discovery of contraband is no reason tó find that the contraband was not immediately apparent to the officer. The legal question we must focus upon is whether passing over and then returning to an area negates a finding by a trial court that the nature of the contraband was immediately apparent upon the initial search. This question requires a brief analysis of the meaning of the phrase “immediately apparent.” In Texas v. Brown, 460 U.S. 730, 741, 75 L. Ed. 2d 502, 103 S. Ct. 1535 (1983), the United States Supreme Court, in a plurality opinion, rejected the notion that “immediately apparent” in the context of “plain view” means that an officer must be possessed of near certainty regarding the seizable nature of items. The Court stated: “[T]he use of the phrase immediately apparent’ was very likely an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary for an application of the ‘plain view’ doctrine. “. . . . Plainly, the Court did not view the ‘immediately apparent’ language of Coolidge as establishing any requirement that a police officer ‘know’ that certain items are contraband or evidence of a crime.” 460 U.S. at 741. The Court then reaffirmed that the seizure of properly in plain view is reasonable if there is probable cause to associate the property with criminal activity. 460 U.S. at 741-42. The Brown Court recognized that circumstances surrounding the encounter and the officer’s training and experience may contribute to a finding of probable cause. 460 U.S. at 742-43. In People v. Champion, 452 Mich. 92, 109, 549 N.W.2d 849 (1996), the Michigan Supreme Court discussed what the Dickerson Court had meant by “immediately apparent” and quoted State v. Wilson, 112 N.C. App. 777, 782, 437 S.E.2d 387 (1993), which ruled: “ ‘[W]e need only determine whether [the officer] had probable cause to believe that the contraband he felt during his pat down search was cocaine.’ ” Accord Dickerson v. United States, 677 A.2d 509, 512-13 (D.C. 1996). The Champion court also emphasized that the totality of the circumstances must be appreciated when deciding whether such probable cause exists. 452 Mich, at 111. A footnote in the case pointed out that other courts, two of which the Court of Appeals relied upon in the present case, United States v. Ross, 827 F. Supp. 711 (S.D. Ala. 1993), aff’d 19 F.3d 1446 (11th Cir. 1994); and Winter, 826 F. Supp. 33, had misconstrued Dickerson’s “immediately apparent” language as requiring a degree of suspicion approaching certainty. 452 Mich. at 106 n.8. When we adopted the plain view exception in Galloway, 232 Kan. 87, we looked to Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2002, reh. denied 404 U.S. 874 (1971), for the three basic requirements, previously set forth, which must be met before the plain view exception may be applied. 232 Kan. at 91. We also quoted language from United States v. Ross, 527 F. 2d 984, 985 (4th Cir. 1975), cert. denied 424 U.S. 945 (1976), which held: “ ‘[F]or an object to be “incriminating” for constitutional purposes the seizing authority need only have reasonable or probable cause to believe that the object is evidence of a crime.’ ” 232 Kan. at 92. After commenting on several Kansas cases, we stated: “From our examination of the cases, both federal and state, we conclude the plain view exception to the 4th Amendment of the United States Constitution and Section 15 of the Bill of Rights of the Kansas Constitution is applicable only where it is shown: 1) The initial intrusion which afforded the authorities the plain view was lawful by virtue of a warrant (search or arrest), waiver or exigent circumstances; 2) the discovery of the evidence was inadvertent; and 3) the authorities immediately had reasonable or probable cause to believe the evidence observed in plain view was incriminating in nature.” Galloway, 232 Kan. at 93-94. This language from Galloway is consistent with the construction given to the phrase “immediately apparent” in Brown. It is thus apparent that we have applied a probable cause meaning to the phrase in the plain view context, just as the United States Supreme Court stated it had intended. Due to this analysis, we find that the same construction of the “immediately apparent” requirement in plain view situations should be applied to those involving plain feel. It would not be logical or practical to have one set of rules which applies to a plain view exception and a different and more stringent set which relates solely to the application of the plain feel exception. We believe that no good reason supports a different interpretation of “immediately apparent” in the plain feel context than that given by the United States Supreme Court and this court in plain view cases. In light of this interpretation of “immediately apparent,” we hold that Ford need only have had reasonable or probable cause to believe it was immediately apparent to him that the bulge he felt during his initial pat-down of Wonders was marijuana. This determination of necessity considers the totality of the circumstances surrounding the pat-down, which includes the detection of the drug paraphernalia in the vehicle and brings into play Ford’s training and experience as specifically found by the trial court. It is clear that substantial evidence supports the trial court’s finding that Ford had probable cause to believe the bulge in Wonders’ pocket was marijuana, despite his returning to the pocket. Furthermore, our extensive examination of similar cases from other jurisdictions supports this conclusion. In cases where a second search or seizure was deemed impermissible under Terry, either the trial court had found that the items were not immediately apparent, the trial court had made no such findings, or the officers had indicated that they did not know what the item was. See Dickerson, 508 U.S. 366 (trial court made no findings); United States v. Gibson, 19 F.3d 1449, 1451 (D.C. Cir. 1994) (trial court made no findings; officer simply found a hard, flat, angular object which did not correspond to anything expected in a pocket, but which he knew was not a weapon); United States v. Ponce, 8 F.3d 989 (5th Cir. 1993) (trial court made no findings, but officer’s testimony belied notion that item was immediately apparent); United States v. Taylor, 997 F.2d 1551 (D.C. Cir. 1993) (second search occurred only after officer was told via radio where to search); Mitchell, 832 F. Supp. at 1078-79 (trial court found cocaine was not immediately apparent despite officers’ testimony); Ross, 827 F. Supp. at 719 (trial court found cocaine in box was not immediately apparent because officer did not believe the box itself to be contraband); Winter, 826 F. Supp. at 37 (trial court found contraband was not immediately apparent after officer testified repeatedly he did not know what the bulge was). In cases where an appellate court has reversed a trial court’s failure to suppress evidence seized during or after a Terry search, the appellate courts found no evidence in the record that the contraband was immediately apparent to the searching officer. See Jackson v. State, 669 N.E.2d 744, 749 (Ind. App. 1996) (officer failed to testify that he immediately recognized substance as cocaine); State v. White, 110 Ohio App. 3d 347, 355, 674 N.E.2d 405 (1996) (no evidence that identity of contraband was immediately apparent to officer); Com. v. Mesa, 453 Pa. Super. 147, 156, 683 A.2d 643 (1996) (officer testified he did not identify contents until after removing bulge from pocket). In the cases we have examined where the trial court explicitly found that the seized items were immediately apparent to the officers, appellate courts have upheld this finding. Howard v. State, 220 Ga. App. 579, 582, 469 S.E.2d 746 (1996); Bratcher v. State, 661 N.E.2d 828, 832 (Ind. App. 1996); Rushing, 935 S.W.2d at 33; State v. Pearson, 125 N.C. App. 676, 680, 482 S.E.2d 16 (1997); Strickland v. State, 923 S.W.2d 617, 622 (Tex. Crim. 1995); Dickerson, 677 A.2d at 513. Other courts have upheld searches with no detailed discussion of the trial court’s findings. See United States v. Hughes, 15 F.3d 798, 802 (8th Cir. 1994); Champion, 452 Mich. 92 (reversing Michigan Court of Appeals); Burton, 556 N.W.2d at 602. Furthermore, there are several cases with factual patterns similar to the one before us in which courts have upheld the searches. The Connecticut Supreme Court upheld a search very similar to the search of Wonders in State v. Trine, 236 Conn. 216, 234, 673 A.2d 1098 (1996). In Trine, the officer had limited himself to an open, flat-handed pat-down of the exterior of the clothing. During the course of the pat-down, he felt an object which was not a weapon in Trine’s pocket. Though the officer did not manipulate this object, he immediately believed the object to be cocaine. After the pat-down was complete, the officer returned to the pocket, searched it, and seized a package of rock cocaine. The extensive experience of the officer was deemed to be an important factor in Trine. The majority utilized a probable cause analysis to conclude legally sufficient probable cause existed to justify the seizure once it was immediately apparent to the officer that contraband was in the pocket. The dissent would not have allowed the plain feel exception to expand a Terry search and complained: “The majority, without any independent analysis of the reliability of ‘plain touch,’ its reasonableness or its effects upon the privacy rights of our citizens, adopts the holding of Minnesota v. Dickerson.” 236 Conn. at 244. In Andrews v. State, 221 Ga. App. 492, 493, 471 S.E.2d 567 (1996), an officer discovered during a pat-down search what he was “99% sure” was a large “cookie” of crack cocaine in Andrews’ shorts. The officer squeezed it to confirm his initial belief before asking Andrews to unzip his shorts and remove the substance. In affirming Andrews’ conviction, the Georgia Court of Appeals, although not discussing the trial court’s findings, distinguished the case from the facts of Dickerson. The court emphasized that the officer in Andrews had discovered what he immediately knew was crack cocaine while still conducting a search for weapons without having to further manipulate the object. In Interest of B.C., 453 Pa. Super. at 306, the Pennsylvania Superior Court reached a similar conclusion as that of the Andrews court. The court pointed out the presence of the same distinguishing factors in upholding a search where the officer, while patting down the subject, squeezed the pockets as he normally did. We are not unaware that experienced, knowledgeable law enforcement officers know the “magic words” to be related when their searches and seizures are challenged. However, the more persuasive argument remains. There was substantial competent evidence to support the trial court’s findings and decision. We will not abandon our required standard of review and focus on evidence to justify a lack of belief in Ford’s testimony, credibility, or experience. Findings on these issues remain the function of the trial court. In this instance, the trial court properly ruled the evidence was permissibly seized pursuant to the Dickerson plain feel exception. The judgment of the Court of Appeals adopting the plain feel exception in Kansas is affirmed. The judgment of the Court of Appeals reversing the trial court’s decision not to suppress the evidence is reversed. The trial court is affirmed.	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The opinion of the court was delivered by. Davis, J.: Sheryl M. Lewis was convicted of driving while a habitual violator under K.S.A. 1996 Supp. 8-287, a severity level 9, nonperson felony. She denied receiving the mailed notice of her license revocation as a habitual violator. The Court of Appeals concluded that the offense does not require that a “licensee have actual knowledge of the notice declaring him or her a habitual violator.” State v. Lewis, 23 Kan. App. 2d 758, 768, 935 P.2d 1072 (1997). Lewis petitions this court for review of the Court of Appeals’ decision. We reverse and hold that knowledge of status is an essential element of the offense of driving while a habitual violator. K.S.A. 1996 Supp. 8-287. On September 28, 1994, the defendant’s car broke down on I-635 in Wyandotte County. A Kansas Highway Patrol trooper stopped to render assistance. During the course of rendering assistance, the trooper ran a license check and discovered that the defendant’s license had been revoked as a habitual violator. The State filed charges against the defendant for driving while a habitual violator under K.S.A. 1996 Supp. 8-287. At the preliminary hearing, the State offered into evidence the trooper’s testimony ás well as a certified copy of the defendant’s driving record and the order revoking her license as a habitual violator. Under K.S.A. 1996 Supp. 8-286, whenever the records of the Division of Vehicles disclose that a licensee meets the requirements of a habitual violator, the licensee’s license is immediately revoked for a period of 3 years. Notification to the licensee that he or she has been declared a habitual violator and his or her license has been revoked is sent by regular mail to the address listed on the license. See K.S.A. 1996 Supp. 8-255(d). There is no dispute that the order of revocation was sent to the defendant’s address listed on her driver’s license. The defendant testified that she resided at the address listed on her driver’s license. She admitted that she had received multiple tickets in the past for driving without insurance and that she paid the fines. However, she denied receiving any notices from the Division of Vehicles regarding those tickets or her license until 2 months after her arrest in this case. She testified that she had no knowledge that she had been declared a habitual violator. The district court bound the defendant over for trial, noting that the driving record reflected that the Department of Revenue had sent the defendant three suspension notices prior to her arrest. The court stated that in light of the notices, the defendant’s testimony that she never got them was “a little bit difficult for the Court to . . . believe frankly.” The defendant filed a motion to dismiss before trial on the grounds that the habitual violator statutes were unconstitutional. She argued that the notice requirements of the habitual violator statutes were inadequate to satisfy due process. She also argued that if K.S.A. 1996 Supp. 8-287 does not require proof of notification, it was unconstitutional because it established an irrebuttable presumption that notice had been received. The trial court took the matter under advisement and later denied her motion. The case was submitted to the district court on stipulated facts. The defendant stipulated that she had been driving her vehicle on September 28, 1994, and was being assisted by a state trooper when a check of driving records revealed that she had been declared a habitual violator on August 16, 1994. The defendant further stipulated that she lived at the address where the notice declaring her a habitual violator was sent. However, the defendant denied that she received the notice. Based on these facts, the court found the defendant guilty, sentenced her to 6 months in prison, and placed her on probation for 2 years. The defendant argued in her appeal to the Court of Appeals that K.S.A. 1996 Supp. 8-286 and K.S.A. 1996 Supp. 8-287, the habitual violator statutes, were unconstitutional because they failed to give adequate notice prior to a person being declared a habitual violator and because they set up an irrebuttable presumption that the notice declaring a person a habitual violator had been received. As part of the latter argument, she contended that such a presumption invades the province of the factfinder in determining whether the element of criminal intent was satisfied. The Court of Appeals determined that sending suspension notices by first class mail was not a violation of due process because it is reasonably calculated to give notice. 23 Kan. App. 2d at 765. The Court of Appeals then determined that K.S.A. 1996 Supp. 8-287 does not require that the licensee have actual notice that he or she has been declared a habitual violator in order to sustain a conviction. 23 Kan. App. 2d at 768. We granted the defendant’s petition for review. Discussion The dispositive issue in this case is whether an accused’s knowledge of his or her status as a habitual violator is an essential element of the offense of driving while a habitual violator under K.S.A. 1996 Supp. 8-287. The Court of Appeals affirmed the trial court and held the offense to be one of strict liability: “K.S.A. 1996 Supp. 8-287 does not require that the licensee have actual knowledge of the notice declaring him or her a habitual violator to sustain a conviction.” 23 Kan. App. 2d at 768. We disagree and, for the reasons set forth below, hold that an accused’s knowledge of his or her status as a habitual violator is an essential element of the offense of driving while a habitual violator under K.S.A. 1996 Supp. 8-287. Standard of Review The resolution of the above issue involves interpretation of the Kansas habitual violator statutes, K.S.A. 1996 Supp. 8-286 and K.S.A. 1996 Supp. 8-287. The issue also involves interpretation of the provisions of the Kansas Criminal Code dealing with intent and strict liability crimes, K.S.A. 21-3201 and K.S.A. 21-3204, as well as K.S.A. 21-3102, concerning the application of the Kansas Criminal Code. Interpretation of a statute is a question of law, and our review is unlimited. State v. Robinson, 261 Kan. 865, 874, 934 P.2d 38 (1997). A fundamental rule of statutory construction is that the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, an appellate court must give effect to the intention of the legislature rather than determine what the law should or should not be. State v. Proffitt, 261 Kan. 526, 532, 930 P.2d 1059 (1997). The general rule is that a criminal statute must be strictly construed in favor of the accused and any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. However, this rule is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Roderick, 259 Kan. 107, 110, 911 P.2d 159 (1996). Court of Appeals’ Decision The Court of Appeals determined that the offense of driving while a habitual violator under K.S.A. 1996 Supp. 8-287 does not require that a “licensee have actual knowledge of the notice declaring him or her a habitual violator,” 23 Kan. App. 2d at 768, but instead the offense is one of strict liability. In reaching this conclusion, the Court of Appeals relied upon two prior decisions of this court, State v. Jones, 231 Kan. 366, 644 P.2d 464 (1982), and State v. Mountjoy, 257 Kan. 163, 891 P.2d 376 (1995). Within the context of these two cases and in response to arguments advanced by the defendant in this case, the Court of Appeals also discussed the application and requirements of the Kansas Criminal Code with regard to intent. See 23 Kan. App. 2d at 766-68. On the subject of intent, the Kansas Criminal Code states: “Except as otherwise provided, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was intentional or reckless. Proof of intentional conduct shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a reckless manner.” K.S.A. 21-3201(a). K.S.A. 21-3204 provides, however, that “[a] person may be guilty of an offense without having criminal intent if the crime is a misdemeanor or traffic infraction and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” In this case, we deal with a crime against the State of Kansas made criminal not by the Kansas Criminal Code but by another statute of this state, K.S.A. 1996 Supp. 8-287. Not all crimes in this state are contained within the Kansas Criminal Code. See K.S.A. 21-3102. However, “[u]nless expressly stated otherwise, or the context otherwise requires, the provisions of [the Kansas Criminal Code] apply to crimes created.by statute other than in [the] code.” K.S.A. 21-3102(2). The defendant argued before the Court of Appeals and argues now before this court that the offense of driving while a habitual violator is subject to the Kansas Criminal Code because it is made criminal by Kansas statutes. K.S.A. 21-3202(2). The defendant further argues that the Kansas Criminal Code authorizes strict liability only “if the crime is a misdemeanor or traffic infraction” and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability. K.S.A. 21-3204. The defendant contends that the language used in K.S.A. 1996 Supp. 8-287 does not clearly indicate a legislative purpose to impose absolute liability and that because K.S.A. 1996 Supp. 8-287 is a felony, not a misdemeanor or a traffic infraction, the provisions of K.S.A. 21-3204 prohibit absolute liability. Thus, the defendant concludes that knowledge of status as a habitual violator must be an essential element of the offense. The Court of Appeals acknowledged the compelling nature of the defendant’s arguments but concluded that our decision in State v. Jones, 231 Kan. 366, “undermines such argument.” 23 Kan. App. 2d at 767. However, we note that Jones did not involve a felony charge but rather concerned the misdemeanor offense of driving while suspended in violation of K.S.A. 1981 Supp. 8-262. Since the charge in Jones was a misdemeanor, it was not necessary for us in that opinion to discuss the provisions of K.S.A. 21-3204 regarding the application of the intent requirements of the Kansas Criminal Code to crimes located outside that code. State v. Jones Jones involved a prosecution for driving while one’s license is suspended under K.S.A. 1981 Supp. 8-262. K.S.A. 1996 Supp. 8-262(a)(1) establishes the offense of driving while one’s license is canceled, suspended, or revoked. It provides: “Any person who drives a motor vehicle on any highway of this state at a time when such person’s privilege so to do is canceled, suspended or revoked shall be guilty of a: (A) Class B nonperson misdemeanor on the first conviction; (B) class A nonperson misdemeanor on the second conviction; and (C) seventy level 9, nonperson Jelony on a third or subsequent conviction.” (Emphasis added.) In Jones, the defendant, not unlike the defendant in this case, testified that he did not know that his license had been suspended and that he had not received any written notice of the suspension. He also testified that he had not lived at the address shown on the order of suspension for 2 years. The State’s evidence consisted of the testimony of the arresting officer who had seen Jones drive a motor vehicle, a certified copy of the suspension order, and other documents which did not include a statement of mailing. Unlike the instant case, in Jones there was no evidence that either a copy of the suspension order or any written notification thereof was ever mailed or otherwise given to the defendant. Accordingly, in Jones, we did not sustain the State’s appeal because there was no showing in the record that the following provisions of K.S.A. 8-255(b) (Ensley) (now K.S.A. 1996 Supp. 8-255[d]), were complied with: “ ‘Upon suspending or revoking the license of any person as authorized by this act, the division immediately shall notify the licensee in writing.’ ” 231 Kan. at 368. We held that “[o]nce the State has complied with the mandatory notice requirement of K.S.A. 8-255(b) by mailing, the presumption of receipt arises and is not rebuttable. Evidence of nonreceipt may, however, be introduced by the accused in mitigation at time of sentencing.” 231 Kan. at 368. We further concluded in Jones “(1) [t]hat the State must send a copy of the order of revocation or suspension or a written notice thereof to the licensee at the last known address according to the division’s records; (2) that when written notice has been mailed, then, after reasonable time for mail delivery has expired, receipt is conclusively presumed; and (3) that in a prosecution under K.S.A. 1981 Supp. 8-262, the State need not prove actual receipt of the notice, actual knowledge of the revocation, or specific intent to violate the statute, by the licensee.” 231 Kan. at 368. The crucial difference between Jones and this case is that Jones involved the misdemeanor offense of driving while suspended. Because the charge in Jones was a misdemeanor, we did not deal with the application of K.S.A. 21-3204 and that statute did not form any basis for the opinion. Nevertheless, in its opinion in the instant case, the Court of Appeals relies on that portion of the driving while suspended offense, K.S.A. 1996 Supp. 8-262, which calls for a felony conviction, stating: “While defendant’s arguments regarding K.S.A. 21-3204 are compelling, the decision in Jones undermines such argument. In Jones, the court held that 8-255 was a strict liability statute which did not require the State to prove the driver was aware that his or her license had been suspended or revoked. While the court in Jones noted that K.S.A. 21-3204 allowed strict liability in misdemeanors and traffic offenses, the statute [8-262] in question made a third violation a class E felony. L. 1981, ch. 43, § 1. The fact that the statute carried some felony penalties did not affect the Supreme Court’s decision in Jones.” 23 Kan. App. 2d at 767-68. We realize that the language used in Jones, “in a prosecution under K.S.A. 1981 Supp. 8-262” could be read to include a “felony” prosecution for the third offense of driving while suspended under 8-262. However, Jones involved a misdemeanor, and as we have said above, the Jones decision is not based upon a consideration of K.S.A. 21-3204. Jones governs all misdemeanor charges filed under the provisions of 8-262. While there is authority to the contrary, Kansas is not alone in imposing absolute liability for misdemeanor driving while suspended offenses. See State v. Grotzky, 222 Neb. 39, 42-44, 382 N.W.2d 20 (1986), State v. Morrison, 2 Ohio App. 3d 364, 367, 442 N.E.2d 114 (1982), and State v. Buttrey, 293 Or. 575, 580-87, 651 P.2d 1075 (1982). But see Jeffcoat v. State, 639 P.2d 308, 313 (Alaska App. 1982); State v. Keihn, 542 N.E. 2d 963, 968 (Ind. 1989); State v. McCallum, 321 Md. 451, 583 A.2d 250 (1991); Reed v. Commonwealth, 15 Va. App. 467, 471, 424 S.E.2d 718 (1992). Jones, however, does not apply to felony offenses. State v. Mountjoy As further authority for its holding that “K.S.A. 1996 Supp. 8-287 does not require that the licensee have actual knowledge of die notice declaring him or her a habitual violator to sustain a conviction," the Court of Appeals cites our decision in State v. Mountjoy, 257 Kan. 163. See 23 Kan. App. 2d at 768. The Court of Appeals relies upon two aspects of Mountjoy to support its holding that driving while a habitual violator is an absolute liability crime: (1) Because the offense of driving while a habitual violator is defined outside the Kansas Criminal Code, it is not subject to the mandatory intent provisions of the Code; and (2) the offense is a public welfare offense calling for an exception to the intent requirement. 23 Kan. App. 2d at 768. Both of these aspects are discussed in detail below. Mountjoy involved the question of whether intent was a required element of the crime of practicing the healing arts without a license. In Mountjoy, we noted that under K.S.A. 65-2803(d), practicing the healing arts without a license is made a class B misde meanor. We addressed the provisions of K.S.A. 21-3204 which provide that a person can be convicted of an offense without having criminal intent if (1) the crime is a misdemeanor and (2) the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described. 257 at 177. We also relied upon the well-recognized exception for some public welfare offenses to the common-law rule which requires the element of criminal intent to hold a person criminally responsible for his or her conduct. We stated: “Among all the objects sought to be secured by government, none is more important that the preservation of the public health. [Citation omitted.] It is fundamental that where a statute is designed to protect the public, the language of that statute must be construed in the light of the legislative intent and purpose and is entitled to a broad interpretation so that its public purpose may be fully carried out.” 257 Kan. at 177. Thus, we concluded: “The purpose of K.S.A. 65-2803 is to protect the public from the unauthorized practice of the healing arts. The unauthorized practice of the healing arts is an offense which, under the public welfare doctrine, does not require the element of criminal intent.” 257 Kan. at 177. Is Driving While a Habitual Violator in Violation of K.S.A. 1996 Supp. 8-287 Subject to the Criminal Code? The conclusion of the Court of Appeals that because the offense of driving while a habitual violator in violation of K.S.A. 1996 Supp. 8-287 is a crime not defined in our criminal code, it is not subject to the provisions of the code, is undermined by the criminal code itself. The Kansas Criminal Code specifically provides that “[u]nless expressly stated otherwise, or the context otherwise requires, the provisions of this code apply to crimes created by statute other than in this code.” K.S.A. 21-3102(2). Thus, by the operation of K.S.A. 21-3102(2), the intent requirement in K.S.A. 21-3201 has applicability to crimes outside the Kansas Criminal Code. Also, K.S.A. 21-3204 which provides exceptions to the intent requirement contained in K.S.A. 21-3201, states: “A person may be guilty of an offense without having criminal intent if the crime is a misdemeanor or traffic infraction and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” Traffic infractions are those offenses listed in K.S.A. 8-2118 and amendments thereto. See K.S.A. 21-3105(2). If K.S.A. 21-3201 was not meant to apply to those offenses outside of the Kansas Criminal Code, there would be no need for K.S.A. 21-3204 to exempt traffic infractions from its intent requirement. Further, this court has in the past applied the intent requirement found in K.S.A. 21-3201 and its exceptions in K.S.A. 21-3204 to crimes which are not a part of the Kansas Criminal Code. In State v. JC Sports Bar, Inc., 253 Kan. 815, 861 P.2d 1334 (1993), this court addressed the question of whether K.S.A. 1992 Supp. 41-2615, permitting the consumption of alcohol by a minor on the premises where such alcohol is sold, was a strict liability offense. In analyzing the statute, we cited K.S.A. 21-3204 as an exception to the general requirement of intent and discussed whether 41-2615 met its requirements. We concluded that the statute did not, as there was no clearly indicated legislative purpose that it be a strict liability offense as required by K.S.A. 21-3204. 253 Kan. at 821-23. Thus, it is clear that the intent requirement of K.S.A. 21-3201 applies regardless of whether the criminal offense is found in the criminal code or elsewhere in the statutes. The question remains, however, whether driving while a habitual violator is excepted by the provisions of K.S.A. 21-3102(2), which provides that the rules governing criminal law such as intent apply to offenses outside the criminal code “[ujnless expressly stated otherwise, or the context otherwise requires.” K.S.A. 1996 Supp. 8-287 does not expressly state that intent or knowledge is not a requirement. It simply provides that “[operation of a motor vehicle in this state while one’s driving privileges are revoked pursuant to [the habitual violator statute] is a severity level 9, nonperson felony.” The question of intent in K.S.A. 1996 Supp. 8-287 is a relatively recent problem. Prior to its amendment in 1994, K.S.A. 8-286 provided that in order to declare someone a habitual violator, a petition had to be filed seeking a hearing. See State v. Proffitt, 261 Kan. at 533. A summons was then served on the person to show cause why he or she should not be convicted of being a habitual violator. Under this statutory scheme, there was no question that a defendant charged with driving while a habitual violator knew his or her status and thus possessed the requisite intent or knowledge. Prior to 1994, K.S.A. 1993 Supp. 8-287 provided: “It shall be unlawful for any person to operate any motor vehicle in this state while any court order declaring such person to be a habitual violator and prohibiting such operation remains in effect. Any person found to be a habitual violator under the provision of this act who is thereafter convicted of operating a motor vehicle in this state, while the order of the court prohibiting such operating is in effect, shall be guilty of a severity level 9, nonperson felony.” Under the amended statutory scheme established in 1994, however, no such petition or hearing is required. Instead, whenever the Division of Vehicles finds that a person’s record discloses convictions sufficient to make that person a habitual violator, the division promptly revokes the license, sending the person notice of his or her status as a habitual violator by regular mail. K.S.A. 1996 Supp. 8-286; K.S.A. 1996 Supp. 8-255(d). K.S.A. 1996 Supp. 8-286 (as amended in 1994) provides: “Whenever the files and records of the division shall disclose that the record of convictions of any person is such that the person is a habitual violator, as prescribed by K.S.A. 8-285 and amendments thereto, the division promptly shall revoke the person’s driving privileges for a period of three years.” The intent of this amendment was to streamline the procedure and lessen the loads of county and district attorneys. See Proffitt, 261 Kan. at 531. The meaning of “habitual violator” was not changed in the 1994 amendments. A habitual violator is any person who, within the immediately preceding 5 years, has been convicted in this or any other state three or more times of: “(1) Vehicular homicide, as defined by K.S.A. 21-3405 and amendments thereto or as prohibited by any ordinance of any city in this state or any law of another state which is in substantial conformity with that statute; “(2) violating K.S.A. 8-1567 and amendments thereto, or violating an ordinance of any city in this state or any law of another state, which ordinance or law declares to be unlawful the acts prohibited by that statute; “(3) driving while the privilege to operate a motor vehicle on the public highways of this state has been canceled, suspended or revoked, as prohibited by K.S.A. 8-262 and amendments thereto or as prohibited by any ordinance of any city in this state or any law of another state which is in substantial conformity with that statute; “(4) perjury resulting from a violation of K.S.A. 8-261a and amendments thereto or resulting from the violation of a law of another state which is in substantial conformity with that statute; “(5) violating the provisions of the fifth clause of K.S.A. 8-142 and amendments thereto, relating to fraudulent applications, or violating the provisions of a law of another state which is in substantial conformity with that statute; “(6) any crime punishable as a felony, if a motor vehicle was used in the perpetration of the crime; “(7) failing to stop at the scene of an accident and perform the duties required by K.S.A. 8-1602 through 8-1604, and amendments thereto, or required by any ordinance of any city in this state or a law of another state which is in substantial conformity with those statutes; or “(8) violating the provisions of K.S.A. 40-3104 and amendments thereto, relating to motor vehicle liability insurance coverage or an ordinance of any city in this state, which is in substantial conformity with such statute.” K.S.A. 8-285(a). Is it significant that the statute at issue, K.S.A. 1996 Supp. 8-287, does not expressly require knowledge or intent and is not included in the criminal code? Both of these points were relied upon by the Court of Appeals as reasons for concluding that the offense was a strict liability offense. However, far more than simple omission is necessary to justify dispensing with an intent requirement. United States v. United States Gypsum Co., 438 U.S. 422, 438, 57 L. Ed. 2d 854, 98 S. Ct. 2864 (1978). As stated above, inclusion in the criminal code is not a determining factor. K.S.A. 21-3102(2) provides that the Kansas Criminal Code applies to crimes created by statute other than those in the code. Thus, while 8-287 does not appear in the criminal code, the provisions of the code nevertheless apply. The initial offense of driving while a habitual violator, as outlined by the legislature in 1972, set up a statutory scheme wherein the district court was involved in determining whether a defendant was a habitual violator. Given this statutory scheme, it is clear that the legislature originally contemplated that knowledge of status by a defendant would be required. Clearly, intent was an essential element of the offense when enacted in 1972. While the language and the procedure for notification changed in 1994, there is no clear indication that the legislature intended to dispense with knowledge of status as an essential element. As a result, such knowledge must be deemed to be an essential element unless the statute fits within the exception to the K.S.A. 21-3201 intent requirement contained in K.S.A. 21-3204, which states: “A person may be guilty of an offense without having criminal intent if the crime is a misdemeanor or traffic infraction and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” Does K.S.A. 1996 Supp. 8-287 Fall Within the Public Welfare Doctrine? Kansas has long recognized an exception to the general intent requirement for those offenses which come under the “public welfare doctrine.” See State v. Mountjoy, 257 Kan. 163, 175-76, 891 P.2d 376 (1995); State v. Logan, 198 Kan. 211, 215-17, 424 P.2d 565 (1967); State, ex rel., v. Fairmont Foods Co., 196 Kan. 73, 81-82, 410 P.2d 308 (1966); State v. Merrifield, 180 Kan. 267, 269, 303 P.2d 155 (1956). Under the public welfare doctrine, the legislature may, for the protection of public interest, forbid the doing of an act and make its commission criminal without regard to the intent or knowledge of the doer. State v. Logan, 198 Kan. at 216. Offenses which come under this doctrine include those which involve the exercise of police power for the public welfare. See State v. Logan, 198 Kan. at 215. There exists a strong public policy with regard to the regulation of driving in this state. The legislative history of the habitual violator statutes indicates a firm intention on the part of the legislature that driving while a habitual offender is a public welfare offense. In interpreting the habitual violator statutes, we have indicated that “[t]he government’s interest in keeping habitual violators off Kansas roads is a substantial and important one — both from public safety and public welfare perspectives.” State v. Heironimus, 262 Kan. 796, 807, 941 P.2d 1356 (1997). S.B. 539, which created the habitual violator statutes, had, as its purpose: “(a) To provide maximum safety for all persons who travel or otherwise use public highways of the state; “(b) To deny the privilege of operating motor vehicles on such highways to persons who by their conduct, attitude and record have demonstrated their indifference to the safety and welfare of others and their disrespect for the laws of this state, the orders of its courts and the statutorily required acts of its administrative agencies; and “(c) To discourage repetition of criminal acts by individuals against the peace and dignity of this state and its political subdivisions and to impose increased and added deprivation of the privilege to operate motor vehicles upon habitual violators who have been convicted repeatedly of violations of traffic laws.” L. 1972, ch. 32, § 1. That K.S.A. 1996 Supp. 8-287 is a public welfare statute involving public safety may not be denied. However, the public welfare nature of the offense does not exempt it from the provisions of the Kansas Criminal Code. See K.S.A. 21-3204. K.S.A. 21-3204 came into being with the adoption of the Kansas Criminal Code. L. 1969, ch. 180, § 21-3204. The criminal code was based almost entirely on recommendations of the Kansas Judicial Council. See State v. Robinson, 239 Kan. 269, 272, 718 P.2d 1313 (1986). The recommendations of the Kansas Judicial Council were published in a special report in the Kansas Judicial Council Bulletin in April of 1968. In the comments to the section concerning strict liability offenses, the Judicial Council noted the public welfare exception to intent and its recent enlargement by courts. The Judicial Council then stated that “[K.S.A. 21-3204] represents an effort to limit strict liability crimes to those situations where the penalty is relatively mild and where the legislature has clearly indicated an intention to dispense with criminal intent.” pp. 32-33. This section was passed without amendment by the legislature. The legislature, in adopting the Kansas Criminal Code in 1969, limited the public welfare doctrine as an exception to intent to those offenses which are (1) misdemeanors or traffic infractions and (2) clearly indicate a legislative purpose to impose absolute liability for the conduct described. K.S.A. 21-3204. This concept is in accord with the “contemporary view” disfavoring strict liability offenses. See State v. McCallum, 321 Md. 451, 583 A.2d 250 (1991). We conclude that the public welfare exception to intent does not apply in this case because the offense involved is not a misdemeanor or traffic infraction and because the statute creating the offense does not clearly state that it is to be an absolute liability offense. Knowledge Having determined that an accused’s knowledge of his or her status as a habitual violator is a required element of the crime of driving while a habitual violator, the question we must now resolve is the quality of knowledge required. In State v. McCallum, the Maryland Court of Appeals in a concurring opinion by Judge Chasanow noted the following with reference to the element of proof of knowledge of status as a habitual violator: “There is more than one mental state that may constitute ‘knowledge.’ The first and highest form of ‘knowledge’ is actual knowledge, that is, an actual awareness or an actual belief that a fact exists. A second form of ‘knowledge’ is what has often been called ‘deliberate ignorance’ or ‘willful blindness.’ R. Perkins, Criminal Law, Ch. 7, § 4 at 687 (1957). The latter form of‘knowledge’ exists where a person believes that it is probable that something is a fact, but deliberately shuts his or her eyes or avoids making reasonable inquiry with a conscious purpose to avoid learning the truth. See 1 W. LaFave & A. Scott, Substantive Criminal Law, § 3.5 at 307 (1986), and authorities cited therein.” 321 Md. at 458-59. Judge Chasanow went on to note: “Deliberate ignorance requires a conscious purpose to avoid enlightenment; a showing of mere negligence or mistake is not sufficient. Also, ‘deliberate ignorance’ is a form of knowledge, not a substitute for knowledge.” 321 Md. at 461. Judge Chasanow stated that if an accused was deliberately ignorant of his or her status, such a state of mind would be sufficient to satisfy the intent requirement in the Maiyland statute. 321 Md. at 461. We agree with the excerpt from Judge Chasanow’s concurring opinion. Proof of knowledge of status as a habitual violator may be by circumstantial evidence, including deliberate ignorance on the part of the accused. Further, in prosecutions under K.S.A. 1996 Supp. 8-287, the finder of fact may, but is not required to infer knowledge of status from the fact that notification of the accused’s status as a habitual violator was mailed to the accused at the accused’s last known official address. See State v. Keihn, 542 N.E. 2d 963, 968 (Ind. 1989) (holding that where the Bureau of Motor Vehicles mails notice of license suspension to the defendant’s last known address, proof of such notice would allow the trial court to infer a defendant’s knowledge). The Defendant’s Constitutional Arguments The defendant argues in this case that the statutory scheme now in place for notification that one is a habitual violator is unconstitutional because it establishes an irrebuttable presumption of receipt once mailed to the accused. Based upon our holding that knowledge of status as a habitual violator is an essential element of the offense of driving while a habitual violator under K. S. A. 1996 Supp. 8-287, there is no irrebuttable presumption under notification procedures for habitual violators. The defendant also argues that the notification procedure provided for in K.S.A. 1996 Supp. 8-286 and K.S.A. 1996 Supp. 8-287 are insufficient to satisfy the requirements of due process. The defendant’s argument does not center, as was the case in State v. Heironimus, 262 Kan. 796, on the revocation procedure itself, but rather on the notice requirement and whether the statute properly gave her notice so that she could contest the validity of her previous record as well as notice that she could be subjected to criminal liability. From a due process standpoint, notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314, 94 L. Ed. 865, 70 S. Ct. 652 (1950). The criterion is not the possibility of conceivable injury but the just and reasonable character of the requirements, considering the subject of the statute. 339 U.S. at 315. Because we hold that an accused’s knowledge of status as a habitual violator is an essential element of the offense of driving while a habitual violator, we are not confronted with a due process problem in the defendant’s case. Suffice it to say, the notice provisions of 8-255(d) contained within the habitual violator statutes comport with notice requirements of the Due Process Clause of the United States Constitution. The decisions of the Court of Appeals and the district court are reversed, and the case is remanded to the district court for retrial in accordance with this opinion. Lockett, J., not participating. Richard W. Wahl, Senior Judge, assigned.	[ -80, -24, -11, -100, 14, 96, 58, -101, 115, -73, -83, 115, -81, -64, 20, 41, -5, 63, -15, 105, -43, -78, 103, -125, 118, 115, -46, 68, -67, 95, -12, -28, 94, 48, -118, 85, 6, 75, -107, -104, -50, 6, 25, -47, 90, -45, 40, 42, -126, -113, 117, 31, -93, 30, 25, -41, -87, 12, 75, -91, -40, -48, -101, -107, 122, 6, -77, 4, -68, 13, -48, 43, -116, 57, 0, 124, -13, -90, -128, -76, 111, -103, -116, 38, 98, 97, 21, -19, -84, -116, 14, 114, -67, -90, -102, 89, 35, 4, -105, -99, 117, 22, 35, -4, 100, 6, 29, -88, 15, -50, -80, -111, 13, 53, -94, -40, -17, 101, 50, 16, -57, -26, 94, 83, 123, -101, -42, -76 ]
The opinion of the court was delivered by Abbott, J.: The State appeals from the trial court’s decision holding K.S.A. 32-1003(g) is unconstitutionally overbroad. K.S.A. 32-1003(g) was amended in 1997, and there are no other cases pending at any level in the court system involving this version of K.S.A. 32-1003(g). Defendants Maiyl McAffiy and Jerry Tuggle were charged with violating K.S.A. 32-1003(g), which provides: “It is unlawful for any person, unless authorized by law or rules and regulations of the secretary, to: “(g) throw or cast the rays of a spotlight, headlight or other artificial light on any highway, roadway, field, grassland, woodland or forest for the purpose of spotting, locating or taking any animal while having in possession or control, either singly or as one of a group of persons, any rifle, pistol, shotgun, bow or other implement whereby wildlife could be taken.” During oral argument, the defense counsel specifically argued that the general use of the term “animal” in K.S.A. 32-1003(g) made the statute unconstitutional because it did not clarify what conduct was prohibited and what conduct was acceptable. According to the defense counsel, the defendants could have been engaging in the constitutionally protected right of protecting their property (cows) from coyotes by casting a spotlight on a field for the purpose of locating their cows (which are “animals”) while in the possession of a gun. Since this constitutionally protected conduct is prohibited by K.S.A. 32-1003(g), the defense counsel claimed that the statute was overbroad. In response, the State claimed that the statute was constitutional. The State’s counsel argued: “We certainly don’t think it’s unconstitutional. It’s — the word ‘animals’ within the — within the statute, itself. There’s no limitation on what those animals might be. I think it’s generally up to the good conscience of the officers who are investigating; and it’d certainly be their testimony if they had any indication that the Defendants were just looking for cattle, there would be no interference whatsoever.” In holding K.S.A. 32-1003(g) unconstitutional, the trial judge said: “[0]ne of the . . . threshold issues that I have as to whether or not a statute is constitutional or not is whether or not the statute .. ., because of the way it is worded, would be subject to unequal enforcement between different persons. And if the statute says any animal, last time I knew, cattle were animals .... [W]hat concerns me is your argument saying that we . . . leave it up to the good discretion of the law enforcement officers to decide whether or not they’re doing something illegal or not. That’s the whole point. Statutes are supposed to be abundantly clear so that we don’t leave it up to the discretion of law enforcement to determine whether or not someone else has committed a crime. That person needs to know that they’ve committed a crime. “The interesting thing is I think the statute is not ambiguous. It’s clear. But unfortunately, the way it is worded, it would suggest to me that it literally would be illegal for me to shine a spotlight on one of my dogs in my back yard from a vehicle that I have a weapon in.” Several principles of law are applicable to this case. Interpretation of a statute is a question of law, and this court’s review is unlimited. State v. Arculeo, 261 Kan. 286, Syl. ¶ 1, 933 P.2d 122 (1997). Criminal statutes are to be construed strictly against the State. State v. Lawson, 261 Kan. 964, 966, 933 P.2d 684 (1997). “When construing a statute, a court should give words in common usage their natural and ordinary meaning.” Galindo v. City of Coffeyville, 256 Kan. 455, Syl. ¶ 5, 885 P.2d 1246 (1994). Statutory language “is not to be narrowly or technically construed, but its language should be interpreted to mean what the words imply to persons of common understanding. Words in common usage are to be given their natural and ordinary meaning in arriving at a proper construction.” Board of Leavenworth County Comm’rs v. McGraw Fertilizer Serv., Inc., 261 Kan. 901, Syl. ¶ 2, 933 P.2d 698 (1997), modified on rehearing on other grounds 261 Kan. 1082, 941 P.2d 1388 (1997). The term “animal” is a word in common usage and its natural and ordinary meaning refers to a member of the animal kingdom, including cows. To the common man on the street, the term “animal” includes livestock animals, and is not limited merely to wild animals. The State argues the legislature intended “animal” to mean “wildlife.” The problem with that argument is twofold. First, the legislature uses the term “wildlife” in K.S.A. 32-1002, K.S.A. 32-1003, K.S.A. 32-1004, and K.S.A. 32-1005 a total of 28 times. The legislature also defined the term “wildlife” in K.S.A. 32-701(u). Thus, an average person could conclude the legislature intended by its use of the word “animal” in K.S.A. 32-1003(g) to mean something other than wildlife. Second, the legislature’s intent in using certain language, and the different methods utilized to determine legislative intent, are not as important in criminal statutes as how the average person would read and understand the language of the statute. This is because a criminal statute needs to be clearly written so a person knows what conduct is prohibited and what conduct is not prohibited from the statutory language without having to research, and determine at a person’s peril, what the legislature intended. Based on these canons of statutory construction, we are satisfied that K.S.A. 32-1003(g) is unconstitutional as an unlawful application of the State’s police power. See Hearn v. City of Overland Park, 244 Kan. 638, 772 P.2d 758, cert. denied 493 U.S. 976 (1989); City of Junction City v. Mevis, 226 Kan. 526, 601 P.2d 1145 (1979). The judgment is affirmed. Lockett, J., not participating. Richard W. Wahl, Senior Judge, assigned.	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The opinion of the court was delivered by Abbott, J.: This is an appeal by Renee Scott concerning the net amount of a child support order and the termination of an automatic wage withholding order. David and Renee Scott were divorced in 1993. They entered into a property settlement agreement which provided that the primary custody of the three children would be with Renee. David was ordered to pay child support. In 1995, Renee filed a motion to increase child support. A hearing officer granted Renee’s motion and entered an order for an automatic wage withholding for payment of David’s child support obligation. David filed a motion for a de novo hearing with the Johnson County District Court. The district court reduced David’s child support obligation under the hearing officer’s ruling and terminated the automatic wage withholding. Renee appealed the trial court’s ruling to the Court of Appeals. The case was transferred to this court pursuant to K.S.A. 20-3018(c). The original child support agreed on by the parties and approved by the court was in the amount of $475 per month. The original order also granted Renee maintenance in the amount of $425 per month for 27 months so that she could return to college and get her teaching degree. Renee informed the court that she could complete her bachelor’s degree in 2 years. In this action, Renee requested that the child support obligation be raised to $995 per month. This was based on Renee’s gross monthly income of $510 as a part-time teacher’s aide and David’s gross monthly income of $3,600. The hearing officer ordered the child support to be raised to $995 per month. David had always paid his support obligation directly to the court trustee, who passed this payment on to Renee. David’s paycheck was not subject to wage withholding. However, the hearing officer’s order contained language that required David’s child support obligation to be withheld from his paycheck through wage withholding procedures. David’s attorney was not aware that David had not previously been subject to wage withholding procedures, and the attorney failed to inform David of this change. Thus, David did not become aware of this language in the hearing officer’s order until the first child support payment was withheld from his paycheck under the order. The wage withholding procedures caused David embarrassment at work because his employer thought the wage withholding was a garnishment. David filed a motion for a de novo hearing from the decision of the hearing officer. According to David, the decision of the hearing officer was based upon erroneous determinations of the income of the parties and of day care expenses. On May 28, 1996, the Johnson County District Court agreed with David and modified the decision of the hearing officer. Since Renee worked part-time, she required child care services for the youngest child, who was not in school. Due to a co-op agreement Renee had arranged with a neighbor, the child care services cost Renee $99 per month. The hearing officer calculated this expense into the overall child support obligation for which David was responsible. However, the trial court found that David’s mother was suitable, available, and willing to provide child care for the three children at all times and at no charge. In fact, David’s mother was providing limited care for the youngest child 3 days a week at the time of the trial court’s hearing. Thus, the trial court decided that outside child care was not necessary. Hence, the trial court removed the $99 cost for outside child care from David’s overall child support obligation. Since the divorce, Renee has gone to school part-time, on and off, to earn her teaching degree, and she has worked part-time as a teacher’s aide. Renee claims she is approximately 1 year away from earning her teaching degree. Based on the salary from her part-time job, the hearing officer calculated Renee’s gross income as $510 per month or $6,120 per year. The trial court found that Renee was capable of working full-time at a higher paying job and found that she could earn $18,000 per year for such employment. Thus, the trial court imputed to Renee a monthly income in the amount of $1,500 in determining the parties’ child support obligations. Based on these changes in the child support calculations, the trial court modified the hearing officer’s decision and reduced David’s child support obligation from $995 per month, as set by the hearing officer, down to $859 per month, effective May 1,1996. This amount is a $384 increase over the $475 child support obligation the parties agreed on and the court originally ordered David to pay. The trial court also found, for good cause shown, that David did not have to pay his child support obligation through the wage withholding procedures. The trial court directed the trustee’s office to terminate the wage withholding order that had been issued to David’s employer and allow David to pay his child support obligation directly to the trustee’s office. David previously had never been late with child support payments when he paid them directly to the trustee’s office. On appeal, Renee asserts that the trial court erred in deleting child care costs from David’s child support obligation simply because his mother could provide day care free of cost. Renee claims that having the paternal grandmother provide day care for the children is not in the children’s best interests due to the grandmother’s alleged alcohol abuse and the youngest child’s need for educational day care (preschool). Renee also claims that the trial court erred in imputing income to her, so as to reduce David’s child support obligation, when there was no showing she was intentionally underemployed and when the imputed income was greater than any income she had ever previously earned. Finally, Renee claims that the trial court erred in failing to order that David must be subject to wage withholding procedures as mandated by statute. I. DISREGARDING CHILD CARE COSTS Since the divorce, Renee has been going to college part-time and she has worked part-time as a teacher’s aide. Renee’s youngest child is not yet in school, and she needs child care for him while she works. Renee has worked out a co-op arrangement with the other mothers in her neighborhood. This provides her children with, continuing contact with the other neighborhood children. Plus, it substantially reduces Renee’s child care expenses. Renee’s work-related child care expenses amount to $99 a month on an annualized basis. David asked the trial court to exclude these child care expenses from the child support calculation. David contended that it was unnecessary for Renee to expend money on outside child care because his mother was suitable, available, and willing to watch the children for free. . The trial court found that the paternal grandmother was suitable to provide child care and that if any child care was needed, it could be provided by the paternal grandmother for free. Thus, the trial court refused to include the cost of outside child care within the child support calculation. In so holding, the trial court stated: “It is my finding that the paternal grandmother should be entitled to provide day care services for the parties’ minor children. I have heard nothing persuasive here to suggest that she could not fill the bill as well as any other day care facility for the minor children. “I understand there are activities and events, and I assume the grandmother will understand those activities are important to the children in their growth and development and will allow them to participate in those activities.” Renee appeals the trial court’s ruling. A trial court’s order determining the amount of child support will not be disturbed on appeal absent an abuse of discretion. See In re Marriage of Shannon, 20 Kan. App. 2d 460, 462-63, 889 P.2d 152 (1995) (modification of child support). Section V.D.5. of the Kansas Child Support Guidelines sets out the criteria for determining whether child care costs are to be taken into account in determining the relative support obligation of the parents. That section provides: “Actual, reasonable, and necessary child care costs incurred to permit employment or job search of a parent should be added to the support obligation. The monthly figure is the averaged annual amount, including variations for summer, adjusted using the table below. Projected child care expenses should be reduced by the anticipated tax credit for child care or child care reimbursement before an amount is entered on the worksheet.” (Emphasis added.) (1997 Kan. Ct. R. Annot. 100.) The guidelines only require child care costs to be included in the child support calculations if the costs are (1) actual, reasonable, and necessary, and (2) are incurred to permit employment or job search. The trial court made an express finding that Renee’s child care costs are not necessary because the paternal grandmother is available and suitable to provide child care at no charge. Thus, the trial court determined that Renee’s outside child care costs should not be included in the child support calculations because the child care costs do not meet the guidelines criteria necessary for required inclusion in the child support computation. The question on appeal is whether the trial court abused its discretion in ruling that Renee’s child care costs were unnecessary. Evidence exists to support the trial court’s decision. The paternal grandmother does not work out of the home and is available to .care for the children while Renee is at work. The grandmother is willing to do so at no charge. Further, she lives less than 2 miles from Renee, allowing the children to remain in close proximity to their full-time residence at all times. Finally, the grandmother currently babysits for the youngest child for a limited period of time 3 days a week. If Renee’s concerns about the grandmother turn out to be valid, she may request a modification of child support and introduce evidence that work-related, outside child care is necessary and should be included in the child support calculations. The trial court did not abuse its discretion in finding that outside child care was unnecessary because the paternal grandmother was available to provide it. In support of her position that the trial court abused its discretion by finding that the grandmother was suitable to provide child care, Renee points out that grandparent/grandchild visitation should only be ordered if it is in the best interests of the child and there is a substantial relationship in place. See Santaniello v. Santaniello, 18 Kan. App. 2d 112, 115, 850 P.2d 269 (1992). This test is not applicable herein. This is not a grandparent/grandchild visitation case, and the test is not a “best interests of the child” test. This is a child support case, and the test is whether the child care costs are (1) actual, reasonable, and necessary, and (2) incurred to permit employment or job search. Further, despite the trial court’s ruling, Renee does not have to take the children to the paternal grandmother for child care if she does not feel that this is in the children’s best interests. Renee may secure any type of child care she desires. The trial court simply decided that the cost of outside child care was. unnecessary and David should not have to share in its expense. The court made no ruling as to the grandmother’s rights to visitation or child care privileges. The trial court’s ruling to exclude child care expenses from the child support calculations was not an abuse of discretion. II. IMPUTING INCOME When David and Renee were divorced, the court awarded Renee maintenance from David for 27 months. This maintenance was intended to allow Renee to go back to college and get her bachelor’s degree in teaching. At the time of the divorce, Renee claimed that she could receive her degree in about 2 years. This current motion for child support modification arose 2 Vz years after the divorce: Renee does not have her bachelor’s degree. Renee has been working part-time and going to school part-time at night, on and off. David claims that he offered to watch the children at night so that Renee could regularly attend night classes. For her part-time job, Renee works as a teacher’s aide. Renee claims she is about 1 year away from earning her bachelor’s degree. Both the teacher’s aide job and an eventual full-time teaching position, allow Renee to be off work when her children are out of school and have the summers off with her children. Renee claims that she currently only works part-time because she does not want her children to be “latch-key” kids. Renee earns $6.79 an hour at her part-time job for an annual gross income of $6,120. This hourly amount is the most Renee has ever earned. David asked the trial court to impute a higher annual gross salary to Renee in the child support calculations. David based this position on the fact that Renee earned $6.50 an hour when she worked full-time at a bank prior to the birth of their second child. When their second child was bom, Renee quit her job at the bank and worked part-time on the weekends at a direct marketing company, where she made $6 an hour. After her third child was bom, Renee stayed home full-time and provided day care for the children in their home until the divorce. Since the divorce, Renee has completed some college classes and has earned her associate’s degree. Based on Renee’s age, experience, and education, David claims that Renee’s annual gross salary should be at least $18,000 a year, which equals $8.50 an hour at a 40-hour a week job, and that this income amount should be imputed to Renee in the child support calculations. The trial court agreed and set Renee’s imputed annual salary at $18,000 in the guidelines form when it calculated David’s child support obligation. In so holding, the trial court stated: “As to the issue concerning the underemployment issue of the respondent mother, quite frankly, I would say that divorce and its aftermath is a difficult event in the lives of the parties and children' and does require extraordinary efforts on the part of the parents. And, therefore, I find that the mother is purposely underemployed. She, considering her education, job experience and working in a bank, could at least command $1500 a month gross income. I would base child support on that. “There has been as far as I am concerned ample time to pursue a college degree and somewhat away from that still, and the Court will conclude that effort has not been as sustained as it probably could have been were the respondent serious about getting the degree, certainly a possibility. Fifteen hundred dollars imputation gross income is appropriate.” Renee appeals this ruling. “A trial court’s order determining the amount of child support will not be disturbed on appeal absent an abuse of discretion.” In re Marriage of Denning, 22 Kan. App. 2d 226, 914 P.2d 576 (1996); see In re Marriage of Shannon, 20 Kan. App. 2d at 462-63. Section II.E.2. of the Kansas Child Support Guidelines explains when it is appropriate for a court to impute income to a custodial parent in child support calculations: “Income may be imputed to the custodial parent in appropriate circumstances, but should not result in a higher support obligation for the noncustodial parent.” (1997 Kan. Ct. R. Annot. 91.) Imputing a lower income to a custodial parent would almost always result in a higher support obligation for a noncustodial parent. Thus, this section seems to imply that a custodial parent’s income may only be imputed upward, not downward. Renee claims that the trial court abused its discretion in finding that she was purposefully underemployed and that the “appropriate circumstances” existed to impute a higher salary to her. Had Renee gone to college full-time after the divorce, which David had provided her maintenance and free child care through his mother in order for her to do, she would have completed her classes in 2 years and received her bachelor’s degree in education in 1995. At the time of the divorce, Renee told David that she could complete her bachelor’s degree in 2 years. David contends that he now has a right to rely on that statement. Since Renee thought she could be earning a full-time teacher’s salary by 1995, David claims it is reasonable for him and the court to assume that Renee should be earning a full-time teacher’s salary in 1997. As a full-time teacher, it is a reasonable estimate that Renee’s potential earnings would be more than $18,000 a year. Thus, David asserts that the trial court did not abuse its discretion in imputing to Renee an annual salary of $18,000 in the child support calculations. In support of this conclusion, David cites to In re Marriage of Case, 19 Kan. App. 2d 883, 879 P.2d 632, rev. denied 255 Kan. 1002 (1994). In this case, Sue Ann Miller and Carlton Case were granted a divorce in 1989, and Case was ordered to pay $800 a month in child support. At the time of the divorce, Case worked for Southwestern Bell and earned approximately $35,000 a year. Miller earned $25,152 a year as a schoolteacher. In 1991, Case accepted a voluntary buy-out offer from Southwestern Bell and retired on December 31. However, Case believed from newspaper articles that if he did not accept the buy-out, he would lose his job or be transferred away from Topeka. Case did not want to leave Topeka because his children were there, so he accepted the buyout. Case looked for other similar jobs in Topeka and looked for job opportunities in the classified ads. However, he did not submit any job applications after leaving Southwestern Bell. Instead, Case believed a major Topeka photography studio would be closing and he decided to open his own photography studio. Case’s income declined dramatically while working for the photo studio. As of 1992, Case had a gross annual salary of $6,180 from the studio. At this time, Case filed a motion to reduce child support. The trial court found that there had been a material change in circumstances for Case — he earned less income due to a job change — which justified a reduction in the amount of child support. In calculating the new child support obligation, Case asked the court to utilize his actual annual income from the photo studio of $6,180. However, Miller asked the court to impute a higher salaiy to Case in the child support calculations because Case voluntarily took a job which paid less. The court found that Case was not purposefully underemployed, but it also found that it must impute a higher salaiy to Case in the child support calculations in order to provide a reasonable level of support. The trial court had no evidence of what Case could earn at other jobs outside of Southwestern Bell and it had no evidence of what his potential income in the photography business might be. The trial court made an educated guess and imputed to Case the same income which Miller earned as a schoolteacher — $25,152 annual income. The trial court based the child support calculations on Miller’s income and Case’s income which was imputed to be the same amount as Miller’s. Miller appealed. The Court of Appeals affirmed the trial court’s ruling as not being an abuse of discretion. 19 Kan. App. 2d at 891-92. In this case, David contends that if the trial court’s decision to impute a certain amount of income was upheld in Case, even though it was not supported by any evidence, then the trial court’s decision to impute Renee’s income to $18,000 must be upheld because it is clearly supported by evidence. According to David, the trial court imputed an income to Renee which was consistent with her prior earnings history, her current educational accomplishments, and the level of earnings which she should be able to reap in the near future. Based on Case, David claims the trial court’s decision to impute income to Renee and the amount of income imputed to her is proper and within its discretion. The trial court was aware of what a schoolteacher earns. In addition, the trial court would be painfully aware that the judicial system in Johnson County, Kansas, has a long history of difficulty in hiring and retaining entry level employees at a salary in excess of $18,000 a year. The trial judge had an opportunity to observe and hear Renee. Obviously, the better practice is to present evidence. However, this was a highly informal hearing in which both attorneys agreed that the judge should make his decision based on statements of counsel. As the party who asserts that the trial court abused its discretion, Renee bears the burden of showing such an abuse of discretion. See State v. Harris, 262 Kan. 778, Syl. ¶ 5, 942 P.2d 31 (1997). Renee has not carried this burden. The trial court found that Renee had time to improve her education and that she had free child care available. Thus, the court found Renee had no reason to be working only part-time at such a low-paying job. The trial court did not abuse its discretion in finding that “appropriate circumstances” existed to impute income to Renee as a custodial parent. See In re Marriage of McNeely, 15 Kan. App. 2d 762, 766-67, 815 P.2d 1125, rev. denied 249 Kan. 776 (1991) (noncustodial father was about to-enter law school and reduce his income, but the Court of Appeals held the trial court could properly impute his prior income to him because, as parent of child of tender years, the father might have to sacrifice and delay law school until the children’s mother had received her undergraduate degree or at least support the children as if he was delaying law school). The trial court set Renee’s imputed income at $18,000, or $8.50 an hour for 40 hours a week, because 6 years previously Renee had worked for $6.50 an hour before she had any college education. Under Case, the trial court’s ruling was based on a reasonable interpretation of Renee’s job history and future prospects. III. AUTOMATIC WAGE WITHHOLDING When David was originally ordered to pay child support in 1993 after the divorce, he paid his support obligation himself, directly to the court trustee, which then passed this payment on to Renee. David’s paycheck was not subject to wage withholding at this time. According to David, he never missed one payment during the time he made the payments himself. Renee claims he was late on one payment during this time. The hearing officer’s order, which modified David’s child support obligation, contained language that required David’s child support obligation to be withheld from his paycheck through wage withholding procedures. David’s attorney did not know that David had not previously been subject to wage withholding procedures. David’s attorney did not draw this wage withholding language in the hearing officer’s order to David’s attention. As such, David was not aware of this language in the hearing officer’s order until the first child support obligation was withheld from his paycheck under the order. The wage withholding procedures caused David embarrassment at work because his employer thought the wage withholding was a garnishment. David appealed the hearing officer’s modification order de novo to the district court. Among other things, David asked the trial court to remove the wage withholding order from the hearing officer’s ruling. Renee requested that the wage withholding order remain intact. The trial court found, for good cause shown, that David did not have to pay his child support obligation through the wage withholding procedures any longer. The trial court directed the trustee’s' office to terminate the wage withholding order that had been issued to David’s employer and allow David to pay his child support obligation directly into the trustee’s office. The trial court made it clear that a wage withholding order could be rein stated if David ever became delinquent with his payments and that the trial court had the power to take such action at any time it deemed it necessary. Income withholding for purposes of enforcement of child support obligations is provided by K.S.A. 23-4,107(b), which states in pertinent part: “Except as otherwise provided in this subsection or in subsection (j), (k) or (m), all new or modified orders for support entered on or after October 1, 1990, in title IV-D cases and all new or modified orders for support entered on or after Jultj 1,1993, in all other cases shall provide for immediate issuance of an income withholding order. Prior to July 1,1993, whenever an order of support is entered or modified in a case other than a title IV-D case, the court shall have discretion to order immediate issuance of an income withholding order. The income withholding order shall be issued without further notice to the obligor specifying an amount sufficient to satisfy the order for support and to defray any arrearage. The income withholding order shall be issued regardless of whether a payor subject to the jurisdiction of this state can be identified at the time the order for support is entered.” (Emphasis added.) Here, the original trial court in 1993, pursuant to the agreement of the parties, had entered an order allowing David to pay the child support to the court trustee with the provision that if he failed to make payments, a withholding order would issue. As we view the trial court’s current order, it simply reinstated the original order as to the wage withholding requirement that the parties had agreed on. This is authorized by K.S.A. 23-4,107(j)(l)(B). We need not reach the issue of whether the trial court found there was a “good cause” exception. The trial court did not err in removing the wage withholding order from the hearing officer’s ruling. Affirmed.	[ -48, -22, -75, -4, 58, -32, 11, -80, 113, -111, -73, -41, -21, -62, 8, 105, 18, 29, 64, 98, -45, -73, 7, -55, -10, -13, -71, -42, -73, 94, -27, 84, 76, 18, 10, -43, 102, -62, -59, 84, -52, 3, -23, -27, 91, 6, 48, 41, 50, 73, 53, -114, 51, 44, 57, -64, 44, 13, -33, 59, 64, -14, -22, -123, 94, 81, -79, 4, -104, 70, 88, 47, -104, 57, 8, -24, 114, -74, -122, 116, 69, -101, -119, 108, 98, 18, 53, -50, -4, -120, 46, -33, 29, -26, -101, 88, 10, 15, -74, 52, 124, 20, 15, -2, -17, 13, 31, -20, 18, -114, -64, -69, -113, 117, 26, 26, -17, -95, 0, 33, -61, -94, 76, -57, 59, 27, -74, -72 ]
The opinion of the court was delivered by Davis, J.: This is a workers compensation appeal. Michael Nance, an employee of Harvey County, was injured while working within the course and scope of his employment. He was awarded temporary total disability, permanent general body disability, and permanent partial general body disability as a result of this injury. He moved for review and modification of the award pursuant to K.S.A. 44-528. Upon review, evidence established that his condition had worsened. The administrative law judge (ALJ) awarded additional compensation. The Workers Compensation Board (Board) reversed, concluding the worker did not establish causation with regard to his worsened condition and that the worsened condition was attributable to the normal aging process. We affirm the Court of Appeals’ decision reversing the Board. Facts On April 20, 1990, Nance was working for Harvey County. He was unloading a stack of bridge planks when the stack began to fall. Nance prevented the stack from falling. He did not notice any physical problems at that time. Approximately 30 minutes later, after working underneath a truck, he found he could not get off the creeper. When he finally could get up, he was in pain. There is no dispute that Nance was injured while working within the course and scope of his employment with Harvey County. Harvey County paid Nance compensation for temporary total disability and medical treatment/benefits. On February 14, 1994, the ALJ found that Nance sustained a 9% permanent partial general bodily disability as a result of his injuries. Nance requested a review by the Board. On July 28, 1994, the Board issued its decision. In discussing the matter, the Board noted: “[C]laimant’s attitude, potential misrepresentation and apparent lack of effort creates an unreliable record from which to assess the claimant’s abilities in either performing work in the open labor market or earning comparable wages. The opinion of two qualified treating physicians that claimant was intentionally attempting to mislead them coupled with the security testimony provided by Barbara Steil of Silver Hawk Investigators and claimant’s attempted manipulation when tested on the Cybex machine creates a record so clouded as to make it impossible to assess what, if any, work disability may or may not exist in this matter.” Nevertheless, the Board found Nance had sustained a 3.5% permanent partial impairment to the body as a whole on a functional basis. He was awarded temporary total disability, permanent general body disability, and permanent partial general body disability in the total amount of $35,132.83. Nance appealed the decision to the Court of Appeals, arguing only that the Board was unconstitutional. Pursuant to Sedlak v. Dick, 256 Kan. 779, 887 P.2d 1119 (1995), the Court of Appeals in an unpublished decision sustained Nance’s appeal, vacated the Board’s decision, and remanded the case to the newly constituted Board for a rehearing. On November 9, 1995, the Board adopted its previous decision that Nance had sustained a 3.5% permanent partial functional impairment. During the pendency of his first appeal, Nance filed a motion for post-award medical treatment on July 21,1994. Nance’s motion was granted, and he received treatment from Dr. Anthony G. A. Pollock. Soon thereafter, on January 27, 1995, Nance filed a motion for review and modification pursuant to K.S.A. 44-528. K.S.A. 44-528 permits modification of awards in order to conform to changed conditions. This statute was intended to permit modification of awards when the condition of an injured employee either improves or worsens after the original hearing and award. See Brandt v. Kansas Workers Compensation Fund, 19 Kan. App. 2d 1098, Syl. ¶ 2, 880 P.2d 796, rev. denied 256 Kan. 994 (1994). In his motion for modification, Nance alleged that his functional impairment and work disability had increased since receipt of the original award. It is this motion for review and modification that forms the substance of this appeal. In support of his motion, Nance introduced the deposition testimony of Dr. Pollock, who testified that he had examined Nance. Dr. Pollock indicated that Nance had come to him complaining of pain in his right shoulder and lower back as well as numbness and a burning sensation in his toes. Dr. Pollock had an MRI (lone, which revealed a bulging of the disc in the L5-S1 area. The bulging was obviously greater than in the 1990 MRI. Dr. Pollock stated that in his opinion, Nance’s back condition was significantly worse than it was in 1990. Dr. Pollock opined that the defendant now has. a 7% permanent partial impairment of function to the body as a whole and needs certain permanent work restrictions as a result of his worsened condition. These work restrictions include (1) a limitation to occasional bending, i.e., six times per hour; (2) lifting restrictions of 25 to 30 pounds occasionally and 15 to 20 pounds repetitively; and (3) no excessive twisting, pushing, or pulling heavy equipment, although Nance could push-or pull a 40- to 45-pound load on an occasional basis. On cross-examination, Dr. Pollock noted that the natural aging process could have been responsible for the worsening of Nance’s back. Dr. Pollock admitted that even with the MRI, he could not be absolutely sure what caused the changes in Nance’s back. However, he stated that with Nance’s back injury, the degenerative changes involved were less surprising than they would be if Nance had had no prior history of back injury. On redirect, Dr. Pollock stated that he had no reason to believe that Nance had suffered any injuries subsequent to the one in question. Dr. Pollock also stated that in his opinion, Nance had suffered some changes in his L5-S1 disc in 1990, consistent with his claimed injury at that time, and that the disc condition had gotten worse. Dr. Pollock testified that the problem Nance is experiencing now was the same problem as in 1990, only worse. Jerry Hardin, a personnel placement expert, testified concerning Nance’s loss of ability to perform work in the open labor market and ability to earn comparable wages. Hardin stated that as a result of the new restrictions advocated by Dr. Pollock, Nance would suffer a 55 to 60% loss of jobs he could perform as opposed to the 45 to 55% loss he suffered from the injury in 1990. Further, Hardin testified that Nance would suffer a 35% loss of wage earning ability as compared to the 9% loss from the 1990 injury. Nance also testified. He stated that his back condition had gotten worse, especially within the last year. He denied experiencing any further injuries to his lower back. Harvey County did not submit any evidence. On July 19, 1995, the ALJ issued an award increasing Nance’s permanent partial general body disability to 50%. The ALJ found: “The only evidence offered on the issues herein is that offered by claimant. The opinions of Dr. Anthony G. A. Pollock and of Mr. Jerry D. Hardin are found to be reasonable, are not improbable, are not contradicted and therefore are adopted as fact.” Nance’s award was increased to a total amount of $65,399.71. Harvey County filed for review before the Board. The Board reversed the ALJ’s award, concluding that Nance had failed to prove by a preponderance of credible evidence that his worsened condition was related to the injuiy he suffered on April 20, 1990, and, as such, denied his request for review and modification. The Board stated: “The only medical evidence dealing with claimant’s increased symptomatology comes from Dr. Anthony Pollock. Dr. Pollock, a board-certified orthopedic surgeon, had the opportunity to examine and treat claimant both for the 1990 injury and for the 1994 condition. [NOTE: There is no evidence that Dr. Pollock treated Nance for the 1990 injury.] While he noted the MRIs performed on claimant in October, 1994 showed a definite increase in the disc herniation at L5-S1, Dr. Pollock had significant difficulty attributing this progressive condition to claimant’s 1990 injury. He was asked specifically the cause of this increased condition and testified at various places in the transcript that the condition was caused by progressive degenerative disc disease, or possibly from the natural aging process; in another place he testified that he did not know what the cause was but he felt it may be the natural aging process; and finally he testified that he was not sure if it was caused by the injury or the natural aging process. The Appeals Board finds Dr. Pollock cannot relate claimant’s worsened condition to the 1990 work-related injury.” The Board determined that Nance still retained his entitlement to the award entered by the Board on July 28, 1994. Nance appealed this decision to the Court of Appeals, which concluded that undisputed evidence established that Nance’s back condition had worsened. 23 Kan. App. 2d at 904. The Court of Appeals stated that under the direct and natural consequences rule, the worsening of a claimant’s compensable injury, absent any intervening or secondary injury, is a natural consequence that flows from the injury and is thus compensable. The Court of Appeals also found that under a negative finding standard of review, the Board had incorrectly disregarded the fact that there was no evidence of an intervening or secondary cause and that the evidence was sufficient to entitle Nance to compensation. Accordingly, the Court of Appeals reversed the decision of the Board and reinstated the ALJ’s award. 23 Kan. App. 2d at 909. Normal Aging Process Harvey County claims that the Court of Appeals erred in holding that the effect of the normal aging process upon an injury is a natural and probable consequence of the primary injury. Harvey County contends that this finding is in conflict with the decision of this court in Boeckmann v. Goodyear Tire & Rubber Co., 210 Kan. 733, 504 P.2d 625 (1972). Further, Harvey County contends that allowing recovery for the natural aging process will result in an “inevitable flood of claims.” Harvey County’s reliance on Boeckmann is misplaced. In Boeckmann, the plaintiff, Adolph H. Boeckmann, was employed by Goodyear for some 16 years in the capacity of a special classifier and an inspector of truck and tractor tires. Over time, because of diseased hips, the claimant became disabled. His condition did not result from any identifiable injury occurring on the job within the scope of his employment. Rather, Boeckmann’s hip condition was aggravated by engaging over the years in activities common to all workers. The disability was not caused by Boeckmann’s job, but instead his condition deteriorated because of the normal aging process. In affirming the decision of the district court denying compensation, we said: “The claimant would have this court hold that the ordinary movements and motions of his daily work, the bending, stooping and twisting as he puts it, were tantamount to a continuous series of minuscule accidents which eventually, over the years, culminated in his permanent disability, thus entitling him to compensation as from a work-related accident. This contention essentially amounts to a argument that the physical, commonplace, day to day activities of a person’s employment, whatever they may be, as they continue to nibble and wear away the bones, joints and tissues which once were strong and sturdy in the early days of youth bring in their wake an endless succession of minute compensable accidents unrelated to time, place or circumstance. In our opinion this philosophy is not encompassed within the boundaries of the Workmen’s Compensation Act and we decline to give the act such a construction.” 210 Kan. at 739. Unlike the worker in Boeckmann, Nance sustained a back injury in 1990 while working for Harvey County, for which he received a workers compensation award. The subsequent worsening of his back condition is by the medical testimony related to this original injury. The parties agreed in this case that the original injury is not the result of the normal aging process and was bom of his employment. See Boeckmann, 210 Kan. at 736. Our reasoning in Boeckmann is therefore not applicable to Nance’s claim for modification. Under the facts of this case, we must consider the general and universal rule of workers compensation, which is that when an initial medical condition itself progresses into complications more serious than the original injury, the added complications are compensable. 1 Larson, The Law of Workmen’s Compensation § 13.11(a) (1996). In commenting on this rule, Professor Larson notes: “Moreover, once the work-connected character of any injury, such as a back injury, has been established, the subsequent progression of that condition remains compensable so long as the worsening is not shown to have been produced by an independent nonindustrial cause. This may sound self-evident, but in close cases it is sometimes easy to overlook this essentially simple principle.” 1 Larson, § 13.11(a), pp. 3-609-16. Kansas has recognized this natural and probable consequences rule. See Reese v. Gas Engineering & Construction Co., 219 Kan. 536, Syl. ¶ 4, 548 P.2d 746 (1976); Chinn v. Gay & Taylor, Inc., 219 Kan. 196, Syl. ¶ 5, 547 P.2d 751 (1976); Bergemann v. North Central Foundry, Inc., 215 Kan. 685, 688, 527 P.2d 1044 (1974); Jackson v. Stevens Well Service, 208 Kan. 637, 643, 493 P.2d 264 (1972). In Jackson, we stated the rule as follows: “[Wjhen a primary injury under the Workmen’s Compensation Act is shown to have arisen out of and in the course of employment every natural consequence that flows from the injury, including a new and distinct injury, is compensable if it is a direct and natural result of a primary injury.” 208 Kan. at 643. Although the cases cited above concern factual situations in which the claimant suffered a new and distinct injury rather than an aggravation of a previous injury as is the case here, there is no doubt that the natural and direct consequences rule applies in the instant case. In Stockman v. Goodyear Tire & Rubber Co., 211 Kan. 260, 262, 505 P.2d 697 (1973), we noted that while the natural and probable consequences rule would not apply to a situation where the increased disability results from a new and separate accidental injury, “[t]he rule in Jackson would apply to situation where a claimant’s disability gradually increased from a primary accidental injury.” An illustration of the application of the natural and probable consequences rule to a situation similar to the one at hand is found in International Paper Co. v. Tuberville, 302 Ark. 22, 786 S.W. 2d 830 (1990), a case cited by the Court of Appeals. In Tuberoille, the claimant was awarded permanent partial disability benefits of 55% as a result of two accidents which caused an anatomical impairment of 25% of the body as a whole. By 1984, the claimant’s physician increased the anatomical impairment to 40% as a whole, and the claimant requested an increase in award. The Arkansas Workers Compensation Commission found that the increase in disability was the natural result of aging and denied an increase. However, the Arkansas Supreme Court disagreed, noting that the evidence clearly disclosed that the claimant’s worsened condition resulted from the natural process of aging acting upon the claimant’s prior compensable condition and was therefore compensable. 302 Ark. at 28. Contrary to Harvey County’s assertions, the application of the natural and probable consequences rule will not open the floodgates to claims. In order for the deterioration of an injuiy to be compensable, the increase in disability must be shown to be a direct and natural result of the primary injury. See Jackson, 208 Kan. at 643. The passage of time in and of itself is not a compensable injury. Thus, where the deterioration would have occurred absent the primary injuiy, it is not compensable. However, where the passage of time causes deterioration of a compensable injuiy, the resulting disability is compensable as a direct and natural result of the primary injuiy. Standard Of Review Harvey County contends that the Court of Appeals, although recognizing that the Board’s ruling constituted a negative finding, instead looked at the finding to determine whether it was supported by substantial competent evidence rather than reviewing it to determine whether the Board arbitrarily disregarded undisputed evidence or was motivated by bias, passion, or prejudice. In determining this issue, it is helpful to review the appeals process in workers compensation cases. Since 1993, the decision of the ALJ is subject to review by the Board, and such review is a prerequisite for appeal. K.S.A. 1996 Supp. 44-551(b)(l). The Board has the power to review both questions of law and fact. K.S.A. 1996 Supp. 44-555c(a). The Board’s determination is then appealable directly to the Court of Appeals, which is limited to reviewing questions of law in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. See K.S.A. 1996 Supp. 44-556(a). Thus, under the Act, the Court of Appeals may only grant relief if it determines that “(1) [t]he agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied; “(2) the agency has acted beyond the jurisdiction conferred by any provision of law; “(3) the agency has not decided an issue requiring resolution; “(4) the agency has erroneously interpreted or applied the law; “(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure; “(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification; “(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or “(8) the agency action is otherwise unreasonable, arbitrary or capricious.”K.S.A. 77-621(c). In the instant case, the question on review was whether the Board’s determination of fact that Nance had not met his burden was supported by the evidence as a whole. This is a negative finding of fact and therefore will not be disturbed absent an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. See Box v. Cessna Aircraft Co., 236 Kan. 237, 246, 689 P.2d 871 (1984). This is the standard the Court of Appeals should have used. The Court of Appeals was not entirely clear as to which standard it actually used. At one point, the Court of Appeals noted the standard for a negative finding of fact. 23 Kan. App. 2d at 901-02. However, the Court of Appeals had also previously noted the standard of review for positive findings of fact, i.e., whether the Board’s finding is supported by substantial competent evidence. 23 Kan. App. 2d at 901. Further, the Court of Appeals’ conclusion is also rather confusing as it speaks to both standards: “The record does not indicate there is substantial evidence to support the Board’s decision. Under a negative finding standard of review, the Board may have recognized the evidence that Nance’s condition had worsened, but incorrectly disregarded the fact that there was no evidence of an intervening or secondary cause. This evidence is sufficient to entitle Nance to workers compensation benefits for his increased injury.” 23 Kan. App. 2d at 909. As stated above, the Court of Appeals should have examined the record to determine whether in reaching the conclusion that Nance had failed to prove that his deteriorated condition was a direct and probable consequence of his injury, the Board arbitrarily disregarded uncontroverted evidence or was motivated by some extrinsic consideration such as bias, passion, or prejudice. See Box, 236 Kan. at 246. We now apply that standard to the evidence presented. It is undisputed that, at the time of the original compensable injury, Dr. Pimer diagnosed Nance as having a cervical strain/ sprain and a lumbar strain/sprain with degenerative disc disease at L5-S1, confirmed by x-ray. This diagnosis was later verified by Dr. Poole’s MR.I in May 1990 and Dr. Marsh’s MRI in August 1990. Although Harvey County spends a large amount of time in its petition for review arguing that these initial diagnoses were the result of Nance’s lying and manipulation of the workers compensation system, the fact remains that Nance received an award on the basis of this injury which, although reduced, was affirmed by the Board. Issues which were previously determined as the result of the first award may not be relitigated, with the exception of changes in the claimant’s disability at the present time. See Randall v. Pepsi-Cola Bottling Co., Inc., 212 Kan. 392, 396-97, 510 P.2d 1190 (1973); Brandt, 19 Kan. App. 2d at 1101. Therefore, we may not now reconsider the question of the extent of Nance’s injury in 1990. In 1994, Dr. Pollock performed, an MRI, and it showed that Nance’s degenerative disc disease had significantly worsened, i.e., the bulging at the L5-S1 disc had become larger. Dr. Pollock was of the opinion that Nance’s back condition was significantly worse than it was in 1990. Dr. Pollock opined that Nance now has a 7% permanent partial impairment of function to the body as a whole and needs certain additional permanent work restrictions as a result of his worsened condition. When asked as to the cause of this deterioration, Dr. Pollock noted that the natural aging process could have been responsible for the worsening of Nance’s back. Although Dr. Pollock admitted that even with the MRI, he could not be absolutely sure what caused the changes in Nance’s back, he stated that with Nance’s back injury, the degenerative changes involved were less surprising than they would be if Nance had had no prior history of back injury. Dr. Pollock stated that he had no reason to believe that Nance had suffered any injuries subsequent to the one in question. In Dr. Pollock’s opinion, Nance had suffered some changes in his L5-S1 disc in 1990 consistent with his claimed injury at that time, and the disc condition had gotten worse. Dr. Pollock stated that the problem Nance is experiencing now is the same problem as in 1990, only worse. Although Dr. Pollock does not directly affirmatively state that the deterioration of Nance’s injury is a direct and natural consequence of the first injury, such a conclusion is the inevitable result of his testimony. Only by disregarding this testimony could the Board have found that “Dr. Pollock cannot relate claimant’s worsened condition to the 1990 work-related injury.” The situation at hand is quite similar to that in Tuherville, 302 Ark. 22. In that case, the Arkansas Workers Compensation Commission denied an increase in an award on the basis that the increased disability was due to the aging process rather than changes in the claimant’s condition resulting from the prior compensable injury. As noted above, the Arkansas Supreme Court disagreed with the Commission. In discussing the evidence, the Arkansas Supreme Court stated: “It was apparent to the court of appeals, as it is apparent to us, that the commission incorrectly interpreted the only evidence before it as showing that the increased impairment to Tuberville was due solely to the aging process. The court of appeals reviewed the testimony and held that fair minded persons could not read it and conclude anything but that it was the industrial injury combined with the aging process which caused the expenses for which compensation is being sought. “The unanimous decision of the court of appeals panel was correct. Dr. Chakales’s testimony cannot be read without noting his specific statement that it was ‘the fact that he had had the previous surgery with the normal progression of the aging process’ which caused the spinal stenosis resulting in surgery and that the condition was not new but was a progression of the ‘preexisting condition.’ “When the entire deposition of Dr. Chakales is read, it becomes even more apparent that fair minded persons could not conclude he attributed Tuberville’s condition necessitating the surgery to anything other than the previous condition of his back which was the direct result of the injury he suffered years ago. “Throughout his testimony Dr. Chakales spoke of the previous surgery he had done as the result of the injury Tuberville had received. It is impossible to read the testimony and conclude that aging alone was the cause of the current need for compensation. In his cross examination of the doctor, counsel for [the employer], for good reason, did not ask whether the effect of the aging process of which the doctor spoke would have produced Tuberville’s present condition absent the previous injury and resulting surgery. “In arguing the case, [the employer] has raised the specter of any previously injured employee being compensated merely because the aging process common to all may cause medical problems. We make no such absurd decision here. We hold that the commission was mistaken because we can find no support for its interpretation of the evidence before it. The only evidence showed clearly that the claim was predicated upon a showing that the increased disabilitywas anatural consequence flowing from the previous injuries.” 302 Ark. at 28-29. The reasoning in Tuberville is applicable to the case at hand. There is simply no conclusion to be drawn from Dr. Pollock’s testimony but that the deterioration of Nance’s back is the result of the earlier compensable injury. It is clear that Nance is not the most appealing of workers compensation claimants. His actions at the time of die original injury showed at least an inference of falsification, malingering, and manipulation. Nevertheless, the Board is not free to arbitrarily disregard uncontroverted evidence. In this case, the uncontroverted evidence showed that the deterioration of Nance’s back was the result of his earlier compensable injury and was therefore compensable, and the Court of Appeals did not err in so finding. The decision of the Court of Appeals reversing the decision of the Board is affirmed, and the ALJ’s award is reinstated. Lockett, J., not participating. Richard W. Wahl, Senior Judge, assigned.	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Per Curiam.: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Respondent James L. Farmer, an attorney admitted to the practice of law in the state of Kansas, whose business address is in Kansas City, Kansas. The facts are not disputed. Respondent did not file exceptions to the hearing panel’s report. Under Rule 212(c) and (d) (1997 Kan. Ct. R. Annot. 226), the report is deemed admitted. Respondent has admitted violations of the Model Rules of Professional Conduct (MRPC) 1.1 (1997 Kan. Ct. R. Annot. 268) (a lawyer shall provide competent representation to a client), 1.3 (1997 Kan. Ct. R. Annot. 276) (a lawyer shall act with reasonable diligence and promptness in representing a client), 1.4(a) (1997 Kan. Ct. R. Annot. 282) (a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information), 1.8(e) (1997 Kan. Ct. R. An-not. 301) (providing financial assistance to a client, i.e., loaning money from his trust account to clients who did not have money in the account), 1.15 (1997 Kan. Ct. R. Annot. 316 ) (safekeeping of clients’ property), 3.2 (1997 Kan. Ct. R. Annot. 333) (a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client), 5.1 (1997 Kan Ct. R. Annot. 351) (failing to properly carry out his responsibilities as a supervising lawyer), 5.3 (a) and (b) (1997 Kan. Ct. R. Annot. 353) (responsibility for the conduct of nonlawyer assistants), and 8.4(d) (1997 Kan. Ct. R. Annot. 366) (engaging in conduct prejudicial to the administration of justice). We note that the panel found a violation of MRPC 3.1 (1997 Kan. Ct. R. Annot. 332) (meritorious claims and contentions) in its conclusions of law introductory paragraph but negated the 3.1 violation in the body of its conclusions. The panel unanimously found by clear and convincing evidence: “2. Count II arose because three of Respondent’s former employees complained to the Disciplinary Administrator that Respondent provided little or no training, supervision or guidance for his lawyer and non-lawyer employees, that he allowed non-attorneys to give legal advice, and that he would not return phone calls. Investigator Karen Shelor conducted interviews with the complainants and then interviewed the following Federal Bankruptcy Court Judges and Trustees: Frank Koger, Arthur B. Federman, Karen See, John T. Flannagan, William H. Griffin, Timothy Sear, Carl Clark, Eric Rajala. “3. The testimony of the judges and trustees is full of specific references to cases in which Mr. Farmer represented the debtor and incorrectly conducted his practice in court: failed to appear, delayed proceedings because of his mistakes, did not take responsibility for errors. a. Judge Koger testified that he saw Respondent ‘butcher’ a lot of causes of action. Judge Koger stated he took Respondent aside and pointedly discussed the problems Respondent was causing; however, the judge answered on cross-examination that he did not report Respondent to the Kansas or Missouri Disciplinary Administrator, nor did the judge use the contempt rule to fine or bar Respondent from his court or otherwise sanction Respondent — nor any other attorney for that matter. b. Judge Federman also cited specific problems with Respondent’s cases: failure to appear at court hearings; did not have a list of exemptions under state law; and failure to provide information requested by the court. Some of these problems resulted in harm to the client by a loss of equity. Judge Federman did sanction Respondent in one case. c. Judge See related that Respondent often failed to file required pleadings. She wrote to Respondent and detailed the problems she saw and presented an outline of suggestions intended to help him organize his bankruptcy practice to avoid repeated mistakes. She received no response from Mr. Farmer. She noted that the Amanda Rae Saylor Chapter 7 case was wrongly filed in Kansas, rather than Missouri. d. Judge Flannagan described many of the same problems with Respondent’s bankruptcy practice: (1) failure to follow procedures and court rules; (2) failure to notice up motions; and (3) mistakes in schedules. In the Terry case, the judge became particularly angry and frustrated with Respondent’s ‘sloppy’ practice. Twice Judge Flannagan counseled Respondent to correct his ways, but Respondent did not change. “All the judges testified that Respondent would blame his employees for the errors and problems pointed out to him. “4. a. Bankruptcy Trustee Griffin testified that he was contacted by Investigator Shelor and thereafter prepared a review of the cases Mr. Farmer had before him. That review became Exhibit 2 consisting of a spiral bound book of six parts describing Mr. Farmer’s practice. The following is a summary of the cases included in Mr. Griffin's exhibit. The Terry case involved Respondent’s failure to send out notice of hearing on a motion filed on behalf of debtor. The Bumams’ Chapter 13 petition included a car payment on a car that had allegedly already been repossessed and resold. The Wills bankruptcy omitted pleadings that would have allowed the debtor to make necessary roof repairs. In the Massey case, Respondent failed to file a reply to the mortgage company’s motion stating it hadn’t been paid. In the Vasquez bankruptcy, the witness wrote Mr. Farmer detailing his concerns about the feasibility of the plan because Respondent omitted the plan particulars. The Anderson bankruptcy was another example of Respondent’s failure to notice up motions he filed. In the Vance case, Mr. Farmer filed in the wrong state. In the Taylor case Respondent failed to disclose income from property listed on Schedule A. Mr. Griffin stated his belief that a lot of the confusion in Mr. Farmer’s cases was attributable to Mr. Farmer’s lack of knowledge of bankruptcy practice. “Mr. Griffin also sponsored Exhibit 9 which details 187 cases in his court where Respondent had either erred in noticing up a motion, or failed to amend plans once mistakes were discovered. Although the debtors usually obtained the discharge of their debts through the petitions filed by Respondent’s office, the trustee pointed out that it was not without great burden on the trustee’s office and great frustration to clients who called the trustee’s office for information when they could not reach Respondent. b. Trustees Timothy Sear and Carl Clark made many of the same observations as Mr. Griffin. These observations included: the failure of his clients to show for the first meetings of creditors; Respondent’s lack of knowledge about clients or the clients’ financial affairs; and Respondent’s incomplete filings and failure to respond to the trustee’s repeated requests for information. This behavior resulted in many calls from his clients to the trustees and more work for the bankruptcy system. c. Trustee Eric Rajala found similar deficiencies with Respondent’s bankruptcy practice. There were repeated inquiries of Respondent that went unanswered; amended schedules were common in Respondent’s cases; and failure of Mr. Farmer and his clients to appear at scheduled hearings also occurred frequently. “5. Witness Carol Horvatic Bolton, as the Deputy U.S. Bankruptcy Court Clerk in charge of the Kansas City Bankruptcy Court Clerk’s Office, was familiar with Respondent’s bankruptcy practice and characterized it as full of incomplete pleadings, noncompliance with the bankruptcy rules and regulations, lacking in diligence, missed deadlines, and clients who called her office because they could not reach Respondent.'All of this greatly increased the workload of her office. She testified on cross-examination that she had not received any calls from Mr. Farmer’s clients in 1996 and to date in 1997. “6. Karen Shelor was the investigator for the Disciplinary Administrator’s office. Ms. Shelor interviewed the three former employees of Mr. Farmer who made the complaint and then followed up with interviews of the bankruptcy judges, trustees and clerk. When she interviewed Respondent he explained the problems to her as resulting from rapid expansion of his bankruptcy practice. Ms. Shelor testified that Respondent had planned to specialize in high volume, low cost bankruptcy cases, and that Respondent had hired 6 attorneys and 14-15 legal assistants in a short time span. Respondent was critical of all of his staff members to Ms. Shelor even though he hired and trained them. Ms. Shelor reported that Respondent also found fault with the bankruptcy trustees, describing them as acting like his boss and making unreasonable demands and that he believed other attorneys who criticized him were jealous of him. “7. Complainants Graham, Hartley and Delaney all gave similar testimony. They testified that they were concerned about the manner in which Respondent ran his offices and trained his employees. a. Ms. Graham was a legal secretary in the Leavenworth office. She said the other secretaries in the office trained her to interview clients, prepare bankruptcy petitions, enter them in the computer, and answer phone calls. She said Respondent was frequently out of the office and rarely returned phone calls in a timely manner. She testified that on several occasions Respondent divided 30 days’ worth of phone message slips among the secretaries and told them to check with the caller to see if there was still a question or a problem. She claimed on several occasions that Respondent asked employees to be dishonest about the status of a filing. She stated she filed the complaint with the Disciplinary Administrator because of Respondent’s poor treatment of his employees and his sloppy work. Yet, she admitted that Respondent handled both her divorce and bankruptcy. She admitted that Respondent had been critical of her work as being sloppy. The testimony is inconclusive whether Respondent actively allowed, or simply failed to prevent, the practice of law by his nonattomey employees. b. Susan Delaney worked as a secretaiy in Respondent’s Johnson County, Kansas office and later in his Kansas City, Kansas office. She claimed she prepared and filed bankruptcy petitions frequently without attorney supervision or review. She also stated that she would describe the appearance of clients so that when Mr. Farmer met them at a hearing for the first time, he might recognize them. She also stated that she answered client questions about legal matters and lied about court dates and filing dates. c. Aliesha Hartley was a secretary in the Lenexa, Kansas office, and later in the Wyandotte County, Kansas office. She testified that she also answered client questions about bankruptcy, that nonattomeys decided whether to file a Chapter 7 or a Chapter 13 petition, that Respondent did not meet with clients before their hearings, and that she misrepresented filing dates. She quit working for Mr. Farmer the day he sent her to the bankruptcy court where she felt she was humiliated because the judge refused to deal with the cases until Mr. Farmer appeared before him. d. Cynthia Combites was a secretary at first in Respondent’s Leavenworth, Kansas office and later in his Kansas City, Kansas office. Her testimony, taken by deposition on December 3,1996, was similar to that of Respondent’s other employees. She testified that she was trained by another secretary, that Mr. Farmer was rarely available to answer questions or talk to clients, that she interviewed clients and filled out the bankruptcy forms. “8. Defense witnesses included: Respondent himself; Dr. Esther Megerman, a PhD psychologist; Robert L. Kennedy, a Kansas City, Kansas attorney who has agreed to supervise Respondent; Respondent’s clients Mr. Williams, and Jesse Romero; and Wyandotte County District Court Judges Klapper, Mikesic and Duncan. “9. All three judges spoke favorably about Respondent’s practice before them. The state court judges did not have first hand knowledge of Respondent’s bankruptcy practice. “10. Mr. Farmer’s two clients expressed satisfaction with his handling of their cases — a bankruptcy filing and a personal injury matter. “11. Mr. Kennedy plans to retire and has agreed with Respondent’s counsel, Mr. Cohen, to take on the task of supervising Respondent if the Supreme Court so directs. Mr. Kennedy has approximately 20 years of experience as a practicing attorney and he is adept'at client relations and office administration. “12. Dr. Megerman began treating Respondent following a referral from Mr. Cohen. She diagnosed Respondent as suffering from major depressive disorder, acute distress disorder and panic disorder with agoraphobia and grief. Through antidepressant and anti-anxiety medications, as well as counseling sessions, Respondent has taken responsibility for the behavior leading to the disciplinary proceedings. Respondent told Dr. Megerman that he plans on discontinuing his bankruptcy practice. He agreed to continue medication, and she believes this will enable him to suffer less from fatigue and be able to make changes in life style without suffering from paralyzing panic that characterizes his anxiety disorder. The medication enables him to concentrate, focus, have energy and not panic. “13. Respondent testified about how he entered the legal profession, and about the impact of his expanding practice on his personal fife, and his income. He said Dr. Megerman gave him a view of how others see him, Respondent realizes he is very unhappy with the stressful practice he created. Respondent does not want to surrender his license because he wants to support his family and continue his practice outside the area of bankruptcy. He vehemently denied directing or allowing his secretarial staff to give legal advice, and he stated he always reviewed petitions before filing. He admitted his mistakes in training his employees, in his bankruptcy practice, and poor client contact. He believes complainants were motivated to contact the Disciplinary Administrator because he laid them off work or fired them for poor performance.” Based on the findings of fact, the panel reached the following conclusions of law: “14. Respondent’s conduct (with regard to Counts II and V) violates the [Model] Rules of Professional Conduct (MRPC) Sections 1.1, 1.3, 1.4, 3.1, 3.2, 5.1, 5.3, 8.4,1.15 and 1.8(e). “15. The Panel finds by clear and convincing evidence that Respondent violated MRPC 1.1 regarding his competence to practice before the Bankruptcy Court. As four federal bankruptcy court judges and four trustees in bankruptcy testified, Respondent repeatedly failed to follow the bankruptcy court rules and local rules concerning noticing of motions. Their testimony also indicates that Respondent does not understand or apply the essentials of bankruptcy law. It was shown by clear and convincing evidence that Respondent did not understand the difference between secured and unsecured creditors, the fact that unsecured debts are discharged in a Chapter 7 bankruptcy, the fact that Chapter 13 plans cannot be filed with payments that extend beyond 60 months (the jurisdictional limit of the Bankruptcy Code), and the difference between motion practice and adversaiy practice in the bankruptcy courts. Over a period of several years, Respondent delayed filing of Chapter 13 plans on behalf of his clients, filed incomplete pleadings or pleadings that lacked the required client signature, appeared at Chapter 7 creditors meetings unprepared to represent his clients, and repeatedly failed to protect his clients tax refunds by means of the necessary pre-petition actions. “While Respondent professed to be knowledgeable in bankruptcy law he made statements that showed the contrary. Respondent advised the Panel that by law, charges on a debtor’s credit card made within 90 days of filing for bankruptcy, are presumed fraudulent. In fact, the period is 60 days, not 90 days. Respondent approved of and used in his office a document entitled ‘B ankruptcy in a Nutshell’ which is replete with errors. Furthermore, Respondent incorrectly stated that a Texas judgment would give a creditor a hen on Kansas real estate. Also, Respondent filed Kansas cases in Missouri courts and, in at least one instance, vice versa. Finally, Respondent improperly classified child support in a Chapter 13 case. “The foregoing actions on the part of Respondent have, in some cases, harmed clients. For example, Judge Flannagan testified that he dismissed a bankruptcy petition for one of Respondent’s clients simply because Respondent’s errors were too numerous and too grave. Judge Koger testified that in the Billie Lee case, Respondent failed to obtain release of a garnishment. (This is an example of Respondent’s failure to file complete pleadings along with the requisite orders and envelopes.) Trustee Griffin testified that in the Terry bankruptcy case, Terry’s employer continued to withhold Chapter 13 plan payments from Terry’s paycheck because Respondent failed to notice up a motion to abate the plan payments. “16. The Panel finds by clear and convincing evidence that Respondent violated MRPC 1.3 regarding diligence in his bankruptcy practice. The trustees and clerks employed in the bankruptcy court system testified of numerous examples where Respondent failed to appear at Chapter 7 creditors meetings, as well as court hearings. His lack of diligence in this practice burdened the court system with the unnecessary rescheduling of hearings. “17. The Panel finds by clear and convincing evidence that Respondent violated MRPC 1.4 by failing to communicate with his clients. He either communicated poorly with those clients about the procedure for filing bankruptcy, or he simply did not communicate at all with the client before the pleadings were filed. Trustee Griffin testified that Respondent’s clients frequently called his office asking for legal advice stating that they called Respondent and he did not return their calls. In the Ransom case, Mr. Griffin received a letter wherein the client stated she was having trouble reaching Mr. Farmer. In the Hanson case, Mr. Griffin learned from the debtor that Mr. Farmer had not informed him of an existing stay order. “Deputy Clerk Carol Horvatic, Kansas City, Kansas cited many instances of Mr. Farmer’s clients calling her office to get information about their cases. Invariably, the clients stated that the clients could not reach Mr. Farmer. Trustee Tim Sear’s office also received calls from Mr. Farmer’s clients who said that Mr. Farmer would not return their calls. The three former employees of Mr. Farmer who were the complainants testified, and Mr. Farmer confirmed, that Mr. Farmer would periodically come to his nonattomey staff with a handful of phone message slips, divide the slips among the employees and tell them to return the call, and ‘handle it.’ Mr. Farmer did deny that he instructed his secretaries to give legal advice. “18. The Panel does not find clear and convincing evidence of a violation of MRPC 3.1 which relates to the duty to file meritorious claims. “19. The Panel finds clear and convincing evidence that Respondent’s continuous failure to properly file appropriate pleadings and failure to appear at meetings of creditors violated MRPC 3.2. “20. By clear and convincing evidence, this Panel finds that Mr. Farmer violated MRPC 5.1 by failing to properly carry out his responsibilities as a supervising lawyer or partner. Respondent testified that he hired inexperienced lawyers to provide bankruptcy services in his auxiliary offices and that sometimes these inexperienced lawyers caused problems for Farmer Law Offices. The Panelbelieves that the responsibility for supervising, training, educating, reviewing and otherwise mentoring inexperienced attorneys rested with Respondent. Respondent did not use reasonable efforts to adequately assure that they complied with MRPC and were knowledgeable about the court rules. “21. The Panel also finds that Respondent violated MRPC 5.3(a) and (b) regarding his responsibility for the conduct of non-lawyer assistants. Regardless of whether Respondent explicitly instructed his employees to render legal advice or to he to clients, the evidence is clear and convincing to the Panel that Respondent did not take the necessary and reasonable steps to supervise his employees. He needed to be pro-active to insure that they were not giving legal advice to clients and other callers. “22. The Panel finds, based on several occasions described by Mr. Hazlett, that Respondent used his firm’s trust account in violation of MRPC 1.8(e). Specifically, Respondent loaned money from the account to clients who did not have money in the account. He also used the funds in the account for personal expenses. “23. The Panel finds and Mr. Farmer admits that he violated MRPC 1.15 regarding safekeeping of property. “24. Clear and convincing evidence supports the Panel’s finding that Respondent violated MRPC 8.4. Mr. Farmer’s conduct, as he described it, and as his former employees and the bankruptcy judges and trustees testified, was prejudicial to the administration of justice. His bankruptcy practice drew criticism from four bankruptcy judges. They called him aside and in private conferences confronted him with the problems his actions were causing for his clients, himself and the courts. Similar criticism and conferences were initiated by the trustees who testified Despite these confrontations, Mr. Farmer made no changes in his practice. He continued to miss hearings, and make mistakes in sending notices, filing pleadings and analyzing the law. These actions created more work and frustration for the courts, thereby prejudicing the administration of justice in the bankruptcy courts. The Panel wants it noted, however, that the bankruptcy court system and members of the legal profession did not come forward to report Respondent’s misconduct, some of which dates back to 1991. This failure to report could in and of itself be a violation of MRPC and certainly did add to the hardship imposed on the courts by allowing the conduct to continue for approximately four (4) years.” After reviewing all these factors, the panel recommended: “The Disciplinary Administrator has requested the Panel recommend to the Supreme Court that Respondent be disciplined pursuant to Rule 211(f). “In making its recommendations for discipline, the Panel has reviewed the ABA Standards for Imposing Lawyer Sanctions. The factors to be considered include the following: (1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system or to the profession; (2) whether the lawyer acted intentionally, knowingly or negligently; (3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and (4) the existence of aggravating or mitigating factors. “In his bankruptcy court practice, Mr. Farmer knowingly violated duties he had to his clients, to the bankruptcy court system, the legal profession and harmed all three emotionally, intellectually, and monetarily. “We must then turn to the ABA Standards on Aggravation and Mitigation to determine whether any factors present either increase or reduce the nature and extent of discipline to be imposed.” In considering aggravating factors, the Panel found the following [The panel’s recitation of factors that did not apply have been omitted]: “e. Pattern of misconduct and “d. Multiple offenses. Respondent’s bankruptcy practice shows a pattern of failing to return calls, to communicate with clients, associates and staff, to appear at scheduled hearings, to properly file pleadings, to notice up motions, to inform clients, to supervise employees — this pattern of conduct resulted in multiple offenses. “h. Vulnerability of the victim. The Panel believes that Respondent’s clients were vulnerable in the sense that they trusted their attorney to competently guide them through the bankruptcy process and in some cases were harmed by his failure to do so. “i. Substantial experience in the practice of law. Respondent is a 1984 graduate and admitted to practice and has sufficient experience to have been attentive to the duties he is found to have violated.” In considering matter of mitigation, the panel found: “a. Absence of a prior disciplinary record. Respondent does not have a disciplinary record. “c. Personal or emotional problems if such misfortunes have contributed to violation of the code of professional responsibility. Respondent’s psychologist testified about her diagnosis of Respondent’s emotional problems and her treatment of them and their contribution to his practice management problems, but the Panel finds that Respondent’s emotional problems did not contribute significantly to Respondent’s violations of the rules of ethics. “g. Previous good character and reputation. Three judges testified in support of Respondent’s practice and character. “i. Mental disability or chemical dependency including alcoholism or drug abuse when (1) there is medical evidence that the Respondent is affected by a chemical dependency or mental disability; (2) the chemical dependence or mental disability caused the misconduct; (3) the Respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely. There is medical evidence that Respondent had a mental condition which, according to his treating psychologist, ‘paralyzed’ him from taking action. “After reviewing all of these factors, the Panel recommends that Respondent be suspended from the practice of law for two (2) years, with such suspension to be suspended so long as Respondent complies with the following conditions of probation; “(1) Probation shall last for two (2) years. “(2) Respondent shall continue to attend counseling sessions with his psychologist for so long as the psychologist deems counseling necessary for Respondent. “(3) For two (2) years Respondent shall accept the supervision of Robert Kennedy and adopt all recommendations and the management of Respondent’s law practice. Mr. Kennedy outlined in his testimony the conditions of his supervision and the Panel recommends that Respondent be required to follow Mr. Kennedy’s conditions. “(4) Respondent shall file a motion to withdraw with proper notice of hearing in all Chapter 13 cases in which he or his firm is attorney of record, within ten (10) days after the receipt of the Supreme Court’s order, and shall assist his clients in obtaining competent bankruptcy counsel. Further Respondent shall not represent any client in any bankruptcy matter during the two (2) year suspension or the two (2) year probation period. “(5) Respondent shall complete fourteen (14) hours of continuing legal education specifically dealing with the practice of bankruptcy law and shall submit evidence of the completion of that legal education to the Disciplinary Administrator’s Office before reentering the practice of bankruptcy law. “In the event Respondent violates any of the foregoing conditions, the Panel recommends Respondent be suspended from the practice of law for two (2) years. “The Panel recommends probation because a suspension will not remove Mr. Farmer from practicing in the federal bankruptcy court — a court in which he is not competent to practice. However, at the hearing, Mr. Farmer voluntarily agreed to give up his bankruptcy practice if he is allowed to continue to practice in other areas, and there was no evidence submitted to the Panel to show that he is incompetent to practice in other areas of the law. “Costs should be assessed against Respondent in an amount to be certified by the Disciplinary Administrator.” We have reviewed the record and conclude the findings of fact and conclusions of law contained in the hearing panel report are supported by clear and convincing evidence. However, we do not agree with the panel’s recommendation of a 2-year suspension and probation. The Disciplinary Administrator recommended indefinite suspension as a sanction to the panel and renewed that recommendation during oral argument before this court. We turn now to our standard of review: “It is well established that the panel’s findings and recommendations are advisoiy only and are not binding on the court. State v. Phelps, 226 Kan. 371, 378-79, 598 P.2d 180 (1979); [Citation omitted.] It is the responsibility of this court to examine the evidence and determine for itself the discipline to be imposed. [Citation omitted.] ’’ In re Smith, 249 Kan. 227, 229, 814 P.2d 445 (1991). We may impose sanctions lesser or greater than those recommended. In re Veith, 252 Kan. 266, 272, 843 P.2d 729 (1992) (citing Supreme Court Rule 212(f) [1997 Kan. Ct. R. Annot. 226]). Respondent’s misconduct here does not involve an isolated incident or an inadvertent error. The panel was concerned with repeated evidence of incompetence set forth in the record. We voice similar concerns. Respondent has admitted incompetence to practice his specialty, bankruptcy. Respondent filed bankruptcy matters in 1997 after the date he admitted he was incompetent to practice in bankruptcy court. Respondent’s counsel candidly confirmed this fact during oral argument. Respondent repeatedly failed to follow through on his responsibilities as a lawyer. He either was unable or refused “to accept and perform the obligations of the legal profession.” State v. Dixon, 233 Kan. 465, 472, 664 P.2d 286 (1983). Despite the hearing panel’s recommendation of suspension from the practice of law for 2 years and probation, we are of the opinion that Respondent should be indefinitely suspended. It Is Therefore Ordered that Respondent James L. Farmer be suspended from the practice of law indefinitely in accordance with Supreme Court Rule 203(a)(2) (1997 Kan. Ct. R. Annot. 201) for his violations herein. It Is Further Ordered that Respondent shall comply with Supreme Court Rule 218 (1997 Kan. Ct. R. Annot. 218). It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of the proceeding be assessed to Respondent. Lockett, J., not participating. Richard W. Wahl, Senior Judge, assigned.	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The opinion of the court was delivered by BURCH, J.: 'The plaintiff sued the defendant for damages resulting from personal injuries which he alleged he sustained through the negligent operation of one of the defendant’s street cars. The plaintiff recovered and the defendant appeals. The petition alleged that the plaintiff was thrown violently from a slowly moving car on which he was a passenger because of the fact that the motorman suddenly started the car just as it was about to stop at the plaintiff’s destination, and just as he was about to alight from it, but before he had succeeded in doing so. The plaintiff, who is a physician, testified as follows: “Q. Now, you may state just what happened? A. Well, when I got to the Rock Island.depot, I passed right in through the car and went around the part where the conductor stands. Just as I went by I said, ‘Next crossing,’ and he jerked the cord, and I went around and stepped right past him and down on the step, standing on my left foot, holding to that rod, and the car was coming down real slow and slipped my foot along, probably within three or four inches of the pavement, expecting to get off just when it stonped, and it was just a little, possibly, past the McCord-Kistler Grocery Company and the car suddenly — the motorman gave it a couple of jerks and the car started forward, and I had my obstetrical grip, and it threw me around backward and I lighted solid on my heels, and at the same time felt as though some real sharp instrument had struck me in the small of my back.” The grip which the plaintiff carried weighed about twenty-five pounds. He was not thrown down. The occurrence did not attract the attention of the conductor of the car or, so far as known, of any one else, and the plaintiff alone was aware that the incident included features which distinguished it from the commonplace stepping from a slowly moving street car. The incident which the plaintiff described occurred on Saturday morning, August 3,1912. On Monday the plaintiff requested Doctor Bowen to treat him for lumbago, which he supposed he had as the result of a wrench of his back, and he went to Doctor Bowen’s office for that purpose. He was met there by Doctor Kiene, who was able to afford him some temporary relief. On Tuesday the plaintiff again called at Doctor Bowen’s office, where he was treated, and Doctor Bowen then took the plaintiff to his home in North Topeka. The plaintiff remained at home, suffering great pain and in a paralyzed condition, for some three weeks, when he was taken to Kansas City, Mo., for treatment by Doctor Grover Burnett. He remained at Kansas City four weeks, and at the end of that period, his condition having improved somewhat, he returned to Topeka. From the time the plaintiff was taken to his home by Dr. Bowen he was under the care of his regular physician, Doctor Sams. Because of the puzzling character of the case many other physicians were called to see the plaintiff, and came to see the plaintiff. Doctor Bowen called in Dr. W. S. Lindsay, a specialist in nervous diseases, who afterwards gave much attention to the case. Before the trial he and Doctor Porter, a member of the staff of the St. Francis Hospital, were appointed by the court to examine the plaintiff and report upon his condition. Doctor Lindsay called Doctor Milne, a specialist of Kansas City, Mo., and also took his son, Dr. Merrill Lindsay, to see the plaintiff. Doctor Sams called Doctor Burnett, who came from Kansas City to visit the plaintiff some four or five days after his injury. Doctor Johnson, of Topeka, was present on this occasion, at whose request does not appear. Doctor Joss, and perhaps some other physicians of the city called to see the plaintiff for the purpose of observing his condition, both as a matter of interest to themselves and for the purpose of lending assistance if they could. At the trial the plaintiff was the first witness examined. Besides giving the testimony which has been quoted, the plaintiff gave a full account of his case, including a detailed description of his physical condition, of the nature and progress of his disease, of the methods of examination employed by some of the physicians who attended him, and in part of the treatment he received. Besides this, as a medical expert, the plaintiff attributed his disorder to a hemorrhage- of the spinal cord, caused by the wrench and shock which he received when he struck the pavement on his heels after having been thrown violently from the defendant’s car. On cross-examination the plaintiff was asked if he had not given an account of how he was injured to Doctors Kiene, Bowen, Sams, Lindsay, Merrill Lindsay and Milne. He admitted having given a history of his case to Doctors Kiene, Bowen, Sams and Lindsay. He was quite certain he had not stated the facts to Doctor Milne, but was not certain that Dr. Merrill Lindsay had not heard him do so. Sometimes, but not always, objections were interposed to the questions asked, on the ground that they called for privileged communications, and the substance of some of the conversations was given, partly without objection and partly over objection. At the conclusion of the plaintiff’s testimony his wife was called to prove his previous robust health. The plaintiff’s last witness in chief, Doctor Burnett, was then called. Doctor Burnett testified to coming to Topeka to see the plaintiff and to a personal examination of the plaintiff at his home to ascertain the nature and cause of his malady. The facts disclosed by this examination were stated in detail. In answer to a hypothetical question, the witness gave an opinion coinciding with the opinion which the plaintiff himself had expressed as to the traumatic origin of the plaintiff’s paralysis. On cross-examination the witness amplified his statement of the knowledge of the plaintiff’s physical condition which he had gained by personal examination. He further testified that his opinion was based not only upon his personal examination of the plaintiff, but also upon the history of the case which he had received from the plaintiff and Doctor Sams, and he gave reasons why the history of the case was important in this instance. After his opinion had been withdrawn from the consideration of the jury and after he had again been qualified, he changed the basis of his opinion to conform to the ruling of thé court, and said he rested his opinion, which .remained unchanged, on the condition in which he found the plaintiff. The witness received the history of the case when he first examined the plaintiff on the occasion of his visit to Topeka. He remembered that Doctor Sams, Doctor Johnson, and Doctor Bowen were present at the time. He did not remember about Doctor Kiene or Doctor Joss, and was quite certain that Doctor Lindsay was not there. The meeting took substantially the form of a consultation. A portion of the testimony of the witness follows: “Q. At the time that you examined him, did Doctor Armstrong give you a history of his case? A. Why, I think so, in a reasonable way. “Q. He told you about this accident, did he ? A. He told me about getting off the car; yes, sir. “Q. And the manner in which he got off the car? A. Yes; said that in getting off the car it was moving faster than he thought it was and he came down on his heels hard — his full weight — with his muscles set stiffly. “Q. Did he say anything about the car jerking and throwing him off. A. No— “Q. Never said anything about that car jerking him? A. No, I don’t remember of it. “Q. Just stepped off the car. Did he tell you that he had a grip in his right hand ? A. I am not sure about that. “Q. Did he tell you he was standing on the lower step ? A. He said he went to step off the car— “Q. And come down heavy on his heels ? A. Yes. “Q. Did he tell you how high above the pavement he was when he undertook to step off? A. I don’t know as he estimated any distance, but as I recollect in speaking about it, was rather high step. “Q. Did he not tell you the car was going very slowly? A. Said it was going faster than he thought it was, as I remember it. “Q. Now, doctor, he gave you what was supposed to be the history of his case, did he nót? A. I think as well as he could. “Q. As well as he could. It is customary for you doctors to inquire into the history of the case before you diagnose the case is n’t it ? A. Yes, sir.” Later the witness testified as follows: “Q. My understanding of your testimony then is, doctor, that while this condition which affects Dr. Armstrong might result from an injury, it may result from numerous other causes. A. Well, that would depend on how much you robbed the case of certain facts. “Q. Don’t rob it of any facts, just let it go as it is. A. Then I would say that is not true. “Q. I understand you to say that any disease which would break down certain parts of the spinal cord would produce it? A. But I did n’t understand you to specify Dr. Armstrong when you asked that question. “Q. Why do you single out Dr. Armstrong? Is it because you have heard the history of his particular case ? A. Because of the facts- that were given in connection with his case as a cause. “Q. As a cause? A. Yes, sir. “Q. Who gave you those facts, doctor? Did he, himself, and those around him? A. Dr. and Dr. Sams together both gave me the facts- of it. “Q. Gave you the history? A. In fact I think they gave it all to me.” The foregoing testimony was all given without any objection that the communications disclosed by it were confidential, and indeed without any objection whatever. Later in his examination Doctor Burnett sought to discount the information he had received from the plaintiff and from Doctor Sams, but the jury returned the following special findings of fact relating- to the matter: “Q. 2. How fast was the ear going when the plaintiff alighted from it. A. 2. The evidence shows that-it was moving about as fast as a man would walk, and suddenly lurched forward. “Q. 3. Did not plaintiff tell Dr. Burnett, in stating to him the history of his case, that he stepped off the car while it was in motion and that it was going faster than he thought it was? A. 3. Yes, but did not say that he voluntarily stepped off. “Q. 4. In telling Dr. Burnett how he stepped off the car while in motion, did the plaintiff tell him anything about the car being started forward with a jerk throwing him off? A. No.” The defendant introduced testimony, including that of the commissioners appointed by the court, to the effect that the fall described by the plaintiff could not injure the encased and protected spinal cord of a robust man, such as the plaintiff was, having healthy blood vessels and healthy tissues, in such a way as to produce a hemorrhage, and that the plaintiff was suffering from the effects of an inflammation of the anterior horn of the gray matter of the spinal cord, known as poliomyelitis, a disease which is infectious and not traumatic in origin. The defendant offered to show by physicians, who were present when Doctor Burnett made his examination of the plaintiff, and by other physicians, the history of the accident to the plaintiff as they had received it from him. The offers were rejected on the ground that they called for the revelation of privileged communications. A sufficient number of affidavits were taken for use at the hearing on the motion for a new trial to indicate the nature of the offered evidence, and the affidavits of Doctor Kiene, Doctor Bowen, Doctor Lindsay, and Doctor Merrill Lindsay show that when the plaintiff accounted to them for his condition he said he stepped off the car before it reached its stopping place, and he made no reference to any jerk or to any sudden starting of the car or to being thrown from the car. The foregoing statement presents enough of the record to develop the single subject which will be considered, the propriety of the rulings of the court rejecting the evidence to which reference has just been made. If the rulings were erroneous they were prejudicial. If the plaintiff stepped from the car before it reached its stopping place and there was no jerk or sudden start of the car, he acted voluntarily and the defend-' ant was not guilty of negligence. The fact that the plaintiff told Doctor Bowen, whom he first called, and Doctor Kiene, who first treated him, that he stepped from the car before it reached its stopping place and left out of his statement all reference to a sudden jerk or lurch or sudden start of the car, which threw him off, would indicate that negligence on the part of the defendant first assumed importance when an action for damages, was contemplated. While the jury might in fairness believe that the account given Doctor Burnett was abbreviated or fragmentary, they could not have failed to be impressed with the fact that the plaintiff’s story to other physicians, related while the episode was fresh in his memory and while restoration to health was the only consideration, contained no charge of misconduct on the part of the defendant. The plaintiff’s hypothetical questions to the medical experts included the fact of a violent throwing of the plaintiff to the pavement by a sudden jerk or start of the car. With sudden and unexpected violence in alighting from the car eliminated, perhaps the defendant’s theory of the plaintiff’s disease would have been accepted by the fury. Previous to the revision of 1909, the section of the civil code relating to privileged communications to physicians read as follows: “The following persons shall be incompetent to testify. ... “Sixth. A physician or surgeon, concerning any communication made to him by his patient with reference to any physical or supposed physical disease, or any knowledge obtained by a personal examination of any such patient: Provided, That if a person offer himself as a witness, that is to be deemed a consent to the examination also of an attorney, clergyman or priest, physician or surgeon on the same subject.” (Gen. Stat. 1901, § 4771, Civ. Code, § 323.) By the revision of 1909, section 323 of the code became section 321, which now reads as follows: “The following persons shall be incompetent to tes- ' tify. . . . “Sixth, a physician or surgeon concerning any communication made to him by his patient with reference to any physical or supposed physical disease, defect, or injury, or the time, manner or circumstances under which the ailment was incurred, or concerning any knowledge obtained by a personal examination of any such patient, without the consent of the patient. “But if a person without objection on his part testifies concerning any such communication, the attorney, clergyman, priest or physician communicated with may also.be required to testify on the same subject as though consent had been given within the meaning of the last three subdivisions.” It is well understood that communications between physician and patient were not privileged at common law, and in this country the privilege is the creation of comparatively recent statutes. The basis of the privilege is the likelihood that persons may be deterred from consulting physicians with respect to their physical condition or state of health if a disclosure of their confidential communications can be compelled in court, and the likelihood that more harm may result from being reticent to consult a doctor than from the suppression of the truth in court. How much this theoiy is the result of speculation and sentiment and how much the result of observation and experience need not be discussed, since the legislature has embraced it and acted upon it. In an opinion interpreting the old statute the court said: “The statute quoted contemplates that the patient may consent to his physician’s testifying. Therefore no question of public policy is involved. The public policy of the state does not depend upon the will of individuals who are free to act as circumstances may suggest them. It is elementary law that communications made in professional confidence are not incom petent. If a third person hear them he may testify. The disqualification is imposed upon the lawyer, physician or priest only, and not for his benefit or for the benefit of the public, but merely as a privilege to the client, patient or person confessing. This privilege, like many others, even those protected by constitutional guaranty, may loe waived. By statute if the party himself testify the privilege is waived. If he publish the confidential matter to the world the privilege is waived.” (Insurance Co. v. Brubaker, 78 Kan. 146, 155, 96 Pac. 62.) The time, manner, and circumstances of a street-car accident are not confidential facts. There is no secrecy, or intimacy, or privacy about them (4 Wigmore on Evidence, §2380), and nothing a legislature can do can change their actual character. It may be assumed, however, that the legislature may arbitrarily classify them with confidential matters with which they may be associated. The court will not assume that the legislature added the time, manner and circumstances of personal injuries to the exemptions contained in the old law for the purpose of fostering any damage-suit industry, or for the purpose of gratifying the desires of members of the m,edical profession to keep their relations with patients free from the probe of judicial inquiry. On the other hand, it will be assumed that the amendment was made in the same spirit in which the original statute was conceived, that is, for the protection of genuinely confidential matters. The statute is not remedial in any proper sense of that term, as some courts would hold, but merely grants a privilege to persons in specified relations if they see fit to take advantage of it; and the terms of the statute will not be extended by implication or by interpretation, but will be strictly construed in favor of the competency of witnesses. (Mendenhall v. School District, 76 Kan. 173, 90 Pac. 773; Hess v. Hartwig, 83 Kan. 592,112 Pac. 99; Treiber v. McCormack, 90 Kan. 675, 678, 136 Pac. 268; Thurston v. Fritz, 91 Kan. 468, 475, 138 Pac. 625.) The statute provides that a physician shall be incompetent to testify to communications made to him by his patient without the consent of the patient. Of course, the physician may testify with the consent of the patient. The giving of testimony by the patient without objection is by statute made the equivalent of consent that the physician may testify to the same subject matter, whether the patient be willing in fact or not. Besides this statutory consent, consent may be express, as, for example, by contract. Consent may also be implied. It is implied from failure to make objection when the physician is called upon to testify, assuming, of course, that the patient has opportunity to make objection. There is good ground for holding that the plaintiff consented under the statute that some of his physicians might testify to his communications to them relating to the manner and circumstances of his injury, by giving testimony himself without objection concerning these communications. As indicated in the statement of facts, when the plaintiff was asked about what he had told his various physicians frequent objections were made on the ground of privilege. Sometimes objection was not made until the subject had been well opened up. Sometimes after an obj ection was made the examination was allowed to proceed a considerable length before another objection was interposed. Sometimes the answers of the plaintiff were distinctly to his own advantage. The defendant clearly had the right to ask the plaintiff if he had given his various physicians accounts of how he came to be injured. He rested under no incompetency, statutory or otherwise. On receiving affirmative answers, the defendant could, with perfect propriety, ask for such accounts because the plaintiff might consent at any time to waive his privilege. If he did not desire to do so it was incumbent upon him to make the fact plain by entering specific objections. Apparently the plaintiff was somewhat undecided as to how vigorously and how persistently he would urge his privilege. He obj ected when he wished and kept silent when he wished, and it can not be said that he made it clear to the court that he stood rigidly upon his privilege, objecting to every inquiry regarding his communications to his physicians and desisting from making objections only to avoid the appearance of being pertinacious. That such was not in fact his attitude before the court becomes quite evident when the subsequent proceedings are considered. Doctor Burnett was the plaintiffs chief witness. During the cross-examination of Doctor Burnett the plaintiff kept silent and permitted the witness to recount, without objection, all the facts he could remember of learning from the plaintiff relating to the manner and circumstances of his injury. These facts were obtained from the plaintiff at a consultation participated in by a number of physicians, all of whom were released from incompetency to testify to matters occurring at the consultation whenever Doctor Burnett was allowed to divulge them. No motion was made to strike out Doctor Burnett’s testimony. It was made the basis of special findings of the jury, and its admission necessarily constituted a very broad waiver of the plaintiff’s privilege. When the defendant’s side of the case was reached objections were again forthcoming and were made incessantly to the end of the trial; but it was only after the defendant’s side of the case had been reached that the plaintiff determined to insist firmly on his privilege, and fear of being regarded as pertinacious did not then trouble him. Summarizing the entire proceeding, it shows that the plaintiff consented under the statute that conversations with some of his physicians relating to the manner and circumstances of his injury might be inquired into, by testifying without objection to some of the details of such conversations. Doctor Burnett acquired knowledge of the plaintiff’s physical condition and disease by personal examination of the plaintiff and by learning the history of the case from the lips of the plaintiff. The plaintiff consented in fact to a disclosure of this knowledge by calling upon Doctor Burnett to testify as a witness for the plaintiff to every detail of such knowledge. The plaintiff consented in fact to a disclosure by Doctor Burnett of the manner and circumstances under which his ailment was incurred by not objecting to Doctor Burnett’s cross-examination. The door of the plaintiff’s room was opened wide upon a consultation of his physicians, and the plaintiff himself went upon the witness stand ,and made a full disclosure of his physical condition, of his supposed physical injury and disease, and of the time, manner and circumstances under which his ailment was incurred. All this being true, there is no longer anything confidential about the plaintiff’s case which prevents a disclosure of all the facts, to the end that the exact truth may be ascertained; and particularly, no occasion exists for specially protecting communications relating to the manner and circumstances of the plaintiff’s injury when the entire confidential subject to which they were merely incident has been fully disclosed. The court is of the opinion that the statute does not contemplate that waiver follows from the mere fact that the patient himself testifies to his physical condition and to the manner and circumstances of his injury. In doing so he need not disclose confidential communications to his physician, and if he do not, the communications are still privileged. It is possible that if the question of waiver depended for solution upon a consideration of the plaintiff’s cross-examination and nothing more, the court might give him the benefit of the doubt and hold that he had not consented that the veil of secrecy which the statute casts over his communications with his physicians should be lifted. But the plaintiff’s conduct at the trial can not be considered in this piecemeal fashion. Having the right and the opportunity to plant himself upon his privilege and keep out all confidential communications, he chose not to do so. Having laid bare every fact which he might wish to be kept private, having allowed portions of his confidences with his physicians to escape him, and then having thrown down all bars by using his confidences with his chief witness, Doctor Burnett, to establish his case, and by consenting that the confidences of a consultation of his physicians be revealed, there are no longer any confidential features about the plaintiff’s case, and the reasons underlying the statute would have to be ignored to hold otherwise. “If any decided cases have attempted to make the rule of privilege a byword by holding to the contrary, they are disapproved.” (In re Burnette, 73 Kan. 609, 632, 85 Pac. 575.) As already indicated, when consent was given that Doctor Burnett should reveal the communication made to him in .the presence of Doctor Sams, Doctor Johnson, Doctor Bowen, and perhaps others, that communication was no longer privileged, and any physician who was present could testify concerning it. There are decisions to the contrary, but they are clearly unsound. The communication consisted of a statement of the manner and circumstances of the plaintiff’s injury. He gave it in order that he might be healed. For the same purpose the plaintiff had given a previous account of the same event to Doctor Bowen. Manifestly the plaintiff can not play fast and loose and make laughing stock of the law by insisting upon two distinct confidences with Doctor Bowen respecting precisely the same subject-, one of which he may reveal and the other conceal. It is not necessary to discuss the subject further. Cases may arise in which breaking the seal of confidence as to a single physician will not waive the privilege as to others, but in view of all the facts this case is not of that character. Neither is it necessary to enter upon a review of the authorities, which are well marshalled in the plaintiff’s brief. A numerical majority is opposed to the views which have been expressed. The court is satisfied with the interpretation given the statute, to which it was already committed by previous decisions. Starting with that conception of the statute, reason, consistency and common sense lead to the results which have been announced. It only remains to be said that since the plaintiff has waived his privilege it no longer exists and will not be a factor in subsequent proceedings in the case. The judgment of the district court is reversed and the cause is remanded for a new trial.	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The opinion of the court was delivered by Smith, J.: This is an appeal from the j udgment of the district court of Hamilton county upon a motion to retax costs. The cause in which it arose was a foreclosure action and at the sale the land was purchased by the plaintiff, who was the prior creditor, and the sheriff made a return in which he charged the commission provided by law (Laws 1913, ch. 197) to be charged by the sheriff for the collection of money upon the making of a sale. The sale in question was held on the 7th day of July, 1913, and it is conceded that the law then in force as to costs in the making of such sale must govern. Appellant’s motion to retax costs was grounded upon the provision of section 501 of the civil code, which reads as follows: “In any case where the property is bid in by or for the prior creditor, the sheriff shall receive his fees for the sale, but shall not be entitled to charge any commission on said sale; and no stenographer’s fees shall hereafter be taxed in any foreclosure suit, except in cases where a stenographer is actually employed.” Upon the hearing of the motion and the objections to the confirmation of the sale the court allowed the motion to retax costs and eliminated from the cost bill the item of $100.13, this being the sheriff’s charge for commission for making the sale and collecting the money on the sale. Appellant relies upon the case of Wilkerson v. Savings Bank, 52 Kan. 718, 35 Pac. 792, for a reversal of the case. The appellee, on the other hand, relies upon section 501 of the civil code of 1909, which was first published under a different title in the Laws of 1893 as section 27 of chapter 109. Section 27 has since been republished in several compilations of the statutes of Kansas, and in the revision of the code the section was reenacted as section 501 of chapter 182 of the Laws of 1909. The title of this act is “An act concerning the code of civil procedure.” It is said to have been the practice of sheriffs in the state for years to charge the commission on the sum for which land was sold at sheriff’s sale whether the amount of the bid was collected in money -or whether the prior creditor bid for the land the amount he chose to indorse on his judgment under which the sale was made. As we shall see, the legislature in 1893 made an unavailing attempt to abolish the practice, but in 1909. enacted an effective law to accomplish the object. The principal reasons for holding the section “without force or effect” in the Wilkerson case, supra, is that there was no reference to costs or commissions in the title of the act of 1893; that the words “prior creditor” are difficult of interpretation in carrying out the professed object of the act, and that there was no provision of the statute for the redemption of real estate sold at sheriff’s sale until nearly one year after the rendition of the judgment in that case, section 27 being a part of that act. The subjects of costs, sheriffs’ commissions and the redemption of real estate sold by a sheriff in obedience to a j udgment and order of a court of competent jurisdiction, it need hardly be said, are matters to be regulated by the code of civil procedure; that the appellee was the prior creditor in this action is conceded and the judgment herein was rendered long after the enactment of chapter 182 of the Laws of 1909. Generally the term “prior creditor” as used in this section means the creditor who is adjudged priority in the judgment enforced by the sale. The reasons assigned by the court in the Wilkerson case, supra, are thus all obviated. The appellants, however, say that section 501 of chapter 182 of the Laws of 1909 is not a new' enactment but is a continuation of section 27 of chapter 109 of the Laws of 1893, as provided in section 9037 of the General Statutes of 1909. This is true of the body of the section but is not true as to the title of the act. The legislature by the act of 1893 attempted to provide that in certain cases a sheriff should be entitled to no commission, as for the collection of money, upon certain defined sales of real estate. By the failure to clearly express the subject of the act as required by section 16 of article 2 of the constitution, the attempt failed and was “without force or effect” for the purpose intended. A subsequent legislature supplied the defect by a comprehensive title and made that which was invalid a valid law. The first attempted enactment was, in effect, a nullity, and the section did not thereby become a statute and there could be no continuance of the attempted provisions thereof. The first legal enactment of section 501 as published in the Laws of 1909 and in the General Statutes of that year (§ 6096) was made in 1909. The provisions of the section were effective at the time of the sale and at the time of the hearing of the motion to retax the costs, and are conclusive of the rights of the parties. The order of the court eliminating the commission from the costs of the sale is affirmed.	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The opinion of the court was delivered by Benson, J.: The opinion in this case, reported in 91 Kan. 757, 189 Pac. 371, appears to have caused apprehension that transactions in real estate would be hindered by the interpretation given to the agreement to furnish an abstract showing a merchantable title. Upon the rehearing the case has again been argued with great zeal and ability, but we are satisfied that the opinion is well within the safe currents of reason and authority. The paragraph of the opinion especially criticized is this: “Here the abstract shows an outstanding title in fee in Pieper. Its validity depends upon matters of fact concerning notice, possession and periods of limitation. To require a purchaser to accept affidavits upon such matters would impose too great a hazard and would be unjust. Whether Pieper is living or dead does not,appear, and so another element of uncertainty arises, respecting heirship, minority, and the period of limitations. (Beeler v. Sims, 91 Kan. 757, 761,139 Pac. 371.) After referring to this paragraph counsel say: “A conscientious examiner of real estate titles will not contend that a court should hold a title to be a marketable title when its validity depends, not upon a record chain, but merely upon adverse possession.” This declaration suggests the real turning point in this lawsuit. While the title here, it is true, does not rest upon adverse possession alone, its validity, as the abstract shows, depends, in part at least, upon the question whether there was possession adverse to the title under the sheriff’s deed when the proceedings upon which it was based were commenced. And this question is presented by the abstract. The conveyance to Huntin was made by the holder of the fee title. It is not, as characterized in the argument, .a “wild deed,” but is found within the regular chain of conveyances— a fact that seems to have been overlooked, for in the same brief it is said, using the language of the opinion in Prest v. Black, 63 Kan. 682, 66 Pac. 1017: “It is undeniable that only such conveyances or other grants as are in the record chain of title are constructive notice to subsequent purchasers or encumbrancers. The registering of a deed or will by a stranger to the record chain does not impart notice to any one.” (p. 684.) It is sufficient to say that the Huntin deed was not made by a stranger to the record, but by one who then owned the fee as the record showed. Briefly stated, the situation revealed by the abstract is that the title was in Wilcox. On March 20, 1889, he conveyed to Huntin, Huntin to Drew, and Dr.ew to Pieper, the last conveyance being dated May 31, 1898. With Pieper the record title ends. The sheriff’s deed is based upon a foreclosure suit commenced March 3, 1890, against Wilcox and wife and the mortgagors. At that time the fee title was in Huntin, who was not made a party. The last grantee, Pieper, owns it according to the record unless Rush, the purchaser at the sheriff’s sale, and his grantees are protected because of the absence of the Huntin, Drew and Pieper deeds from the record at the commencement of the foreclosure. The situation is simplified by remembering that the sheriff’s deed is of no greater efficacy than a conveyance from Wilcox (and the other parties to the foreclosure) would have been. If Wilcox was then in pos session, or if the land was then vacant, the Rush title is good, but the affidavits do not state whether either of these facts existed. Inasmuch as affidavits were resorted to, the omission is significant, and such as would attract the attention of a careful examiner. Each of the affiants testified: “That he has been acquainted with Section 29, in Township 26 south, of Range 30 west of the 6th P. M. in Gray County, for the past 20 years, having seen and been on the land at least once each year for the past 20 years, and positively knows that no one has been in possession of said land except Clint C. Rush and B. C. Nields and their grantees under them. That there has been no adverse possession to them, or to their grantees.” If the abstract showed title from the record alone it would be sufficient, or if it showed title from the record aided by adverse possession it might be sufficient, but failing in either respect it is insufficient. Because of this defect the affidavits were procured and attached. The contention is that this outstanding title was divested by adverse possession. Whether it was so divested depends on facts not shown by the affidavits. They do not show that the possession was open, actual and exclusive. (Dickinson v. Bales, 59 Kan. 224, 227, 52 Pac. 447; Warvelle on Abstracts, 3d ed., § 574.) Again, the time necessary for adverse possession to ripen into title as against the owner in fee is fifteen years, in analogy to the statute of limitations. “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.” (Hollenback v. Ess, 31 Kan. 87, 88, 1 Pac, 275.) In the case of a minor the disability enlarges the time to two years after he reaches majority. (Civ. Code, §§ 15, 16.) It was said in Goodman v. Nichols, 44 Kan. 22, 23 Pac. 957: “A title by prescription arises in the adverse occupant at the end of 15 years, if the owner labors under no disability; and if he does, within two years after the disability is, removed.” (p. 29.) The important qualification in this quotation concerning disability must be noticed. If adverse possession under the sheriff’s deed was taken, a cause of action to recover the land accrued in favor of the holder of the Huntin title. If the owner was then an adult and the adverse possession was continued without interruption he was barred in fifteen years. If he was a minor the period of limitation would be extended for two years after attaining majority, although if a cause of action accrues to an adult owner in possession his subsequent death and a descent cast upon a minor heir would not interrupt the running of the statute. (Davis v. Threlkeld, 58 Kan. 763, 51 Pac. 226.) The former opinion, however, yvas not based on insufficient statements of the affidavits, but upon the principle that a contract to furnish an abstract showing a marketable title is not complied with by presenting one that purports to show by affidavit only that the fee title, which appears by the abstract to be outstanding, has been divested by limitation or adverse possession. Repeating the language of the Nellans case, “A title is doubtful if it exposes the party holding it to the hazards of litigation.” (McNutt v. Nellans, 82 Kan. 424, syl. ¶ 2, 108 Pac. 834.) Whether the holder of the Huntin title, be he adult or minor, under disability or not, is barred by limitation or adverse possession depends of course upon extrinsic facts. Must the vendee take the risk of proving such facts ? It was held in Nebraska that unreleased trust deeds made to secure the payment of money constitute defects in the title that will excuse a vendee from per formance although upon the face of the record the statute of limitations may have barred the creditor or the trustee from foreclosure. (Justice v. Button, 89 Neb. 367, 131 N. W. 736.) A note following the report of this case in 38 L. R. A., n. s., 1, on the subject, “What is a marketable title?” reviews a multitude of cases. In that case it appeared that there was an agreement to furnish an abstract. A tax deed had been issued on the land subsequent to the trust deeds, and affidavits were attached to the abstract to prove that the parties under whom the vendor claimed title had held possession by virtue of that deed for more than seven years preceding the tender of the abstract. The land was situated in Colorado, and it was contended that because the creditors were not within the exceptions of the statute of limitations of that state the trust deeds were not encumbrances upon the land. Replying to this contention the court said, “Neither creditor makes a statement that the debt has been paid, and they would not be bound by an affidavit sworn to by the owner of the land.” (p. 369.) No reference is made in the opinion to the tax deed held by the vendor — as one is held in this case, to buttress the title. The opinion, although quite brief, discloses the views of that court concerning the office. of affidavits upon abstracts when used to prove the fact that outstanding liens are barred by limitations.' In the note referred to under the subhead “Right to rely on abstract,” at page 8, the commentator says: “Where the contract calls for an abstract showing a marketable title the purchaser has a right to rely upon the abstract, and if that does not show a marketable title, he is justified in refusing to accept the property.” Many cases are cited as supporting this proposition. In Howe v. Coates, 97 Minn. 385, 107 N. W. 397, 4 L. R. A., n. s., 1170, it was held by the court: “A purchaser will not be compelled to take a title when there is a defect in the record title which can be cured only by resorting to parol evidence.” (Syl. ¶ 3.) In that case, the contract, as the court construed it, required the vendor to furnish an abstract showing a marketable title of record. A distinction is made in the L. R. A. note before referred to between such a contract and one merely requiring that the abstract shall show a marketable title. The opinion, however, discusses the whole subject in a luminous and highly satisfactory manner, and cites, among a multitude of cases, Rutherford Land & Improvement Co. v. Sanntrock, (N. J. Eq. 1899), 44 Atl. 938, in which Pitney, V. C., said: -“I will define a title that is not marketable as, in the first place, one where the written title contains on its face some notice of something outside which may lead to some fact that may disturb the title; where the deeds-, wills, or decrees, give on their face some indication of some existing outstanding fact which will affect the title. Then another one is where the title depends necessarily upon matter in pais, which is in itself a doubtful fact, and never can be determined or established except by bringing every party interested into court — certainly others beside the immediate party to the suit for specific performance.” (p. 939.) In Shriver et al. v. Shriver et al., 86 N. Y. 575, it was said: “A title may be doubtful, which is to say unmarketable, because of the uncertainty of some matter of fact appearing in the course of the deduction of it.” (p. 584.) In Heller v. Cohen, 154 N. Y. 299, 48 N. E. 527, where the record shows defects in a judicial proceeding through which the- title was derived, the same court stated several rules to determine whether a title is marketable, deduced from former decisions of that court, among others.this: “Where there is a defect in the record title which can be supplied only by resort to parol evidence, and the title may depend upon questions of fact, the general rule is that the purchaser will not be required to perform his contract.” (p. 306.) Referring to the argument that although the title of record was defective it was cured by adverse possession of the vendor, it was said: “It is not sufficient that he has merely held the possession undisturbed for the period of twenty years. The fact that the plaintiffs and their predecessor in title were in the undisturbed possession of the land for twenty years and upwards, does not show that the possession was adverse.” (p. 311.) The foregoing authorities, and others that might be cited to the same effect, are in harmony with the opinion in Linscott v. Moseman, 84 Kan. 541, 114 Pac. 1088, where the subject of affidavits reinforcing abstracts is fully considered. After quoting from Warvelle on Abstracts, p. 313, where sworn expert statements respecting deaths, births, marriages, and the like are referred to, it is said: “Except in cases of the kind indicated, a vendee can not be compelled to accept a title depending for its validity upon parol evidence which he may not be able to command when needed.” (p. 547.) It was held in the Linscott case that an affidavit attached to an abstract did not remove a cloud on the title created by an oil-and-gas lease. See, also, Maupin on Marketable Title to Real Estate, 2d ed., § 289, from which a quotation is also made in the Linscott case. Without further citations it sufficiently appears from decisions in this state and in other jurisdictions that this abstract of title did not show a marketable title. The defendant is not required to assume the hazard of proof to' defend what appears from the record, as shown upon the abstract, to be an outstanding title in Pieper. The burden should be upon the vendor to procure a conveyance from the persons holding such an interest or otherwise to establish a superior right in himself. We are not required to pass upon the validity of the plaintiff’s title, but only upon the sufficiency of the abstract to compel specific performance. (1 Ene. L. & P. 200.) This proposition is more fully stated in the Nellans case. It is next contended that the notation in the abstract of a tax deed in the chain of conveyances under which plaintiff claims shows his title to be perfect. This notation is only that a tax deed was issued by the county clerk on a date named to B. C. Nelds, giving the date, book, and page of the record. It is argued that because a perfect tax deed is prima facie evidence of the regularity of the proceedings and of a good title, the mere designation is sufficient. Many tax deeds, however, are void upon their face. Others are avoided for irregularity in antecedent, proceedings or failure to take possession in the time allowed by law. Certainly an abstract, if it does not set out the substance of the antecedent proceedings upon which the deed is based, should at least state enough of the contents of the instrument to show that it is valid upon its face. It is not believed that competent examiners would consider the mere name of the instrument sufficient. That is not an abstract, but an appellation. A form for abstracting a tax deed is given in Warvelle on Abstracts, 3d ed., § 537. The author, at section 540, says: “Whenever a tax deed is relied on as a foundation of title which is independent of and adverse to all other titles, particularly that of the person who was last seized of the fee, a full exposition of the method by which the right was acquired is an essential preliminary to demonstrate the validity of all succeeding conveyances. The tax deed, unaided by statute, is not sufficient to demonstrate title, though it may be prima facie evidence of such, but the prior steps must be shown and all the requisites necessary to a complete and perfect title under the statute must be fully and succinctly stated.” (See, also, 1 Ene. L. & P. 199.) Finally it is said in the argument on this rehearing that the question whether the abstract showed a marketable title was not material; that if it did not, it should have been returned for correction with objections. This is a complete departure from the position taken at the first argument. It was then stated at the opening of the plaintiff’s brief: “The only question for the court to determine in this case is as to whether or not the abstract of title tendered by the appellant,' C. W. Beeler, .showed a good merchantable title in him to certain lands described in his petition.” Accepting this statement the pleadings were hot critically examined to determine whether the demurrer should have been sustained^ but the abstract was examined to see whether it disclosed a merchantable title. There is no suggestion of mistake, accident or surprise in making this frank statement of the issues, and no reason appears why the only question submitted for decision, which alone was argued, considered and decided, should be changed at this advanced stage of the litigation and an entirely new inquiry be entered upon. The former judgment of affirmance is adhered to.	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The opinion of the court was delivered by Smith, J.: This action was brought by G. V. Stamey against the Royal Assurance Company and the Concordia Fire Insurance Company to recover upon two policies of fire insurance issued upon the same property by the respective companies. The United States Carriage Company was also made a defendant, and answered setting up an affirmative claim under the insur - anee policies. Stamey, after the beginning of the action, was sentenced to the penitentiary for burning the insured property, and while he was a convict therein Thomas M. Lillard was duly named as trustee in the action to prosecute in his behalf, and an amended petition was filed in Lillard’s name as trustee. The issues between the trustee and the insurance companies were tried to a jury, which returned a verdict in favor of each of the defendants, and made a special finding that Stamey burned the property covered by the policies for the purpose of securing the insurance. A judgment was rendered in accordance with the verdict. The claim of the United States Carriage Company against the insurance companies was submitted to the court, without a jury, upon the pleadings and judgment in the Stamey case. After some cavil as to the stipulation or agreement the court stated their agreement as follows : “That these gentlemen here stipulate that as to the carriages — that upon the admitted fact in the record, they stipulate and agree that if as a matter of law the court finds that the carriage company is entitled to a judgment against the insurance company the court shall so render judgment for the amount of the carriage company’s claim.” To which the attorneys all assented. It was understood that whatever judgment might be rendered for or against either insurance company the same judgment should be rendered for or against the other. For that reason, apparently, the court in its findings mentioned only the Concordia Fire Insurance Company, or the insurance company as applying to both insurance companies, and found that the insurance company had issued to Stamey a policy of insurance upon personal property, including two double hacks, with the limited liability of not moré than $400 upon each hack; that the hacks were bought by Stamey from the United States Carriage Company, and that the value of each when destroyed was more than the amount of the insurance thereon, and that the unpaid balance of the purchase price at the time of the trial amounted to $1256.10, for which notes bearing six per cent per annum were given, secured by chattel mortgage on the hacks, and the mortgage clause attached to the policy; that the two hacks and other property covered by the policy of insurance were totally destroyed by fire at the place designated in the policies as the place where they were to be kept; that to each policy was attached the following: “No. 7. It is understood that the two hacks insured under the first item, is being sold to the assured under a contract issued by the United States Carriage Company, and loss, if any, payable to the United States Carriage Company, as their interests may appear.” That in the body of each policy was the following stipulation and provision: “No. 8. If, with the consent of this company, an interest under this policy shall exist in favor of a mort gagee, or of any person or corporation having an interest in the subject of insurance other than the interest of the insured as herein described, the conditions hereinbefore contained shall apply in the manner expressed in such provision and conditions of the insurance relating to such interest as shall be written upon, attached, or appended thereto. “No. 9. That the foregoing provision and stipulation and no part thereof nor any reference thereto, was written upon, attached to, or appended to the mortgage clause attached to said policy. “No. 12. That said defendant Carriage Company set up its claim for the balance due upon said promissory notes and chattel mortgage and claimed that under the provisions and stipulations of said Insurance Company, an independent contract was entered into by and between said insurance company and said carriage company and that it was entitled to recover regardless of any act upon the part of said Stamey.” The court also made the following findings: “No. 18. That thereafter proofs of loss were duly furnished said company including proof of the loss of said hacks and the defendant insurance company refused to pay said loss or recognize its liability therefor. “No. 14. That the unpaid balance due said defendant carriage company at the date of these findings, claimed from said defendant insurance company by said carriage company, to-wit, December 28th, 1912, was $628.05. “No. 18. That the said defendant carriage company’s place of business is Columbus, Ohio, and that after the sale of said hacks it left them in the possession and control of said Stamey. “No. 19. That several days prior to said fire, .the local agency of said defendant insurance company became suspicious that the said Stamey contemplated burning said property and hired an officer to watch and guard said property and to catch the criminal. “No. 20. That said watchman was on duty day and night for about one week with instructions from said local agency to apprehend the criminal if the property should be burned. “No. 21. That said defendant carriage company had no knowledge and no means of knowing of the extra hazard surrounding the hacks included in its chattel mortgage, and said insurance company and its local agency did not notify said carriage company of such extra hazard or communicate in any way with said company advising it of the existing suspicion.” As a conclusion of law the court found: (No. 1) That the stipulation in the insurance policies constitute an independent contract by and between the insurance company and the carriage company, and the right of recovery is not defeated or vacated in any way by the criminal act of Stamey’s in causing the said property to be burned; (Nos. 2, 3) that the carriage company was entitled to recover of each of the fire insurance companies $628.05, with interest at 6 per cent from the date of the findings. Judgment was rendered accordingly. Motions for a new trial were made and overruled. The appellant insurance companies contend that there was no loss contemplated by the contracts of insurance in the burning of the two hacks. It was established by the verdict in the case upon the trial of the issues, as between Stamey and the insurance companies, that Stamey was not entitled to recover any loss or damage under the policies so far as concerned his interest in the property insured, for the reason that he, himself, burned the property. We have no doubt that the decision was correct, and, of course, it would be equally applicable to the hacks involved in this case if he owned the hacks exclusively and the United States Carriage Company had no interest therein, and the contract was made exclusively for Stamey’s benefit. Stamey unquestionably had the legal title to the hacks also, but the carriage company, which had contracted to sell them to Stamey, had a chattel mortgage thereon for a large portion of the purchase price thereof. That the carriage company’s interest in the hacks was an insurable interest is well settled and is not questioned. The principal contention of the appellants, however, and the real issue in this case, is whether the court erred in conclusions of law Nos. 1 and 2, ante. There is some conflict in the authorities as to the effect of attaching to a policy of insurance a stipulation or mortgage clause, which is known as the standard clause, viz.: “Loss, if any, payable to..........mortgagee, as his interest may appear.” The case of Bank v. Insurance Co., 6 Kan. App. 219, 49 Pac. 688, is cited in support of appellants’ contention that such insurance is for the benefit of the owner of the property only and not for the benefit of the mortgagee. Some language was used in the opinion which justifies the claim of appellants,but in that case the property owner had forfeited his right to recover under the policy according to its very terms by taking out additional insurance without notice to or consent of the insurance company issuing the policy sued on. Another defense was that the property was mortgaged at the time the insurance policy was obtained and no notice thereof was given. Also, that the plaintiff permitted foreclosure proceedings on the property without the knowledge or consent of the company. So it appears that the effect of attaching the standard clause of loss order was not the only question involved therein, and it does not appear that the case was decided entirely upon that question. The appellee, on the other hand, cites numerous authorities in support of its contention that the standard loss order • clause, like the one in this case, constitutes an insurance of the interest of the mortgagee and his interest can not be affected by any act or conduct on the part of the owner. Among the Kansas cases cited is Dodge v. Hamburg-Bremen Fire Ins. Co., 4 Kan. App. 415, 46 Pac. 25, which is squarely in point and decides that the loss, if any, is payable to the owner of the mortgage or his assigns as his interest may appear. The owner of the mortgage is the insured to the extent of his interest. The appellee also cites Insurance Co. v. Coverdale, 48 Kan. 446, 29 Pac. 682, and Insurance Co. v. Boardman, 58 Kan. 339, 49 Pac. 92. In the two latter cases, however, the clause expressly provides that the insurance as to the mortgagee shall not be invalidated by any act or neglect of the owner, and this constitutes what is known as the “union clause” as distinguished from the standard clause before considered. Appellee also cites Reed v. Firemen’s Ins. Co., 81 N. J. Law, 523, 80 Atl. 462, 35 L. R. A., n. s., 343, in which it was said: “The standard mortgagee clause creates an independent contract of insurance for the separate benefit of the mortgagee, ingrafted upon the main contract of insurance contained in the policy itself, and to be rendered certain and understood by reference to the policy. “A policy of fire insurance in the standard form, which is void as to the assured owner, because of his breach of the warranty that his interest is not other than unconditional and sole ownership, may nevertheless be valid as to a mortgagee, when the mortgagee clause in the usual form is attached to the policy.” (Syl. ¶¶ 1, 2. ) Appellee also cites Welsh v. Assurance Co., 148 Cal. 223, 82 Pac. 964, 7 Ann. Cas. 396. The trial court also found that the insurance companies, through théir agent, were informed of the intention of Stamey to burn the property and employed a guard to watúh the property and apprehend Stamey if he made such attempt, and such guard and watch was kept night and day a week before the property was burned, but neither was any notice given to the carriage company nor were the insurance policies, or either of them, canceled. The conclusion of law is sustained by ample authorities, and the judgment is affirmed.	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The opinion of the court was delivered by Porter, J.: The action in the district court was to recover for injuries which the plaintiff sustained in an explosion at the powder mills of the defendant company where he was employed. The court sustained a demurrer to his evidence and rendered judgment against him, from which he appeals. In a voluminous petition plaintiff set out the manner in which the defendant operated its powder mills, and alleged that the explosive materials used in making the powder were first mixed in four wheel mills; that the mixture was then conveyed in bulk by means of push cars and cars drawn by horses on grit-covered tramways running to press mills, where it was pressed into cakes about one inch thick; that these cakes were then conveyed in a similar manner over other tracks to what is known as the “corning” mills, where the cakes were crushed through four sets of rolls, and from the last set of rolls carried by an elevator to a revolving screen; that the smaller particles or screenings constituted what is commonly known as “back dirt,” which was carried back to the press mills, again mixed with other unpressed material, and finally returned to the corning mills and reground through the rolls for the purpose of having all grains of powder substantially the same size; that the revolving screen in the north corning mill, where the explosion occurred, was made up of sections of screens, and that some of the buttons or bolts which fastened the screens, and also metallic butterfly thumb-nuts two or three inches long, attached to the wooden bolts, were loose, and would sometimes drop into the back dirt, and in the regular routine be carried to the press mills, pressed into cakes, and carried again to the north corning mill, where they would be fed into the rolls, thereby causing a friction and creating sufficient heat and sparks to ignite the dangerous explosives then being crushed. The accident occurred on March 30, 1912, and the petition alleged that on the afternoon of the day before, when the mills had stopped for the day, one Durkee, foreman and inspector, and Robert Carson, the repair man of the defendant, changed a section of screens in the north corning mill, and that some of the butterfly thumb-nuts were loose, and through the carelessness and negligence of the carpenter and repair man, dropped into the back dirt and were afterwards repressed with other screenings and returned to the north corning mill, where they caught and hung in the rolls and caused the explosion which completely destroyed the north corning mill, and seriously and permanently injured the plaintiff. The petition further alleged a failure to provide a safe place for plaintiff to work, in that defendant carelessly and negligently managed and operated its plant in several particulars; that it failed to employ suitable, competent and careful agents and servants to look after the details in the construction, management and inspection, and in the repair of the tramways, equipments and grounds in the handling of explosive materials; that it well knew that particles of grit became extremely dangerous when any portion of the same became mixed with the raw materials; and that on the morning of March 30, and before the explosion, at least one of the cakes of powder which were being fed into the rolls of the north corning mill contained butterfly thumb-nuts, and all of the cakes contained many particles of cinders, sulphur, sometimes called sulphur rock, iron, flint, sand and other grit, and also nails and metallic substances, the exact size and descriptions of any of which the plaintiff alleged he was unable to state; that these foreign substances created heat and sparks in the rolls and caused the explosion. The petition further charged the defendant with negligence in failing to equip the press mills with necessary screens and appliances to prevent foreign substances and grit from going into the machinery with the inflammable and explosive material. There was a failure of proof respecting the allegations of negligence on the part of the foreman and the carpenter. No evidence was offered to show that they or any other person had made any change in the screens on the day before the accident. There was no proof that the explosion was caused by a thumb-nut being in between the rolls and producing friction, except proof of circumstances tending to show the possibility of such a thing. Counsel appear unwilling to rest their case alone upon the claim that the evidence showed that the cause of the explosion was that the foreman and the repair man changed the sections of screens on the revolving reel on the day before the accident, and in doing so carelessly failed to fasten securely some of the butterfly thumb-nuts, and that some of the thumb-nuts were too loose, and by reason thereof one of them dropped off and found its way through the back dirt to the press mills and was fed back to the corning mill, caught in the rolls and produced a spark, where it ignited the powder. On the contrary, it is urged that the explosion may have been caused by any one or more of the acts of negligence alleged in the petition; the failure to provide screens at the press mill; failure to require the men to change their shoes before coming into the room where the explosion ■ occurred; failure properly to inspect the machinery; failure to enforce proper rules; failure to tack a wire screen over the mouth of the hopper in the corning mill; failure to re quire the mules and horses to walk upon the narrow path on the trams, and the failure to employ competent agents and servants in the construction, management and operation of the plant. But this contention overlooks the rule often declared, that “a fact is not proved by circumstances which are merely consistent with its existence.” (Duncan v. Railway Co., 82 Kan. 230, 233, 108 Pac. 101, and cases cited in the opinion.) The difficulty with the plaintiff’s case is that there was no proof showing that any foreign substance likely to create heat and sparks in the rolls was present in the mixturé or that it caused the explosion; nor was there evidence to show that the explosion was caused by the failure of defendant to enforce proper rules. If it be conceded that the plaintiff showed that for any one ór more of the alleged reasons he was not furnished a safe place to work, still the evidence fails to show that the explosion was caused by any failure or neglect of duty on the part of the defendant. The defendant may have been at fault in failing to furnish the plaintiff a reasonably safe place to work, but unless plaintiff’s injuries were caused by such failure, he can not recover on that ground. As was said in Duncan v. Railway Co., supra: “It (the death of Duncan) may have been caused in the manner claimed by the plaintiff. Possibly one conjecture is as reasonable as another, but the evidence does not reveal the cause of his fall. In the absence of such evidence there can be no recovery.” (p. 233.) See, also, another case with the same title, Duncan v. Railway Co., 86 Kan. 112, 119 Pac. 356, where it was said that “While the jury were warranted in drawing fair and reasonable inference from the facts and conditions shown, it was only from those shown and not from those imagined or inferred that such inference, could rightfully be drawn.” (p. 123.) And see the following cases cited in the opinion: Railway Co. v. Rhoades, 64 Kan. 553, 68 Pac. 58; Hart v. Railroad Co., 80 Kan. 699, 102 Pac. 1101; Brown v. Railroad Co., 81 Kan. 701, 106 Pac. 1001, which are against the contention of the plaintiff in the case at bar. Among the cases cited by plaintiff is Luengene v. Power Co., 86 Kan. 866, 122 Pac. 1032, where a person was injured by a gas explosion, and sued the company engaged in the sale and distribution of natural gas. It was held that he was not bound to show by what means the gas was ignited. That case is easily distinguishable. The injuries were caused by the explosion of gas in the basement of a building. The petition made no attempt to allege what caused the gas to explode, but alleged that the gas company was negligent in failing to keep and maintain its mains and pipe connections in proper condition, and in permitting gas to escape into manholes and trenches and into a telephone conduit to the basement where the explosion occurred. The plaintiff proved these facts; and while no evidence was offered of the cause of the explosion, a recovery was allowed because of defendant’s negligence in carelessly permitting such a highly explosive agency as natural gas to escape and accumulate in a place where it might reasonably be expected an explosion would result from some cause or another. A quite different situation was presented in Gas Co. v. Dabney, 79 Kan. 820, 101 Pac. 488, where the gas escaped from an unfinished well into the open air and exploded in the nighttime. There was no evidence to show what caused the explosion and it was held that plaintiff for that reason was not entitled to recover. Allowing the gas to escape into the open air is manifestly a different character of negligence from allowing it to escape and accumulate in a confined place where it might reasonably be expected an explosion would result. Plaintiff’s argument in the briefs is largely based upon the doctrine of res ipsa loquitur, and Judson v. Giant Powder Co., 107 Cal. 549, 40 Pac. 1020, 48 Am. St. Rep. 146, is cited in support of the proposition that the explosion of a powder mill raises a presumption of negligence. That was a case where an explosion of nitroglycerin in process of manufacture of dynamite in the defendant’s powder factory caused the destruction of plaintiff’s property situated near. It was held that proof of an explosion raises a presumption of negligence sufficient to establish a prima facie case. The principle of res ipsa loquitur controlled, and the decisions cited in the opinion are for the most part in support of that principle. Among those cited are cases where the explosion of the boiler of a steamboat has been held prima facie evidence of negligence in favor of a passenger; and what are sometimes referred to as “the chisel cases,” like Dixon v. Pluns, 98 Cal. 384, 33 Pac. 268, 34 Am. St. Rep. 180, where a workman upon a building dropped a chisel which fell and injured a girl while passing on a street below. The opinion cites other cases where persons passing along buildings in process of construction were injured by workmen dropping tools upon them, and negligence was inferred from the fact. Manifestly, the person injured in such a case was not obliged either to allege or prove negligence upon the part of the workman, and the rule of res ipsa loquitur applied; but that doctrine has no application to the present case, for two reasons: First, the plaintiff pleaded specifically the causes of the explosion and must prove the acts of negligence which he alleged, and that such negligence was the proximate cause of his injuries. He can not be allowed to make a prima facie case relying upon the doctrine that the accident speaks for itself. (Root v. Packing Co., 88 Kan. 413, 129 Pac: 147.) The opinion in that case quotes with approval the following language from Orcutt v. Century Bldg. Co., 201 Mo. 424, 99 S. W. 1062: “If the plaintiff possesses knowledge of the facts, and is able to plead them specifically and in detail, the reason for the rule disappears and with it the rule itself.” (p. 443.) Second, the occurrence of the explosion is not of itself sufficient upon which to base a presumption of negligence of the defendant company in favor of an injured employee. (K. P. Railway Co. v. Salmon, Adm’x, 11 Kan. 83; A. T. & S. F. Rid. Co. v. Wagner, 33 Kan. 660, 7 Pac. 204; Railway Co. v. Taylor, 60 Kan. 758, 57 Pac. 973; Lane v. Railway Co., 64 Kan. 755, 68 Pac. 626; Root v. Packing Co., supra.) “A finding of negligence can not rest upon mere conjecture.” (Railroad Co. v. Tindall, 57 Kan. 719, 723, 48 Pac. 12.) In the briefs it is contended that the facts shown in the evidence were sufficient -to establish a cause of action under the common law without any statutory aid, but in addition thereto it is argued that a cause of action was shown under the factory act. The provision of the factory act upon which the plaintiff relies requires that “all vats, pans, saws, planers, cog gearing, belting, shafting, set-screws and machinery of every description used in a manufacturing establishment shall, where practicable, be properly and safely guarded, for the purpose of preventing or avoiding the death of or injury to the persons employed or laboring in any such establishment.” (Gen. Stat. 1909, § 4679.) It is said that the evidence shows that the revolving screen was so badly worn inside and had been in that condition such a length of time that the bolts would slip and permit the butterfly thumb-nuts to be released and drop out while the mill was in motion. We fail to see how any provision of the factory act can affect the cause of action here. The purpose of the act is to require the guarding of dangerous machinery in order to prevent injury to employees operating the same, or to those employees whose duties may require them to come near it. Thus, guards are required to prevent an employee from being injured by his limbs or body coming in contact with moving belts, cog gearing, saws, planers, and like dangerous machinery. The act likewise requires guardrails or appliances to protect employees from the danger of falling into vats, pans, elevator openings, and things of that nature. There is no provision which requires machinery to be kept in repair, except so far as the neglect to do that would amount to a failure to comply with some of the specific requirements of the act. When the explosion occurred the plaintiff, according to his own testimony, was not even in the building where the alleged defective Screen was, but stood outside fifty feet from the corning mill. He was not employed in operating the machine; he was not injured by coming in contact with the alleged defective screen, but by an explosion of the mill. Moreover, the factory act (Laws. 1903, ch. 356, § 6, Gen. Stat. 1909, § 4681) required the plaintiff, in order to establish a cause of action under it, to prove that his injuries resulted in consequence of the failure of the defendant to comply with the provisions of the act, or that such failure directly contributed to the injury. The case could be submitted to the jury only for the purpose of permitting them to determine by speculation and conjecture the cause of the explosion. The trial court rightly sustained the demurrer, and the judgment must be affirmed.	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The opinion of the court was delivered by Smith, J.: In May, 1906, the appellant, John Haughton, and A. Heidrick, W. D. Heidrick, Shaw, and Burris discussed the idea of buying a drilling rig and appliances for the purpose of drilling wells for the discovery of oil and gas. Shaw stated that he knew of such a rig and appliances which could be bought for $1800, and that it would cost $200 to move it to Madison; that he would put in $800 if the other parties would advance the balance. This was agreed to. Shaw went to Langdon, Kan., and on his return reported that he had contracted to buy a rig and appliances at' $1800 and had paid $800 on the purchase price; that the balance was to be paid on or before June 1, and exhibited a written agreement between himself and one Worley, to that effect. The other parties raised $1000, the balance of the purchase -price as they understood it, and $200 for moving the rig. Shortly thereafter they formed a partnership called the Madison Drilling Company, and agreed that the interest of Shaw in the partnership should be eight-twentieths, A. Heidrick five-twentieths, Haughton five-twentieths, Burris one-twentieth, and W. D. Heidrick one-twentieth. This was done upon the understanding that each party had paid the proportionate share of the cost of the machine and moving the same as indicated by the fractions, the total cost being $2000. Thereafter the partnership contracted to drill a well for the Madison Oil & Gas Company, and the carrying out of this contract resulted in a loss to the partnership of $9032.21. Of this loss Shaw paid nothing, but it was paid by the other partners. Soon thereafter Shaw left and took no further part in the business of the drilling company. About this time the other partners discovered that the drilling rig and appliances cost $1000 and no more, and that instead of Shaw paying $800 as he had represented, he had paid nothing, and they had paid the entire purchase price of the rig and appliances. The other partners, without Shaw, proceeded to make contracts for other wells and drilling the same, and treated Shaw as though he had no interest therein, and they acted on the theory and mutually agreed that they owned the rig and appliances as follows: A. Heidrick five-twelfths, Haughton five-twelfths, Burris one-twelfth, and W. D. Heidrick one-twelfth. In September, 1907, the defendant Soule bought the interest of Haughton and gave the note for $1000, sued on, therefor. A. Heidrick signed the note as surety. In April, 1908, Soule paid $200 thereon. At the time Soule bought the interest of Haughton he knew something of the relations of Shaw to the copartnership and demanded and received from Haughton a bill of sale with warranty of title. Soule continued to use the machinery a short time thereafter. The petition in this case was filed September 4, 1909, and sets forth the promissory note, signed by Soule and Heidrick, dated September 12, 1907, due April 1, 1908, principal $1000, and endorsement of $200 paid April 21, 1908. No service of summons was had in this case upon Soule, and upon the calling of the case for trial the plaintiff dismissed the action as to him. The defendant Heidrick filed an answer setting up seven defenses and cross-demands, and dismissed two of them. The first defense, in substance, was that the plaintiff did not have title to five-twelfths' interest in the property of the partnership and that Soule discovered that fact and immediately abandoned the property and returned it to the plaintiff; that plaintiff accepted it and has ever since claimed to own and operate it. Second, the bringing of the action in the district court of Lyon county against Shaw to recover the rig, and Shaw’s share of loss while operating the well drill on the first well, and the recovery of judgment for $3292.88 and costs, by reason whereof it is alleged no consideration was given by the plaintiff for the note sued on. The remaining defenses were counterclaims against the plaintiff, which were allowed, and there is no controversy over them here. The reply was a general denial in which it was alleged that the Lyon county suit was brought in part to secure the title of Soule in the property bought of plaintiff. Again, that at all times since the purchase by Soule of the interest in the property as alleged in the petition, Soule has exercised dominion and control over the property, and on June 1, 1909, by his agent, the de fendant Heidriek sold such interest in the property of the partnership to one Chapin and executed a bill of sale in writing therefor signed by A- Heidriek as agent; that the sale fell through by reason of the failure of Chapin to comply with the conditions, and Soule, through A. Heidrick as agent, again sold the interest in the rig to W. F. Cowham and A. B. Bloom, and on January 14, 1910, executed a written contract witnessing such sale, which contract was signed by Soule, by A. Heidriek, agent; that by reason of these facts the defendants are estopped from saying that Soule returned the property to the plaintiff. That such bills of sale were so signed by Heidriek is admitted by him in his evidence, but he says he signed them to satisfy the purchasers. There is no evidence that he had authority from Soule to do so. The case was called for trial and a jury was impaneled to hear it. A statement of the claims was made by counsel on each side, whereupon the court, on its own motion, discharged the jury and appointed Lew E. Clogston, referee, to report the facts and conclusions of law. On the hearing before the referee all the files, evidence and proceedings, including the judgment in the case of Heidriek et al. against Shaw and Soule, were introduced in evidence over the objection of the plaintiff. The first assignment of error is that the action of the court in discharging the jury and appointing a referee to hear the case was erroneous. It is said that the action of the plaintiff was on a plain promissory note, of which a copy was set forth, and that the defendant answered setting up seven defenses and counterclaims. We have no .abstract of the statements made by counsel upon which the court relied, but the first defense justifies the long accounting had before the referee, in which a very large number of items of debit and credit are involved. The case was peculiarly one that should be heard by a referee and not by a jury. The journal entry, after awarding judgment against Shaw for $3292.88 and costs and determining the amount of the receiver’s fees, etc., concludes: “And the court does decree that the partnership heretofore existing between the plaintiffs and the defendant, G. W. Shaw, be dissolved and determined, and does decree and adjudge that the drilling rig is and has been the property of the plaintiffs since all times, free from any claim or lien upon the part of the defendant G. W. Shaw.” It thus appears that Haughton, acting with his co-partners, obtained a decree of the court, which was rendered after the sale of the property to Soule, that he was then the owner of the five-twelfths interest which he had sold to Soule. There is abundant evidence, also, that at and since the execution of the bill of sale to Cowham and Bloom he participated with his former partners in conducting the business, and united with them in turning over the $3000 received from Cowham and Bloom to A. Heidrick, who deposited it with the Madison bank and checked it out in paying the indebtedness of Haughton and the others who were decreed to be the owners in the Shaw case, much of which indebtedness was evidenced by promissory notes signed by appellant and other members of the firm and dated in 1908 and 1909, and after Soule had tendered the return of the property; all of such $3000 was so disbursed except $1.40, which sum was divided between the copartners. Nothing whatever was accounted for to Soule, and Haughton, as well as the others interested, acted in accordance with the decree of the Lyon county court; that neither Shaw nor Soule had any interest whatever in the property, but that it belonged entirely to Haughton and those who were his partners before the sale to Soule and who were united with Haughton as plaintiffs in that action. Under these facts, Haughton can not be heard to say that he never accepted the offer made by Soule to surrender the property to him, and he can not be heard to say that he accepted the property for which the note in suit was given, and that the makers of the note were still indebted to him for the amount thereof. If the principal on the note, Soule, was by reason of the subsequent action of Haughton relieved from the payment thereof, surely his surety, Heidrick, was also relieved therefrom. We have not discussed all the questions raised in the case, nor all the assignments of error, but it seems that the question of accepting a return of the property is the controlling question in the case. The judgment is affirmed.	[ -12, 126, -8, 92, 26, -32, 42, -101, 73, -96, -27, 83, -51, 94, 5, 123, -93, 29, 80, 107, -58, -77, 7, 112, -46, -13, -7, -35, -72, 77, -68, -44, 76, 36, 74, -35, -30, -126, 77, -44, -50, 37, 40, -19, 121, 2, 52, 107, -74, 75, 49, -121, -13, 40, 29, -61, 45, 46, -17, 40, 81, -15, -86, -114, 95, 22, 17, 0, -46, 69, -56, 30, -40, -79, 8, -24, 123, -90, -42, -12, 13, -87, 40, 106, 98, 1, 5, -17, 104, -104, 62, -34, -99, -89, -107, 88, 34, 109, -66, -97, -22, 20, -121, 118, -18, 13, 93, 109, 3, -114, -42, -127, 7, 115, -100, 19, -21, -125, 32, 116, -51, -78, 94, 69, 122, 31, 15, -104 ]
The opinion of the court was delivered by BURCH, J.: The action in the district court was one to enjoin the execution of a warrant for the collection of taxes on personal property. A demurrer was sustained to the petition and the plaintiff appeals. The plaintiff and A. W. Johnson were partners con ducting a retail furniture store under the firm name of the Home Furniture Company. The plaintiff was employed in the railway mail service and took no part in conducting the business. Johnson was sole manager, and as such, on April 12, 1912, made a statement to the deputy assessor of the firm’s property and its value for purposes of taxation. It is charged that the return was falsified by overstating the amount of property and its taxable value. This was done to enable Johnson to secure larger credit, and by means of such credit to manipulate the business in such a way as to defraud the plaintiff. The result was that taxes were assessed against the partnership in the sum of approximately $225 when the rightful sum should have been approximately $75. The plaintiff did not discover what had been done until after the county board of equalization had adjourned, and he took no steps to have the valuation corrected until April 22, 1913, when he presented a petition to the tax commission for that purpose. On May 9, 1913, the tax commission ruled that it had no authority to rebate or reduce the taxes charged against the furniture company by granting the desired relief. On May 12, 1913, the plaintiff commenced the action in the district court, and as a part of the relief prayed for asked that the court ascertain the proper amount of taxes chargeable against the furniture company. In the meantime the company’s assets passed into the hands of an assignee for the benefit of creditors, and Johnson became insolvent. The sixteenth subdivision of section 9347 of the General Statutes of 1909, defining the powers of the tax commission, reads as follows: “Sixteenth, To require any county board of equalization, at any time after its adjournment, to reconvene and to make such orders as the Tax Commission shall determine are just and necessary, and to direct and order such county boards of equalization to raise or lower the valuation of the property, real or personal, in any township or city, and to raise or lower the val- nation of the property of any person; company, or corporation ; and to order and direct any county board of equalization to raise or lower the valuation of any class or classes of property; and generally to do and perform any act or to make any order or direction to any county board of equalization or any local assessor as to the valuation of any property or any class of property in any township, city or county which, in the judgment of said Tax Commission, may seem just and necessary, to the end that all property shall be valued and assessed in the same manner and to the same extent as any and all other property, real or personal, required to be listed for taxation.” The plaintiff argues that the words, “at any time,” have no limitation, that the declination of the tax commission to assume jurisdiction deprived him of the benefit of the commission’s revisory power, and consequently that an appeal to a court of equity is justified. The court is of the opinion that the tax commission’s interpretation of its authority was correct. The statute quoted is part of a legislative scheme to secure equality and uniformity in valuation and assessment, upon which the public revenues for the ensuing year may be computed and levied, and the power granted may be lawfully exercised until the work of valuation and assessment has been fully completed. Preliminary orders may be issued to local assessors, directions may be given in advance to county boards of equalization, and when their work has been performed it may be reviewed, corrected and changed by the tax commission, which constitutes a state board of equalization for the equalization of the valuation and assessment of property throughout the state. The tax commission is required to meet in this capacity at its office on the second Wednesday in July in each year and perform the work of equalization. (Gen. Stat. 1909, § 9352.) Immediately upon the completion of this work the tax commission is required to certify its action, under its official seal, to the several county clerks of the state. (§ 9353.) As soon as the tax commission re-. ports its action as the state board of equalization to the county clerks of the various counties they compute the percentage of increase or decrease in valuation authorized by the board, and then, after all levies are in,, determine the sums to be levied on the amount of personal property in the name of each owner. These sums, are then extended on the tax roll, which must be delivered to the county treasurer by November 1, when the county treasurer is charged with the amount of taxes assessed on the roll.' (§ 9390.) On or before November 15, each county clerk must transmit to the tax commission a statement showing the total amount of taxes levied for all purposes in his county. These statements are to be included in the tax commission’s report to the governor and the legislature, for their information in considering the fiscal affairs of the state. (§ 9393.) ' While the tax commission has broad discretion in the exercise of its rightful power and need not restrict itself absolutely within arbitrary time limits, it is perfectly manifest that it is to act within the bounds of the scheme of taxation which the legislature has devised. The provision of section 9347, which has been quoted, must be read with section 9352, relating to the work of the tax commission sitting as the state board of equalization, and when valuation and assessment, including equalization, have been completed and closed for a given year, taxes have been levied on the basis of such valuation, the taxing process has advanced to the stage of collection, and the valuation and assessment of property for the next year is in full progress, the commission is without authority to take up the subject of valuation anew whose readjustment would disturb and confuse the financial affairs of the various municipalities depending on the collection of taxes charged on the - tax roll. To do so would not be to equalize values, but would be, as the commission held, to rebate or reduce taxes in individual cases — conduct not within the contemplation of the legislature. No fraud or fault of any kind is charged against any taxing officer or board. Johnson was the proper person to máke the tax statement. The plaintiff consigned that duty to the managing partner of the firm and is bound by his conduct under elementary principles of agency. Having held Johnson out as possessing authority, and having clothed him with authority, in the particular matter, the plaintiff can not shift responsibility for his acts upon other shoulders. After the statement was returned by the assessor, who was guilty of no wrong in accepting Johnson’s sworn declar ration, ample opportunities were afforded the plaintiff to correct it, but he did not embrace them. The entire taxing process having been free from misconduct, fraud or inequity on the part of any officer, the only ground for interference by a court of equity that can be asserted is that the valuation is too high. It is settled law that an assessment is not deemed fraudulent merely because it is excessive, and a court of equity has no jurisdiction under its general powers to correct an unequal or unjust assessment when a statutory board has been provided for that purpose. “The courts are not charged with the powers and duties of assessors, and have no right to review the decisions of those officers as to the value of property. The legislature has placed the responsibility upon the assessors in the first instance, and in case an owner of property is dissatisfied with their assessments he may appeal to the board of equalization to review values and correct mistakes of judgment. When the statute prescribes a method for revising or correcting unequal assessments that remedy alone must be followed.” (Finney County v. Bullard, 77 Kan. 849, 354, 94 Pac. 129.) The wisdom of this rule is illustrated by this case in two ways. Johnson is insolvent, the business is in the hands of an assignee, and after so great a lapse of time there is no assurance that the firm’s property could be fairly valued as it existed on March 1, 1912. This might have been done by the county board of equalization in June, 1912, or by the state board of equalization in July, 1912. If the courts or the tax commission had power to interfere generally a year or more after valuation and assessment have been completed and taxes have been levied accordingly, there would be no certainty or stability to the public revenues provided for a given year. Having slept on his rights, the plaintiff is remediless, and the judgment of the district court is affirmed.	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The opinion of the court was delivered by Porter, J.: It is true that in reversing the ruling of the trial court refusing to grant a new trial we attached considerable importance to the appearance of the original note produced at the oral argument by counsel for appellant, which not only shows on its face that it is an entirely different note from the one sued on, but also bears some indication of having been altered in a material matter. No suggestion of any kind in explanation of this fact was offered by appellee, either in the briefs or at the oral argument, which led us to say in the opinion that the fact was not denied. In the opinion it was said: “We have the original notes before us; and they were offered in evidence in support of the motion for a new trial.” (Nolen v. McCue, 92 Kan. 870, 873, 142 Pac. 958.) In a petition for a rehearing it is asserted that the decision is “based upon alleged facts not germane to the issue before it, not in evidence before the trial court, and upon a misconception of the facts. . . . The affidavit of the appellant was not introduced in evidence. The notes, which this court found much to comment on, were not introduced in evidence on the motion, and no reference to the notes, or rather to any alteration of the notes appearing on the face of them, was made throughout the hearing.” The original note was filed with the clerk of the district court when appellee took judgment, and it is admitted in the application for rehearing that it was “of course, available as evidence,” and was at the time of the hearing of the motion for a new trial in the hands of the clerk. Counsel is somewhat technical in stating that the alteration of the note was not referred to in the testimony of the defendant on the hearing of the motion. At different times in his examination by the court the defendant attempted to explain that he relied as a part of his defense upon the fact that judgment was taken upon a different note .from that sued on, although the word “alteration” was not used by him. We quote from the abstract: “By the Court: “Q. Mr. Bell, you knew about the giving of this note, didn’t you? A. Yes, sir. “Q. And your liability on it? A. Yes, sir. “Q. And knew that suit was to be entered against you and others for it? A. Yes, sir. “Q. And entered your appearance? A. Yes, sir. “Q. And all the reason you wanted a trial now is because you claim McCue did not carry out an arrangement with you in protecting the suit at the time? A. I think you will find, Your Honor, in some of the affidavits there, or some of the statements there— “Q. This is the answer you tendered here, is it, attached to the application? A. Yes, sir, I suppose it is. Some place it said, I don’t know whether in affidavit or not — my attorney probably ought to see me about that question before I answer it, Your Honor. “Q. I am just reading you the answer. I did not find any real defense to the action. - A. That may have been lost, Your Honor. I made the statement in some of the papers here that the Bell Land and Loan Company never did make a note to B. W. Nolen. “Q. You don’t deny the execution of this note do you? A. I do in the form it is. “Q. The only complaint that you have now is that McCue did not attend to the case and you relied on him to attend to it? A. That is one of my defenses, and the other is that we never did make a note to B. W. Nolen. “Q. So far as a lawsuit is concerned a man is supposed to hire his attorneys and rely on them and not rely on outside parties from a legal standpoint. “By the Court: I will take these papers and look them over and decide this case at the next day of court — about 8th or 9th of August. I do not think, however, Mr. Bell is in very good shape to complain.” It appears that the original notes and the affidavits were not formally offered in evidence, and it may be that the court never saw them; but we assumed from the record that the court had examined them. The trial judge said he would take the papers and look them over. We did not think it necessary in the former opinion to set forth all the circumstances shown in the evidence which convinced us that the defendant was prevented by accident and surprise from having a fair trial. His affidavit, which was among the papers and should have been considered as in evidence, had attached to it a copy of a letter received by him from the other maker of the note, his former partner, stating that he had arranged with Mr. Evans, attorney for the plaintiff, that a suit would be brought upon the note and allowed “to drift along.” The opinion contains the statement that before suit was brought plaintiff’s attorney wrote the defendant to the effect that he held the note for collection and that it had been obtained through the bank. It is seriously contended that this is a misstatement of the facts for the reason that the letter did not use the word “obtained,” but said, “this loan was made through the cashier of the First National Bank.” No attempt was made in the opinion to quote the language of the letter, but merely the substance thereof. Of course, if the loan was made through the bank, the note was obtained through the bank. In the opinion it was said that the note, with the exception of the name of Nolen as payee, was prepared in the handwriting of the appellant Bell. It is asked how the court comes by this knowledge. The answer is that all the written portion of the note, except the name of Nolen as payee, is in' the same handwriting as the signature of Bell. It is insisted that the reversal of the judgment violates former precedents where this court, notwithstanding it appeared that a new trial might well have been granted, declined to reverse the action of the lower court in refusing a hew trial because it could not say the lower court had abused its discretion. It would indeed require a slavish adherence to precedent to hold that because under some other circumstances this court refused to interfere in a case of this kind it is powerless to prevent an injustice now. There can necessarily be no fixed rule laid down as to what will constitute an abuse of discretion of the trial court in refusing to grant a new trial for accident and surprise. The fact that judgment was taken upon a note differing materially from the one sued upon, together with the other circumstances referred to, were thought by the court to present a situation in which the trial court should have set the judgment aside and granted a new trial. Without attempting to pass upon or prejudge the merits of appellant’s defenses to the note, we are still satisfied that the facts in the present case are sufficient to justify a reversal of the judgment. Rehearing denied.	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The opinion of the court was delivered by Benson, J.: This is an action to set aside a tax deed, and also to set aside a quitclaim deed made by the plaintiff, Nora Jinkiaway, to the defendant, Bertha Ardella Ford. John Ertz, owner of the land in controversy, died February 1, 1897, leaving a will by which he devised to his wife, Nora, for the use of herself and her children, an estate for life in this land. He left five children by a former wife, and seven children by his wife Nora. His will provided that after the death of his wife the home farm in Clay county, now the subject of this action, should be sold and the proceeds divided equally among eleven of his sons and daughters. Five of the children are joined with the widow (now Mrs. Jinkiaway) as plaintiffs, and seven are defendants. Mrs. Ertz lived on the home farm for about one year after her husband’s death, when she leased it for a term of eight years for a grain rent and moved to Clay Center. From Clay Center she moved to Oklahoma, and thence to Wichita, where she has lived since November, 1899. The taxes on the land for the year 1897 were not paid, and it was accordingly sold in September, 1898, to Bertha Ertz, who is a defendant in this action by the name of Bertha Ardella Ford. The taxes for the years 1898, 1899 and 1900 were paid by the purchaser, and a tax deed valid in form was issued to her on September 7, 1901. On September 9, Mrs. Ford presented her tax deed to the subtenant, Mr. Dicks, who was in possession of the farm, holding under the tenant to whom Mrs. Ertz had leased it, and demanded the rents; Dicks agreed to account to her for rents and purchased the landowner’s share of' the oats that had been raised that year on the farm, and agreed to lease the premises from Mrs. Ford for the next year. Afterwards. Dicks repudiated this arrangement and threatened to hold possession under the old lease. Mrs. Ford then commenced an action to obtain possession under the statute relating to forcible entry and detainer. An appeal to the district court was taken from the judgment rendered in that action. Pending the trial of that appeal the case was settled, and Mr. Dicks took a lease from Mrs. Ford for one year. Mrs. Ford has been in possession herself ever since the expiration of that lease. On September 23, 1901, Mrs. Jinkiaway made and delivered to A. T. Ford, husband of the defendant Bertha Ardella, a deed purporting to remise, release and quitclaim the land to Mrs. Ford for a consideration of one dollar. It appears that $5 was the amount paid, but there was evidence tending to prove that $50 was promised, although the evidence on this matter is conflicting. The action in forcible entry and detainer was commenced in November, 1901, after the quitclaim deed had been obtained, and in her affidavit in that action Mrs. Ford stated “That on or about the 23d day of September, 1901, said plaintiff became the owner” of this land. It will be observed that the date thus given in the affidavit is the date of the quitclaim deed. In the original petition it was expressly alleged that Mrs. Ford took possession under her tax deed, but concealed the fact, and these allegations were repeated in different parts of the petition, making concealment one of the grounds for setting aside the tax deed. These allegations were repeated in effect, although not so directly and emphatically, in the amended petition upon which the case was tried. In this amended petition it was alleged, in connection with the charge of concealment and a promise of the Fords to pay the taxes, that Mrs. Ford and her husband “were at that time actually in possession of said land, having long before ousted plaintiff’s tenant, and were claiming to own the same under the tax deed.” Two of the plaintiffs were minors, and an offer was made in their behalf to redeem from the tax sales by paying the necessary amounts, which the court was asked to ascertain for that purpose. No special findings were requested. The court found for the defendant Bertha Ardella Ford on her counterclaim to quiet title, and against all the other parties plaintiff and defendant, except the two minors, and dismissed the cause as to them without prejudice. Judgment was rendered in favor of Mrs. Ford quieting her title as prayed for. The principal legal questions to be considered are: First, Can one of several remaindermen who has no right of possession lawfully purchase and hold a tax title while the owner of the life estate is in possession enjoying the rents and profits? Second, Where a remainderman has purchased the land at a tax sale and obtained a tax deed valid upon its face and taken possession of the land, will a quitclaim deed taken from the owner of the life estate impair or affect her rights under the tax deed? Third, Does the remainderman hold the property under the tax deed for the benefit of all the remaindermen, subject to their contribution of an equitable proportion of the expense ? Proceeding in the order of the questions as stated above, it should be remembered that the title acquired under a tax deed is an independent one vesting in the grantee an estate in fee simple which extinguishes all former rights and titles of individuals. (Board of Regents v. Linscott, 30 Kan. 240, 265, 1 Pac. 81; Belz v. Bird, 31 Kan. 139, 141, 1 Pac. 246.) A person who is under an obligation to pay the tax upon land can not legally acquire and hold a valid tax title upon it. (Keith v. Keith, 26 Kan. 26; Phipps v. Phipps, 39 Kan. 495, 501, 18 Pac. 707; Delashmutt v. Parrent, 39 Kan. 548, 556, 18 Pac. 712.) The correlative rule that ordinarily one who is under no such obligation may do so is just as firmly established. (Waterson v. Devoe, 18 Kan. 223; Nagel v. Tieperman, 74 Kan. 32, 85 Pac. 941; Baldwin v. Gibson, 85 Kan. 267,116 Pac. 827; Note, 75 Am. St. Rep. 229, 230.) In the Nagel case it was held that a wife, not being in possession or receiving rents, and under no other obligation to pay taxes, might acquire a tax title upon her husband’s lands. It is also well settled that as between a remainderman and a life tenant the latter should pay the taxes, and that the remainder-man in the absence of some agreement or controlling equity is under no obligation to do so. (Menger v. Carruthers, 57 Kan. 425, 428, 46 Pac. 712; 16 Cyc. 632.) Applying these principles, it seems clear that as between the life tenant, Mrs. Jinkiaway, whose duty it was to pay the taxes, and Mrs. Ford, holding only as a remainderman, chargeable with no such duty, the tax title is valid so far as the ability of the grantee to acquire it at the time it was purchased is concerned. Proceeding further in the order suggested above, the next proposition to be considered is the effect of the quitclaim deed upon the tax title. The contention of the parties claiming adversely to the tax title is that the immediate effect of taking the conveyance of the life estate was the payment of the taxes covered by the tax deed. This effect is claimed on the ground that the life tenant could not acquire and hold a tax title in the circumstances, and that by accepting the conveyance from her Mrs. Ford took upon herself the same burden. That is, that if Mrs. Jinkiaway had purchased the land and taken the tax deed the transaction would have been treated as a payment of the taxes, and that one holding under her is subject to the same disability. It has been held, however, that a person rightfully holding a tax deed valid upon its face who buys an outstanding title does not thereby necessarily as a matter of law relinquish his tax deed as a muniment of title. It was decided in Carson v. Fulbright, 80 Kan. 624, 103 Pac. 139: “One who is not under any obligation to pay taxes upon land, nor in privity with one so liable, may obtain a tax title thereto, and when in possession and claiming title under such a tax deed, apparently valid, may accept a conveyance from the former owner without incurring thereby the risk of losing his land for failure to pay a mortgage given by such former owner and outstanding when the. taxes became delinquent, al though the mortgagor had covenanted in the mortgage to pay the taxes.” (Syl.) ■ It was said in the opinion: “When the taxes upon which the deed was issued became delinquent, and at the time the deed was issued, the defendant was under no obligation to pay the taxes, and by accepting a conveyance afterward from the former owner he did not devest himself of his previously acquired title, although such former owner was bound to pay the taxes. Such an effect can not be claimed ünder the operation of the rule of merger, for merger is very largely a question of intention, and will not be presumed when it would operate to the disadvantage of the party. ... It wilL be presumed that the conveyance was obtained for some benefit and not for a burden.” (p. 625.) These principles apply perhaps with greater force here where the outstanding interest was a life estate only. Taking the quitclaim deed can not be construed to merge the tax title without doing violence to the Carson decision, with which the court remains content. The appellants, however, distinguish that case by referring to the fact that the tax deed there under consideration had been of record for over five years, and therefore was not assailable for defects not apparent upon its face, while here the tax deed is vulnerable to such an attack. In this situation it is argued that it was the duty of Mrs. Jinkiaway to bring a suit to set it aside, and that this duty passed to Mrs. Ford by her acceptance of the quitclaim deed. The proposition is that in buying an interest, presumably for her benefit, she imposed upon herself the duty to destroy the title which she already possessed. This presents again the question of merger. Starting with the premise that Mrs. Ford, having at the time she purchased the tax title capacity to do so and had acquired a certain interest in the land, the question is whether that interest was merged in the life estate by taking the quitclaim deed. Merger would not depend on the extent of the interest, whether a fee simple, or one that would ripen into a fee by efflux of time. Being, as stated in the Carson case, and others cited in that opinion, largely a question of' intention, we are constrained to hold that it can not be presumed, in the absence of an agreement, express or implied, to do so, that in taking the conveyance of the life estate it was the intention to destroy the tax title, the latter upon its face appearing to create an estate in fee simple. (Gen. Stat. 1909, § 9479.) The appellants construe the effect of the quitclaim deed as creating a trust ex malificio in the grantee for their benefit. This effect is claimed because of alleged fraudulent representations and concealment in procuring it. The claim was made in the petition, and some evidence was offered supporting it, that the deed was obtained upon the representations that the land was about to be sold for taxes and would be lost to all parties if they were not paid; that Mrs. Ford would pay the taxes if the deed were made, and hold the land for the benefit of the parties in interest. The evidence, however, only presented a question of fact, which in view of the general finding against the appellants and in favor of Mrs. Ford must be construed as finding that the contention was not true. The weight of the evidence and credence to be given to it were for the trial court. If a special finding had been desired on that particular issue a request for it should have been made. Any consideration here of the legal effect of such representations would be unwarranted in view of the findings. In this connection it may be said that the refusal of the court to allow Mrs. Jinkiaway to testify whether she would have made the conveyance had she known that Mrs. Ford was then claiming the property under a tax deed, is regarded as immaterial, although an answer might well have been allowed. For the purpose of this ruling a negative answer will be presumed. The finding of the court sufficiently indicates that such an answer would not have affected the decision. Errors not prejudicial must under the mandate of the code, and in pursuance of good practice, be disregarded. We come now to the third question, whether Mrs. Ford in the attitude of a remainderman rightfully-holding a tax title holds it for the common benefit of all the remaindermen, that is, whether that is the legal effect of her purchase. This question is important to all the parties except Mrs. Jinkiaway and one of the appellants who has conveyed his interest to Mrs. Ford: It should be observed that her coremaindermen, or as they have sometimes been called, cotenants in remainder, are not tenants in common as that term is ordinarily applied, possession, or a common right of possession, being essential to tenancy in common. The remaindermen hold from the same common source, that is, under the will, but independently of each other. One tenant in common may not hold a tax title against his cotenants, for by virtue of the common possession he is equally bound with his cotenants to pay the taxes (Muthersbaugh v. Burke, 33 Kan. 260, 6 Pac. 252), and for the same reason redemption by one is effectual for all. Not so with coremaindermen. They have no common possession or possession of any sort from which such consequences may flow. The rights and obligations of life tenants and remaindermen as holders of tax titles were considered in a highly instructive opinion of the supreme court of Iowa. The principles decided, so far as they relate to this controversy, may be stated without reciting the facts of that case. It was held that remaindermen who are not in possession and have no right of possession at the time of the sale may purchase and hold an outstanding tax title for their exclusive benefit against other remaindermen, but that the purchase of a tax title by a tenant for life in possession does not vest the title in him as against remaindermen, but operates as a redemption from the tax sale. It will be. noticed that the first point decided answers the question now under consideration. The court said on that proposition: “Here, however, the cotenants in remainder were not in possession, nor did they have any right of possession, and they were not chargeable with the duty and responsibility of making payment of taxes. As between themselves, it can not be said that there were any reciprocal rights or duties. The duty of paying taxes rested upon the life tenants, and, should one of the remaindermen have seen fit to pay taxes allowed to become delinquent for the protection of the estate, he could not recover any portion of the amount so paid from his coremaindermen. There being no duty to pay, there could be no such thing as an enforced contribution.” (Crawford v. Meis, 123 Iowa, 610, 99 N. W. 186, 66 L. R. A. 154, 101 Am. St. Rep. 337.) Brief reference will now be made to a few of the cases relied upon by the appellants as supporting a contrary view. It was held in Clark v. Lindsey, 47 Ohio St. 437, 25 N. E. 422, 9 L. R. A. 740, that where a tenant in dower neglects to pay taxes and one of several tenants in common in remainder purchases the land at a tax. sale, the purchase will inure to the benefit of his cotenants in remainder. The opinion, however, refers to an Ohio statute providing that when a tenant in dower shall neglect to pay taxes so long that the lands are sold for their payment, and there is no redemption in one year, the tenant in dower shall forfeit that estate to the remainderman or reversioner, who may thereupon redeem as other lands are redeemed. A doweress having failed to pay taxes as this statute provided, two of the remaindermen purchased at tax sale. On the question whether another remainderman was 'devested of his estate by the tax title the court said : “In our view, the relations existing between tenants in common — whether in possession of the property or entitled to an estate in remainder — is of a nature to preclude such a result. Just dealing and the confidence .necessarily reposed in each other would suggest, that owners in common of real estate should consult for the mutual benefit. While one should do no act intentionally to the detriment of the other, good faith should withhold him from all action, in reference to the com mon property, that would work exclusively to his own advantage.” (p. 441.) It will be seen that the Ohio court places remainder-men, with respect to each other, on the same footing as tenants in common in purchasing tax titles. It does not clearly appear what weight was given to the statute referred to in arriving at the result. Mississippi decisions are cited by the appellant to sustain the view taken by the Ohio court that remaindermen are to be treated as tenants in common in respect to the purchase of tax titles. In Harrison v. Harrison, 56 Miss. 174, it was held that a remainderman who purchased an outstanding tax title arising out of the failure of the life tenant to' pay the taxes held it in trust for his cotenant in remainder. In a luminous note in 33 L. R. A. 688, upon the effect of a tax sale on land held by a life tenant, it is said that under the decisions of Kansas and other states named the tax sale extinguishes all prior titles of every kind, while in other states the sale is limited to the life estate. Mississippi is classified with the latter. In Defreese v. Lake, 109 Mich. 415, 67 N. W. 505, 63 Am. St. Rep. 584, 32 L. R. A. 744, it appears that land was devised to a wife for life, then to a son for his life, with remainder to the heirs of the son. Taxes being delinquent during the life of the widow, the land was sold at tax sale to the son. After the widow died, the son took possession, and after two years conveyed the land to Lake. After the son’s death, his heirs claimed the lands as remaindermen, and Defreese claimed under them. That is, one party claimed through conveyances from the son, and the other through conveyances from his heirs. When the son owning the life estate died his heirs could not hold the property otherwise than under the tax deed which he had taken while his mother, the first life tenant, was in possesson. The court said: “We have found no case upon all fours with this, and we doubt if it can be said that the law imposes any such duty [to pay the taxes] upon the second life tenant, during the tenancy of his predecessor. But we think it does not necessarily turn upon a duty to pay. While he was under no obligation to preserve the estate, if he chose to do so that he might reap the benefit of the devise, he should be content to look to the occupant, whose duty it was to pay them, for reimbursement, or, if not, he could expect no more than contribution from the other remaindermen, to whose benefit, as well as his own, such payment inured. It would be inequitable to permit him to claim title under such circumstances, where he took under the same will that gave them an estate, thereby recognizing their right. Good faith toward the testator should forbid such an attempt to defeat his purpose. Were this claim to be sustained, it would make it easy for two life tenants, by collusion, to defeat the remaindermen, under circumstances like these.” (p. 427.) The distinguishing feature of the Defreese case appears to be the fact that there were two successive life estates. The question presented did not relate to the duty of the son to coremaindermen, but to the owners of the succeeding life tenancy created by the same will. The opinion refers to the earlier case of Blackwood v. Van Vleit, 30 Mich. 118, where the same court had said: “To preclude any person from making and relying upon a purchase of lands at tax sale, there must be something in the circumstances of the case which imposes upon him a duty to the state to pay the tax, or something which renders it inequitable, as between himself and the holder of the existing title, that he should make the purchase. . . . While a party is not to build up a title on his own neglect of duty, yet if he can show he owes no duty in the premises, he is as free to become purchaser at a tax sale as any other person.” (pp. 121, 123.) In the Defreese case the court also said: “In Sands v. Davis, 40 Mich. 14, the question arose between tenants in common. In that case one bought a tax title that was outstanding at the time of the purchase of his interest in the premises, and therefore which he owed no duty', to the state or his cotenants, to pay, and it was held that he might set up such title against his cotenants. Both of these cases recognize the proposition that one asserting a tax title may be under a disability, owing to his relations to others claiming interests in the land.” (p. 428.) Thus it appears that notwithstanding the decision in the Defreese case the court still adhered to the principle that one may assert a tax title who owes no duty to pay the tax. In Freeman on Cotenancy and Partition the general rule is stated that a cotenant will not be permitted to assert against his companion a title founded upon taxes imposed on the common property, adding, however: “But where the purchasing cotenant has paid his taxes, and is therefore free from fault, and there is nothing in the relations between the parties imposing any obligation on either to pay the charge upon the moiety of the other, then it is difficult to assign any reason for restraining the tenant not in default from bidding for his own use at the tax sale.” (§ 158.) The part we have italicised in the above quotation appears to be in harmony with the proposition that the disability is consequent upon the obligation, and this, notwithstanding the apparent contrariety in decisions, is the controlling principle, which is tersely stated in Crawford v. Meis, 123 Iowa, 610, 99 N. W. 186: “It is true, as contended for by counsel for appellants, that where there exists, as between joint tenants or tenants in common, a reciprocal duty of protecting the joint estate, one may not absorb or get rid of the interest of his cotenant by allowing the property to go to tax sale, and thereunder acquire title to the entire estate through the medium of a tax deed. . . . It is to be noted, however, that in each of the cases cited, and in others where the like rule is declared, the cotenants were in possession or entitled to possession, and each was charged with the duty of protecting the •joint estate. And it is under such circumstances that payment by one cotenant is held to be presumably for the benefit of all, and he who pays may charge the several interests of his cotenants with the proportionate parts which such cotenants should have paid. (Cooley on Taxation, 467.) The .reason for the rule seems to be that, there being a reciprocal duty on the part of the cotenants to pay the taxes assessed, and as a part of the taxes for which the land is sold is a claim upon the purchaser’s share, the sale is based in part upon his own default.” (p. 614.) It is not deemed necessary to refer further to cases relied upon by the appellants. Following the principle which we believe to be the logical deduction from our own decisions, and the weight of the reasoning in the opinions of other courts, it is held that because there was no obligation or duty at the time Mrs. Ford purchased the tax title she could assert it not only against the life tenant but against the other owners of the estate in remainder. Two incidental questions remain to be considered. The appellants earnestly and forcibly argue that notwithstanding the averments of the petition to the effect that Mrs. Ford was in possession under her tax deed before she obtained the quitclaim deed, the proceedings in forcible entry and detainer and her affidavit there filed estop her from asserting that she had such previous possession, or conclusively prove that she did not. On the other hand, Mrs. Ford contends that the appellants are estopped by their pleading to deny that she had such prior possession. But the evidence tended to prove that the subtenant attorned to her. If that was the fact her possession under the tax deed was sufficiently shown. (Sheaff v. Husted, 60 Kan. 770, 57 Pac. 976.) A subsequent action to obtain possession caused by a repudiation of the agreement by the occupant would not be inconsistent with previous possession. The affidavit contained evidence tending to show a reliance upon the quitclaim deed, but was not conclusive. The time when possession was taken was a fact to be determined on the pleadings and all the evidence. The district court by dismissing the case against the minors remitted them to their right of redemption in the manner provided by statute. (Gen. Stat. 1909, § 9466.) As the remedy there provided is simple, involving only a computation by the proper authorities and payment of the proportionate sum by the redemptioner, no reason appears for resorting to a court of equity. If the statutory right had been denied or there had been a substantial disagreement over the amount, or other ground for resorting to the court, such action might have been upheld. The rights of the minors were fully protected and they have no just ground of complaint. The judgment is affirmed.	[ -12, 126, -12, -116, 74, -32, 106, -120, 123, -95, -91, 83, -23, -102, 4, 61, 99, 93, 81, 106, -41, -78, 23, -93, -110, -69, -39, -35, -80, 77, 117, 87, 76, 32, 74, 21, -26, -32, 77, 94, -50, -124, -85, 125, -39, 0, 52, 47, 102, 73, 113, -114, -73, 47, 61, -29, 109, 46, 95, 47, 0, -72, -70, -122, -33, 19, 49, 102, -104, -127, -24, 74, -112, 49, 8, -24, 115, 54, -106, -12, 13, -119, 9, 102, 103, 49, 69, -17, -8, -104, 14, -70, -115, -89, -44, 88, 83, 72, -65, -99, 117, 80, 70, 122, -20, 5, 89, -84, 12, -49, -42, -79, -113, 60, -128, 19, -61, 11, 48, 113, -53, -26, 93, 5, 123, -69, -113, -12 ]
The opinion of the court was delivered by West, J.: The railway company appeals from a judgment denying an injunction to prevent the collection of a tax to pay for a certain levee ordered by the defendant drainage district, a demurrer to the evidence having been sustained. It is contended that no benefits were conferred on the company by the construction of the levee, and hence its property was about to be taken for public use without just compensation; that its property was fraudulently assessed greatly in excess of its actual and proportional value, and that some of its property not liable to special assessment was nevertheless included. A fourth complaint, said by the defense to be made here for the first time,' is that the district laid out a system of levees which would cost more than ten per cent of the taxable property liable therefor, and was adopting the subterfuge of constructing simply one portion of such system without any legal authority. . We have examined each matter complained, of but are impelled to the conclusion that they are not properly before us for determination. One section of the drainage act provides that “no suit to set aside any general or special tax or assessment or to enjoin the making or collection of any assessment or installment thereof, and no defense of any kind to the validity of. any improvement bond or assessment to pay the same, shall be allowed unless brought within thirty days after the confirmation of the assessors’ report.” (Gen. Stat. 1909, § 3034.) The report was confirmed April 19, 1911. It is stated in the brief of the district and not controverted by the plaintiff that on April 27, 1911, the district board met as a board of equalization, proper notice having been given, and that no appearance or complaint was made by the plaintiff. This suit was not brought until December 19, 1911. The drainage act (Laws 1905, ch. 215, Gen. Stat. 1909, §§ 3000-3056) was passed in view of the damage and destruction arising out of the flood of 1903 and the high waters of 1904. The legislature saw fit to place in the custody of the people of a given drainage district, through their board of directors, the exercise of sufficient police power to prevent, if possible, a recurrence of the calamities suffered in the two preceding years. The most cursory reading of the act would indicate an intention that the people of the drainage district, through their board, and not the courts, were to settle and determine all matters placed within the power and jurisdiction of such boards. While a limit was placed on the cost of any levee to be constructed, requirement was made that after an assessment and the confirmation of the report of the assessors a notice must be given to all property owners interested of an opportunity to present at a stated time and place all objections to the collection of the taxes assessed. Section 3022 provides that “at the time fixed in such notice, the board of directors shall convene and hear the complaints of all persons interested, and shall have power to review, revise, alter, correct and amend the report of the assessors to any extent necessary to equalize and make such assessments just, equitable and impartial, and to correct all errors, wrong and injustice that may have been done to any persons complaining of said report. After hearing all persons complaining, the board of directors shall confirm the report of the assessors as returned by them or amend the same as it may deem just and equitable, and confirm the same as so amended, and thereupon the amounts charged against each tract of land shall become a special assessment and constitute a lien thereon. The decisions of the board of directors correcting, altering or amending and confirming the report of the assessors shall be entered of record and shall be final and conclusive.” Section 3034 expressly provides that the act shall be liberally construed and that the collection of the taxes or assessment under this provision shall not be defeated “by reason of any omission, imperfection or defect in the organization of any drainage district or in any proceeding accruing prior to the issuing of any bond or the confirmation of the report of the assessors of any special assessment.” Certainly the complaints, except the last one made by the plaintiff, must be included under the head of omission, imperfection or defect, and in order to be judicially considered should have been brought to the attention, of the court by proceedings begun within the time fixed by the statute already referred to. The last complaint is that the board was attempting by subterfuge to construct a part of a complete system of levees, the cost of which would exceed the statutory limit, and hence was acting ultra vires. It is forcibly argued by counsel that when the board assumes to act without jurisdiction it may be enjoined regardless of the thirty-day limitation found in the statute fixing the limits of such jurisdiction. Were this question actually presented it may be assumed without so deciding that within the decision in Rockwell v. Junction City, 92 Kan. 513, 141 Pac. 299, and cases cited, the thirty-day statute would have to be deemed controlling, for it was there said of a similar provision of a paving statute, “This limitation is valid and covers all irregularities and defects in the proceedings. ... It has been ruled that the statute applies and cuts off defenses that the improvement proceedings are void by reason of fraud or other defects.” (p. 515.) It would seem that if proceedings are void by reason of fraud a board would be as completely without jurisdiction as if it were proceeding to exceed the statutory limit of expense. From the record, however, we can not say that the board was thus attempting to exceed the limit fixed by the statute, for while the cost of the original complete system reported upon three years previously would exceed the statutory limit of ten per cent, the board in August, 1910, after reciting that it was not advisable or practical at that time to construct the entire system, resolved, in view of the several propositions made by the residents of the district, to procure a report as to a levee and improvements between station 0 and station 274.40, along the east bank of the Verdigris river, the resolution reciting that the board was not fully advised as to the extent, character, location and sufficiency of the levees constructed by individual landowners, nor as to the value thereof or the cost of completing the same according to the plans and specifications as shown by the report of the engineer. It was, therefore, determined by the board to employ a civil engineer to make a report under oath, supplemental to the one of 1908, touching a part only of the first system or improvement covered by the former report, such report to describe the several levees constructed by individual landowners along the line of the former survey between the two stations already mentioned. In November, 1910, the board adopted the supplemental report thus provided for, and resolved that the work ought to be proceeded with, and in April, 1911, a resolution was adopted to build the levee from station 0 to station 39 and to pay therefor by special taxes and assessments. There is no claim that the cost of this portion of the levee, taken by itself, exceeds the statutory limit. The members of the board being sworn officers of the district are presumed, until the contrary is shown, to have acted in good faith and in accordance with law. (Roby v. Drainage District, 77 Kan. 754, 757, 758, 95 Pac. 399.) From the foregoing it appears, therefore, that the last contention of the plaintiff is not supported by the record, and that the others are foreclosed by its failure to proceed within the time fixed by the statute. The judgment is affirmed.	[ -14, 120, -4, -20, -54, -32, 42, -103, 73, -95, -91, 83, -115, 18, 12, 37, -25, -67, -15, 123, -10, -77, 3, -93, -102, -45, -13, -51, -67, 124, -12, -57, 76, 48, -118, -107, 70, 64, 85, 84, -114, 34, -88, -51, -7, 64, 52, 91, 54, 79, 81, -99, -29, 42, 24, -29, 109, 45, -5, 57, -127, -15, -118, -99, 77, 4, 33, 38, -104, -125, -24, 28, -104, 53, -127, -84, 123, -90, -105, -12, 9, -103, 9, 98, 98, 17, 101, -17, -6, -120, 14, -33, -115, -90, 22, 89, -118, 64, -67, -99, 116, 66, -121, 126, -20, -59, 95, 108, -123, -113, -76, -93, -109, -92, -101, 7, -49, 35, 48, 113, -64, -126, 78, 103, 83, 27, -97, -100 ]
The opinion of the court was delivered by Smith, J.: The appellant, Phil Reaser, was charged with a misdemeanor for failing to comply, as superintendent and agent of the Western Coal & Mining Company, with the provisions of chapter 222 of the Laws of 1911. Trial was had before a justice of the peace of the county, and the defendant was found guilty and fined. An appeal was duly taken to the district court of Crawford county and, upon the case being called for trial therein, the defendant filed his motion to quash the complaint upon the ground, substantially, that chapter 222 of the Laws of 1911, under which the complaint was made, is in violation of sections 1 and 2 of the bill of rights, and section 17 of article 2 of the constitution of Kansas, and of section 1 of the fourteenth amendment to the constitution of the United States. On the hearing, the motion to quash was overruled, and this constitutes the most important question in the case. The questions involved are very analogous to those involved in the case of In re Williams, 79 Kan. 212, 98 Pac. 777 (affirmed 222 U. S. 415), known as the black powder case. The act involved in that case (Laws 1907, ch. 250, Gen. Stat. 1909, §§ 5045-5051) imposed upon the operators of coal mines certain regulations involving greater expense in the operation of coal mines, the object of which was to guard the employees from the accidental explosion of the powder used in such mining and to guard such employees from the consequences thereof. Identically the same objections were made to that act as are made to the act involved in this case, above recited. It is probably true that the requirements of the act in question involve a greater expense to the mining companies than did the provisions of the black powder act, but there is no showing that such requirements are confiscatory or unreasonable in consideration of the object to be attained. It is contended in this case that the act is discriminatory in that it places burdens upon coal-mine operators while the operators of lead, zinc, gypsum and salt mines are free from such burdens, and it is contended that the occupation of working in such other mines is equally hazardous and dangerous to the health of the employees as is the work in coal mines; that a general law could have been made applicable to all such employments, and therefore the special law is in violation of section 17 of article 2 of the constitution of. Kansas. It can not be said as a matter of law that the contention is correct. On the other hand, it is contended that the act in question was passed in the exercise of the police power of the state and that the legislature had a right to select as a class persons engaged in the mining of coal and to make a law specially applicable to that class. It is practically conceded that the enactment of the law was in the exercise of the police power, and only as such can it be sustained. The determination of the necessity and wisdom of a police regulation rests, in the first instance, upon the legislature, and if there be reasonable grounds for exercising such power the court should not interfere although its judgment might not fully concur with that of the legislature. In McLean v. Arkansas, 211 U. S. 539, 53 L. Ed. 315, it was said: “The legislature, being familiar with local conditions, is, primarily, the judge of the necessity of such enactments. The mere fact that a court may differ with a legislature in its views of public policy, or that judges may hold views inconsistent with the propriety of the legislation in question affords no ground for judicial interference, unless the act in question is unmistakably and palpably in excess of legislative power.” (p. 547.) ■ In St. Louis Cons. Coal Co. v. Illinois, 185 U. S. 203, 46 L. Ed. 872, it was said : “The regulation of mines and miners, their hours of labor, and the precautions that shall be taken to insure their safety, health and comfort, are so obviously within the police power of the several states that no citation of authorities is necessary to vindicate the general principle.” (p. 207.) (See, also, Rambo v. Larrabee, 67 Kan. 634, 73 Pac. 995; Health Dep.’t v. Rector, etc., 145 N. Y. 32, 39 N. E. 833, 27 L. R. A. 710, .45 Am. St. Rep. 579; Lawton v. Steele, 152 U. S. 133.) In Booth v. State, 179 Ind. 405, 100 N. E. 563, sustaining the validity of a similar statute requiring bathhouses at coal mines, it was said: “The act of March 8, 1907, . . . requiring the owners or operators of coal mines to erect and maintain washhouses, being a proper exercise of the police power, is not open to the objection that it contravenes the 14th amendment to the Constitution of-the United States in that it deprives the owner or operator of property without compensation. “The legislature alone may determine, inside the limits fixed by the Constitution, when public safety or welfare requires the exercise of the police power, and the courts can only interfere when a statute conflicts with the Constitution and have nothing to do with the wisdom, policy or necessity of the enactment.” (Syl. ¶¶8, 9.) It is a matter of common knowledge in Kansas that many of the coal mines therein are worked at considerable depths and that the temperature in such mines is considerably higher than at the surface; that the atmosphere therein is damp and that the laborers therein perspire freely, and that on coming to the surface it is a great protection to their heath and well-being that a washhouse should be located as required by the act in question in order that their bodies may be cleansed and dry clothing substituted for their laboring clothes before walking any considerable distance from the mine, especially in cool or cold weather. The health of the employee is a matter of concern not only to himself, but to the employer and the public as well. The framers of the law will be presumed to have been possessed of such general knowledge and to have made such special investigations of the conditions at coal mines as to them was deemed necessary. A jury were empaneled to try the case, and it is claimed that the court erred in overruling the challenge of the defendant to the qualifications and competency of one Banhart to serve as a juror. The particular grounds for challenging this juror were that he testified that he was a member of the United Mine Workers of America; that as a member of that organization he paid weekly or monthly dues; that he did not know whether such dues went to employ counsel for the state in this prosecution; that he did not know whether certain attorneys prosecuting the case were employed by the United Mine Workers of America; that he did not know whether such attorneys were employed by Leon Besson, head of the society of mines and miners, or not; that he did not know whether the organization to which he belonged was interested in the enforcement of the law; that as an individual member of that organization he was interested in the enforcement of the law; that he did not expect any money from the conviction of the defendant; that as a miner he was interested in the law, thought it was a good law, and as a citizen thought, as long as it was the law, it should be enforced; that notwithstanding he was a miner, a member of the organization, and interested in seeing the law enforced, he would give the defendant a fair trial. The challenge was overruled. Jurors Doblebower and Fisher were also challenged and examined, and made answers to questions substantially the same as had Banhart. A talesman named Bollocco was called and examined, and testified substantially as had the others, except that he was an ex-member and not a present member of the United Mine Workers of America; that he had been employed by the Western Coal & Mining Company, but was at the time of his examination engaged in other business. All these challenges were overruled. Defendant then peremptorily challenged Banhart, Fisher and Bush, when, his right to challenge being exhausted, he was forced to go to trial with Doblebower as a member of the jury. Every good citizen ought to be in favor of the enforcement of the laws of the state, and the fact that the law is designed to protect a special class of business or property, generally, does not disqualify a juror who has some general interest in the class of business, but has no personal interest in the result of the action. Neither does the fact that a juror has sometime employed an attorney in another matter, which attorney is engaged in the trial of the present case, of itself disqualify such juror. .. Upon the production of the first witness, the defendant objected to the introduction' of any testimony on the ground that the complaint did not charge the defendant with an offense under any valid law of the state. The objection was properly overruled, and the case proceeded. The state introduced as a witness Leon Besson, who testified that he was secretary of the state association of miners and, as such, was state mine inspector; that he was acquainted with shaft No. 15 of the Western Coal & Mining Company, knew the defendant, superintendent of that mine, had been to the mine and examined the bathhouse there, and had taken the measurements of the wash room and dressing room; he said there were sixty lockers and one shower, and proceeded to detail the arrangements of the rooms, the supply of water and how it was operated, etc. He testified, in substance, that he examined the building with reference to heat and the water and steam pipes, and described generally the conditions therein as he saw them. On cross-examination he was asked many questions as to the size, arrangement, etc., of a wash house such as he considered sufficient at that mine. It was claimed by the state that these questions were propounded to him as an expert designer or builder, and the objections thereto were sustained. . There was no material error in excluding answers to such questions as were held improper. The testimony in chief did not entitle the defendant to cross-examine the witness as an architect or designer of a wash house. William Kiehl also testified as a witness for the state, and gave a description, much as had the former witness, of the building and its condition from what he had seen, and as to the manner in which it was kept. Over the objection of the defendant, he was allowed to say that he stopped bathing there because it became so filthy that he did n’t think it decent to bathe there; that he did n’t think it healthy. The objection is urged that the court erred in allowing him to testify that he had quit bathing there while he continued to work at the mine. This seems to have been only incidental to his testimony as to the condition of the bathhouse, and while his not continuing to bathe at the bathhouse was itself immaterial, we can not see that it was prejudicial. We find no substantial error on the trial, and the judgment is affirmed.	[ 52, -22, -4, -99, 8, -31, 42, -102, 115, -31, -91, 83, -51, 95, -99, 113, -13, 61, 81, 105, -42, -105, 19, -62, 22, 115, -79, -43, 59, 75, -28, -36, 76, 16, 74, -43, 38, 74, -43, 92, -114, 4, 8, -64, 88, 0, 60, 58, 50, 75, 49, -98, -13, 46, 24, -63, 9, 62, -1, -84, 64, -14, -70, 85, 109, 20, -95, 4, -98, -121, 116, 126, -104, 49, 11, -24, 115, -90, -110, -12, 47, -119, -116, 106, 98, 33, -107, -25, 104, -104, 47, -66, -99, -89, -112, 88, 67, 12, -106, -99, 125, 54, 6, -6, -21, 5, 85, 124, -127, -117, -76, -127, 15, 116, -100, -13, -21, -93, 32, 116, -48, -90, 94, 71, 115, -97, -113, -100 ]
The opinion of the court was delivered by Benson, J.: The first opinion in this case is reported in Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193, construing provisions of the workmen’s com-, pensation act. (Laws 1911, ch. 218, as amended by Laws 1913, ch. 216.) A rehearing having been allowed, elaborate briefs have been filed by the parties and others amici curise. Other cases interpreting the same statute in which opinions are now filed were argued at the sae time. (McRoberts v. Zinc Co., post; Gorrell v. Battelle, post.) It was held in the former opinion that where the employer and employee are’ both under the compensation act, the remedy afforded by that statute is exclusive. It is argued that this conclusion is unsound, and that it should be held that the employee may still resort to the factory act for relief. Upon a reexamination of the question the court remains satisfied with the views stated in the former decision, for the reasons stated in that opinion, and in the opinion in McRoberts v. Zinc Co., supra. The same result was reached in Peet v. Mills, 76 Wash. 437, 136 Pac. 685. The underlying principle is also clearly stated in 26 A. & E. Encycl. of L. 621. It should also be observed that an employee is not deprived of the right to the benefit of the factory act nor of common-law remedies without, his consent. They remain open to his election if made before the injury, by filing a declaration “that he elects not to accept thereunder” — that is, under the provisions of the compensation act. (Laws 1913, ch. 216, § 8.) The constitutional safeguards which it is argued are violated by this statute are, first, that part of the 14th amendment to the federal constitution, which declares, “Nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws”; second, section 18 of the bill of rights of the state constitution, which provides that “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay”; third, section 16 of article 2 of the state constitution, which provides that “No bill shall contain more than one subject, which shall be clearly expressed in its title.” It is also argued that the statute deprives the citizen of a right of trial by jury and for that reason is invalid. The provisions of the federal and state constitutions guaranteeing due process'and. equal protection of law invoked by the plaintiff are not violated by this statute, as decided in many jurisdictions in opinions so exhaustive of the subject and so convincing in reason that we are content to make brief references to specific objections, and to a few of the principles upon which these objections are based. The act classifies occupations with reference to the nature of the business and number of employees. This feature is strenuously objected to as a violation of the constitutional safeguards referred'to. Similar provisions are found in like statutes of other states , and have generally been sustained. In the case of Ives v. South Buffalo Ry. Co., 201 N. Y. 271, 94 N. E. 431, 34 L. R. A., n. s., 162, widely commented on and criticized, holding the New York workmen’s compensation law unconstitutional in another respect, the classification feature was approved as being within the constitutional limits of legislative power. In Deibeikis v. Link-Belt Co., 261 Ill. 454, .104 N. E. 211, such a classification in the workmen’s compensation act of Illinois was held to be perfectly reasonable and valid. Indeed such seems to be the holding wherever under similar statutes this objection has been urged. Apart from the operation of this statute the power to make a reasonable classification of subjects of legislative action has been uniformly sustained in this state. In the Black Powder case, so-called (In re Williams, 79 Kan. 212, 98 Pac. 777), the statute under consideration attempted to regulate the use of powder in coal mines, and the law was assailed because it did not relate to other mines and quarries, but it was held that when a classification is based on reasonable distinctions, and is not merely arbitrary, the law is not invalid, and the statute was up held. The same principle has been applied in many other cases in this and other states and is generally recognized and approved. The objection based upon the supposed deprivation of a right of trial by jury is equally untenable, as determined in many adjudicated cases. The same is true of the arbitration feature and the rules for determining compensation. Without reviewing seriatim all the specific objections made to this statute under the general charge that it violates constitutional safeguards, it is sufficient to say that they have all been met in judicial decisions in other jurisdictions after the most thorough and patient examination. It’ seems unnecessary, now that the validity of such laws has been so generally. maintained, to review the many adjudicated cases, and restate in detail the well-settled principles upon which they are based. Briefly, it may be said that the operation of the system of compensation provided by the statute rests upon the free consent of employer and employee, given in the manner provided by the act. Without such consent on his part the employee retains all his remedies under common and statutory law. It is a matter of election. . “Being elective, the act does not become effective as to any employer or employee unless such employer or employee chooses to come within its provisions. Having once elected to come within the provisions of the act, as long as such election remains in force the act is effective as to the party or parties making the election, and in case an employer and an employee both elect to come within the provisions of the act, the act itself then becomes a part of the contract of employment and can be enforced as between the parties as such.” (Deibeikis v. Link-Belt Co., 261 Ill. 454, 465, 104 N. E. 211.) The same result was reached in Matheson v. Minneapolis St. Ry. Co. (Minn. 1914), 148 N. W. 71, where the similar election and classification features of the Minnesota compensation law are carefully considered and upheld. The beneficent ends sought by the adoption of a speedy, certain and inexpensive system of providing .compensation for injuries suffered in services, coming within the purview of this act, growing out of great industrial and economic changes, are briefly stated in the McRoberts case, post, and need not be amplified here. The objection based upon the supposed insufficiency of the title of the act is untenable. The title of the original act, repeated in the title of the amendatory act, is, “An Act to provide compensation for workmen injured in certain hazardous industries.” (Laws 1911, ch. 218; Laws 1913, ch. 216.) This title is general and comprehensive, not limited or restrictive, and fairly includes every provision of the act within principles frequently decided by this court. Among these decisions are: Lynch v. Chase, 55 Kan. 367, 40 Pac. 666; Rathbone v. Hopper, 57 Kan. 240, 45 Pac. 610; Harrod v. Latham, 77 Kan. 466, 95 Pac. 11; Payne v. Barlow, 84 Kan. 132, 113 Pac. 432; City of Winfield v. Bell,. 89 Kan. 96, 130 Pac. 680. For convenience a list of the cases in which workmen’s compensation laws have been upheld against attacks of the same nature is now given. (Opinion of the Justices, 209 Mass. 607, 96 N. E. 308; Borgnis v. Falk Co., 147 Wis. 327, 133 N. W. 209, 37 L. R. A., n. s., 489; State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 Pac. 1101, 37 L. R. A., n. s., 466; State, ex rel., v. Creamer, 85 Ohio St. 349, 97 N. E. 602, 39 L. R. A., n. s., 694; Stoll v. Pacific Coast S. S. Co., 205 Fed. 169; Matheson v. Minneapolis St. Ry. Co. (Minn. 1914), 148 N. W. 71; State v. Mountain Timber Co., 75 Wash. 581, 135 Pac. 645; O’Connell v. Magneto Co., 85 N. J. Law. 64, 89 Atl. 922; Cunningham v. Northwestern Impr. Co., 44 Mont. 180, 119 Pac. 554; Deibeikis v. Link-Belt Co., 261 Ill. 454, 104 N. E. 211.) (See, also, Second Employers’ Liability Cases, 223 U. S. 1, 38 L. R. A., n. s., 44.) The former judgment of reversal is adhered .to.	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The opinion of the court was delivered by Benson, J.: This is an action to foreclose a mortgage upon the real estate and other property of the Kansas Gravel Company, made to Hattie Smith, who died during the pendency of the action. The defend ants other than the gravel company are intervenors, holding judgments against that company upon indebtedness accruing after the mortgage had been made and recorded. The controversy therefore is between the mortgagee and subsequent creditors of the gravel company. The theory of the intervenors is that this mortgage is a sham and device of the agents and officers of the company to take away its property by foreclosure, and thus prevent the collection of the judgments. It is insisted that there was no consideration for the mortgage, but that it was made and is being enforced to cover up the property of the gravel company. The plaintiffs’ contention is that the intervenors can not successfully question the validity of the mortgage since it was on record more than a year before their claims accrued, and that there was no evidence tending to prove that it did not represent a valid indebtedness. The district court held that the intervenors’ evidence was insufficient to constitute a defense to the mortgage, sustained a demurrer thereto, and gave judgment for the amount of the mortgage debt. Among the undisputed facts are these: On July 21, 1910, Alva Smith was president of the gravel company, then just organized with headquarters at Aurora, Ill.; W. C. Roberts was treasurer, and Hattie Smith was a stockholder. Oin that day a mortgage upon the same property covered by the mortgage in suit, was executed in the name of the company as grantor by Alva Smith, its president, to Hattie Smith. On the 28th day of the same month a check for $3000 was given by Alva Smith to Mr. Roberts, the treasurer. The company was debited on the same day on its cash book thus: “Loans and discounts, Alva Smith two thousand dollars, and treasury stock, one thousand dollars.” On October 1, 1910, the mortgage in suit was executed for $3000, in the name of the company as mortgagor, by Alva Smith, as president, to Hattie Smith and E. D. Terry, mortgagees, and recorded October 12. On Octo ber 10, 1910, a check was given by E. D. Terry & Co. to Alva Smith for $1500. The $2000 mortgage was thereupon released by Mrs. Smith, and the release was recorded. E. D. Terry was a stockholder in the company. Mr. Eoberts, the treasurer of the company, testified that he received the $2000 on the first mortgage. Mr. Terry testified that he gave the $1500 check when the second mortgage was made for a half interest in the $3000 mortgage, $1000 of which went to Mr. Eoberts, the treasurer, and $500 to Mrs. Smith. Mr. Eoberts testified that the proceeds of the first mortgage were received by the company, deposited in a bank, and paid out for the company. He also testified to the receipt by the company of the additional $1000, when the hew mortgage to Mrs. Smith and E. D. Terry was made. There was evidence that the mortgages were made by order of the directors. Notwithstanding the evidence just referred to, it is contended that the examination of Mr. Smith, the president, discloses that both mortgages were fictitious. First it is alleged that his examination tended to show that the first $2000 was not his wife’s money but his own. That fact, if established, might be significant upon some other issue. At that time, however, the company was not indebted. It could make a mortgage to its president direct, or to his wife, to secure the payment of money advanced by him, if he so desired and the transaction was in good faith. The important inquiry about that transaction is whether the money was actually paid and placed in the company’s treasury. This, too, is the important fact about the second mortgage. A stockholder or a stockholder’s wife is not necessarily precluded from taking a mortgage for money advanced to a corporation and used in its business. The real question here presented is whether there was any evidence impeaching the consideration of the last mortgage. In determining that question the his tory of the transaction, including that of the first mortgage, may be considered. The intervenors may claim protection against a mortgage upon which nothing is really due, although it was in existence when they extended credit to the mortgagor. It should be determined whether there was an indebtedness to be secured by the mortgages, and if so, the amount of such indebtedness. If there was any evidence substantially tending to prove that there was no such indebtedness, or that it was less than the amount claimed and allowed, the court erred in sustaining the demurrer. In the course of the examination of Mr. Smith as a witness for the intervenor he frequently stated that he did- not remember simple details inquired about concerning the execution of the mortgages and the time, place and amounts of the payments of money for which it is claimed they were given. These lapses of memory, if his failure to give such details is to be ascribed to that infirmity, were so frequent and continuous as to suggest an inquiry for the reason. He gave as a reason his suffering from locomotor ataxia. When inquired of concerning the alleged payment of the $1500 by Mr. Terry at the execution of the second mortgage, he testified: “I got it from E. D. Terry and turned five hundred dollars back to Mrs. Smith and one thousand dollars to E. D. Terry.” , If he actually turned back $1000 to Terry, then the consideration of the mortgage to that extent was wanting. It is true that at other points in his examination he testified that the $1000 was paid over to Mr. Roberts, the treasurer, and that officer testified that he received it; still, in view of the failure of the witness to state the- most ordinary details — a failure inconsistent with candor, unless sufficiently explained — and his positive statement that he paid it back to Terry, a question of fact was presented for the jury and not for the court to determine. It is probable that the court accepted the witness’s explanation of his lapse of memory, and believed that the fact of payment to the treasurer of the company was sufficiently established by the evidence, but this involved the weighing of the testimony of a witness who had made contradictory statements, and passing upon the credibility of his testimony. This may not be done in deciding a demurrer to evidence. (K. P. Rly. Co. v. Couse, 17 Kan. 571.) “Upon a demurrer to the plaintiff’s evidence, every propitious fact which it fairly supports is accepted as proved, and every favorable inference which may be fairly deduced must be indulged.” (Hoffmeier v. Railroad Co., 68 Kan. 831, 832, 75 Pac. 1117.) Where evidence is conflicting, and certain parts of a witness’s testimony are in conflict with other parts, it should be submitted to a jury. (Smith v. Schriver, 91 Kan. 582,138 Pac. 584.) The same rule applies in cases where a witness becomes confused and-his evidence is indefinite and conflicting. It was said concerning the testimony of a witness in Neiderlander v. Starr, 50 Kan. 770, 33 Pac. 592: “In his cross-examination he seems to have been confused, and his evidence is indefinite and conflicting; but the court should have permitted the jury to pass upon the conflicting evidence.” (p. 771.) It was held in Acker v. Norman, 72 Kan. 586, 84 Pac. 531, that: “It is error for a trial court to sustain a demurrer to the evidence because there is a conflict between plaintiff’s testimony in chief and that given upon cross-examination. The court can not weigh the evidence.” (Syl.) Some other circumstances, slight, it is true, when considered separately, are pointed out in the examination of Mr. Smith, and perhaps other witnesses, from which inferences unfavorable to the validity of the mortgage as security for its full amount might possibly be drawn. On the whole, it is concluded that the affirmance of the ruling complained of would overthrow an established rule of practice well understood and long followed safeguarding the province of the jury, as triers of the facts, and limiting the province of the judge upon a demurrer to the evidence to the decision of a question of law alone. The correctness of a ruling relating to evidence is challenged. After the witness Smith had testified, largely to his want of memory concerning the consideration of the mortgages, the plaintiff offered his deposition, or parts of it, previously taken, as admissions tending to prove want of consideration. The ruling was that after his attention had been called to particular answers in the deposition, they might be read to contradict any contrary statement made by him on the stand. Probably if counsel had taken sufficient time the ruling would have given him the full benefit of the deposition for the purpose desired. However, it often happens that the reading of detached questions and answers from a deposition, without reading the context showing the connection or relation to other parts, is unfair both to the witness and the party, and in such case, within reasonable limitations, such parts of the complete deposition as are pertinent to the particular subject of the oral examination and to which the attention of 'the witness has been properly drawn, may be read. Besides, in this case, the witness, having succeeded to the rights of his wife as owner of the mortgage, was a party to the suit. However, in the absence of the deposition, or a statement of its contents, we can not say that the court erred in the ruling. If so, the error will probably be avoided in another trial. Again, complaint is made because the plaintiff was not allowed to state an offer to prove certain matters concerning which objections had been sustained. Such an offer is often a convenient way to present a question of evidence for review — care being taken to so state it that the jury will not confound the offer with the proof. If the right is likely to be abused a direction to reduce the offer to writing will obviate its recital in the hear ing of the jury, or the jury may be excused while it is presented. It is not deemed necessary to comment further on this branch of the case. The judgment sustaining the demurrer to the evidence is reversed, and the cause is remanded for further proceedings.	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The opinion of the court was delivered by Johnston, C. J.: This was an action by the appellee, Lillie Jenkins, to recover $2000 and interest on a beneficiary certificate issued on the life of her husband, William F. Jenkins, by the appellant, The Ancient Order of United Workmen of Kansas. Jenkins, it appears, became a member of subordinate lodge number nine, located at Galena, in February, 1899. It appears that he had paid all assessments made by the lodge against him and was in good standing in January, 1911. He had been in arrears a number of times, but each time had been regularly reinstated in the order upon payment of the delinquent dues and assessments. He became delinquent for the June, 1911, assessment, and although no record was made of the action the evidence shows that he was reinstated as he had been before. He again became in arrears for the July assessment as well as quarterly dues, and on August 2, 1911, was notified by the financier of the lodge by a letter reading as follows: “You are in arrears for assessment number seven amounting to $2.00 and dues amounting to $1.00. Under the by-laws of the lodge you were suspended on July 28. Please send us money order for this amount that you may be reinstated by next Tuesday night.” This notice was signed by Truman T. Burr, who had been recently elected financier of the lodge, and the envelope containing the notice bore the name of the preceding financier of the lodge, W. T. Inman. Jenkins issued his check, dated August 4, 1911, for $2 in favor of W. T. Inman to pay the delinquent assessment. This was mailed to Inman from Rockville, Mo., on August 10, 1911, at seven o’clock P. M., and was received by him between eight and nine o’clock on the morning of August 16,1911. Burr was called by telephone on that day and told of the receipt of the check and he promised to call and get it later. About three o’clock in the afternoon of August 16, 1911, Jenkins was injured by the falling of a steam shovel upon him and died from his injuries about six-thirty o’clock the same afternoon. The next morning Inman read a notice of the accident in the papers and took to Burr’s office the check of Jenkins, for which .Burr had failed to call, and told him at that time of Jenkins’ death. Burr kept the check until August 22, 1911, and then returned it to appellee with a letter stating that her husband was in default in the payment of assessments and dues and was under suspension at the time of his death, and therefore payment of the benefit was refused. She instituted this action, contending that Jenkins was not in default when he died and that the order was es-topped to claim that he was not then in good standing. After the introduction of her evidence a demurrer thereto was overruled and, the order standing upon its demurrer to the evidence, the court gave judgment for the plaintiff. The order appeals and insists that appellee’s testimony showed that her husband had been suspended for nonpayment of dues and assessments some time before his death, that the suspension was never set aside, and that there had been no waiver of his nonperformance of the conditions of the contract. Under the laws of the order the failure to pay assessments on or before the 28th day of each month operates as a suspension of the delinquent member, and the failure to pay dues on or before the 28th day of January, April, July and October of each year likewise operates as a suspension of the member. It is provided that one who has been suspended for nonpayment of dues and assessments can only be reinstated by an affirmative vote of the lodge. It appears that the check of $2, which was intended as a payment of the July assessment was not mailed by Jenkins until August 10 and the suspension had then been in effect against him for about two weeks. For some reason the letter enclosing the check did not reach the financier at Galena until August 16, the day on which Jenkins died, which was nineteen days after Jenkins was in default and his suspension had become effective. Even if the check had reached the financier a week earlier it would not have operated as a reinstatement. Payment of dues and assessments is not sufficient to set aside a forfeiture or effect a reinstatement of a suspended member. Under the laws of the order and the provisions of the contract there can not be a reinstatement unless a majority of those present at a regular meeting of the lodge vote in favor of reinstating the suspended member. Both payment and a favoring vote are essential to restoration. Liberal provisions are made for restoring a suspended member, but the by-laws explicitly provide that the certificate shall be void so long as the suspension exists and until the suspended member has been reinstated by an affirmative vote in compliance with the laws of the order. They also provide that if a former member dies while under suspension all rights of membership are forfeited and his beneficiaries are not entitled to share in the beneficiary fund. While the check issued by Jenkins was forwarded before his death and received on the day of his death, there was no meeting of the lodge on that day and, of course, no reinstatement. It is said that in the ordinary course of mail the letter of Jenkins should have reached the lodge on the 12th of August and that if it had the- lodge would, without doubt, have reinstated him at the meeting on August 15, the day prior to Jenkins’ death. Even if payment had been tendered prior to a regular meeting of the lodge the members were at liberty to vote for or against reinstatement as they might choose, and the testimony is that some applications for reinstatement had been rejected. Since Jenkins was in good health and had been reinstated previously on application it is quite probable that favorable action would have been taken by the lodge, but the regrettable fact is that it was not received before that meeting was held and that he stood suspended at the time of his death. Something is made of the fact that he had been frequently suspended after he became a member, and that so far as appeared he had always been reinstated by the lodge upon the payment of the delinquent dues and assessments. The fact that reinstatement was never refused does not, of itself, amount to a waiver of the terms of the contract, since each reinstatement was accomplished by an affirmative vote of the lodge, just as the by-laws of the order provided. If the member gave any heed to the action taken he was admonished that an affirmative vote was necessary to reinstatement. Nothing in the action taken would lead a reasonable man to believe that the* requirements of the contract and by-laws relating to prompt payment of dues and assessments in the future had been waived. In a similar case it was contended that the receipt of assessments past due, followed by reinstatements, operated as a waiver of compliance with the terms of the contract in that respect, but there, as here, the delinquent member had been reinstated as the by-laws of the order prescribed. It was said that: “During the time of his membership in said association — four years — a large number of other members of the subordinate lodge of which he was so a member were suspended, in accordance with the by-laws, for nonpayment of assessments made against.them. Held, that the custom and habit of such subordinate lodge in restoring and reinstating such suspended members, the reinstatements being made under and pursuant to its by-laws, did not constitute a waiver of the prompt payment of future assessments, nor establish a right of x-estoration to membership.” (Elder v. Grand Lodge of A. O. U. W., 79 Minn. 468, syl. ¶ 2, 82 N. W. 987.) In Haupt v. Phoenix Life Ins. Co., 110 Ga. 146, 35 S. E. 342, it was held that: “A policy of life insurance expressly stipulating that it ‘shall cease and determine’ if any ‘premium be not paid when due’ is not, in case of failure to pay a particular premium at. the proper time, kept in force merely because the insurance company had, in the city of the residence of the insured, a habit or custom of receiving overdue premiums from other policyholders.” (Syl.) Other authorities supporting the same view are Easley v. Valley Mutual L. Assn., 91 Va. 161, 21 S. E. 235; Rice v. Grand Lodge A. O. U. W., 103 Iowa, 643, 72 N. W. 770; Crossman v. Massachusetts Benefit Association, 143 Mass. 435, 9 N. E. 753. Reference is made to United Workmen v. Smith, 76 Kan. 509, 92 Pac. 710, as sustaining the claim that there was a waiver of the forfeiture and suspension. That case had a number of features which are absent in this. One of the principal ones was the collection of an assessment on which the member was not in default with one which was overdue and the retention of the money for months and until after the action to recover on the certificate had been brought. It was held that by collecting and retaining later assessments on which the member was not delinquent after a default. had been made in an earlier one it tended to show a waiver of the former delinquency. The letter calling attention to the default in that case encouraged the member to believe that payment would be treated as a reinstatement without action on the part of the lodge, while in this case the notice carried the idea that action must be taken by the lodge at the next meeting in order to effect a reinstatement. The case of United Workmen v. Crandall, 80 Kan. 332, 102 Pac. 843, strongly supports the view that there was no waiver of the forfeiture and suspension resulting from the default. There the dues and assessments for the month of January were remitted by the member on February 5 and received by the financier on February 9. and the delinquent member did not die until February 11. The first regular meeting of the lodge after the receipt of the money remitted by the member was on February 13, two days after the delinquent member had died. It was held that an affirmative vote of the lodge was necessary to a reinstatement of the member and that as he was not reinstated prior to his death his beneficiaries lost all right to participate in the beneficiary fund, and that under the circumstances of the case there was no waiver of the forfeiture. (See, also, Butler v. Grand Lodge A. O. U. W., 146 Cal. 172, 79 Pac. 861; 2 Bacon, Benefit Societies and Life Insurance, 3d ed., § 385.) There is another contention that if Jenkins had been given all the credits to which he was entitled it would have been found that he was not in default at the time of his death. It is said, and it may be conceded, that he was in the clear on January 16, 1911, and that as a monthly assessment was $2 he was chargeable with $14 for assessments for the seven months prior to his death, and in addition to this dues at $1 per quarter, or $3, making a total of $17. It is said that he was entitled to a credit of an advance payment made when he became a member of $1.30 and also that after January 16, 1911, and prior to July 28, 1911, he had paid $16, making his total credits $17.30, thus leaving a balance in his favor of thirty cents. The proof shows, however, that subsequent to January 16 and prior to July 28 the amount paid by him for assessments was $14 instead of $16. It appears that one check of $2, which was received by the financier and for which a receipt was issued, proved, upon examination, to be that of another party, and that it was returned to Jenkins. Later, the amount due on this assessment was included in another check which was introduced in evidence. So, if it be assumed that there was an ad vanee payment of $1.30, Jenkins was still in default on July 28. The testimony shows that when he became a member he paid the sum of $2.80. He was chargeable with an initiation fee of $1 and with a fee of fifty cents for the beneficiary certificate issued to him. This left $1.30 unaccounted for, so far as the testimony shows, unless it should be regarded as a payment of an assessment for the first month. The testimony is that Jenkins did not pay a February assessment, and that would more than absorb what is called the excess payment. Prior to the death of Jenkins all parties proceeded on the theory that on July 28, 1911, there was due on his certificate $2 for an assessment and $1 for dues, and this was probably the true state of the account at the time of his death. In no view of the testimony can it be said that he was not in default on July 28, 1911, and neither can it be held that the forfeiture resulting from the default was set aside or waived by any action of the order taken prior to his death: The judgment will, therefore, be reversed and the cause remanded with directions to enter judgment for the appellant.	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The opinion of the court was delivered by Johnston, C. J.: This was an action brought by plaintiffs to recover from defendants the possession of a city lot and damages for withholding possession of the same. It appears that the patent title to the lot was in plaintiffs, while defendants’ claim of ownership was based on a tax deed issued in 1904. Since the issuance of the tax deed defendants have paid the taxes on the lot and made some improvements thereon. At the trial the court held the tax deed to be void and so advised the jury, and in answer to special questions of fact the jury found that lasting improvements had been made by defendants on the property of the value of $33, that they had paid $300.54 as taxes on the property, and that the fair rental value of it while-occupied by defendants was $180. The court set aside the special findings and rendered judgment awarding the property to plaintiffs, and reserved the questions as to the amount of taxes paid, the rental value received by them and the permanent improvements which they had made for future consideration. At a later hearing the court, over the objection of defendants, found that the rental value of the premises for the time they were occupied by defendants was equal to the amount expended by defendants for taxes paid and improvements which they had made upon the property, and gave judgment accordingly. The defendants appeal, alleging a number of errors on the rulings made on the original trial as well as the subsequent one. The ruling to the effect that the deed was invalid and that the paramount title to the property is in plaintiffs appears to be well supported by the record. Defendants, however, are entitled to the benefits of the occupying claimants law (Civ. Code, §§ 622-634), that is, to credit for the taxes paid on the premises, and they are entitled to retain possession of the same until the taxes are paid, or, rather, until the excess of taxes over and above the rents are paid. They are also entitled to the lasting and valuable improvements placed on the premises while they were in possession. Complaint is made of the ruling of the court in setting aside findings which, it is said, deprived defendants of the benefits of the occupying claimants law. The finding as to lasting and valuable improvements was set aside,, it is said, because that element is only for the consideration of a sheriff’s jury drawn as provided by the occupying claimants law. It is said that the finding as to taxes was set aside because the rate of interest applied was too low, and that defendants were entitled to a greater credit for taxes than was awarded to them. In the entry setting aside the findings as to rents and taxes it is stated that they are not sustained by the testimony, and that the one relating to improvements was not a proper matter to submit to the jury. The statute requires that lasting and valuable improvements made by the unsucessful occupying claimant shall be assessed by a sheriff’s jury, and it provides that the proceeding may be initiated at the request of either party. (Civ. Code, § 624.) The improvements made by defendants on the property in question were not assessed, as we have seen, in that way. When plaintiffs asked to have the reserved questions adjudicated, the defendants objected, and the trial court, instead of authorizing a sheriff’s j ury, proceeded to try this question as well as those relating to taxes and rentals, and disposed of them on the evidence submitted in the original trial. It may be that the failure of defendants to specifically ask for a sheriff’s jury and their general objection to proceeding with the trial of the reserved questions was treated by the trial court as a waiver of the right to a jury.' A sheriff’s jury might have been called on the motion made by plaintiffs, but as defendants had allowed months to elapse after the original judgment without requesting a jury and then objected to the further consideration of the reserved questions, including that relating to improvements, they are hardly in a position to' complain that the question of improvements was determined by the court instead of by a jury drawn under the occupying claimants law. . Their conduct in the case was, in effect, a waiver of their right to demand a jury. However, there is a valid objection to the action of the court on the demand for rents and profits. The theory of the court, as evidenced by its instruction to the jury as well as by the award made, was that plaintiffs were entitled to recover rentals for the whole period that the property had been occupied and used by defendants. The claim for rents and profits rests on implied contract, that is, the occupant without title who has enjoyed the benefits of the possession and use of the premises is liable to the owner for the reasonable value of the same. In Gatton v. Tolley, 22 Kan. 678, it was held that: “The rents and profits to- be recovered in an action in the nature of ej ectment, are only those that have accrued within three years before the commencement of the action.” (Syl. ¶ 4.) In Seibert v. Baxter, 36 Kan. 189, 12 Pac. 934, an ejectment case, it was ruled that an action for the recovery of rents and profits is not governed by the limitation applicable to the recovery of the land itself but is controlled by the limitation applicable to an implied contract, and although a cause of action therefor had been joined with one in the nature of ejectment, the ordinary three-year statute of limitations was held to apply. Other cases to the same effect are Mo. Pac. Rly. Co. v. Houseman, 41 Kan. 304, 21 Pac. 284, and Harlan v. Loomis, 92 Kan. 398, 140 Pac. 845. The error in adjudicating the rents and profits, however, will not overturn the judgment rendered in the ejectment branch of the case, but will require a retrial and an adjudication of the reserved questions, namely, the amount of the rents and profits to which plaintiffs are entitled, the amount of the taxes paid by defendants, and the assessment of the lasting and valuable improvements which they have made. 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The opinion of the court was delivered by Porter, J.: In order better to understand the present case it will be necessary to refer to some facts involved in certain previous litigation. Many of the facts are recited in detail in the case of Trust Co. v. Zinc Co., 86 Kan. 860,122 Pac. 875. In that case the Commonwealth Trust Company as trustee foreclosed a mortgage or deed of trust given by the Cockerill Zinc Company to secure an issue of one thousand two hundred bonds, each for the face value of $1000. By the terms of the mortgage the maturity of the bonds was to be accelerated by the default in interest, upon the election of the majority of the bondholders, and there was a provision that upon demand of the' trustee the mortgagor should surrender possession, and the trustee or such agents as it should appoint might take possession of all the property, wliich included three zinc smelting plants and other property located in Allen county and in Wilson county, and also the company’s books and accounts. It also provided that the trustee or agent should operate and manage the plants, carry on the business, and make all needed repairs, alterations, additions and improvements, and out of the incomes and profits pay all proper costs and expenses of such taking, holding and managing the properties. There was a default in the payment of the interest on the bonds, and thereafter, on July 12, 1909, A. B. Cockerill, George E. Nicholson and the National Bank of Commerce of St. Louis, who were the holders of 1084 of the bonds, made a written request to the Commonwealth Trust Company of St. Louis to act as substituted trustee and to take charge of the property through Mr. Nicholson, and administer the trust for the bondholders. It was not deemed advisable to foreclose the mortgage at once. A. B. Cockerill, who was president of the Cockerill Zinc Company, continued for a time in charge of the properties, and one of the main questions involved in the present suit is whether during this time he was under the direction and control of Nicholson, and whether Nicholson represented himself and the other bondholders mentioned; in other words, whether the bondholders were in possession of the property, conducting it from the time of the making of the agreement until February 1, 1910, when the action to foreclose the mortgage was brought by the trust company. In the case of Trust Co. v. Zinc Co., supra, the question involved the power of the district court in the foreclosure proceedings to create preferential liens upon the mortgaged property in favor of certain inter-pleaders who furnished labor or material for the benefit of the property and its preservation, and it was held that, notwithstanding the business of the corporation was one in which the public had no interest, it was proper for the court to make the claims for labor and material, furnished to improve and preserve the property and increase its value as security, paramount liens to that of the mortgage, and the judgment was affirmed. Thereafter the action in the district court to foreclose the mortgage proceeded to a sale, and the property was purchased by a new corporation, the Kansas Zinc Company. In the present action the plaintiff, a coal company, sues to recover $4531.21 on account of coal which it claims to have furnished the bondholders in the operation and preservation of the property prior to and during the foreclosure proceedings. In addition to the claim for coal furnished, the plaintiff sues upon several causes of action which have been assigned to it by other creditors and which embrace claims for material and supplies claimed to have been furnished in the same way to the bondholders while in possession and control of the property. The petition sets out the history of the organization of the Cockerill Zinc Company, the execution of the mortgage, the fact that upon the default in interest the bondholders through the trustee and through Nicholson, and A. B. Cockerill acting for himself and for the agents of the other bondholders and trustee, took possession of all the property covered by the mortgage and alleged that they had ever since held possession thereof, and that the coal sued for and the material represented by the other claims had been supplied for the purpose of operating and preserving the smelters, and had been contracted for by Cockerill and Nicholson as the agents and employees of the bondholders. George E. Nicholson and the Kansas Zinc Company were the only defendants who answered. The answer expressly denies that Cockerill and the Cockerill Zinc Company, or either of them, were the agents of the other defendants, or that either of them was the agent of the Commonwealth Trust Company or any of the bondholders. The answer was verified and put in issue all allegations respecting the agency of any of the parties and their authority to bind the bondholders. One of the issues at the trial was whether the bondholders of the Cockerill Zinc Company had taken possession of the properties of that company, and incidentally this involved the question of the authority of A. B. Cockerill and George E. Nicholson to bind the bondholders by their acts. One of the principal errors complained of is that the court overruled objections to certain evidence which it is claimed was incompetent, and without which it is insisted the trial court could not have found this issué in favor of the plaintiff. On the other hand, the plaintiff claims that the admission of the evidence was not made a ground of the motion for a new trial, and relies upon Washbon v. Bank, 86 Kan. 468,121 Pac. 515, where it was ruled as follows: “Certain evidence was admitted over the objection of plaintiffs. No complaint of the ruling was made in the motion for a new trial. Held, that the question can not be raised in this court.” ■ (Syl. ¶ 1.) It is said in the brief that one of the grounds of the motion for a new trial in the Washbon case was “error of law on the trial,” and in the present case one of the grounds was stated to be “erroneous rulings.” The foregoing quotation from the Washbon case is a general statement to the effect that where the motion for a new trial does not complain of a ruling on the admission of evidence, the question can not be raised in this court; but it was not intended in that case to decide that where a motion for a new trial recites as one of its grounds “error of law on the trial” or “erroneous rulings,” an appellant can not have a review of any ruling made on the trial respecting the admission of evidence. It was assumed in that case that there was no complaint of such rulings in the motion for a new trial. Section 305 of the code gives as one of the statutory grounds for a new trial “erroneous rulings,” and it has always been held that to set forth the grounds of the motion in the language of the statute is sufficient. (Da Lee v. Blackburn, 11 Kan. 190, 206; Marbourg v. Smith, 11 Kan. 554, 563.) It was suggested in the latter case, however, that for the defeated party to point out the specific errors complained of is a practice which should be encouraged. A different rule obtains in some of the states. For additional authorities to the effect that it is sufficient to set forth the grounds in the language of the statute, see 29 Cyc. 944, and cases cited. It is quite clear that the defendant is entitled to raise the objection in this court. Part of the evidence objected to consists of documents attached to the deposition of George L. Edwards on the ground that they were not properly identified, and because copies were used instead of the originals. It appears from a stipulation in the case that the originals had been used in evidence in certain actions still pending in the circuit court of St. Louis, Mo. They were, therefore, unavailable, and it became necessary to use copies. There were ninety-seven of these documents, and the correctness of many of them was testified to by witnesses at the trial, and we are unable to find that any prejudice resulted from their introduction. The principal complaint respecting evidence is that the deposition of A. B. Cockerill, which was not taken in the case, was used as evidence. It was taken and used and became a part of the record in the foreclosure case of Trust Co. v. Zinc Co., 86 Kan. 860, 122 Pac. 875. Cockerill’s death occurred before the trial of the present case. The plaintiff contends that the deposition was admissible because Cockerill was the principal bondholder. It is insisted that the evidence, aside from the deposition, sustains the contention that Cockerill, who was a party to all the transactions, was authorized to. act in behalf of himself and the other bondholders, and, therefore, that his deposition was competent as containing admissions and declarations of a party jointly interested in the transactions, and as the agent of the others associated with him. We think it is of very little importance whether his deposition be regarded as competent evidence or not. The record, which is quite voluminous, is filled with what we consider sufficient evidence to sustain the judgment without reference to this deposition. The trust deed provided, among other things, that: “The mortgagor, upon demand of the trustee, shall forthwith surrender to the trustee the actual possession of, and it shall be lawful for the trustee by such officer or agent as it may appoint, to take possession of all the property hereby conveyed or intended to be (with the books, papers and accounts of the mortgagor) and to hold, operate and manage the same.” The evidence shows that after the Commonwealth Trust Company was substituted as trustee on the request of the majority of the bondholders, including George E. Nicholson and the Bank of Commerce, a resolution was adopted by the board of directors of the company ordering the president to. deliver to the substituted trustee possession of the properties covered by the mortgage because the company had defaulted in the payment of interest on the bonds. It is admitted that on July 12, 1909, George E. Nicholson and the National Bank of Commerce of St. Louis, made a written request to the trust company to take charge of the property of the Gockerill Zinc Company “through George E. Nicholson, as agent and trustee for the bondholders, and to administer upon the same according to the provisions of said deed of trust.” While Cockerill remained in the active charge of the properties, we think the evidence shows that from that time he reported almost daily to George E. Nicholson, giving in detail the operation of the plants and the costs incurred. The evidence, beyond any question, shows that he was under the direction and control of Nicholson until the decree of foreclosure. ' George L. Edwards was the attorney for a majority of the bondholders, and Cockerill and Nicholson advised with him from time to time respecting the management and control of the properties while the plants were being operated. Further than that, we think the evidence of Nicholson himself, and admissions and statements made by him, as testified to by numerous witnesses, including Mr. Northrup, a banker at Iola, show conclusively that the property had been taken into possession of the bondholders, and that Nicholson was- in charge of the operation of these plants, and that Cockerill acted under him. In a letter to A. B. Cockerill, dated April 26, 1910, Edwards wrote as follows: “Until better informed, I cannot direct payment of any bill for which it is claimed the bondholders are responsible until administration of the bondholders has been checked and their liability determined. . . . It is a puzzle I cannot understand and which must be made clear why the bondholders, resulting from possession of these properties for the period they were operating them, have become liable to pay, as I understand, from thirty thousand to forty thousand dollars in the face of your reports that you were making money or breaking even.” Space will not permit a reference to the numerous exhibits and letters from Edwards to Cockerill and statements made by Nicholson himself, which were amply sufficient, in our opinion, to sustain a finding that the bondholders had taken possession of all the properties and were operating them through Nicholson and Cockerill. The trial was to the court, and it has been repeatedly held that the introduction of incompetent evidence under those circumstances will be presumed not to have influenced the court’s finding. (See Whiteley v. Watson, post, p. 145 Pac. 568.) It is contended by the defendant that there was no evidence showing whether all or a majority of the bondholders ever became stockholdérs in the Kansas Zinc Company, or that the subscribers to the capital stock of that company ever owned any of the bonds, or that any of the stockholders, directors or officers of the new company were ever stockholders of the Cockerill Zinc Company. George L. Edwards, counsel for the principal bondholders, was also vice president and manager of the Kansas Zinc Company, and in his deposition testified that there are no stockholders in the Kansas Zinc Company except the bondholders of the Cockerill Zinc Company; that'the new company was organized for the purpose of buying in the properties of the other company at foreclosure sale on behalf of the bondholders, and that the property is held by this corporation for that purpose; that it was paid for in bonds of the old company, together with certain expense money which the bondholders advanced for the purpose of effecting a reorganization. In the former case of Trust Co. v. Zinc Co., 86 Kan. 860,122 Pac. 875, it was held that the bondholders were mortgagees in possession, and that they had employed labor and purchased supplies which were used to improve and preserve the property and to increase its value as security. As observed, the trust deed authorized this, and the evidence in the present case shows that a majority of the bondholders acquiesced in the proceedings and that the property was managed and controlled by the bondholders through their trustee and agents, and that they continued in the possession and control of the property until after its sale under the decree of foreclosure when it was purchased by George L. Edwards and George E-. Nicholson. Shortly thereafter they assigned the certificate of purchase to the Kansas Zinc Company, the assignment being dated March 11, 1911. On the 5th of February, 1913, the sheriff’s deed was executed to the new company covering the property described in the order of sale. The new company was organized under a charter issued by the state of West Virginia. The authorized capital stock was fixed at $500,000. The principal stockholders mentioned in the charter are Nicholson and Edwards. The evidence shows that the new company paid nothing for this property, except that it stood ready, doubtless, to issue to the bondholders its stock in proportion to their holdings, but it was shown that no stock was ever issued by the company. The main question to be determined is whether the new company can be held liable for the indebtedness sued for by the plaintiff. The defendant’s contention in this respect is that the new company can not be made liable for the debts of the old unless such liability was assumed as part of the consideration for the purchase of the property; or unless there is evidence to show that the transaction was a fraud on the creditors. It is insisted that the new company purchased the property at sheriff’s sale, freed from all obligations on account of debts and liabilities of the former company. Of course, where a new company actually purchases from an old one, the rule is that there is no liability for the debts of the old, unless the new company assumes them as part of the consideration. We think it must be held under the circumstances shown in evidence here that the new company is responsible for the particular debts sued for by the plaintiff. The grounds upon which we reach this conclusion are these: In the first place, the Cockerill Zinc Company never issued any of its stock. There were no stockholders according to the evidence. From the time the property was taken into control by the bondholders, they were mortgagees in possession under a provision of the mortgage which authorized them in case of default to take all the property of the mortgagor into their possession through the trustee, and to operate the properties as a going concern for the purpose of'preserving it as security, as was held in the former case (86 Kan. 860.) The indebtedness sued for was incurred while the mortgagees were in possession, and for the purpose of preserving the property as security for the bonds. The evidence shows that if the plant had been closed down absolutely the value of the security would have been materially lessened. It was necessary to keep portions of some of the plants operating and to keep fires under, some of the retorts for the reason that if the fires were drawn the property would depreciate. The new company was organized as a holding company for the bondholders. It paid no consideration whatever for the purchase of the property at the sheriff’s sale. Edwards and Nicholson had already purchased it on behalf of the bondholders, and the new corporation was formed to take the title. In this situation it seems clear that it would constitute a fraud on the rights of the particular creditors who had furnished supplies for the purpose of keeping the plant in operation, and to protect and preserve the security, if it were held that the same persons who incurred the indebtedness, although in the name of the old company, and who controlled and practically owned the property, and who merely changed from holding it as partners or bondholders to holding it in the capacity of quasi stockholders in the new corporation, could thereby avoid liability for such indebtedness. The new company was in fact nothing more than a continuation or reorganization of the old company, or of the interest in the old company acquired by the bondholders at the sale. In his testimony George L. Edwards speaks of the purpose of the new company being “to effect reorganization.” In another letter to Cockerill he says that he hopes “to close the administration of these properties by the bondholders and enter without complication the new administration through foreclosure and reorganization.” In the case of Flemming v. Light and Power Co., 90 Kan. 763, 136 Pac. 228, a corporation was organized by the officers of an investment company for the purpose of purchasing property and franchises of a gas-distributing company purchased at a sale under a mortgage owned by the investment company. No consideration was paid for the purchase of the property by the new company, except the interest its incorporators might own in the mortgage as shareholders in the investment company, and it was held that the new company, in carrying on the business first conducted by the mortgagor, and afterwards by the mortgagee, should be considered as an agent of the parent company in the purchase and operation of the plant. In Altoona v. Richardson, 81 Kan. 717, 106 Pac. 1025, it was held: “Where one corporation becomes practically extinct, transferring all its assets to another and receiving in return stock in the other corporation, which succeeds to its business, the new corporation is liable, to the extent of the value of the property acquired, for the debts of the old one.” (Syl.) To the same effect see 5 Thompson on Corporations, 2d ed., § 6547. Sometimes in a like situation a court of equity considers the assets of the old company as a trust fund to be followed into the hands of one who is shown not to be a bona fide purchaser for a good consideration. The same question frequently arises over the liability of a consolidated company for the debts of its predecessor. (Berry v. K. C. Ft. S. & M. Rid. Co., 52 Kan. 759, 34 Pac. 805; The Chicago and Indiana Coal Railway Company v. Hall, 135 Ind. 91, 34 N. E. 704.) In Condenser Co. v. Electric Co., 87 Kan. 843, 126 Pac. 1087, it was ruled: “Where a newly organized corporation succeeds to the business, property and assets of an established corporation without giving to the old corporation any means of discharging its obligation to a creditor, and all the circumstances of the transaction justify an inference that the new corporation is a mere continuance or reorganization of the former, with substantially the same stockholders, the new corporation is responsible for such debt of the former corporation.” (Syl. ¶ 2.) The opinion refers to Austin v. Tecumseh Nat. Bank, 49 Neb. 412, 68 N. W. 628, 35 L. R. A. 444. In that case the Nebraska court criticises the accuracy of the rule declared by Beach in his work on Private Corporations (vol. 1, § 360), to the effect that “where an old-established corporation sells out to a newly organized one, and turns over all its property, the new company becomes liable upon the debts and contracts of the old,” and the court classifies the cases where the new company will be held liable, as follows: First, those in which the liability of the new corporation results, not from the operation of law, but from its contract relations with the old; second, eases in which the transfer of the property and franchises amounts to a fraud upon the creditors of,the old corporation; and third, cases where, as in Reed Bros. Co. v. First Nat. Bank of Weeping Water, 46 Neb. 168, 64 N. W. 701, the circumstances connected with the creation of the new company and the manner in which it succeeds to the business and property of the old “are such as to raise the presumption or warrant the finding that it is a mere continuation of the former — that it is, in short, the same corporate body under a different name.” (49 Neb. 419.) We think the ruling of the trial court should be affirmed on either one of two grounds: First, that the transaction by which the property was transferred to the new company amounts to a fraud in law upon the plaintiff under the particular facts in this case; and second, that the circumstances surrounding the creation of the new corporation and its succession to the business and property of the old show conclusively that there was, in fact, no purchase, but simply a change in the capacity in which the business was conducted. The same persons who conducted the business as bondholders of the Cockerill Zinc Company in possession as mortgagees, changed from partners or bondholders to incorporators of the new company. The principles which govern in such a situation are well expounded by the supreme court of Ohio in Andres v. Morgan, Trustee, 62. Ohio St. 236, 56 N. E. 875, 78 Am. St. Rep. 712. There the change was from a partnership to a corporation which took all the property of the partnership, the partners transferring their individual interests to the new company in consideration for the transfer. It was held that such a transaction is not a sale of property from one to another, and the corporation could not retain the property and avoid the debts of the partnership. In the opinion it was said: “All that the corporation paid for the property transferred to it was the stock issued in exchange — simply a metamorphosis of a partnership into a corporation, without any change of individuals, and unless it assumed the payment of the debts of the firm there was no consideration for the transfer of the property — for the stock without the property represented nothing and was worth nothing. That a corporation could be formed and with its capital purchase' a partnership and its business without being liable for its debts unless expressly assumed is not doubted; but this is not such a case. This is like the case of Reed Brothers Co. v. First Nat. Bank, 46 Neb. 168, 64 N. W. 701. . . . Where there is a purchase in fact by a new company from an old one there is, as before observed, no liability of the new for the debts of the old company unless assumed as a part of the consideration. But where a mere transformation is had — parties remaining the same, and the property is transferred by the members of the old company transferring their interest in it for an equal interest in it as property of the new, the transaction does not constitute a sale by the one and a purchase by the other; it is simply a change in the manner and form of carrying on the same business by the same persons; and brushing aside the fiction of a legal entity, it is seen that no real change has taken place, and that in looking to the new formation fox-payment the creditor looks to the same persons, possessed of the same property and rights, he contracted with in the first instance; and to construe the transaction as to creditors as a purchase tends to operate a fraud on their rights. Every purchase implies two distinct persons — a buyer and seller. It is a moral impossibility for one person to buy of or sell to himself. Modern decisions, as observed by Mr. Taylor (Taylor on Private Corporations, sec. 51), are tending to a disregard of the mental conception that a corporation is an entity separate from its corporators, as in many, instances it is simply a ‘stumbling block’ in the way of doing justice between real persons.” (pp. 244, 245.) Cases are cited by the defendant which hold to the contrary, but we think their reasoning is based upon a slavish adherence to the conception of the new corporation as an entire separate entity from its incorporators, and by losing sight of the substantial facts and of the lawful rights of creditors. With much that was said in the opinion in Armour v. E. Bement's Sons, 123 Fed. 56, we agree. It was there said: “The stockholders of an insolvent corporation are not bound to maintain the corporation in a hopeless struggle. The claims of creditors do not impose such an obligation, and public policy requires that they should be free to engage in new enterprises.” (p. 59.) It was also said in the opinion: “They may do this, but they can not gain profit from the assets of the corporation, to the detriment of the lawful rights of creditors, any more than any other person may.” (p. 59.) The decisions of this court indicate a tendency to disregard the theory of a corporation as an entity separate from its corporators where justice between the real parties to the transaction requires it. (Berry v. K. C. Ft. S. & M. Rid. Co., 52 Kan. 759, 34 Pac. 805; Altoona v. Richardson, 81 Kan. 717, 106 Pac. 1025; Trust Co. v. Zinc Co., 86 Kan. 860, 122 Pac. .875; Condenser Co. v. Electric Co., 87 Kan. 843, 126 Pac. 1087; Flemming v. Light and Power Co., 90 Kan. 763, 136 Pac. 228.) Nor do we agree with the cases cited which hold that actual fraud or collusion must be shown before the assets in the hands of the new corporation can be followed by particular creditors. The doctrine may be true as to creditors generally, but the defendant can not invoke it because of the very necessity of the case and the obligation courts are under to prevent the failure of justice where it can be avoided by the application of equitable rules. We see no basis for a rational distinction in the principles which should control in the situation here and those applicable to a case where a private individual holding a mortgage on business property takes possession under the terms of his mortgage, conducts the business in the name of the mortgagor for a period of a year or two, incurs obligations, though in the name of the mortgagor, for material and supplies used for improvements which add to the value of the security, and then proceeds to foreclose his mortgage and purchase the property at foreclosure sale in the name of a third person who pays no consideration, credit being given upon the indebtedness for the price the property sells for. If in such a case he should seek to defeat the claims of creditors who furnished material and supplies used in the operation, management and control of the property and business while conducted by him, the courts would have no hesitation in rendering personal-judgment against him upon the claims, nor in holding the assets as a trust fund liable for the satisfaction of the judgment. In the present case the court gave personal judgment against Nicholson and the Kansas Zinc Company and ordered execution against the property of the new company. So much of the judgment must be affirmed. There is a cross appeal in which the plaintiff claims the court erred in rendering judgment in defendant’s favor on several causes of action founded on promissory notes given by the Cockerill Zinc Company for royalties on gas leases held by that company, which it is claimed the bondholders received the benefit of. The terms of the leases required the payment of the royalties in order to keep the leases in force. The periods for which the notes extended the term of the leases covered the time in which the property was controlled by the bondholders. The mortgage covered the leases, and they were sold under the decree and were acquired by the new company. They constituted part of the assets of the old and of the new company. We think these claims can not be distinguished in principle from those involved in the other causes of action, and the judgment will be modified with directions to render judgment upon those causes of action in favor of the plaintiff. In all other respects the judgment is affirmed.	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The opinion of the court was delivered by Smith, J.: An agreed statement of facts was filed in this case. Briefly stated, they are as follows: The city of Junction City is a city of the second class, and M. H. Foss is one of the commissioners of the city. At the last election (prior to the proceedings in this case) for mayor of the city 1290 votes were cast for all candidates for that office. Thomas Dorn was on and since May 4, 1914, city clerk of the city, and on that date succeeded F. R. Conlon, who had theretofore been such city clerk. On April 27, 1914, a petition, signed by 460 persons, was filed with the city clerk, which' petition conforms to the statute except it is claimed to be invalidated by the following clause, in serted after the petition for the recall of commissioner Foss, to wit: “and for the election of F. W. Oesterhaus, to succeed said M. H. Foss as commissioner of said city.” Also, it is agreed that 331 of the petitioners on such petition were shown by the registration books of the city to be entitled to vote for a successor to Foss as commissioner. There is some dispute as to the qualifications of some of the signers to such petition not included in the 331 agreed to as qualified. The merits of these contentions we need not consider, as under the statute such a petition is required to be signed by twenty-five per cent of the qualified voters, which is 323, and it is agreed that 331 signed the petition — eight more qualified voters than is required. Also, it is agreed that the name of F. W. Oesterhaus did not appear in such petition as a candidate for election to the office at the time it was signed by some of the petitioners, but was written in thereafter; that six days after such recall petition was filed, and before it was acted upon by the city clerk, nineteen separate papers, each signed by one of the 331 petitioners, were filed with the city clerk; that these papers were respectively written revocations of the signers thereof in signing the recall petition. Each of such papers directed the clerk to remove the signature of the signer from such petition. On May 7, 1914, the city clerk filed in his office a statement, under his hand and seal, in effect, that the petition was insufficient, and was not signed by a sufficient number of electors entitled to vote for a successor to the incumbent, and that the petition was not in due form. The clerk also notified the principal petitioners of the nature of the certificate he had made. On May 16,1914, and within ten days from the making of the certificate by the clerk, an additional petition or an amendment to the original petition for recall, which was in the identical form of the original petition, was filed with the clerk and was signed by 23 persons, 18 of whom it is agreed were entitled to vote for a successor to commissioner Foss; that on May 15 and 16, 1914, and before the filing of the amendment to the recall petition, papers were filed signed by 95 of the signers to the recall petition which purport to revoke their actions, respectively, in signing the recall petition. The question presented is whether or not electors, after they have signed a recall petition and before it is finally acted upon, can revoke the action and thereby preclude their being counted in favor of the recall. By the agreement, 331 registered voters, entitled to vote for a successor to Foss, signed the original petition, whereas, under the statute, twenty-five per cent of the 1290 votes cast for all candidates for mayor at the preceding election, or 323 voters, was sufficient to compel the calling of an election for a successor, but before such original petition was acted upon 19 of the signers thereto filed with the clerk written revocations of their action. Within the ten days provided by statute for amendments to recall petitions, 18 electors signed and filed an amendment to the original petition asking for the recall, but during the same time, and within ten days from the filing of the original petition, 95 electors who had signed the recall petition signed and filed with the clerk a revocation of their action. It is contended by defendent that at the time the •clerk made his first certificate the original recall petition was insufficient. This contention is correct if the electors had a right to revoke their action and is incorrect if they did not have such right, and the same is true of the clerk’s second certificate, .deciding that the petition after the amendments were filed and the revocations were filed was insufficient. It is, however, further contended by the defendant that the inclusion in the recall petitions of the clause, “and for the election of F. W. Oesterhaus to succeed said M. H. Foss as commissioner of said city,” vitiated the petitions. On the question of the right of petitioners to revoke their action in signing a petition for recall we have not been cited to any relevant case nor have we found one in this or any other state where the commission form of government is practiced and the right of recalling officers is given by statute. In The State, ex rel., v. Eggleston, 34 Kan. 714, 10 Pac. 3, an analogous question is presented, and the same principle is involved as in this case. In that case it was said: “Where a petition is presented to the board of county commissioners of a county for the removal and relocation of a county seat, the commissioners should strike therefrom the names of all persons who make application to have their names stricken off, before final action is taken upon the petition. If this is not done, the signers of the petition who asked their names to be stricken off should not be counted by the board of commissioners in determining the number of petitioners for the removal and relocation of the county seat. “Where a petition is presented to the board of county commissioners for the removal and relocation of a county seat, and after disregarding all of the ineligible petitioners and the signers who asked their names to be stricken off before final action was taken thereon, the petition contains less than three-fifths • of the legal electors of the county whose names appear upon the last assessment rolls of the county, such petition is wholly insufficient upon which to order an election for the relocation of the county seat; and the county attorney of the county in which the petition is presented may, in the name of the state, maintain an action to enjoin the board of county commissioners from canvassing the votes cast at and returned from the several precincts of the county at an election ordered upon such a petition.” (Syl. ¶¶ 1, 2.) In Cowles v. School District, 88 Kan. 603, 129 Pac. 176, an analogous question was also presented. It was desired by some of the residents of a school district to build a schoolhouse at a greater cost than allowed by the general statutes. The issue of bonds for such purpose is limited by section 7631 of the General Statutes; of 1909 to one and one-half per cent of the .taxable property in the district unless permission to vote a larger sum was obtained from the board of school-fund commissioners of the state. The method of securing such permission was by petition of the voters of the district requesting the district board to make application to the board of school-fund commissioners. After final action upon the petition of the voters to the school board and when the application was pending before the state board, an attempt was made to withdraw from and also to add names of voters to the petition, and it was held in that case that after the final action by the school-district board no withdrawals from or additions to the names on the petition were permissible. While the question was not in issue as to additions and withdrawals before the school-district board had taken final action, the decision turns upon the time of making such additions or withdrawals, and the clear inference from the decision is that such changes in the petition might properly have been made before final action thereon. In Price v. City of McPherson, 92 Kan. 82, 139 Pac. 1162, the time of presenting petitions and protests is discussed and, inferentially, it is held that changes may be made before but not after final action has been taken in the matter. In Rodgers v. City of Ottawa, 83 Kan. 176, 109 Pac. 765, the city council passed and published a resolution, as provided by law, declaring it necessary to grade and curb a certain street. The statute relevant thereto provides, in substance, that if a majority of the resident owners of property liable to taxation for the improvement do not file their protest against the improvement, the council shall have power to cause the work to be done, etc. The .time there was specified by statute, and the city undertook to proceed because a majority of the voters had not protested. The twenty days, allowed by law for making the protest, had not expired, and the court held that they were entitled to the full time to make the protest. By analogy, we think the electors of the city in this case had a right to produce additional petitions for the recall, and that persons who had signed the petition for recall had the right tor revoke their action thereon during and not after the ten days which were allowed by the statute for the amendment after the first petition had been held by the city clerk as insufficient. Within that time a sufficient number of qualified voters revoked their action in signing the petition for the recall, and the number of petitioners left thereon, including the petitioners who had signed for the recall during the same time, was not sufficient to constitute twenty-five per cent of the total vote cast for mayor at the last preceding election. The statute does not authorize the naming, in a recall petition, of another person to be nominated or elected as a successor to the incumbent upon his removal. Some electors might desire the recall of the incumbent provided the .successor named in the petition was to be elected, but otherwise would be opposed to the recall. Such a petition presents to the electors a dual question, and is illegal. (Leavenworth v. Wilson, 69 Kan. 74, 76 Pac. 400.) The petition in such cases must present the single question, viz.; Shall the city officer, naming him, be recalled? The purpose of the recall law is that the competency and integrity of the incumbent. officer is to be so far tested through the vote by petition for a referendum election that twenty-five per cent of the electors petitioning therefor may compel the calling of an election. The only proper question to be determined by the city clerk is whether the prescribed number of electors, qualified to vote for a successor to the officer sought to be removed, have petitioned for the recall election. The petitions are therefore invalid. The writ is denied.	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Per Curiam: The petition to relocate the road was sufficient, and the board of county commissioners had jurisdiction to relocate the road even if the viewers had all reported adversely. (Laws 1911, ch. 248, § 6; See, Molyneux v. Grimes, 78 Kan. 830, 98 Pac. 278.) That the order relocating the road was not void as against public policy because the petitioners were required to pay $125 of the assessed damages has already been decided by this court. In the case of Plaster Co. v. Blue Rapids Township, 77 Kan. 580, 96 Pac. 68, the principle involved was thoroughly considered. In the recent case of Rice v. Ard, 93 Kan. 165, 143 Pac. 418, the same principle was again considered. While one of-the questions in that case was whether or not the order was invalid because conditional, the court went beyond that subject and considered the question whether or not the order was invalid on grounds of public policy. The conflict in the authorities was noted, and language from the opinion in the case of North Baptist Church v. Orange, 54 N. J. Law, 111, 22 Atl. 1004, 14 L. R. A. 62 (cited in the Blue Rapids case) was quoted as expressing the views of this court. The court adheres to those, views. The judgment of the district court is affirmed.	[ -44, 108, -47, 124, 107, 66, 19, -102, 81, -79, -75, 83, -17, -62, 20, 43, -73, 127, -15, 123, 69, -93, 79, -54, 118, -77, -61, 77, -77, -51, 102, 126, 76, 49, -118, -75, 100, -56, -35, -44, -50, 15, 8, 73, -47, -63, 52, 107, 82, 15, 81, -97, -9, 44, 24, -61, -87, 44, -55, -87, -63, -78, -100, -106, 111, 4, -95, 38, -104, 3, -6, 40, -104, 57, 10, -8, 115, -90, -122, 116, 71, -39, -119, -30, 98, 17, 36, -17, -4, -40, 6, -38, 13, -26, -98, 88, -63, 35, -105, -97, 68, 114, 70, 126, -25, 5, 95, 44, 5, -54, -14, -79, -49, 116, 14, 67, -49, 1, 16, 97, -58, -42, 92, -61, 18, 91, -98, -79 ]
The opinion of the court was delivered by Smith, J.: This action was brought by the state on the relation of the county attorney of Reno county, and one John Beck. The petition, after alleging the qualifications of the relator, alleged that the city of Hutchinson is in Reno county and is a city of the first class; that at and for some years prior to the bringing of the action it had been legally acting under the commission form of government, and the names of the commissioners and mayor were therein set forth. The petition further alleged that prior to the filing thereof, a petition, signed by qualified voters of the city, more than twenty-five per cent in number, of the total vote cast for all candidates for mayor at the last preceding general election, was presented to the defendant commission, which petition requested that a certain ordinance, a copy of which was attached thereto, should either be passed by such commission, without alteration, or be submitted without alteration by the commission to a vote of the qualified electors of the city within the time provided by law. It is further alleged that after the filing and presentation of such petition to the respondents, the city clerk attached thereto his certificate of the sufficiency thereof; a copy of which certificate was attached to the petition. It was further alleged that it thereupon became the duty of the board of commissioners to pass said ordinance as requested, without alteration and within twenty days thereafter, or to submit such ordinance to a vote of the qualified electors of the city at an election to be called forthwith after the attaching of such certificate of sufficiency; that notwithstanding such duty the board of commissioners, by formal action and by a unanimous vote of all the commissioners, refused to pass such ordinance, without alteration, and in the same manner refused to submit such ordinance to a vote of the electors of the city or to call an election for that purpose. Further, it was alleged in the petition filed in the district court that the petition presented to the commission was legally sufficient under the laws of the state. ' The prayer was that mandamus issue out of the court directing such board of commissioners, in substance, to pass without alteration and publish such ordinance, or that in the event they refused so to do, that such board of commissioners and each member thereof submit the ordinance to a vote of the qualified electors of the city at an election to be called, as prayed for, for that purpose and tó be held within thirty days from the date of the calling thereof. Further, that a large number of citizens, taxpayers and electors of the city are interested in the relief sought and are without adequate remedy in the usual and ordinary forms .of action and that the writ of mandamus is the only effective writ in the premises. The petition was presented to the judge of the district court, and an alternative writ of mandamus was allowed, as prayed for, ordering and enjoining the respondents to pass the ordinance contained in the petition to the commission, without alteration, or that the board call an election and submit the ordinance to a vote of the qualified electors of the city; or that, failing in this, the board and the members thereof should appear and show cause on' a certain day why said act or acts should not be performed. The respondents made a return of the alternative writ, in substance, as follows: They admit the membership of the board of city commissioners as alleged; the presentation of the petition duly signed as alleged, and that immediately upon the consideration of the petition and the ordinance they unanimously decided not to adopt or publish the ordinance and refused to submit it to a vote of the electors as prayed for. Such refusal was based upon the following reasons: (1) that the proposed ordinance is in contravention of section 4 of article 4 of the constitution of the United States, and contrary to the laws of the state of Kansas in that it violates section 2758 of the General Statutes of 1909; (2) that it is partial and unfair and makes unwarranted discrimination in favor of John Beck, the chief petitioner, and if adopted would be invalid and of no force and effect; (3) that the statute of the state under which it is proposed to submit the ordinance is in conflict with section 4 of article 4 of the constitution of the United States, which guarantees to every state a republican form of government, and to the fourteenth amendment of the federal constitution which guárantees to persons the equal protection of the laws, in that the statute denies to individuals the equal protection of the laws; (4) that such statute also violates section 5 of article 12 of the constitution of the state of Kansas, in that it attempts to confer legislative power upon the qualified electors of cities of the first class, and also violates section 1 of article 2 and section 21 of article 2 of the constitution of Kansas; (5) that the proposed ordinance, if adopted, would be null and void, partial and unfair, in that it proposes to give John Beck and his associates, who own a certain park in the city, the privilege of violating the Sunday law of the state, an especial privilege not enjoyed by other persons engaged in the same business; (6) further, that in refusing to submit the ordinance to a vote of qualified electors, they were controlled by the fact that there is no money in the city treasury which can be lawfully appropriated to the payment of the expense of the election, and in substance, that levies had already been made by the board of commissioners to the full extent and limit allowed by law and that they are prohibited by law from issuing any warrant to pay any debt or expense for which no provision had been made, when there is not sufficient money on hand to meet such payment; (7) that a vote by the people upon such ordinance would disturb the peace and quiet of the people of the city over the advisability of adopting a law which would be invalid and unconstitutional if adopted; (8) that in acting upon the proposed ordinance they acted within the limits of their discretionary power conferred upon them by the laws of the state, and were acting under their oaths to the best of their ability, and deny the jurisdiction and power of the court to control their discretion; (9) that the proposed ordinance is not a local ordinance adapted particularly to the city of Hutchinson but relates to a subject of general legislation, applicable to the entire state. The appellees demurred to the return of the alternative writ, and the court in an extended opinion sustained the demurrer and rendered judgment for the plaintiffs, and issued a peremptory writ of mandamus commanding the defendants to do the things prayed for in' the petition. The respondents appeal, and specify as error the sustaining of the demurrer to the return, the awarding judgment for the plaintiffs and the issuing of the temporary writ of mandamus. On the part of the defendants it is urged, inferentially, that the people have no power in their primary and individual capacity to make laws for the reason that section 1 of article 2 of the state constitution confers this power elsewhere. It provides: “The legislative power of this state shall be vested in a house of representatives and senate.” Section 21 of article 2 of the constitution provides: “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.” It is contended that, in specifying one class of tribunals upon which powers, of local legislation may be conferred, all other tribunals or boards, by whatever name designated, and all individuals, are by necessary implication excluded, and any attempt by the legislature to confer such power upon such other tribunals, boards or individuals is in violation of this constitutional provision. There is, of course, no contention but that all the legislative power of the state is vested in the legislature, or that the legislature may not delegate to tribunals transacting county business such power of local legislation as it deems expedient. The question is whether the power to delegate legislative power to the tribunals specified is exclusive. That it is not exclusive was specifically held in City of Emporia v. Smith, 42 Kan. 433, 22 Pac. 616. It was there said: “The power given to the legislature by section 21 of article 2 of the constitution, to confer on the tribunals transacting county business such powers of local legislation and administration as it may deem expedient, is not exclusive, but such powers can be conferred on other local agencies.” (Syl. ¶ 2.) This court has repeatedly recognized and enforced regulations for the transaction of local business prescribed by individual officers or boards, and authorized by statute, pertaining to the manner of conducting the business which by statute had devolved upon them. This is legislation. Wulf v. Kansas City, 77 Kan. 358, 94 Pac. 207, embodies an extended discussion of the power of the legislature to delegate its legislative power to individual boards, other than the tribunals transacting county business, and to cities. The tenor of the case is, in accord with City of Emporia v. Smith, supra, and many other cases therein cited, that the power of the legislature to delegate local legislation to tribunals transacting county business is not exclusive, but may be conferred on “other local agencies.” See, also, In re Pfhaler, 150 Cal. 71, 88 Pac. 270, 11 L. R. A., n. s., 1092, and Notes, 33 L. R. A., n. s., 969, and 11 Ann. Cas. 920. The latest decision of' this court pertinent is The State, ex rel., v. City of Pratt, 92 Kan. 247, 139 Pac. 1191. The city of Pratt is a city of the second class while the city of Hutchinson is a city of the first class, but the provisions of section 1503 of the General Statutes of 1909, prescribing the duty of the city commissioners to pass ordinances petitioned for by the-specified number of the qualified voters of the city or to submit such ordinance to a vote of the electors of the city is substantially like the provisions of section 1240, prescribing the duty of the board of commissioners of cities of the first class. In the City of Pratt case, supra, it was said: “Held, that under the provisions of section 1503 of the General Statutes of 1909 it is the duty of the commissioners to pass such repealing ordinance or submit it at the general election in April, and the performance of such duty may be compelled by mandamus.” (Syl.) The cases are in principle the same, although there are some differences in the provisions of the statute as to the number of signers required to the petition, and other minor differences. The decision therein may be said to be practically a discussion of the questions mooted in this case. It is strongly urged that the ordinance, if adopted, would be invalid as conferring special privileges, and as in violation of the state Sunday law. The commissioners have unanimously refused in their discretion to pass the ordinance. If, as we hold, section 1240 of the General Statutes of 1909 is valid, all that remains for the commissioners to do is to submit the question to the voters at an election to be called for that purpose. Neither the court below nor this court can decide whether a proposed law is valid. It is a moot question of which neither court has jurisdiction. It may be said, on the other hand, that courts will not compel the doing of a vain thing, and this consideration might prevail if, beyond dispute, the ordinance if passed would be in contravention of the law of the state known as the “Sunday law.” This, however, does not clearly appear. The exception clause in this ordinance is not a grant of privilege nor a license. At most, it only renders the ordinance inapplicable to certain performances beyond certain limits on Sunday, and if such performances were had in violation of the law of the state the ordinance presumably would constitute no defense to the offender in a prosecution therefor. The initiative and referendum is not repugnant to the constitution of the United States, which guarantees to the states a republican form of government. (Kadderly v. Portland, 44 Ore. 118, 74 Pac. 710.) A republican form of government is “one constructed on this principle, that the supreme power resides in the body of the people.” (Chisholm v. Georgia, 2 U. S. 419, 457, 1 L. Ed. 440.) The lack of provision for or of money to defray the expense of an election is not a valid excuse for refusing-to submit the ordinance proposed. The holding of elections in a city is the exercise of a local governmental function, and the incurring of expense incident thereto is not the contracting of a debt within the meaning of section 5 of article 12 of the constitution, nor within the meaning of section 1040 of the General Statutes of 1909. Nor does it appear that any special privilege or im- ' munity is granted in violation of section 2 of the bill of rights. The allowance of the peremptory writ of mandamus is affirmed.	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The opinion of the court was delivered by Porter, J.: The appellant was charged with the crime of burglary in the nighttime. The jury returned a verdict of guilty. The court overruled a motion for a new trial and rendered judgment on the verdict. In his appeal it is urged that the verdict is contrary to the law and the evidence. The state proved that sometime between Tuesday or Wednesday and the following Sunday morning some one broke open the kitchen door of a dwelling house belonging to Mrs. Funkhouser, in the city of Fort Scott; that certain property belonging to her, consisting of a revolver and some canned fruit, was stolen and carried away. There was evidence showing that the missing property was found in the possession of the appellant. The officers made a search of his house on Monday, during his absence, and found some canned fruit covered with a blanket at the foot of a bed, and some more fruit was found covered up behind a trunk., A revolver, which Mrs. Funkhouser identified as belonging to her and as the one taken from her house, was found in appellant’s bed under a pillow. The officers testified that they started to the coal bank to arrest the appellant and met him coming toward town; that at first he said he did not have any revolver, but when they showed him the revolver in question he said, “How did you get into my house?” This was about all that was said at the time he was arrested. The appellant in his testimony explained where he had been on Saturday, January 3, and on the night of that day until about midnight when he said that he came home and went to bed, and did not get up next morning until about nine o’clock; that he was told at the coal bank Monday that the officers were looking for him. In reference to the property, he testified as follows : “The revolver here in evidence with a black handle and white barrel is mine. It is a .32 caliber revolver. Last fall a white man came through town and I traded him an old set of harness for this revolver, and I have had it ever since. All this canned fruit here in evidence is also mine. My mother and Mrs. Coates put up some of it for me two years ago, and I put up the balance myself last year. I learned from my mother and Mrs. Coates how to put up fruit, and last fall I bought some peaches of Mrs. Kellar. I have not been in Mrs. Funkhouser’s house for several months, and I never broke into her house on the 3rd of January or at any other time.” The first contention is that the possession of recently stolen goods without other criminating circumstances showing guilt is insufficient as a matter of law to sustain a conviction of burglary. It is insisted that in the present case there are no criminating circumstances indicating guilt, and nothing in the evidence to conned appellant with the crime, save and except the possession of the goods ; that his explanation, which the jury rejected, even if unsatisfactory, could not put him in a worse position than no explanation at all. The authorities cited by the appellant hardly sustain his contention. In fact, they are in accord with the well-settled rule that the possession by the accused of property recently stolen on the occasion of a burglary is sufficient to sustain a conviction of burglary where a satisfactory explanation is not given. Counsel quote from Underhill on Criminal Evidence, a part of which reads as follows : “The true rule doubtless is that the mere possession of stolen property creates no presumption of law that the person in whose possession it was found committed the burglary in which they were taken. The possession is a circumstancé to go to the jury, and its weight is for them. The corpus delicti of the burglary, that is, the breaking in and entering, must be proved by independent evidence and can not be presumed from evidence of mere possession. If it appears that a burglary was in fact committed, the possession by the accused is a circumstance from which, in connection with all the evidence, the jury may presume as a matter of fact that he committed it.” (p. 441.) Also-the following from the opinion in The State v. Powell, 61 Kan. 81, 58 Pac. 968: “The possession of stolen goods taken on the occasion of a burglary is evidence tending to establish the guilt of the possessor, and may, when taken in con nection with other criminating circumstances, raise a presumption of guilt sufficient to warrant a conviction, but the mere possession, without any other facts indicative of guilt, is not prima facie evidence that such person committed a burglary.” (p. 86.) Other authorities cited by counsel go no further than to hold that whether or not the explanation is a reasonable one is a question for the jury to determine. In The State v. Powell, supra, an instruction, was held bad which charged that the unexplained possession of property recently stolen is prima facie evidence of the burglary charged. It was said in the opinion: “It has been frequently held in this state that such possession, unexplained, is prima facie evidence of larceny, but the instruction goes close to, if it does not pass over, the danger line when it throws the burden on the defendant of proving how he came into possession of the property. The burden of proof is upon the state, and does not shift or change to the defendant at any stage of the case. Many of the late authorities incline to treat such possession as a disputable, rather than a conclusive presumption, holding that it should be received as tending to prove the guilt of the defendant, but that the force and effect of the evidence is for the determination of the jury, when considered in connection with all the other facts and circumstances of the ease.” (p. 84.) The. opinion refers to the case of The State v. Conway, 56 Kan. 682, 44 Pac. 627, where it was held that the possession of property recently stolen may be received as tending to show the commission of a burglary, but it is not of itself sufficient to create a presumption of guilt. In The State v. Gillespie, 62 Kan. 469, 63 Pac. 742, it was held that the trial court erred in rejecting evidence of the declarations of the person found in possession of the stolen goods as to how he came by them, notwithstanding they were self-serving in character. In the opinion it was said: “Nor do we think that, as a matter of law, the mere possession of goods recently stolen on the occasion of a burglary may be sufficient, even in connection with other criminating circumstances, to raise a pre sumption of guilt of the burglary. . . . It is the unexplained possession of recently stolen goods that tends to show guilt or raises a presumption of guilt of the larceny, and it is the unexplained possession of goods recently stolen on the occasion of a burglary that tends to show guilt or raises a presumption of guilt of the burglary.” (p. 474.) In State of Iowa v. Brady, 121 Iowa, 561, 97 N. W. 62, the court said in the opinion: “The law does not attach a ‘presumption of guilt’ to any given circumstance, nor does it require the accused to ‘overcome the presumption thereby raised,’ in order to be entitled to an acquittal.” (p. 567.) In this connection see The State v. White, 76 Kan. 654, 663, 92 Pac. 829, and The State v. Jewell, 88 Kan. 130, 132, 127 Pac. 608. Among other cases to the same effect are Smith v. The State, 58 Ind. 340; Ingalls v. The State, 48 Wis. 647, 4 N. W. 785. In an elaborate note to the case of State of Iowa v. Brady, supra, reported in 12 L. R. A., n. s., 199, there will be found a full discussion of the question. The author of the note says: “The weight of authority is that proof that a burglary was committed, and that goods were then and there stolen, and shortly thereafter found in the possession of the accused, will sustain a conviction.” (p. 211.) . It must be borne in mind that the question we have to determine is not the character of the presumption, nor its weight, nor indeed whether or not any presumption obtains; nor have we to determine the question whether or not the possession of recently stolen property taken at a burglary is prima facie evidence of the burglary. The precise question is whether the recent possession of property stolen in a burglary, together with criminating circumstances, including the failure of the appellant to make a satisfactory explanation of his possession of the property, is sufficient to sustain a conviction. In our opinion the great weight of authority as well as of sound reason supports the rule that the possession of the accused of recently stolen property is sufficient to sustain a conviction of burglary where satisfactory explanation is not given. In addition to the cases cited see State of Iowa v. Raphael, 123 Iowa, 452, 99 N. W. 151, 101 Am. St. Rep. 334; Perry v. State (Tex. Crim. App.), 55 S. W. 829; State v. Munson, 7 Wash. 239, 34 Pac. 932. The appellant at first denied that he owned or had a revolver. When he saw the officers in possession of the one in question he asked, “How did you get into my house?” The jury heard his explanation of how he obtained the revolver by purchase from some unknown person passing through the town, and the rule is well settled that the reasonableness of the explanation is a question for the jury. (The State v. Powell, 61 Kan. 81, 58 Pac. 968; The State v. McKinney, 76 Kan. 419, 91 Pac. 1068.) In Jordan v. The State, 119 Ga. 443, 46 S. E. 679, the recent possession of goods stolen at the time of a burglary was held sufficient to sustain a conviction of that crime taken in connection with the fact of the failure of the accused to explain the possession of the goods, except the statement that they were given him by two boys whose names he did not state. Our conclusion is that the evidence in this case is sufficient to sustain the conviction of burglary. There is another important question in the case, and. that is whether there was any evidence to sustain a conviction of burglary in the nighttime. Mrs. Funkhouser, who owned the dwelling house where the burglary was committed, testified that she was employed away from home; that when she was away she had a girl named Ethel Goins do her chores and look after her house; that on Monday or Tuesday of the last week in December she was at home and in the house, and when she' came out she locked the kitchen door and gave the key to Ethel. She was not home again until Sunday afternoon, when Ethel called her and told her that some one had broken into the house. Ethel Goins testified that she was back there every morning and evening during the rest of the week doing chores, but did not go about the kitchen door or notice the same; that on Sunday morning, January 4, between nine and ten o’clock, she noticed for the first time that the kitchen door was open two or three inches, and she found that the bolt on the lock was broken off and lying on the floor. A careful examination of the record fails to disclose any testimony which would warrant the jury in finding that the burglary was committed in the nighttime. There is no evidence, in the record to show when the burglary was committed. The offense of burglary in the daytime being the lesser of the two offenses, the presumption in favor of the appellant is that the burglary was committed in the daytime. It follows that the judgment will be reversed and a new trial ordered.	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The opinion of the court was delivered by Porter, J.: On June 6, 1910, the plaintiff commenced this action in the district court against William H. Millikin, alleging in her petition that she is the legal and equitable owner of lots five (5) and six (6), section six (6), township thirty-five (35), range twelve (12) east, in Chautauqua county; that she has been such owner for more than ten years, during which time the defendant unlawfully entered upon and removed therefrom crude petroleum rock oil of the value of $100,000, the same being part of the real estate. The answer admitted that the defendant entered upoxx the land, and in 1904, 1905 and 1906 developed and produced oil therefrom, but alleged that he had pex'mission and authority to do so; first, by virtue of an oil- and-gas lease executed February 19, 1903, by the plaintiff to L. A. Lockwood, and duly assigned by Lockwood to the defendant; second, that on the 12th day of January, 1904, plaintiff executed and delivered to one G. W. Goss a deed to the real estate in controversy, thereby conveying all her right, title and interest therein; that Goss in tuxux, on March 10, 1904, had by deed conveyed the land to other persons, and that on April 5, 1904, defendant had procured an oil-and-gas lease from the owner of the fee title; that the rentals under the lease had been paid to the plaintiff until she sold her interest to Goss, and thereafter the rentals and royalties had been paid to the owner of the fee title. The reply consisted of a general denial and a plea of confession and avoidance in which it was alleged that at the time plaintiff executed the lease to Lockwood and the deed to Goss the premises in controversy were occupied by herself and family as a homestead, and that her husband, Eugene F. Thompson, never joined in the execution of either the deed or the lease. The reply further alleged that the lease and the deed were obtained by false and fraudulent representations on the part of Millikin. As an excuse for not having brought her action sooner she further alleged that soon after the making of the deed to Goss “plaintiff began to suspect that she had been overreached and defrauded by said Millikin and gradually became persuaded thereof”; that she immediately consulted an attorney, who advised her that the lease and deed could be set aside and that she could recover from Millikin for the oil taken from the land provided “she could find evidence to show either that the same were obtained by said Millikin by fraud or that her husband was still living at the date of the deed to said Goss, . . . and plaintiff thereupon with all diligence and at great expense proceeded to search for such evidence, but did not succeed in finding the same until shortly before the beginning of this action.” When the case was called for trial, and at the conclusion of the opening statement of plaintiff’s counsel, the court rendered judgment in defendant’s favor upon the pleadings and statement. From the judgment the plaintiff appeals. There are many questions argued in the briefs which in our view of the case it will not be necessary to consider. All rulings relating to the cause of action based upon fraud and misrepresentation may be eliminated. The action was not commenced until more than seven years after the plaintiff had executed the lease to Lockwood and six and one-half years after the execution of the deed to Goss. She knew she had been defrauded, but waited during all this time for the purpose of procuring evidence to establish that fact and to discover whether her husband was in fact alive when the conveyances were executed. She admits receiving $1000, the consideration mentioned in the deed, and that she has retained and used the same, but offers in her reply to repay the amount or to credit the same as the court may deem equitable and just. On the face of the pleadings it is clear that the fraud she relies upon was discovered long before the action was brought. She is therefore precluded by laches from asserting her claims in this respect. In the case of Trust Co. v. McIntosh, 68 Kan. 452, 75 Pac. 498, it was ruled in the syllabus that “relief on the ground of fraud will not be granted to one who does not seek it promptly after discovery of the fraud, and who, with knowledge of the fraud, retains the fruits of the transaction it induced.” (Syl. ¶ 1. See, also, Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846; Rogers v. Lindsay, 89 Kan. 180, 131 Pac. 611; Sell v. Compton, 91 Kan. 151, 136 Pac. 927.) The defendant, therefore, was entitled to judgment on the pleadings so far as the cause of action is founded upon alleged fraud and misrepresentation. Her claim with respect to the homestead is that the husband is still living, and that as he never joined in the execution of either conveyance they are absolutely void. This court has held that oil-and-gas leases are an alienation of the homestead. In Palmer v. Parish, 61 Kan. 311, 59 Pac. 640, it was said: “A lease contemplating such an occupancy so far interferes with the use of the homestead that the joint consent of the husband and wife is necessary to its validity. (Land Co. v. Gas. Co., 43 Kan. 518, 23 Pac. 630; Gas. Co. v. Land Co., 54 Kan. 533, 38 Pac. 790.)” (p. 315.) (See, also, Pilcher v. A. T. & S. F. Rld. Co., 38 Kan. 516, 16 Pac. 945; Gas Co. v. Ralston, 81 Kan. 86, 105 Pac. 430; and Thornton, The Law Relating to Oil and Gas, 2d ed. § 57, p. 79.) The plaintiff’s husband left her some fifteen years before the suit was brought. In the opening statement of counsel it was said that Mrs. Thompson had been in possession of the premises all the time; that her hus band had abandoned her some nine years before the execution of the lease to Lockwood; that the last letter she had received from her husband was in 1895; that in 1909 she learned of his whereabouts and sent him some pictures of the children and received the register’s receipt card thereon acknowledging the package sent, but received no letter from him and heard nothing from him further. It was also admitted in the opening statement that the plaintiff informed Mr. Millikin of these facts at the time he bought the Lockwood lease, and further that the deposition of Goss was on file showing that at the time of the delivery of her deed to him he knew that her husband had abandoned her and had been gone for more than seven years and had not been heard from, and that he got this information from the plaintiff. It is said that the trial court in sustaining the motion for judgment on the pleadings and opening statement took the view that seven years’ absence was not merely prima facie evidence of death but conclusive evidence, so that the relation of husband and wife had ceased, and the land thereby lost its homestead character and she was permitted to dispose of it as she pleased without the joint consent of the husband, even though he was, in fact, still alive. We think the court erred if it held that the unexplained absence of the husband for more than seven years is conclusive evidence of his death. The seven years presumption is one of fact, subject to be controlled by the facts proved in the case. (Jones on Evidence, § 62.) Before the presumption obtains there must be a lack of information concerning the absentee on the part of those likely to hear from him after diligent inquiry extended to all places where Information is likely to be obtained. (ModernWoodmen v. Gerdom, 72 Kan. 391, 82 Pac. 1100, affirmed in 77 Kan. 401, 94 Pac. 788; Renard v. Bennett, 76 Kan. 848, 93 Pac. 261; Caldwell v. Modern Woodmen, 89 Kan. 11, 130 Pac. 642.) The defendant relies upon the doctrine of equitable estoppel. In Shay v. Bevis, 72 Kan. 208, 83 Pac. 202, it was held that equitable estoppel may be interposed against a homestead right, but we can not agree with counsel that the plaintiff is precluded from now asserting that her husband is still living simply because she described herself as a widow in the deed. In some of the cases cited by defendant the married woman was guilty of fraud because she falsely represented herself to be single. Here the plaintiff says she informed the grantee in the deed and the defendant Millikin all she knew about the facts concerning her husband’s absence. No willful misrepresentation or fraud is shown. So far as the pleadings and the statement of counsel at the trial show, the defendant’s rights were acquired with the same knowledge of the facts that the plaintiff possessed. Authorities are also cited in support of the proposition that the lessor is estopped by the lease from denying that he had any estate in the land when the lease was executed, but we think that principle has no application. The plaintiff is not estopped to claim that the land was a homestead since the lessee knew that the premises were so occupied and knew the facts with respect to the absence of the husband. Upon a full trial of the facts in this case it may develop that the plaintiff is estopped by her conduct. Our decision merely goes to the effect that the trial court erred in rendering judgment on the pleadings in favor of the defendant. It is argued that the plaintiff can not maintain the action in her own name; that if she could not convey without her husband joining, she can not sue without his being joined either as plaintiff or defendant. It requires the consent of the wife freely given joining with that of her husband to alienate the homestead. A conveyance by either spouse alone is not valid nor effectual for any purpose whatever. (Moore v. Reaves, 15 Kan. 150.) It has been repeatedly held that the homestead character of the premises is not changed by the desertion of the husband. In Moore v. Dunning, 29 Ill. 180, it was said: “This place still continued the home and residence of the husband, as well as his family, at least, until it is proved that he had acquired a home and a settlement elsewhere, and this the law can never assume he has done. The presumption is that he continues a wanderer, without a home, until he returns to his duty and his family.” (p. 135.) In Withers v. Love, 72 Kan. 140, 83 Pac. 204, it was ruled in the syllabus: “So long as the wife is living nothing the husband alone can do or suffer to be done will estop either of them from claiming the hometsead.” As we have seen, the plaintiff alleges that when the lease and deed were executed she.was in possession and that the defendant as well as Goss knew of the homestead character of the land and the facts respecting the husband’s desertion. The court rightly refused plaintiff a jury trial. It was an equitable action for an accounting, and neither party was entitled to a jury as a matter of right. The judgment will be reversed and the cause remanded for further proceedings in accordance with the opinion.	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The opinion of the court was delivered by Johnston, C. J.: In a prosecution begun on December 20,1913, an information was fil§d charging that the appellee, J. E. Wiglesworth, “unlawfully, willfully and knowingly did expose for sale, offer for sale, sell, and cause to be exposed for sale, offered for sale and sold, carcasses of diseased hogs, or carcasses of hogs infected with dangerous diseases, to. wit, hog cholera, to be used for human consumption, he, the said J. E. Wiglesworth, then and there well knowing said carcasses of hogs to be so diseased, contrary to the statute in such case made and provided.” The information contained five counts, charging the commission of the same kind of offense on five different dates in September, 1913. The appellee moved to quash the information on the ground that it failed to charge a public offense, and the motion being sustained the state appeals from the ruling. An attempt was made by the prosecution to charge a violation of chapter 185 of the Laws of 1909 (Gen. Stat. 1909, §§ 3092-3094), but the trial court held that the statute contemplates the prohibition and punishment of the sale and disposition of diseased living animals, and not the sale and disposition of carcasses or of the sale and disposition of the meat obtained from diseased animals, and upon that theory it was decided that the information did not state a public offense. The first section of the act, and the one under which the prosecution was begun, provides: “Any person or persons who shall kill, sell or trade or exchange, or offer to sell, trade or exchange, for human consumption, any diseased animal or animals, knowing them to be diseased, shall be guilty of a misdemeanor; provided, that this act shall not apply to animals sold for immediate slaughter under state or federal inspection.” (Gen. Stat.-1909, § 3092.) Another section of the act provides, substantially, that if persons come into the possession of diseased animals by purchase, trade or exchange, or in any other way, for the purpose of disposing of them for food,' knowing them to be diseased, they shall be guilty of a misdemeanor, .unless the animals have been obtained for immediate slaughter under state or federal inspection. (Gen. Stat. 1909, § 3093.) The third section of the act prescribes the penalty, which may be fine or imprisonment, or both. (Gen. Stat. 1909, § 3094.) If the words of the act are to be given their natural and ordinary meaning it must be concluded that the legislature was striking at the practice of dealing in and disposing of diseased animals rather than that of dealing in and disposing of flesh or meat that is unfit for human consumption. Living animals and not carcasses constituted the subject matter that was in the mind of the legislature in enacting the statue. The term animal, in is widest sense, means a living being, but, as commonly used, it means a living brute or beast. In any sense it implies an animate being, a living creature, and is ordinarily not applied to things without life. That the legislature was treating of living brutes and not carcasses is indicated by the fact that the thing or creature to which it referred was one that was subject to disease, and also one that may be slaughtered or killed. The proviso of the section shows clearly that the animals spoken of in the act are living creatures and intended for slaughter, as it excepts such animals as are sold for immediate slaughter under government inspection. It is true, as appellant contends, that the act was designed to promote the public health and indirectly to protect the public as against unwholesome food. The legislature, however, did not undertake to provide for all phases of health and pure food in this short act, but chose to deal only with the disposition of diseased animals and thereby extend such protection as such a measure would afford. Those who kill, as well as those who sell, are amenable under the law, and in the brief appellant states that appellee, in carrying on his business, has, in fact, killed diseased animals, but the charge contained in the information herein goes no farther than to charge that he is selling and causing to be offered and exposed for sale the carcasses of hogs infected with hog cholera. This, as we have seen, is not a violation of the statute in question. The judgment of the district court will be affirmed.	[ -79, -18, -36, -81, 10, 96, 120, -70, 66, -95, -76, 83, -49, 82, 13, 41, -29, -3, 85, 121, -60, -77, 55, 3, 54, -13, -61, -41, 49, 79, -28, -2, 76, 48, -54, 29, -30, -54, -63, -34, -118, 7, -103, -39, 117, 80, 60, 111, 118, 71, 49, 110, -21, 46, 30, -61, 105, 40, 107, 46, -63, -15, -71, -115, -82, 18, -94, 98, -103, 5, -54, 109, -104, 49, 1, -8, 115, -76, 86, 84, 79, -119, 8, 34, 98, 33, 93, -19, 48, -116, 47, -1, -113, -89, -112, 64, 67, -128, -66, 29, 54, 16, 4, 112, -9, -36, -35, 104, 65, -122, -108, -73, -49, -20, -102, 19, -45, -89, 18, 117, -123, -14, 93, 101, 86, 27, -122, 84 ]
The opinion of the court was delivered by Six, J.: The primary focus of this case is on Fourth Amendment issues arising from the search of defendant Peter Reason and of his car. We also review the prospective application of certain 1996 amendments to the Sentencing Guidelines Act. Reason appeals the denial of his motion to suppress evidence that resulted in his felony convictions for possession of cocaine, K.S.A. 1994 Supp. 65-4160(a), a drug severity level 4 felony; possession of cocaine without a tax stamp affixed, K.S.A. 1994 Supp. 79-5208, a nondrug severity level 10 felony; possession of marijuana with intent to sell, K.S.A. 1994 Supp. 65-4163(a), a drug severity level 3 felony; and possession of marijuana without a tax stamp affixed, K.S.A. 1994 Supp. 79-5208, a severity level 10 felony. Reason was tried before the district judge, the parties having stipulated to the testimonial evidence presented at the preliminary hearing and motion to suppress evidence hearing. Although Reason’s crimes were committed on June 14,1995, he was sentenced under Senate Bill 585, which went into effect on July 1, 1996. L. 1996, ch. 258, § 11; see K.S.A. 1996 Supp. 21-4705. The State cross-appeals upon a question reserved, contending that the district court should not have applied the 1996 legislative changes to the Sentencing Guidelines Act retroactively. Our jurisdiction is under K.S.A. 22-3602(a) (appeal by defendant from an adverse judgment) and K.S.A. 22-3602(b)(3) (appeal on a question reserved by the prosecution). We affirm the district court’s denial of defendant’s motion to suppress evidence; we sustain the State’s cross-appeal on the sentencing issue. FACTS Officers Johnson and Falco were patrolling a park in Wichita when they saw a BMW with a 30-day New Mexico tag parked in the parking lot, with both doors open. Johnson became suspicious because no one appeared near the BMW. He thought the BMW might either have been abandoned or was being stripped. Johnson parked the patrol car behind the BMW. There was room for the BMW to leave by pulling forward and circling in the parking lot to the exit road. Both officers approached on foot, Johnson on the driver side and Falco on the passenger side. They observed two men sleeping, Reason in the driver’s seat and Alfred Moya in the front passenger’s seat.. It was a hot day. Reason and Moya were sweating heavily. Johnson awoke Reason to find out why the car was there, if Reason was okay, or if he was intoxicated or unconscious. Reason was coming out of a sound sleep and requested a minute or so to think. Johnson waited a few minutes and then asked Reason for identification and if he was the owner. Reason got out of the BMW and identified himself. He said his wallet had been stolen, that he had no written identification with him, and that he owned the BMW. Officer Falco asked Moya if Moya would mind stepping outside so that Falco could talk to him privately. Moya complied. Falco walked with Moya back to the rear of the BMW. Falco asked Moya for identification. Moya gave him a New Mexico drivers license. Falco gave the license to Johnson so that Johnson could run a wants and warrants check. Falco asked Moya why he and Reason were in the park. Moya said he was new to the area and Reason was showing him around. Johnson ran a check on the vehicle identification number (VIN). The check revealed that the BMW was registered to Reason, with a Kansas tag. No outstanding warrants were shown on Reason or Moya. Johnson asked Reason why the BMW had a 30-day New Mexico tag and a registered Kansas tag. Reason replied that the Kansas tag had been stolen and he had secured another tag in New Mexico. Reason advised that he was living in New Mexico. Johnson was satisfied with that answer. He told Reason that he was free to go, but shortly after that, in the same conversation, asked if Reason minded if Johnson searched the BMW. Moya remained outside with Falco. Johnson had Moya’s driver’s license. According to Johnson, in response to the BMW search inquiry, Reason said, “Sure,” and offered to open the trunk. Reason also said, “Good luck.” The consent was given at approximately 5:10 p.m. The officers had parked behind the BMW around 4:50 p.m. Johnson found what he believed was a crack pipe in an ashtray in the console area. He informed Falco, took custody of Reason, and asked Falco to handcuff Moya. Johnson continued the search. He located a large baggie of marijuana under the back seat. The search of Reason revealed a cigarette box containing white powder, which tested as cocaine. Falco found two more bags of marijuana in the trunk. Moya did not receive his driver’s license back from the police until sometime after his arrest. After the preliminary hearing, Reason filed a motion to suppress the evidence discovered during the search. Reason and Officers Johnson and Falco testified. When asked why he and Moya were asleep in the car, Reason explained that he had just driven up from Albuquerque about 4 hours before. When asked why he slept in the car when it was so hot out, Reason said he was trying to get a suntan. Reason said that Johnson ordered him to exit the BMW when the officer first approached. Reason gave Johnson his Kansas driver’s license number and his address. Johnson initially testified that Reason remained in the BMW during the questioning and at the time he was told he was free to go. Reason did not get out of the BMW until he consented to the search. During cross-examination, Johnson agreed with his preliminary hearing testimony that Reason got out of the BMW when Johnson approached and began to ask questions. However, Johnson said that he never ordered Reason to exit the BMW. Reason denied he consented to the search and that he was ever asked for consent. Reason claimed that Johnson searched the BMW three times, without consent, and found nothing until the third search. Reason denied that Johnson ever told him he was free to leave. According to Reason, Johnson told him he could go back to the BMW after Johnson received the Kansas driver’s license number and address. Reason claimed that once he reentered the BMW, Johnson ordered him out to search again. Reason denied saying “good luck” before the search. The district court denied the motion to suppress. The district judge reasoned that “the officers had eveiy right to be there, ask the driver and the passengers some questions. ... I think it would have been irresponsible for them to not have approached the car and not to have asked some questions given the fact that there was an out-of-state tag in the window, a number of different things. There was nothing unreasonable about that.” The district judge, believing the officers’ testimony, decided that a valid consent to search had been given. Reason renewed the motion to suppress at trial. The motion was again denied. Reason was sentenced on August 30, 1996. The crimes were committed on June 14, 1995. At the sentencing hearing, the State requested consecutive sentencing, for a controlling term of 35 months, with presumptive imprisonment under the sentencing guidelines in effect before the 1996 amendments. Reason’s counsel argued that K.S.A. 1996 Supp. 21-4705 should apply, which provided for optional probation. The district judge agreed and sen tenced Reason under the 1996 amendments to a controlling term of 23 months, with probation for 36 months. DISCUSSION The Motion to Suppress When we review a decision on the suppression of evidence, we normally give great deference to the factual findings of the district court. State v. Vandiver, 257 Kan. 53, 58, 891 P.2d 350 (1995). We said in State v. Hopper, 260 Kan. 66, 68-69, 917 P.2d 872 (1996): “The initial question remains whether the district court’s findings are supported by substantial evidence. If so, the appellate court should not reweigh the evidence. However, the ultimate determination of the suppression of evidence is a legal question requiring independent appellate determination. [Citation omitted.]” In State v. Ninci, 262 Kan. 21, 32, 936 P.2d 1364 (1997), we listed certain factors that indicate whether consent after a primary illegality is voluntary, purging the primary taint, or whether the consent is coerced exploitation of the primary illegality: “Factors which indicate that the exploitation of the primary illegality was used to coerce a consent are (1) if the officers used deception to gain consent, and (2) if the defendant had no knowledge that he could refuse to consent. Factors which indicate that the consent was voluntary and purged the primary taint are (1) if the officers’ behavior was not threatening-or coercive, (2) if the defendant indicated intent to consent, (3) if the defendant has an education, (4) if the defendant is not under the influence of intoxicants. [Citation omitted.]” Reason concedes his car was stopped at the time of the encounter and that the police were entitled to request identification and run a computer check on the car and driver. However, he argues that once a valid license and proof of the right to operate the vehicle is shown, the officer must allow the driver to continue without further delay, citing United States v. Pena, 920 F.2d 1509, 1514 (10th Cir. 1990), cert. denied 501 U.S. 1207 (1991). We agree with the Tenth Circuit’s analysis in Pena. Pena’s detention was held to be reasonable, and his consent to search his car was therefore valid. His conviction was affirmed. Here we are not dealing with an illegal traffic stop. Reason was parked at the time of the police encounter. The question is whether there was a seizure at the time the request to search was made. There is no taint to purge from the consent if there was no illegal detention. In United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir. 1997), it was held: “An officer conducting a routine traffic stop may perform a computer check on the driver’s license and the vehicle registration papers. [Citations omitted.] Once the officer has conducted such- a check, and “ ‘the driver has produced a valid license and proof that he is entitled to operate the car, [the driver] must be allowed to proceed on his way, without being subject to further delay by police for additional questioning.’ ” [Citation omitted.] The officer may only detain the driver and conduct further questioning if, during the traffic stop, ‘the officer acquires an objectively reasonable and articulable suspicion that the driver is engaged in illegal activity.’ [Citations omitted.] Additionally, if the encounter between the officer and the driver ceases to be a detention, but becomes consensual, and the driver voluntarily consents to additional questioning, no further Fourth Amendment seizure or detention occurs.” See State v. Schmitter, 23 Kan. App. 2d 547, Syl. ¶ 5, 933 P.2d 762 (1997). Was there a seizure here, and if so, an illegal detention? We said in State v. Damm, 246 Kan. 220, 224, 787 P.2d 1185 (1990): “An individual is ‘seized’ when an officer restrains his freedom, even if the detention is brief and falls short of arrest. The Fourth and Fourteenth Amendments prohibit unreasonable seizures as well as searches. [Citations omitted.] The scope and duration of a seizure must be strictly tied to and justified by the circumstances which rendered its initiation proper.” “If there is no detention — no seizure within the meaning of the Fourth Amendment — then no constitutional rights have been infringed." Florida v. Royer, 460 U.S. 491, 498, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983). The United States Supreme Court in Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991), observed: “[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free ‘to disregard the police and go about his business,’ [citation omitted], the encounter is consensual and no reasonable suspicion is required. The encounterwill not trigger Fourth Amendment scrutiny unless it loses its consensual nature. The Court made precisely this point in Terry v. Ohio, 392 U.S. 1, 19, n. 16[, 20 L. Ed. 2d 889, 88 S. Ct. 1868] (1968): ‘Obviously, not all personal intercourse between policemen and citizens involves “seizures” of persons. Only when the of ficer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred.’ ” In Bostick, as part of drug interdiction efforts, law enforcement officers routinely approached individuals, either randomly or because of suspicious behavior, at bus stations and questioned them. Two officers boarded a bus at a Fort Lauderdale stopover and, without any articulable suspicion, asked Bostick, a passenger, if they could inspect his ticket and identification. The ticket and identification matched and were returned. The officers told Bostick they were narcotics officers and requested consent to search his luggage. Although disputed, the officers claimed Bostick consented after being told he had a right to refuse consent. Drugs were found. The Florida Supreme Court reasoned that the encounter amounted to an impermissible seizure, adopting a per se rule against such encounters on buses, although the encounters would be permissible in most other public places. Bostick v. State, 554 So. 2d 1153, 1157 (Fla. 1989). The United States Supreme Court reversed and remanded the case for a determination under the correct legal standard of whether a seizure had taken place. Bostick argued that the bus encounter was a seizure because he was not free to leave. He would have been stranded if he left the bus. The Court responded: “Bostick’s freedom of movement was restricted by a factor independent of police conduct — i.e,, by his being a passenger on a bus. Accordingly, the ‘free to leave’ analysis on which Bostick relies is inapplicable. In such a situation, the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” 501 U.S. at 436. “We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” 501 U.S. at 439. Here the State argues that there was no seizure. Alternatively, the State contends that if there was a seizure, Reason’s consent purged any otherwise illegal detention. The State acknowledges that the length of time between Johnson telling Reason he was free to go and the officer’s request for consent to search was short. The State points out that the officers’ conduct was not flagrant. The officers did not thwart any attempt by Reason or Moya to leave or make any untoward demonstration of authority, show weapons, or engage in other coercive behavior. Reason may have invited the encounter with police. An expensive automobile was parked in a public park parking lot (an area that would be regularly patrolled by the police) on a hot afternoon. Both doors were open and the two individuals inside were either asleep or possibly unconscious. This situation would naturally draw the police officers’ attention. We characterize Reason’s initial contact with the police as a voluntary encounter. See Ninci, 262 Kan. at 30 (“ ‘There are three types of police-citizen encounters: arrests, investigatory stops, and voluntary encounters. Voluntary encounters are not considered seizures and are not covered by the Fourth Amendment.’ [State v. Crowder, 20 Kan. App. 2d 117, 119, 887 P.2d 698 [1994].”). Although there was no articulable suspicion that Reason and Moya were committing crimes, the officers’ approach of Reason’s vehicle and questioning of Reason and Moya fit the voluntary encounter situation. However, this encounter involved more than the police asking questions and requesting identification. Johnson not only requested identification and vehicle registration from Reason, but also had warrants and VIN checks done after Reason was unable to provide any identification or vehicle registration. With 20 minutes having expired between the initial contact and Johnson’s request for consent to search, this voluntary encounter began to resemble an investigatory detention. “The officer must have reasonable suspicion of illegal activity to justify even a temporary detention,” Pena, 920 F.2d at 1514. However, the police “need not close their eyes to suspicious circumstances,” 920 F.2d at 1514. Reason’s claim of vehicle ownership without presenting any vehicle registration or personal identification would provide reasonable suspicion to Johnson sufficient to justify a further investigation to verify Reason’s ownership claim. See Pena, 920 F.2d at 1514 (Following a traffic stop for speeding, defendant’s failure to provide any vehicle registration provided part of the circumstances justi lying further investigation to determine if the vehicle was stolen.) Even if we view this encounter as an investigatory detention, its scope and duration were proper. Any investigatory detention ended when Johnson told Reason he was free to go, and the encounter again became consensual. Reason appeared to voluntarily respond to Johnson’s questions. Reason made no effort to end the encounter at any time, even after Reason was told he was free to go. “[A]fter an officer issues the citation and returns any materials provided, the driver is illegally detained only if the driver has objectively reasonable cause to believe that he or she is not free to leave.” United States v. Shareef, 100 F.3d 1491, 1501 (10th Cir. 1996). The Consent to Search Was Reason’s consent to search voluntary? “The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and ‘[v]oluntariness is a question of fact to be determined from all the circumstances, [citation omitted].’ ” Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 355, 117 S. Ct. 417 (1996). In Robinette, after stopping a motorist for speeding, the officer checked the driver’s license and registration. He asked the driver to step out of the car, issued a verbal warning to the driver, and returned the license. The officer then' inquired if the driver was carrying any illegal contraband. After the driver answered “no,” the officer asked if he could search the vehicle, and the driver consented. A small amount of marijuana and a controlled substance were found. The driver was arrested. The United States Supreme Court reversed Ohio’s per se rule that any attempt at consensual interrogation following a traffic stop must be preceded by telling the driver that he or she was free to go. Following a lawful traffic stop an officer is not required to say to the person that he or she is “free to go” as a prerequisite to a voluntary consent to search. Reason relies on Royer, 460 U.S. 491, which involved what began as a consensual inquiry and became an unnecessarily intrusive investigatory detention. Royer, who fit the “drug courier profile,” was questioned by two narcotics detectives at an airport. They re quested his airline ticket and driver’s license, which he gave them. The airline ticket and driver’s license had different names. Royer explained that someone else had reserved the ticket for him under the different name. The detectives told Royer they had reason to suspect he was transporting narcotics. While still possessing his driver’s license and airline ticket, the detectives asked Royer to accompany them to a separate room. They also retrieved his luggage from the airline and asked if he would consent to a search. Royer was never told he was free to go. He produced a key and unlocked one suitcase, which contained drugs. The second suitcase was locked with a combination lock for which Royer claimed not to know the combination. When asked if he objected to the second suitcase being opened, Royer responded that he did not, and it was pried open, revealing more drugs. Royer was arrested. The United States Supreme Court held that Royer was illegally detained when he consented to the search. Thus, the consent was tainted. We find Royer distinguishable on the facts. Reason was told he was free to go before Johnson requested consent to search. The “free to go” signal is a factor in determining whether Reason objectively felt under police coercion at the time of his consent. Even if Johnson had failed to tell Reason he was free to go before requesting consent to the search, that may not necessarily have invalidated the consent. See Robinette, 519 U.S. at 39-40 (“[It would] be unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary.”); see also Anderson, 114 F.3d 1059 (While the trooper did not specifically tell defendant that he was free to leave, that is not required for an encounter to be consensual.). Reason’s Contentions Reason contends that because Officer Johnson had not returned Moya’s driver’s license at the time Johnson claims to have told Reason that he was free to go, Reason and Moya were not free to leave. Reason had no driver’s license and could not have legally driven the BMW away (see K.S.A. 1994 Supp. 8-235). Also, he would have had to abandon Moya. According to Reason, the encounter was therefore nonconsensual absent the return of Moya’s license; any further questioning by police would have had to have been supported by probable cause that a crime had been committed. Reason claims that Johnson had no suspicions of criminal activity when he told Reason he was free to go; thus, Johnson’s request for consent to search continued the investigative detention, making it illegal. Reason argues that any purported consent to the search was tainted by the illegal detention and therefore is invalid. Reason also asserts that there was insufficient discontinuity between the illegal seizure and the request for consent to search, so the taint was not purged. The request to search was practically simultaneous with the illegal seizure. See United States v. Gregory, 79 F.3d 973, 979-80 (10th Cir. 1996), where the court held: “Even though Officer Barney returned defendant’s license [following an illegal traffic stop], the return of the license was in close temporal proximity, if not simultaneous with, Officer Barney’s inquiry whether- he could look inside the defendant’s truck and his directive that the defendant get out of the truck. . . . We have repeatedly held that consent is not voluntary when in such close temporal proximity to an illegal stop.” The State’s Contentions The State argues that if Reason felt restricted from leaving, it was not because of police conduct but because of independent circumstances. Reason did not have a valid driver’s license with him, not because the police still had it, but because it had been stolen earlier. If he would have had a driver’s license, he could have simply driven off and left Moya to finish his interview with Officer Falco. Even without a driver’s license, Reason could have ended the discussion with Officer Johnson and walked away from the area. The fact that the police had Moya’s license and were questioning him would not have prevented Reason from ending contact with Officer Johnson. Reason’s desire to stay near his BMW and Moya after Officer Johnson told him he was free to go was independent of police conduct. We agree with the State’s contentions. There were no circumstances showing that Reason wás coerced by police to consent to the search of his vehicle. Although two police officers were present, only Officer Johnson dealt with Reason. There was no showing that Officer Johnson used forceful lan guage, brandished a weapon, or otherwise coerced Reason at the time of the consent. We conclude the consent to search was voluntary. The 1996 Legislative Amendments to the Sentencing Guidelines Act We now turn to the State’s cross-appeal on a question reserved. The district court, over objection from the State, applied the 1996 amendments to the Sentencing Guidelines Act retroactively. For continuity we repeat, the crimes were committed on June 14,1995; Reason was sentenced on August 30, 1996. K.S.A. 21-4705 was amended in 1996, effective July 1, 1996. Reason’s criminal history category was G. Under the pre-July 1,1996, version of 21-4705(a), for a drug severity level 3 crime, the grid showed a presumptive imprisonment sentencing range of 20 to 23 months. Under the July 1, 1996, version, for the same severity level crime and criminal history category, the grid showed a “border box” sentencing range of 20 to 23 months. For crimes in the border boxes, the district court may impose an optional nonimprisonment sentence upon making certain findings on the record. K.S.A. 1996 Supp. 21-4705(d). Reason’s sentence would have been presumptive imprisonment under the pre-July 1, 1996, version of 21-4705 but presumptive imprisonment with optional nonimprisonment under the July 1, 1996, version. State v. Ford, 262 Kan. 206, 936 P.2d 255 (1997), is controlling. Ford was convicted of conspiracy to deliver marijuana, a drug severity level 3 offense, and was sentenced to 18 months’ imprisonment in March 1996 under the sentencing guidelines then in effect. Ford appealed her sentence, arguing that the July 1, 1996, grid should have been applied retroactively to her sentence. We decided that K.S.A. 21-4705 was a substantive statute defining the length or type of criminal punishment. We apply a fundamental rule of statutory construction stated in State v. Sutherland, 248 Kan. 96, Syl. ¶ 4, 804 P.2d 970 (1991): “[A] statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively.” See Ford, 262 Kan. at 208. In considering the K.S.A. 1996 Supp. 21-4705(a) introductory lan guage, in Ford we observed that the language was not amended by L. 1996, ch. 258, § 11 and had remained unchanged since the enactment of the sentencing guidelines in 1993. 262 Kan. at 209. Ford was sentenced before July 1, 1996. Reason was sentenced on August 30, 1996. Thus, the 1996 amendments were in effect at the time of Reason’s sentencing. Reason contends Ford is distinguishable because Reason’s sentencing took place after the statutory amendments took effect. However, our determination itxFord that the 1996 amendment to 21-4705 is a substantive amendment dictates the result here. In applying 21-4705, the critical date is .the date of the crime, not the sentencing date, absent express legislative intent to the contrary. Reason’s sentence under the 1996 amendments does not conform to the statutory provisions in effect at the time the subject crimes were committed. We have said that when a sentence does not conform to the statutory provisions, the proper remedy is to remand to the district court for correction of the illegal sentence. See State v. Shaw, 259 Kan. 3, 12, 910 P.2d 809 (1996). We have general statutory jurisdiction to correct a judgment, K.S.A. 60-2101(b), and specific statutory jurisdiction to correct an illegal sentence at any time, K.S.A. 22-3504. See State v. Scherzer, 254 Kan. 926, Syl. ¶ 1, 869 P.2d 729 (1994). Although remands are infrequent in appeals on questions reserved under K.S.A. 22-3602(b)(3), we have remanded to correct an illegal sentence, or to correct other district court action concerning sentencing, when the matter is not moot. See State v. Miller, 260 Kan. 892, 926 P.2d 652 (1996); State v. Harpool, 246 Kan. 226, 229, 788 P.2d 281 (1990). Reason does not appear to have completed his sentence. We affirm (1) the district court’s denial of Reason’s motion to suppress and (2) Reason’s convictions. We sustain the State’s appeal on a question reserved and remand for resentencing under K.S.A. 21-4705.	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The opinion of the court was delivered by Davis, J.: This is an appeal by the State on a question reserved. The State raises the same issues it attempted to resolve by an interlocutory appeal, which we dismissed earlier for lack of jurisdiction. State v. Unruh, 259 Kan. 822, 915 P.2d 744 (1996) (Unruh I). We again dismiss the appeal on the State’s question reserved. The defendant cross-appeals, claiming that the delay caused by the interlocutory appeal violated his right to a speedy trial under K.S.A. 22-3402(1). We agree and reverse and remand for discharge of the defendant. This case has a long history. It is helpful to recount the facts giving rise to the State’s interlocutory appeal: “The defendant [Daniel Lee Unruh] was originally charged with one count of possession of mefhamphetamine under K.S.A. 1993 Supp. 65-4127a. Normally, possession would be a severity level 4 felony, but the defendant was charged with a severity level 1 felony offense based upon his two prior convictions in 1988 under the provisions of K.S.A. 1988 Supp. 65-4127b for sale of methamphetamine. See K.S.A. 1993 Supp. 65-4127a(c). The defendant was also charged with one count of unlawful possession of drug paraphernalia. “The defendant entered into a plea agreement with the State whereby he agreed to enter a plea of nolo contendere to the felony charge of possession in exchange for the State’s agreeing to (1) dismiss the drug paraphernalia charge and (2) amend the possession of methamphetamine charge to possession of methamphetamine, having once been convicted under the Uniform Controlled Substances Act for sale of methamphetamine. The second provision of the plea agreement had the effect of reducing his crime of possession of methamphetamine from a severity level 1 felony to a severity level 2 felony. See K.S.A. 1993 Supp. 65-4127a(c). Pursuant to the agreement, the defendant pled no contest to the amended charge, and the court, satisfied that a factual basis existed, accepted his plea and found him guilty. “Prior to sentencing, the defendant filed a motion captioned ‘Objections to Criminal History Classification and Severity Level.’ He argued that his prior 1988 convictions for sale of methamphetamine could not be used to enhance his current offense. The defendant’s argument is based upon K.S.A. 1993 Supp. 65-4127a: ‘(c) If any person has a prior conviction under this section or a conviction for a substantially similar offense from another jurisdiction, then that person shall be guilty of a drug severity level 2 felony and if the person who violates this section has two or more prior, convictions under this section or substantially similar offenses under the laws of another jurisdiction, then such person shall be guilty of a drug severity level 1 felony.’ (Emphasis added.) “The defendant argued that his two prior convictions for possession of methamphetamine occurred in 1988 under the provisions of K.S.A. 1988 Supp. 65-4127b rather than under K.S.A. 1988 Supp. 65-4127a; therefore, they were not under this section as provided for under K.S.A. 1993 Supp. 65-4127a(c) and could not be used to make his most recent conviction a severity level 2 felony. “At the hearing on his motion, the defendant did not ask the court to vacate the plea agreement but instead asked that his current conviction be properly counted as a drug severity level 4 offense and that his prior convictions be used to determine the appropriate criminal history category of F. In the alternative, the defendant asked that if the court held the current conviction to be a drug severity level 2 offense, that his prior criminal history should not include either prior conviction because under K.S.A. 1993 Supp. 21-4712 they would be elements of or used to enhance the severity level of the current criminal conviction. The State argued that the defendant had already pled no contest and should not now be allowed to unilaterally rewrite the plea bargain. “After taking the issue under advisement, the court held that the defendant’s conviction for sale of methamphetamine under a previous statute did not constitute a prior conviction under K.S.A. 1993 Supp. 65-4127a(c) because the conviction was not under this section as set forth in K.S.A. 1993 Supp. 65-4127a(c). The court vacated the defendant’s plea, finding that the factual statement supporting the plea was incorrect and that his plea of nolo contendere should not have been accepted. The court found that neither party was bound by the plea agreement.” Unruh, 259 Kan. at 822-24. The State attempted to appeal the above décision along with the issues involving enhancement of the defendant’s sentence. Because the State did not satisfy any of the statutory grounds authorizing an appeal to this court, we dismissed for lack of jurisdiction. Upon this court’s dismissal of the appeal, the district court accepted the defendant’s plea of not guilty to the original charges and set the case for jury trial. The defendant moved to dismiss on the basis that his right to a speedy trial under the provisions of K.S.A. 22-3402(1) had been violated. He argued that the time delay for the State’s attempted interlocutory appeal was attributable to the State, thereby denying him his statutory right to a speedy trial. The district court denied his motion and the matter was tried. A jury found the defendant guilty on both counts of the original complaint. At sentencing, the district court was again required to decide whether K.S.A. 1993 Supp. 65-4127a allowed the enhancement of the severity level of the offense based on the defendant’s two prior convictions under K.S.A. 1988 Supp. 65-4127b. See K.S.A. 1993 Supp. 65-4127a(c). Consistent with its earlier ruling, the district court determined that the prior convictions did not enhance the severity level and, therefore, the prior convictions were included in the defendant’s criminal history for sentencing purposes. The court imposed consecutive sentences of 18 months and 6 months for counts one and two, respectively. The district court had vacated the defendant’s plea on April 11, 1995. The State had filed its interlocutory appeal on April 19,1995. The defendant was brought to trial on June 26, 1996. The total delay from the vacating of the plea until the defendant was tried on the charges was 440 days. During this entire time, the defendant was held in the county jail solely on the charges involved. Before addressing die defendant’s contention that he was denied a speedy trial, we pause briefly to discuss an important matter not addressed by either party or the district court. The plea agreement in this case was not one authorized by law. The provisions of K.S.A. 21-4713 set forth actions which prosecutors may take under agreements with defendants for plea, including exceptions relating to prior convictions. K.S.A. 21-4713(f) provides that the prosecutor may: “make any other promise to the defendant, except that the prosecutor shall not enter into any agreement to decline to use a prior drug conviction of the defendant to elevate or enhance the severity level of a drug crime as provided in K.S.A. 65-4127a, 65-4127b and 65-4159 or K.S.A 1995 Supp. 65-4160 through 65-4164 and amendments thereto, or make any agreement to exclude any prior conviction from the criminal history of the defendant.” (Emphasis added.) The original complaint in this case charged the defendant with possession of methamphetamine “having twice previously been convicted under the Uniform Controlled Substances Act for sale of methamphetamine . . . contrary to K.S.A. 65-4127a, a drug severity level 1 Felony.” In its plea negotiations, the State agreed “to decline to use a prior drug conviction of the defendant to elevate or enhance the severity level of a drug crime as provided in K.S.A. 65-4127a [or] 65-4127b.” K.S.A. 21-4713(f). The amended complaint charged the defendant with possession of methamphetamine, having once been convicted under the Uniform Controlled Substances Act for sale of methamphetamine, a severity level 2 felony. This is not allowed by law. The trial court set aside the plea agreement on the basis that the prior 1988 convictions for sale of methamphetamine under K.S.A. 1988 Supp. 65-4127b, since they were not under “this section” as used in K.S.A. 1993 Supp. 65-4127a, could not be used to enhance the severity level of the present offense. While the reason advanced by the trial court is questionable, see State v. Crank, 262 Kan. 449, 939 P.2d 890 (1997), the trial court reached the right result in setting aside a plea agreement not authorized by law. See State v. Donlay, 253 Kan. 132, 134, 853 P.2d 680 (1993) (holding that the judgment of the trial court, if correct, is to be upheld even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision). We now turn to the defendant’s argument that the State’s attempted interlocutory appeal was unauthorized and resulted in a violation of the defendant’s statutory right to a speedy trial under the provisions of K.S.A. 22-3402(1). We note that the defendant in this case was held in the county jail solely on the crime charged, including the 440 days in which the State attempted to take an interlocutory appeal. While K.S.A. 22-3604 generally provides that a defendant shall not be held in jail or subject to an appearance bond during the pendency of an appeal by the prosecution, the defendant in this case was held in the county jail based upon one of the exceptions provided for in K.S.A. 22-3604(3), viz., the defendant was charged with a “drug severity level 1 through 3 felony” crime. “The State’s right to appeal in a criminal case is strictly statutory. Appellate courts have jurisdiction to entertain an appeal only if it is taken within time limitations and in the manner prescribed by the applicable statutes.” State v. Kleen, 257 Kan. 911, Syl. ¶ 1, 896 P.2d 376 (1995). K.S.A. 22-3602(b) sets out appeals which maybe taken to this court by the prosecution as a matter of right: “(b) Appeals to the supreme court may be taken by the prosecution from cases before a district judge as a matter of right in the following cases, and no others: (1) From an order dismissing a complaint, information or indictment; (2) from an order arresting judgment; (3) upon a question reserved by the prosecution; or (4) upon an order granting a new trial in any case involving a class A of B felony or for crimes committed on or after July 1,1993, in any case involving an off-grid crime.” K.S.A. 22-3603 provides for interlocutory appeals by the State as follows: “When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal.” We held in Unruh I that the attempted interlocutory appeal by the State did not involve any of the statutory provisions for interlocutory appeals by the State, nor was it a final order arresting judgment as argued by the State. Therefore, we found no jurisdiction to consider the appeal. 259 Kan. at 824-25. In State v. Grimes, 229 Kan. 143, 146, 622 P.2d 143 (1981), which involved an attempted interlocutory appeal by the State from an order granting a new trial, we said: “When the State filed its notice of appeal in September of 1979, the case was pending. A new trial had been ordered. The appeal was interlocutory, one taken between the commencement and termination of the action in the trial court. The order did not terminate the case; it directed that a trial be held. The legislature provided for interlocutory appeals by the State by K.S.A. 1980 Supp. 22-3603. This appeal, however, did not fit within the confines of that statute; the trial court made no order quashing a warrant or search warrant, no order suppressing evidence or a confession or admission. Thus the attempted appeal was not one authorized by 22-3603.” As in Grimes, the interlocutory appeal taken by the State in this case did not fit any statutory category set forth by statute and we, therefore, dismissed for lack of jurisdiction. In Grimes, we held that the time taken by the State’s appeal upon motion of the defendant to dismiss for a violation of his or her rights to a speedy trial is assessed against the State. 229 Kan. at 149. As a part of our rationale, we quoted from State v. Hess, 180 Kan. 472, 477, 304 P.2d 474 (1956): “ “When the State appealed there was on file a sufficient information upon which the defendant had joined issue by his plea of not guilty. This Court had ordered a new trial; there were terms of court at which such trial might have been had; the appeal did not, of itself, prevent a retrial; there was no stay order. What prevented the prosecution from proceeding to try the defendant again? There was no obstacle which prevented it; the only thing which may explain the delay is that such retrial would have been effort wasted if the State’s appeal had been successful. But in the face of the preemptoiy commands of the Bill of Bights and Section 62-1432, considerations of expediency can have no weight. The alternative would have been to secure defendant’s consent to the delay or to force him to apply for a stay order, but neither of these was done.’ ” In this case, nothing prevented the State from trying the defendant on the original charges once the district court invalidated the plea agreement. The only reason for the attempted interlocutory appeal was to avoid a possible waste of time in trying the case. The State should have proceeded to trial on the original charges rather than attempting an appeal that was not clearly authorized by any express statutory provision. While it is true that the State did not conclusively know its interlocutory appeal was without jurisdiction until our opinion, under Hess and Güines and the statutes regarding criminal appeals by the State, considerations of expediency can have no weight in the face of the preemptory commands of the Kansas Constitution Bill of Rights and K.S.A. 22-3402(1). The defendant has been in custody from the date of the filing of the charges. Under the provisions of K.S.A. 22-3402(1), the defendant has the right to be tried for these charges 90 days from his arraignment on the charges less any time caused by his or her delay. When this case came before the district court for trial after the interlocutory appeal had been dismissed for lack of jurisdiction, a full 2 years had elapsed. Under Güines and Hess and our holding today, that time is charged against the State. We conclude that the defendant’s right to a speedy trial under the provisions of K.S.A. 22-3402(1) was violated. Under these circumstances, in accord with the provisions of K.S.A. 22-3402(1), the defendant “shall be entitled to be discharged from further liability to be tried for the crime[s] charged.” We therefore reverse and remand for discharge of the defendant. State’s appeal on question reserved is dismissed; on defendant’s cross-appeal, the decision of the district court is reversed, and the case is remanded with directions to discharge defendant.	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The opinion of the court was delivered by Larson, J.: This is a sentencing appeal. In the previous appeal in this case, State v. Collier, 259 Kan. 346, 913 P.2d 597 (1996) (Collier I), we affirmed Collier’s convictions but vacated the hard 40 sentence for his premeditated first-degree murder conviction because the record did not reflect that the mandatory notice that the State would seek the hard 40 penalty was properly filed with the court at the time of arraignment as required by K.S.A. 1993 Supp. 21-4624. Upon remand, the State, over Collier’s specific objection, was allowed to present testimony of the prosecuting attorney, the district judge who presided at the arraignment, a clerk of the court, and the chief deputy of the criminal department as to their recollections of the filing of the notice to request the hard 40 sentence and the usual procedures for the filing of documents in the trial court. After hearing the evidence, the trial court found the notice of intent to seek the hard 40 sentence had been properly filed with the court. It then reimposed the hard 40 sentence, as well as the aggravated robbery sentence which had been imposed in Collier I but had not been an issue in that appeal. Collier’s appeal in this case is limited to sentencing issues only. He contends: (1) Reimposition of the hard 40 sentence contravened' the decision and mandate in Collier I in violation of due process of law under the Fourteenth Amendment and the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, plus the principles of res judicata and collateral estoppel; (2) the trial court erred by concluding the evidence presented at the resentencing hearing supported a finding that the State had complied with the notice provisions of K.S.A. 1993 Supp. 21-4624; (3) the hard 40 sentence was imposed without notice or the procedural protections of K.S.A. 1993 Supp. 21-4624; and (4) the State cannot seek, nor the trial court impose, an upward departure sentence for Collier’s aggravated robbery conviction because such a departure was not sought at the original sentencing hearing and the aggravated robbery sentence was never vacated. We need not here restate the entirety of the majority decision in Collier I on the sentencing issue which is found in 259 Kan. at 360-65. In a nutshell, we there held: (1) The record in Collier I did not show that the notice to request imposition of the hard 40 sentence was filed with the court at the time of arraignment; (2) the State improperly attempted to supplement the record under Supreme Court Rule 3.04 (1997 Kan. Ct. R. Annot. 23) and asked us to base our decision on matters outside a properly preserved record; (3) Collier I was controlled by our decision in State v. Peckham, 255 Kan. 310, 875 P.2d 257 (1994); and (4) the failure of the State to comply with the requirements of K.S.A. 1993 Supp. 21-4624 required the hard 40 sentence entered therein to be vacated. Although Collier makes the arguments previously summarized concerning violations of due process, double jeopardy, res judicata, and collateral estoppel, this case is more readily decided on the basis of his argument that when the hard 40 sentence in Collier I was vacated, such ruling became the setded law of this case. Thus, the issue of the filing of the notice may not again be relitigated, nor may the nonexistent record in Collier 1 regarding the filing be created by the May 1996 recollections of the events by several participants at the November 1993 arraignment which were not shown by the record. The law of the case doctrine has long been applied in Kansas and is generally described in 5 Am. Jur. 2d, Appellate Review § 605 in the following manner: “The doctrine of the law of the case is not an inexorable command, or a constitutional requirement, but is, rather, a discretionary policy which expresses the practice of the courts generally to refuse to reopen a matter already decided, without limiting their power to do so. This rule of practice promotes the finality and efficiency of the judicial process. The law of the case is applied to avoid indefinite relitigation of the same issue, to obtain consistent results in the same litigation, to afford one opportunity for argument and decision of the matter at issue, and to assure the obedience of lower courts to the decisions of appellate courts.” Historically, the law of the case doctrine was first stated by the United States Supreme Court in Himely v. Rose, 9 U.S. (5 Cranch) 313 (1809), where it was applied to assert that the Court would not revisit issues which were finally decided by it in a previous appeal. Another United States Supreme Court case linked to the origins of the law of the case doctrine is Skillern’s Ex’rs v. May’s Ex’rs, 10 U.S. (6 Cranch) 267 (1810), which applied the rule to declare that once issues are finally decided, the lower court has no choice but to follow the mandate of the Court. The doctrine has similarly long been the law of Kansas and was explained and adopted in Headley v. Challiss, 15 Kan. 602, 605-06 (1875), where Justice Brewer stated: “This is a proceeding in error to review the decision of the district court overruling a motion to set aside a judgment. The judgment was rendered in an action to foreclose a mortgage, and upon service only by publication. . . . (Challiss v. Headley, 9 Kan. 684.) Upon abundant authority, and weE-settled principles, the decision at that time has become the established law of the case.’ [Citations omitted.] Whatever therefore, was at that time decided, is not now a matter for reexamination.” In applying this rule, this court shortly thereafter stated in Central Branch U.P.R. Co. v. Shoup, 28 Kan. *394, Syl. ¶ 2 (1882), that the law of the case was not “a cast-iron rule, incapable of relaxation under any circumstances, yet it must be adhered to where the question is one of great doubt, has been thoroughly considered, and is one whose decision involves no serious injury to general rights.” While the law of the case rule is not inflexibly applied to require a court to blindly reiterate a ruling that is clearly erroneous, see Henry v. Railway Co., 83 Kan. 104, 109 Pac. 1005 (1910); Railway Co. v. Merrill, 65 Kan. 436, 70 Pac. 358 (1902), a majority of this court remains convinced that Collier I was properly decided, and a unanimous court holds a hard 40 sentence in this case may no longer be considered or imposed. The cases stating this rule are legion in number, and the rule has been applied in many Kansas cases. In Waddell v. Woods, 160 Kan. 481, Syl. ¶ 3, 163 P.2d 348 (1945), we held that when a second appeal is brought to this court in the same case, the first decision is the settled law of the case on all questions involved in the first appeal and reconsideration will not be given to such questions. In Bartlett v. Davis Corporation, 219 Kan. 148, 153, 547 P.2d 800 (1976), the court relied on Waddell v. Woods and stated: “[W]hen a second appeal in the same action is brought to this court, the first decision is the law of the case on all questions involved and decided in the first appeal and such questions will not be reconsidered. However, when this court, upon appeal, merely reverses a district court on its ruling in connection with a motion to dismiss or for summary judgment, and no judgment is directed, the effect of the ruling by this court is the same for the purpose of further proceedings in the district court, as if the district court had made the correct ruling in the first instance, except, of course, that the district court has no authority to change or modify the ruling made by this court.” Confusion at times arises as to whether the doctrine being applied is the law of the case or res judicata, which is when a second cause of action is filed in order to attempt to relitigate issues between the same parties. In Steele v. Guardianship & Conservatorship of Crist, 251 Kan. 712, 720-21, 840 P.2d 1107 (1992), we disposed of an attempt to strike an earlier motion through res judicata by ruling: “A more appropriate basis for denying Steele’s motion to strike is embodied in the law of the case doctrine. In Renfro v. City of Emporia, Kan., 732 F. Supp. 1116, 1117 (D. Kan. 1990), aff’d 948 F.2d 1529 (1991), the court explained under the ‘ “law of the case doctrine,” once issues are decided by the court, those issues should not be relitigated or reconsidered unless they are clearly erroneous or unless some manifest injustice has been imposed. This doctrine is based on public policy favoring an end to litigation and encouraging dispute resolution by preventing continued re-argument of decided issues.’ ” Finally, the Steele case was most recently utilized as authority in City of Wichita v. Rice, 20 Kan. App. 2d 370, 376, 889 P.2d 789 (1995), where the opinion declared: “Ordinarily, under the law of the case doctrine, once an issue is decided by the court, it should not be relitigated or reconsidered unless it is clearly erroneous or would cause manifest injustice.” Although Collier contended that the principles of res judicata and collateral estoppel should be invoked, we believe the preclusive application of the law of the case doctrine is more appropriate in this case. The similaries and the differences of these preclusionaiy doctrines are discussed in Note, McDonald’s Corp. v. Hawkins and the “Law of the Case” Doctrine in Arkansas, 50 Ark. L. Rev. 127, 130-31 (1997): “The doctrine of the law of the case is similar to other preclusionaiy doctrines such as collateral estoppel, res judicata and stare decisis. While all of the doctrines act to prevent a party from raising issues that have already been decided, differences do exist between them. “The law of the case and collateral estoppel are different in that collateral estoppel prevents the relitigation of issues in successive suits between the same parties; the law of the case prevents relitigation of the same issues within successive stages of the same suit. Res judicata differs from the law of the case in that it settles the rights of the parties once the judgment is final. The law of the case does not settle rights; it only settles the law to be applied in determining the rights of the parties. Also, many courts view res judicata as a rule of law, whereas the law of the case is merely a practice to guide the court. “The law of the case probably most resembles the doctrine of stare decisis. Stare decisis dictates that like cases should be decided alike in the same jurisdiction. Stare decisis has a much broader impact than the law of the case, though, because it applies equally to all litigants, even strangers to the existing suit.” When we stated in Collier I, 259 Kan. at 365, that we were following Peckham and that our decision was “consistent with Johnson, 255 Kan. 140; State v. Deavors, 252 Kan. 149, Syl. ¶ 6, 843 P.2d 695 (1992), cert. denied 125 L. Ed. 2d 676 (1993),” we were clearly following our previous decisions. Our ruling then became the law of this case, precluding Collier from being resentenced to a hard 40 term of imprisonment. Additionally, the result we reach is compelled by consideration of our statute relating to the effect of our appellate court decisions, giving rise to what is referred to at times as the “mandate rule.” K.S.A. 60-2106 relates to judgments and mandates of appellate court decisions, and subsection (c) in applicable part provides: “When ... a decision of an appellate court becomes final, such court shall promptly cause to be transmitted to the clerk of the district court its mandate containing such directions as are appropriate under the decision. A copy of the opinion of the court shall accompany and be a part of the mandate. . . . Such mandate and opinion, without further order of the judge, shall thereupon be a part of the judgment of the court if it is determinative of the action, or shall be controlling in the conduct of any further proceedings necessary in the district court.” In commenting on this provision, Judge Gard compared the provision to its predecessor, G.S. 1949, 60-3330, and stated: “This subsection is a constructive revision of the former statute but does not change its general effect. . . . The practice of spreading the mandate on the journal is no longer necessary, though not necessarily prohibited. The direction of the former section that the trial court should comply with the mandate seems hardly necessary and is omitted. It is now simply provided that the mandate becomes a part of the judgment and controls the future conduct of the case, if further proceedings are to be had.” 2 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-2106(c) (1979). The plain directive of this provision was recognized in State v. Bloomer, 197 Kan. 668, 674, 421 P.2d 58 (1996), where this court’s mandate in a previous appeal was held to “properly [become] a part of the judgment controlling in the conduct of any further proceedings in the case (K.S.A. 60-2106 [c]).” A further statutory requirement relating to the obligations of the district courts as to appellate decisions is set forth in K.S.A. 20-108: “An appellate court of this state may require the district court of the county where any action or proceeding shall have originated to carry the judgment or decree of the appellate court into execution; and the same shall be carried into execution by proper proceedings, by such district court, according to the command of the appellate court made therein.” There is a dearth of appellate decisions relating to this statutory directive, but in Duffitt & Ramsey v. Crozier, Judge, 30 Kan. 150, Syl. ¶ 1, 1 Pac. 69 (1883), it was held: “In cases decided by the supreme court, brought on error, when the facts are found by the trial court, and a mandate is sent to that court directing it to render judgment upon the findings for defendant below, the case is not to be retried by the district court upon the old facts, nor upon facts which ought to have been and might have been presented upon the trial; nor is the court below, after receiving the mandate, authorized to make additional findings upon the evidence originally offered, to aid or cure the judgment pronounced erroneous by the supreme court and ordered to be reversed.” Although the wording of 28 U.S.C. § 2106 (1994) differs slightly from its Kansas counterpart, K.S.A. 60-2106, there have been extensive discussions of the law of the case rules and the mandate rule in a large number of federal cases. A recent example is Ute Indian Tribe v. State of Utah, 935 F. Supp. 1473, 1516-17 (D. Utah 1996), where it was stated: “ ‘Law of the case’ rules have developed ‘to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.’ 18 Charles A Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedures § 4478, 'at 788 (1981). ‘Of these rules, the most compelling is the mandate rule. This fundamental rule binds every court to honor rulings in the case by superior courts. As the Supreme Court has stated, “In its earliest days this Court consistently held that an inferior court has no power or authority to deviate from the mandate issued by an appellate court.” Briggs v. Pennsylvania R. Co., 334 U.S. 304, 306, 68 S. Ct. 1039, 1040, 92 L. Ed. 1403 (1948). The statutory authority for the power of the appellate courts dates from the first Judiciary Act of 1789 and is now found in 28 U.S.C. § 2106.’ Casey v. Planned Parenthood of Southeastern Pennsylvania, 14 F.3d 848, 856 (3d Cir. 1994) (footnotes omitted.) ‘The so-called “mandate rule” is simply a subspecies of the venerable “law of the case” doctrine, a staple of our common law as old as the Republic. . . .’ Federated Rural Electric Insurance Corp. v. Arkansas Electric Cooperatives, Inc., 896 F.Supp. 912, 914 (E.D. Ark. 1995) (citation omitted). “Whatever was before the [superior] Court, and is disposed of, is considered as finally settled. The inferior court is bound by the decree as the law of the case; and must carry it into execution, according to the mandate. They cannot vary it, or examine it for any other purpose than execution; nor give any other or further relief; nor review it upon any matter decided on appeal, for error apparent; not intermeddle with it, further than to settle so much as has been remanded.’ Sibbald v. United States, 37 U.S. (12 Pet.) 488, 492, 9 L.Ed. 1167 (1838). Indeed, ‘the rule has remained essentially unchanged in nearly one hundred and fifty years’: ‘It is axiomatic that on remand for further proceedings after decision by an appellate court, the trial court must proceed in accordance with the mandate and the law of the case as established on appeal. ‘A trial court must implement both the letter and spirit of the mandate, taking into account the appellate court’s opinion and the circumstances it embraces.’ Casey v. Planned Parenthood of Southeastern Pennsylvania, 14 F.3d at 857 (quoting Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 949 (3d Cir. 1985) (citations omitted)).” For a recent 10th Circuit case from Kansas involving a slightly different application of these same rules, see Mason v. Texaco, Inc., 948 F.2d 1546, 1553 (10th Cir. 1991), cert. denied 504 U.S. 910 (1992). We need not delve into the other sets of problems intertwined in the law of the case terminology, but an excellent discussion of them is found in 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4478 (1981). The issue before us is simply one of requiring the trial court to comply with and follow the decision of the majority opinion in Collier Z, rather than permitting the trial court to attempt to instigate the ruling and effect of the minority opinion filed in that case. The trial court is instructed to resentence Collier to the lesser allowed sentence other than that of a hard 40, as the statutes require. Due to this conclusion, Collier’s second and third issues are extraneous and need not be discussed. We need not reach or discuss in detail the request for an advisory opinion relating to the State’s attempt at resentencing to obtain an upward departure of the 97-month sentence imposed for the aggravated robbery conviction. The aggravated robbery conviction was affirmed by Collier I, and the sentence imposed was not an issue in the previous appeal, nor is it now an issue. The sentence is and remains in existence. It may not be the subject of reconsideration in any manner by the trial court upon the resentencing in this case for the first-degree murder conviction. Reversed and remanded for resentencing on the first-degree murder conviction in accordance with the express direction of this opinion. Lockett, J., concurring in the result.	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Per Curiam: This is an original proceeding in discipline filed by the Disciplinary Administrator s office against Robert L. Mitchell, of Wichita, an attorney admitted to the practice of law in Kansas. The amended formal complaint filed against respondent consists of seven counts and alleges violations of MRPC 1.2 (1996 Kan. Ct. R. Annot. 261), 1.3 (1996 Kan. Ct. R. Annot. 264), 1.4 (1996 Kan. Ct. R. Annot. 270), 1.5 (1996 Kan. Ct. R. Annot. 276), 1.15 (1996 Kan. Ct. R. Annot. 302), 1.16 (1996 Kan. Ct. R. Annot. 310), 3.2 (1996 Kan. Ct. R. Annot. 319), 3.3 (1996 Kan. Ct. R. Annot. 321), 3.4(c) (1996 Kan. Ct. R. Annot. 324), 8.1 (1996 Kan. Ct. R. Annot. 348), and 8.4 (1996 Kan. Ct. R. Annot. 350), and Supreme Court Rule 207 (1996 Kan. Ct. R. Annot. 205). A hearing before the panel of the Kansas Board for Discipline of Attorneys was held March 11, 1997. The Disciplinary Administrator appeared by Marty M. Snyder, deputy disciplinary administrator. Respondent appeared in person. The panel, based on clear and convincing evidence, made the following findings of fact: “In Case No. A6407, Complainant, Dorothy Witherspoon, retained Mr. Mitchell in September, 1994 to provide documents that would convey a life estate in real property to herself and Mr. Luther Taplin with a remainder interest to Mr. Taplin’s niece, Maretta McKellop. Respondent received $466.50 from Ms. Witherspoon ($66.50 for filing fees and the rest for attorneys fees), but before he accomplished the conveyance, Mr. Taplin died. His niece claimed ownership of the property. Respondent filed suit and the issue of ownership was set for hearing. Motions were filed and also set for hearing. Suffering from drug and alcohol addiction, Respondent did not advise Ms. Witherspoon of the hearing dates and did not copy her on the pleadings he filed. When Complainant failed to file an accounting as the court required, she was found in contempt. Ms. Witherspoon was not advised of this occurrence either. She fired him but never received a refund of the fee. “3. Case No. A6537 arose from sexual harassment (comments and phone calls) Respondent made to Ms. Denise Brooks in late 1995 and early 1996. Respondent admitted to the Panel that he was under the influence of alcohol and drugs and cannot clearly remember all of his actions. Case No. A6600 involves Respondent’s arrest, conviction, parole violation and- incarceration for the offense of Driving Under the Influence; these events occurred in early 1996. “4. Case No. A6665 concerns Respondent’s representation of Barney Tucker in November, 1995. Mr. Tucker received a speeding ticket and Respondent agreed to request a trial date for Mr. Tucker. Unfortunately Mr. Tucker never heard from Respondent and his drivers license was suspended in March 1996 for failure to appear at trial. Mr. Tucker paid Respondent a total of $232 to handle the defense. [Respondent] has not answered the disciplinary investigator’s requests for information about this matter. “5. The next complaint (Case No. A6667) was filed by Mr. Mohammed Said Khalid after he retained Respondent to represent him in a traffic case. Mr. Mitchell failed to appear at the January 22,1996 hearing on Mr. Khalid’s traffic citations and Mr. Khalid had to pay the traffic fines. This was after Mr. Khalid had already paid Mr. Mitchell $350.00 for representation. Mr. Mitchell did not respond to the Disciplinary investigator with regard to this complaint either. “6. Another traffic matter (Case No. A6739) concerned Francoise Brodier who paid Respondent a $500 retainer to represent her. After entering his appearance and getting trial dates, Mr. Mitchell failed to tell his client of the court dates. He also failed to appear in court on her behalf on the scheduled dates. Respondent kept the entire $500 retainer. Ms. Brodier has filed a claim with the Lawyers Fund for Client Protection (Exhibit P) for reimbursement of the $500 fee. “7. The last complaint (Case No. A6857) was reported to Chief Deputy Disciplinary Administrator Stan Hazlett by Judge Janet L. Arndt, Municipal Court Judge, Wichita, Kansas. In answer to Mr. Hazlett’s letter dated November 14, 1996, she explained that Mr. Mitchell continued to abuse alcohol and drugs as evidenced by an incident of disorderly conduct at the Wichita Airport in October 1996. This incident violated Mr. Mitchell’s supervised probation that required his abstinence from alcohol and controlled substances. As a result, the Supreme Court of Kansas suspended Mr. Mitchell's license to practice law. [In re Mitchell, 260 Kan. 560 (1996)].” The panel concluded that “Respondent violated MRPC 1.2 ánd 1.3 in his representation of Ms. Brodier (Case A6739). He failed to inform her of the trial dates and consult her about the defense. Similar conduct of Respondent supports this Panel’s finding that Respondent violated MRPC 1.3 (not acting with reasonable diligence and prompt ness) in representing Ms. Witherspoon (Case No. A6407), and Mr. Tucker (Case No. A6665), and Mr. Khalid (Case No. A6667). In these four (4) cases Respondent violated MRPC 1.4 by failing to keep his clients reasonably informed about the status of their cases, including trial dates, and by failing to advise them of his own circumstances to the extent necessary to enable them to make informed decisions. “The evidence in Case No. A6739 supports the finding that Resppndent violated MRPC 1.5 in accepting a $500 retainer from Ms. Brodier and then neglecting to act on her behalf once the trial date was set. “Clear and convincing evidence also supports the Panel’s finding that Respondent violated MRPC 1.15 (Case Nos. A6704 and A6739) by failing to keep the fees separate from his personal account and to return the unused portions promptly. Respondent’s conduct in those same two cases also violates MRPC 1.16 as the evidence clearly and convincingly supports the Panel’s finding that Respondent continued to represent these clients despite his physical and mental condition which materially impaired his ability to act as their lawyer. “His conduct in Case No. A6739 (re Ms. Brodier) violated MRPC 3.2 in that he failed to make reasonable efforts to expedite the litigation. “Respondent violated MRPC 3.3 when he failed to appear at the November 13,1996 docket in Wichita, Kansas (Case No. A6857). He had been arrested on the charge of disorderly conduct and released on his own recognizance provided he appear before the Court on November 13, 1996. When he missed die court date, Judge Arndt ordered him arrested and jailed. This incarceration further frustrated his ability to represent or withdraw his representation of his clients. “The disorderly conduct charge stemmed from his intoxicatidn which violated MRPC 3.4(c): Respondent violated the Supreme Court’s condition of probation by not abstaining from alcohol (Case No. A6857). He also violated MRPC 3.4(c) in Case A6660 when he left Behavior Consultants, Inc., a treatment facility, contrary to Judge Arndt’s condition of probation in his DUI conviction. “His failure to respond to the disciplinary investigator in Case Nos. A6665 (Mr. Tucker) and A6667 (Mr. Khalid) violated MRPC 8.1 and Supreme Court Rule 207. “The totality of the circumstances surrounding Respondent’s conduct in these seven (7) complaints is clear and convincing evidence that he violated MRPC 8.4(g). His actions that adversely reflect on his fitness to practice law include his addiction to alcohol and drugs, his harassment of Ms. Brooks, numerous absences at scheduled hearings for his clients and himself, failure to follow the conditions of his probation, and his arrest and incarceration for disorderly conduct.” The panel, after applying the ABA standards on aggravation and mitigation, recommended that respondent be indefinitely suspended from the practice of law, which “should run concurrently with the one (1) year suspension ordered by the Supreme Court effective July 12, 1996.” The panel further recommended that re spondent be required to pay the costs of these proceedings and restitution to “Dorothy Witherspoon ($400.00 in Case No. A6407), to Maeola Tucker, widow of Barney Tucker ($289.00 in Case No. A6665), $350.00 to Mr. Mohammed Said Khalid (Case No. A6667), to the Kansas Lawyers’ Fund for Client Protection for its payment to Ms. Brodier ($500.00 in Case No. A6739) and to the Wichita Municipal Court for the amount of fines or penalties assessed in Case No. 96-CO103191.” The Disciplinary Administrator recommended that respondent be disbarred. Respondent filed no exceptions to the report and recommendations of the panel and failed to appear before this court. A majority of the court concurs in the findings, report, and recommendations of the hearing panel and finds that respondent should be indefinitely suspended from the practice of law in Kansas. However, for purposes of Supreme Court Rule 219(e) (1996 Kan. Ct. R. Annot. 234), the suspension should be effective as of the date of this order. It Is Therefore Ordered that Robert L. Mitchell be and he is hereby disciplined by indefinite suspension for his violations of the Model Rules of Professional Conduct. It Is Further Ordered that Robert L. Mitchell shall make full restitution to complainants prior to the filing of a petition pursuant to Rule 219 and that he comply with Rule 218 (1996 Kan. Ct. R. Annot. 226). It Is Further Ordered that the costs of these proceedings be assessed to respondent and that this order be published in the official Kansas Reports.	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The opinion of the court was delivered by Larson, J.: This is an appeal by a group of homeowners (Homeowners) who have sued the operator of a sand pit adjacent to their property, Associated Material & Supply Company, Inc., (Associated), for damages alleged to have been caused during floods in May and July 1993. Homeowners claimed a pile of overburden constructed by Associated diverted floodwater onto their property. The trial court granted summary judgment to Associated on the ground Homeowners had failed to obtain and identify an expert witness to establish causation. Factual statement The result we reach on the principal issues to this appeal is primarily guided by our standards of review. As such, our factual statement is based on the various affidavits, depositions, documents, and exhibits in the record and the uncontroverted facts that have evidentiary support. Homeowners own property in the Holiday Lakes and Holiday Acres subdivisions in Mulvane, Kansas. Many of the homes were built prior to 1975. Their properties lie directly west of the Arkan sas River, which flows from north to south past their homes. Their properties lie in the flood plain of the river, and many of the houses have been raised to avoid high water. Old Highway 53 runs east and west just north of their properties, and an access road, Estafan Road, runs north and south along the west side of Homeowners’ neighborhood. A wooded area lies to the west of Estafan Road. Associated purchased farmland to the immediate west of Homeowners in 1980 with the intention of establishing a sand pit op-. eration. In April 1983, Associated obtained a special use permit for the operation from the Mulvane Planning Commission and the Mulvane City Council, but never obtained any levee permit from the Kansas Board of Agriculture, Division of Water Resources (DWR) until subsequent to the July 1993 flood. Homeowners, through counsel, expressed concerns to Associated in 1984 when overburden from the sand pit operations began piling up along the east side of Associated property. Homeowners’ attorney, Robert Kaplin, warned Associated of potential flooding problems, but discussions resulted in no positive action. From 1984 through 1993, Associated piled dirt along the eastern edge of its property immediately west of the wooded area west of Homeowners’ property, forming an obstruction to the flow of water. The overburden pile ran from near the northern boundary of Associated’s property to the southern end of the sand pit lake. By 1993, the pile formed a levee 5 to 10 feet in height, nearly 100 feet wide in places, and extending approximately one quarter of a mile. Homeowners had experienced flooding in 1944, 1951, 1957, 1961, 1962, 1965, 1973, 1974, 1979, 1981, 1987, 1989, 1993, and 1995. The 1993 floods in May and July were the highest of record, although the 1979 flood during the first part of November was nearly as high. Gauge records on the Arkansas River at the Derby station (about 7 miles north of Homeowners’ properties) showed a discharge of 55,200 cubic feet per second, 94% of the FEMA 100-year frequency flood in 1979. Records of the May and July 1993 floods reported the discharge at 95% and 98%. The U.S. Corps of Engineers, using a base discharge of 76,000 cubic feet per second, reported yields of 68%, 69%, and 71% of a 100-year flood for the flooding of 1979, May 1993, and July 1993, respectively. In 1979, Homeowners sustained no flood damages; however, in 1993 major damage was sustained. Homeowners assert that the only topographical change during the intervening years was the addition of the levee. Associated pointed out that landowners to the north and east had built a dike along the eastern edge of their properties, but the effect of this structure is unclear. During the May 1993 flood, water began flowing from the north over Highway 53 north of Homeowners’ properties and through the northeast comer of Associated’s property. On May 9, 1993, Associated employees piled dirt into an entrance road at that corner to slow down the water, prevent the road from washing out, and prevent water from entering the property. This dirt bridged a gap between the levee and higher ground to the north. The road, however, did eventually wash out, and some of Associated’s property was damaged. On July 15, 1993, when the area was starting to flood again, Associated employee Harry McWithey began building onto the levee near the entrance of the sand pit at the northeast comer. Also on that date, Associated’s general manager, Marvin Bedigrew, created a dike at the south end of the levee that was 50 to 75 feet long and 3 feet high. The dike was intended to block water that was backing up from the south. The following day, July 16,1993, water came over the top of the dike running along the southerly edge of the property, and Bedigrew built another dike further north which was as high as the levee and about 100 feet long. Water came over the top of this dike in the afternoon of the 16th. Water never came over the top of the levee. On either the morning of the 15th or the 16th, one of the Homeowners, Lisa McDonald, called Nadine Stannard, owner of Associated, and asked her to order her employees not to build a dike at the sand pit entrance. Stannard replied, “My business is my responsibility, not the concern of the residents of the area.” McDonald told Stannard that the residents would force her to take down the levee. Around noon of that day, the Sumner County Sheriff arrived at the site and ordered Associated to shorten the north end of the levee. A 20- to 40-foot hole was cut at the north end of the levee. On July 20, 1993, two additional cuts were made in the levee to allow water to escape. These cuts were made at the request of the DWR. Associated’s engineer, Michael Berry, testified the DWR believed breaching the levee would make the water go down in the residential area to the east. After the July 20,1993, cuts were made, Bedigrew noticed water flowing through the cuts from out of Homeowners’ neighborhood. Residents of the neighborhood who are not plaintiffs noticed holes in the levees and dikes and testified that the water line dropped considerably when the north hole was made. Plaintiff Melody Street testified that when the cuts were made, the direction of the water suddenly changed, and the water quickly went down, leaving fish jumping on Estafan Road. Plaintiff Mark Moore observed that the breaches made in the levee did not even go to the ground level. On July 15, 1993, Fred Foshag, an inspector from the DWR, arrived to investigate the flooding. Foshag made a number of observations of the impact of the levee during a 2-day on-site inspection. His field report stated: “[M]y observations of the flow from the river and through the development confirmed the levee obstructs the flow and appears to aggravate flooding. It appeared that the southwest flow splits at the levee near the road in the center of the development with a portion flowing north. Floodwater then fills the sand pits before continuing to the south and west.” Foshag also indicated: “[I]t was noted that they could flood with or without the sand plant’s levee. It was also noted that it appeared that the sand plant could have a levee approved, but it appeared that the existing structure may have to be modified to be acceptable and not make flooding any worse than if it was not there.” Foshag again visited the site on July 21, 1993, and observed: “[Fjloodwater flowing through the development was encountering the levee, and most was being diverted south. Some was still being forced around the north end, and some water was flowing west through the northern-most cut.” Associated was informed by Foshag that its levee needed a permit, and it quickly began the application process. The DWR eventually granted the permit; however, the permit did not allow the northern or southern wings running west that had been added to the levee during the floods. The DWR’s assessment in granting the permit only evaluated the impact of the levee on the overall flood plain to ensure that it did not raise the water level of a 100-year flood more than 1 foot, yet the DWR did have some concerns regarding local drainage problems. The permit does not authorize any injury to private property. In September 1994, Homeowners sued Associated for damages to their property from the 1993 floods, alleging the levee was the proximate cause of their damages. Homeowners also requested injunctive relief for the removal or modification of the levee. In July 1995, Homeowners moved to amend their pleading to include a claim for punitive damages. Homeowners claimed that Associated acted willfully or wantonly because it proceeded to construct and make additions to its levee with knowledge of the danger to Homeowners’ properties. At a hearing on this motion, the trial court ruled there was no showing that Associated had knowledge that its levee would cause substantial harm to anyone else, and Homeowners’ request to add a claim of punitive damages was denied. The trial was scheduled for October 10,1995. Associated moved for summary judgment on September 21, and its appendix in support of the motion was filed 3 days later. A hearing was scheduled for October 3, 1995. Although not required to file a response by this time, Homeowners did so the day prior to the hearing. After the hearing, the trial court concluded Homeowners had not set forth sufficient evidence from their lay witnesses to establish causation. The trial court ruled that “plaintiffs had listed no expert witness and (as of the time of the filing of the motion for summary judgment) have provided no expert reports.” The court went on to decide: 'Where dynamics of floodwaters are involved, expert testimony is required to bridge the gap between these observations and an opinion on causation.” The court relied upon Johnson v. Board of Pratt County Comm’rs, 259 Kan. 305, 913 P.2d 119 (1996), and Kemna v. Kansas Dept. of Transportation, 19 Kan. App. 2d 846, 877 P.2d 462 (1994), and indicated that in both of these cases, the plaintiffs had expert witnesses to prove causation. The court further rejected Homeowners’ flood comparison data to prove causation, declaring the conditions of the different floods to be dissimilar and pointing out that Homeowners had no expert to lay the requisite foundation. The court also stated that Foshag’s report had been withheld and refused to allow him to testify as Homeowners’ expert. Homeowners were permitted to file a motion for reconsideration, which was subsequently denied. Homeowners’ appeal was transferred to us, pursuant to K.S.A. 20-3018(c). Issues raised In appealing the grant of summary judgment and the refusal to allow a claim of punitive damages, Homeowners raise the following four issues: (1) Did the trial court improperly hold that Homeowners could prove damage causation only through expert testimony? (2) Was it improper for Associated’s experts to testify to conclusions not set forth in their reports? (3) Did the trial court improperly rule that Fred Foshag would not be allowed to give testimony regarding his observations and opinions? and (4) Did the trial court erroneously deny Homeowners’ motion to amend their pleadings to claim punitive damages? Summary judgment — standard of review The underlying basis for our decision is grounded in our scope of review of grants of summary judgment, which is set forth in Seabourn v. Coronado Area Council, B.S.A., 257 Kan. 178, 188-89, 891 P.2d 385 (1995): “ ‘A motion for summary judgment [under the provisions of K.S.A. 60-256(c)] is to be sustained only where the record conclusively shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In considering such a motion the movant’s adversary is entitled to the benefit of all reasonable inferences and doubts that may be drawn from the facts under consideration. Where the facts presented in the motion are subject to conflicting interpretations or reasonable persons might differ as to their signifi canee, summary judgment is improper. It is only when it can be said that reasonable persons could reach but one conclusion from the same evidence that an issue may be decided as one of law. Summary judgment should never be granted merely because the court may believe movant will prevail if the action is tried on the merits.’ [Citation omitted.] “When the issue on appeal is whether the trial court correctly granted a summary judgment, an appellate court should read the record in the light most favorable to the party against whom summary judgment was entered. It should take such party’s allegations as true, and it should give that party the benefit of the doubt when its assertions conflict with those of the movant. Factual inferences tending to show triable issues must be considered in the light most favorable to the existence of those issues. If there is a reasonable doubt as to the existence of fact, a motion for summary judgment will not he. Moreover, pleadings and documentary evidence must be given a liberal construction in favor of the party against whom the motion is directed.” See McGee v. Chalfant, 248 Kan. 434, 437, 806 P.2d 980 (1991); Patterson v. Brouhard, 246 Kan. 700, 702-03, 792 P.2d 983 (1990). Did the trial court improperly hold that Homeowners could prove damage causation only through expert testimony? Associated argued in its motion for summary judgment that where the existence of proximate cause is not apparent to the average layman from common knowledge, expert testimony is required to establish causation, citing McKee v. City of Pleasanton, 242 Kan. 649, 750 P.2d 1007 (1988), and Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 756 P.2d 416 (1988). The decisions in these cases do not support such a broad statement. The holding of McKee is that “[architectural standards and practices are, in most instances, sufficiently technical to require the use of expert testimony to establish negligence or lack of reasonable care on the part of an architect.” 242 Kan. 649, Syl. ¶ 3. Bacon is comparable in its holding relating to a medical malpractice case and similarly states: “Except where the lack of reasonable care or the existence of proximate cause is apparent to the average layman from common knowledge or experience, expert testimony is required in medical malpractice cases to establish the accepted standard of care and to prove causation.” 243 Kan. 303, Syl. ¶ 2. Clearly, both cases only stand for the proposition that when plaintiffs are attempting to establish negligence based upon a departure from the reasonable standard of care in a particular profession, expert testimony is required to establish such a departure. When comparing the medical or architectural malpractice cases to the present case in its motion for summary judgment, Associated repeatedly asserted that negligence “includes causation.” However, negligence in this sense is a breach of a duty of care. Obviously, to recover in an action for negligence, causation and damages must also be proven. However, it is incorrect to state that a finding of negligence includes causation, as a person may be negligent but fail to cause any damages, in which case the negligence is not actionable. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983), disapproved on other grounds Boulanger v. Pol, 258 Kan. 289, 900 P.2d 823 (1995). Associated’s reliance upon McKee and Bacon is misplaced. Holdings of an expert testimony requirement outside the area of professional liability, where breach of a standard of care must be proven, are not easily found. We recently addressed a similar issue in Sterba v. Jay, 249 Kan. 270, 283, 816 P.2d 379 (1991), a motor vehicle/pedestrian accident case where the Manual on Uniform Traffic Control Devices was used to establish a standard of care. The Sterba court stated: “The basis for the admission of expert testimony is necessity arising out of the particular circumstances of the case. Where the normal experience and qualifications of jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are not necessary.” 249 Kan. at 283. We concluded in Sterba that the juiy did not need the assistance of an expert to evaluate whether a duty clearly defined in the manual had been breached. Many of the cases discussing expert testimony deal with a trial court’s admission or refusal to admit expert testimony into evidence. See, e.g., Simon v. Simon, 260 Kan. 731, 735, 924 P.2d 1255 (1996); Falls v. Scott, 249 Kan. 54, 63, 815 P.2d 1104 (1991). The evidentiary issue of whether the trial court abused its discretion in refusing to admit, expert testimony is a different inquiry and should be distinguished from the issue of whether a defendant is entitled to summary judgment if a plaintiff fails to provide adequate expert testimony, where considerable direct evidence bears upon the precise issue to be proven. Although expert witnesses may be permitted in some cases to testify on the basis of necessity, this does not necessarily mean that an expert would be required. In considering the necessity for proving matters through expert testimony, 31A Am. Jur. 2d, Expert and Opinion Evidence § 40, p. 49 states: “While the testimony of witnesses having specialized education and training, or special experience and knowledge, is often admitted into evidence on the ground of necessity, a party is not necessarily required to resort to expert opinion testimony merely because the case involves matters of science, special skill, special learning, knowledge, or experience which may be difficult for jurors to comprehend.” Additionally, in discussing whether a nonexpert may express an opinion on causation, 31A Am. Jur. 2d, Expert and Opinion Evidence § 344, pp. 344-45 reports: “However, where a nonexpert witness is particularly acquainted with the matter to which the cause of an occurrence or condition relates, and that matter cannot be fully reproduced and made intelligible to the jury except by the expression of an opinion interpreting the impression made on the mind of the witness, then such an opinion is admissible, provided the witness knows the facts personally and first testifies to the facts on which the opinion is based.” Many of the cases Associated has claimed establish that expert testimony is required to prove causation in flood damage cases merely hold that a nonéxpert may not state an opinion, not that a jury cannot arrive at a decision in a flood case based solely upon nonexpert testimony, with no expert opinions. This is again different from holding that a nonexpert’s testimony may not be used to prove causation. We briefly address several of these cases Associated has cited. The court in Grace v. Union Electric Co., 239 Mo. App. 1210, 200 S.W.2d 364 (1947), struck the opinion of a nonexpert, holding that the exception to the rule barring nonexpert opinions, where nonexperts can give an opinion when they have personally observed the matter and cannot adequately recite the data to put the jury in an equal place with the observer, did not apply. This was because a dam, alleged to have caused the overflow, was 95 miles from the point of observation, and the witness made the observations 40 or 50 miles downstream from the plaintiff’s farm. It is significant that after omitting the improper expert opinion, the Grace court, despite the lack of direct evidence of causation, concluded that the jury could have inferred from the evidence presented that the dam did cause water to back onto plaintiff’s property. The court declared: “Plaintiff is entitled to all reasonable inferences which may be drawn from all the evidence when the question of whether he made a submissible case is raised by motion.” 239 Mo. App. 1225. Jones v. Railway Co., 67 S.C. 181, 45 S.E. 188 (1903), reached a similar conclusion regarding the propriety of a nonexpert giving an opinion. It held it was proper to exclude the opinion of a witness who had no special knowledge of the effect of obstructions upon waters and also lacked familiarity with the river at the bridge, although the witness was permitted to testify regarding his own observations. The Jones court affirmed a judgment in favor of the plaintiffs, which was rendered despite the lack of expert testimony. Cane Creek Coal Mining Co. v. Braden, 25 Ala. App. 256,144 So. 143 (1932), similarly decided that nonexperts could testify as to their observations but not give opinions, which were the province of the jury to determine. This case also affirmed the judgment for the plaintiff. Wibaux Realty Co. v. Northern Pac. Ry. Co., 101 Mont. 126, 54 P.2d 1175 (1935), held that nonexperts are restricted to reciting facts and must leave the drawing of conclusions to the jury. Southern Indiana Power Co. v. Miller, 185 Ind. 35, 111 N.E. 925 (1916), indicated that it was error to allow a witness to offer an opinion when the witness was not qualified and the jury was capable of forming its own opinion from the facts. In Meeker v. City of Clinton, 259 N.W.2d 822 (Iowa 1977), the court rejected the opinions of two nonexperts on the grounds they had not observed the flood they sought to testify about. The implication is that their testimony would have been admissible and material to causation had they actually observed the flood’s alleged cause. Again, this is distinguishable from the proposition that expert testimony is required to establish causation. G. C. & S. F. Ry. Co. v. Hepner, 83 Tex. 136, 18 S.W. 441 (1892), held that witnesses who were not sufficiently knowledgeable about a river could not give an opinion as to the cause of an overflow. The court distinguished this case from one where a plaintiff was permitted to establish the cause of an overflow through several witnesses who had lived for many years along the river and were familiar with the usual rainfall. Two more cases, Page et al., Exrs., Aplnts., v. Pittsburgh, 313 Pa. 211, 169 A. 104 (1933), and O. & M. Ry. Co. v. Webb, 142 Ill. 404, 32 N.E. 527 (1892), simply decided it was not error to allow an expert to testify. Turning to Kansas cases, in Ball v. Hardesty, 38 Kan. 540, 16 Pac. 808 (1888), our court determined the defendant’s expert testimony was competent to establish causation. There is an implication in this case that although the lay witnesses may have been able to testify that the water appeared to be backwater, a careful study and examination of the stream and its currents would be required to tell what caused the backwater. 38 Kan. at 542-43. However, this case does not answer the question of whether a court should sustain summary judgment if the plaintiffs failed to present expert testimony on causation. Although Ball may provide limited support to Associated’s position, a later Kansas case seems to clearly support the arguments of Homeowners. In Arnold v. Milling Co., 93 Kan. 54, 143 Pac. 413 (1914), this court discussed a case where the plaintiff was attempting to recover flood damages from the owner of a dam, located one and three-quarters of a mile south of his property. However, a mile north of the dam, a railroad company had constructed a bridge. The trial court concluded there was evidence that the bridge had contributed to the flood, but none that the dam had. We affirmed, declaring: “The fact that the water was from three to four feet higher above than below the bridge, and some of the witnesses placed it still higher, makes it clear that it was the obstruction at the bridge rather than the dam which caused the overflow of appellant’s land. When a break was made in the obstruction at the bridge there was a perceptible lowering of the water, and the appellant had demonstrated by his proof that if the obstruction had been removed and the water permitted to flow on unimpeded to and over the dam his land would not have been flooded. The detention of the water at the dam may have resulted in flooding other lands between the dam and the bridge; but since the water held back by the dam was about four feet lower than that above the railway obstruction, which was much lower than the water on appellant’s land was deep, it is self-evident that the overflow on appellant’s land was the result of the upper instead of the lower obstruction.” 93 Kan. at 58-59. The Arnold case provides strong support for the self-evident nature of Homeowners’ testimony in this case. Evidence clearly exists to show that Associated’s levee impeded the flow of water, that water flowed through the breaches in the levee, and that witnesses saw the water level on Homeowners’ properties lower perceptively after the levee was breached, all of which appears to make it self-evident that the levee caused or contributed to the flooding. Where the causal nature of an action is self-evident, an expert is not required in order to submit a matter for decision to a jury, regardless of the existence of other complicating factors. The authorities presented by Homeowners to support their assertion that expert testimony is not required to prove causation are more persuasive than those cited to the contrary. Homeowners first cite County of Nueces v. Floyd, 609 S.W.2d 271 (Tex. Civ. App. 1980), which the trial court distinguished on the grounds that in Nueces there were not multiple causes of the flooding as in the present case. The trial court did, however, quote the following statement from Nueces: “A lay person may testify as to conditions which he observed on the land itself, and may testify as to the path water takes in its flow, and may testify to other facts relating to flooding when such facts are visible to him.” 609 S.W.2d at 276. The Nueces court stated that photographs of the land, testimony from the county engineer as to velocity and volume changes, the testimony of four witnesses concerning the actual flow of the water, and the physical changes in the natural flow of the water amply supported die jury’s verdict. This case clearly upholds the proposition that observations of lay witnesses can provide sufficient evidence of causation to allow the issue to go before the jury. The court in Kennedy v. Union Electric Co. of Missouri, 358 Mo. 504, 216 S.W.2d 756 (1948), held that the cause of flooding could be established through circumstantial evidence. Particularly comparable with the Homeowners’ case is the fact that the Kennedy court mentions that before the dam was built, the overflow had never been high enough to touch the plaintiff’s building. The court pointed out that the height of the water during this flood must have been due either to unprecedented rains or to conditions created by the dam, and held the plaintiffs made a jury question as to the latter theory. 358 Mo. at 517. In City of Austin v. Howard, 158 S.W. 2d 556, 564 (Tex. Civ. App. 1942), the court stated: “In the instant case the witness, who had observed several floods in this area, including that of 1938, and, as we understand it, had observed the flow of the waters as they struck the point of the levee, testified that, in his opinion, the levee caused the waters to flow across Howard’s land. We doubt whether this even constituted an expression of opinion. Where a physical object in the flow of a stream and the action of the water as it reaches and passes it are clearly visible, the action of the object in diverting the flow of the water is a common observation and may be stated as a fact by a non-expert witness. It requires no expert skill to determine such fact.” Other cases cited by Homeowners also establish that witnesses who have long been familiar with the flooding patterns of an area are competent to form an opinion as to the cause of flooding. See Madisonville, H. & E. R. Co. v. Renfro, 127 S.W. 508, 510 (Ky. App. 1910) (Nonexpert witnesses were competent to show that the erection of an embankment and the failure to provide sufficient outlets for the water caused the damage to the crops.); Standley v. Atchison, T. & S. F. Ry. Co., 121 Mo. App. 537, 97 S.W. 244 (1906) (Nonexpert witness, living in the vicinity of land overflowed by the construction of a railroad bridge over a stream, may testify that in his opinion the channel was not wide enough in ordinary high water, and that the water was nearly three feet higher above than below the bridge.); Covert v. Railway Company, 85 W. Va. 64, 66, 100 S.E. 854 (1919) (Witnesses who were residents of the village and acquainted with the conditions before and after the fill was made were competent to form and give opinions that the obstruction caused plaintiff’s damages.). The trial court relied upon Johnson v. Board of Pratt County Comm’rs, 259 Kan. 305, 913 P.2d 119 (1996), and Kemna v. Kansas Dept. of Transportation, 19 Kan. App. 2d 846, 877 P.2d 462 (1994), in its opinion, stating: “In both cases, the plaintiffs had an expert witness to prove causation.” Neither case, however, holds that expert testimony is required to establish causation; nor does either case indicate that the expert testimony actually established causation. Rather, the expert testimony appears to have been introduced to prove that a duty to the plaintiff had been breached. Actually, our holding in Johnson further lends credence to Homeowners’ action. In Johnson, we reversed the grant of summary judgment by the trial court, concluding that factual matters needed to be determined, and opined: “We have stated that one who installs a bridge owes a duty not to change the channel or stream of the natural watercourse in ways that will cause substantial injury to downstream riparian owners. The trier of fact in the present case must determine what is to be considered the natural watercourse: the river, as altered by the old bridge, or the river, without regard to the presence of any bridge. As discussed previously, there remain material issues of fact as to whether the John-sons have any prescriptive rights to the condition of the river as it existed with the old bridge. The trier of fact must then find whether the new bridge changed the channel or stream, causing substantial injury to the Johnsons’ properties. If substantial injury is found, then the nature (permanent of temporary) and extent of the damages and relief (monetary, injunctive, or both) to which the Johnsons may be entitled must be determined.” 259 Kan. at 330. The Johnson case is commented on in a recent article in the Kansas Bar Journal by Robert W. Coykendall, entitled Too Much of a Good Thing: Kansas Law on Unwanted Water. Coykendall reviews historical development of this area of the law, and in a section discussing the “Tort Rules Governing Water Diversion,” the author states: “It would appear that virtually any change in the flow of water that causes substantial injury to another landowner could give rise to a tort claim. Most changes in land use that causes water to flow or remain upon the land of another involve some action that could be construed as gathering and diverting surface water, or projecting water upon another, or accumulating surface water and causing it to be cast in volume upon the land of others, or damming or altering of natural water flow, or accelerating the flow of water or increase the drainage of lands. Any of these acts, if it damages another’s land likely would give rise to a tort claim.” 66 J.K.B.A. 7, 28 (Sept. 1997). In our case, there is considerable evidence concerning not only the piling of the overburden, but also the actual construction of barriers by Associated during the course of both floods. As in Johnson, the trier of facts should properly consider such evidence and determine whether these structures caused the alleged damages to the property owners. After our examination of all of the authorities cited, we are not prepared to approve a rule that expert testimony is required in this instance to prove causation. Sufficient evidence exists from Homeowners’ observations, the testimony of Associated’s own employees, and the observations and opinions of the DWR inspector to raise a factual question as to whether the overburden pile and dikes constructed by Associated affected the surface flow of the water. When we test such evidence as we are required to do under a request for summary judgment, we hold the evidence is sufficient to submit the issue to a juiy. Associated argues that notwithstanding the trial court’s order concerning the necessity of expert testimony, the findings of uncontroverted facts provide an adequate basis for the court’s ruling. However, Homeowners presented many additional facts in opposition to Associated’s motion, though many of those facts were controverted. It is clear that these controverted facts remain to be determined, and the case should not be decided merely on the remaining uncontroverted facts. Evidence proffered by Homeowners to establish damage causation includes the following facts: Associated’s engineer, Michael Berry, understood the water was higher on one side of the levee than the other, which he said would mean the levee had the effect of stopping some water and had altered the surface flow of the water. Associated employee Bedigrew admitted seeing water flowing from the east to tire west once the levee was breached. Bedigrew further acknowledged that the levee and its additions stopped the flow of water onto Associated’s property. Associated employee Hollingshed admitted that if the dirt had not blocked the flow of water, it would have flowed west onto Associated’s property. Nadine Stannard recognized that if the levee had not been in place, water would have flowed over Associated’s property. Additionally, one of Associated’s experts admitted that his studies did not indicate what the effect would have been on local flooding if the water had been permitted to spread out across Associated’s property as it had before the levee was built. Homeowners also presented further evidence bearing on causation. The DWR issued reports and press releases stating that the levee appeared to obstruct the flow of the water. Foshag believed that the levee aggravated local flooding. There exists evidence that the DWR ordered breaches in the levee to relieve local flooding. Although the DWR estimated that the levee would not raise the level of the flood plain higher than one foot when it granted the levee permit, it had concerns that the levee could still have an impact on local drainage. Additionally, the DWR refused to authorize the levee as it existed during the floods of 1993. Furthermore, numerous Homeowners indicated that the water flowed differently in 1993 than in prior floods. Evidence was presented that the water flowed back east rather than west, as it had previously done, because there was nowhere for the water to go. Several Homeowners observed the water recede significantly after breaches were made in the levee. Homeowners are entitled to testify as to their own observations, and the jury is capable of sorting out whether their observations correspond to the time when cuts were made in Associated’s levee. Contrary to the trial court’s holding, these are exactly the type of factual determinations that juries are entitled to make. Additional evidence establishing causation includes the data comparison of prior floods. This data need not have been presented by an expert, and a jury is capable of understanding it without an expert’s interpretation. Discounting the flood comparison data on the grounds that other factors make the floods dissimilar is not justified on summary judgment. Evidence was in the record that conditions of the area had not changed significantly, with the exception of Associated’s levee, and the possible differences mentioned by the court do not appear to be supported by the entire record. Although experts who are properly qualified certainly may opine about the dissimilarities in the conditions, these are all matters which are within the common knowledge and understanding of a juror. Viewing all the evidence as we are required to do when summary judgment is contested, we hold that summary judgment was improper in this instance. Was it improper for Associated’s experts to testify to conclusions not set forth in their reports? This issue is not significant in light of our previous discussion and holding. Additionally, this is not a case such as Mays v. Ciba-Geigy Corp., 233 Kan. 38, 45, 661 P. 2d 348 (1983), where a later affidavit impeached prior testimony. Experts can issue supplemental reports up to the time of trial, and these are issues which the trial court has discretion to determine prior to and upon the trial of this case. Did the trial court improperly rule that Fred Foshag would not be allowed to give testimony regarding his observations and opinions? The trial court rejected the use of Foshag’s testimony to prove causation, stating: “To allow the plaintiffs to name an expert at this point would unfairly prejudice the defendant. ... In fact, the plaintiffs withheld Foshag’s report from the defendant under a claim of work product. The report was not provided until September 22, 1995, 18 days before trial was to commence. In their reply pursuant to the motion for punitive damages, plaintiffs state that ‘[t]he engineers for the DWR never expressed an opinion about whether the levee made a difference in the elevation of the floodwaters around the properties of the homeowners.’ The plaintiffs should not be allowed to change their position on the eve of trial.” Homeowners contend that Foshag need not have been listed as an expert in order to express an admissible opinion as to causation and that admission of his opinions would not prejudice Associated. It is well established that the admission of evidence and the admissibility of expert testimony are matters within the broad discretion of the trial court, Simon v. Simon, 260 Kan. 731, 735, 924 P.2d 1255 (1996), and that the standard of review on such questions is an abuse of discretion. Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973). However, there is absolutely no support in the record that Homeowners withheld Foshag’s reports under a claim of work product, nor did Associated cite to any evidence of this when it argued the matter to the trial court. Allowing Foshag to testify as to his observations and opinions incidental to his duties would not in any way prejudice Associated. Foshag was listed as a witness on Homeowners’ witness list and Associated had been aware of Foshag since his inspection during the July 1993 flood. Foshag’s observations were made known to Associated’s engineer, Michael Berry, and to its lawyer. Foshag advised Associated to make cuts in the levee, as it was having an adverse effect on Homeowners’ properties. He also relayed information to Berry concerning the need to apply for a permit for the levee. Foshag’s opinions were quite known to Associated, and it can hardly claim to be surprised by them. Although Homeowners admit that they never provided a report of Foshag’s opinions to Associated, they claim that Foshag is a fact witness and his opinions and reports are a matter of public record. These reports were not developed for Homeowners’ litigation purposes, but rather were developed in the course of Foshag’s employment by the DWR and were freely available to the public. As such, Foshag’s reports have no comparison to the reports of retained experts and are more similar to accident reports prepared by police officers. Such reports should not be suppressed simply because Associated never obtained copies. We addressed a similar issue in Thompson v. KFB Ins. Co., 252 Kan. 1010, 1026-27, 850 P.2d 773 (1993), where we held that a “person expected to be called as an expert witness” is typically a consultant whose connection with the case began during trial preparation rather than with the events upon which a plaintiff’s claim is based. In deciding that the testimony of a treating physician had not been improperly admitted, we discussed West v. Martin, 11 Kan. App. 2d 55, 58, 713 P.2d 957, rev. denied 239 Kan. 695 (1986), where the Court of Appeals ruled that the trial court had abused its discretion in refusing to allow the plaintiff’s treating physician to express an expert opinion. In Thompson, we further stated that K.S.A. 60-456(a) permits opinion testimony by witnesses not testifying as experts if such opinions are incidental to their actual knowledge of the facts and circumstances of the case. 252 Kan. at 1027. In the present case, Foshag’s opinions would be incidental to his involvement and knowledge of the case. Such opinions are incident to his duties as a field inspector for the DWR and a part and parcel of his recommendations and reports to the DWR. Foshag should be permitted to testify about his observations and actions regarding the flood, and some of these actions would make little sense if his opinions were excluded. Associated and the trial court quoted a portion of Homeowners’ reply to Associated’s response to their motion to file an amended pleading in order to assert that Homeowners had led Associated to believe that they would not rely upon Foshag’s reports to establish causation. This statement was taken out of context. The actual statement was in the midst of discussing why the issuance of a permit for the levee by the DWR did not establish that the levee could not have caused Homeowners’ damages. The statement simply argued that when the DWR granted the permit, it had concluded that the levee did not have a significant effect on the entire flood plain, not that it would not cause local flooding. Foshag appears to have relevant observations, and simply because he has special knowledge and expertise by which he is capable of rendering opinions does not mean that he must be listed as an expert in order to express them in conjunction with his duties by the DWR. It was clearly an abuse of discretion for the trial court to conclude that Foshag’s testimony and opinions were not admissible. Did the trial court erroneously deny Homeowners’ motion to amend their pleading to claim punitive damages? We are faced with an entirely different standard of review when examining the trial court’s denial of Homeowners’ request to claim punitive damages. The provisions relating to the claims for punitive damages are set forth in K.S.A. 60-3701, K.S.A. 60-3702, and K.S.A. 60-3703. K.S.A. 60-3701 provides in part that “the trier of fact shall determine, concurrent with all other issues presented, whether such [punitive] damages shall be allowed.” The determination by the trial court is made pursuant to K.S.A. 60-3703, which in applicable part states: “The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim pursuant to K.S.A. 60-209, and amendments thereto.” In considering the issue of whether there is a “probability” that plaintiff will prevail, we stated in Fusaro v. First Family Mtg. Corp., 257 Kan. 794, Syl. ¶ 2, 897 P.2d 123 (1995): “Probability is a term familiar to tort law. It means more likely than not and, when applied to K.S.A. 60-3703, means that it is more likely than not that the plaintiff will prevail on a claim of punitive damages upon trial of the case. Because the standard of proof required in order for plaintiff to prevail on a punitive damages claim at trial is ‘clear and convincing’ evidence, the trial court exercising its statutory duties under K.S.A. 60-3703 must give consideration to this standard in determining the probability of recovery.” Fusaro further held: “The trial court is to consider the evidence presented in the opposing affidavits as well as other evidence in a light most favorable to the party moving for the amendment, and if the evidence is of sufficient caliber and quality to allow a rational factfinder to find that the defendant acted towards the plaintiff with willful conduct, wanton conduct, fraud, or malice, the trial court shall allow the amendment. This is another way of saying that amendment will be allowed when plaintiff has established that there is a probability that plaintiff will prevail on a punitive claim . . . .” 257 Kan. at 802. This is an entirely different standard for review upon appeal from that of a grant of summary judgment. In Fusaro we also declared: “Under K.S.A. 60-3703, the decision whether to permit plaintiff to amend is discretionary in that the statute provides that the court may allow the filing of an amended petition claiming punitive damages. Thus, our standard of review is one of abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only when no reasonable [person] would take the view adopted by the trial court.” ’ In re Marriage of Cray, 254 Kan. 376, 387, 867 P.2d 291 (1994) (quoting Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 [1973]).” 257 Kan. at 804. Even though the trial court is required to view the evidence as disclosed from the affidavits in the light most favorable to the party seeking amendment, we find no abuse of discretion on the trial court’s part in denying Homeowners’ attempt to claim punitive damages in this instance. The evidence Homeowners relied upon to establish Associated’s knowledge of the potential danger to Homeowners’ properties is subject to conflicting interpretations, such that it would not be likely to clearly and convincingly prove Associated acted willfully or wantonly. First, the warning letter from Homeowners’ attorney to Associated in 1984 cannot be found to directly relate to the facts which later existed. Next, Associated placed the overburden dirt in an area designated by an expert. In addition, Homeowners produced no evidence that Associated had been told a permit for its overburden pile was statutorily required. Finally, we agree the placement of the unsuccessful temporary dikes for a minimal period of time does not rise to the level of clear and convincing evidence of willful or wanton conduct. The phone call to Nadine Stannard showed her desire to protect Associated’s property, but it also is not sufficient to require submission of the issue of punitive damages to a jury. When making the determination which a trial court has discretion to make, we find the trial court was clearly within its justifiable grounds in denying the request to add a claim for punitive damages. The trial court’s denial of the motion to amend Homeowners’ pleading to include a claim of punitive damages is affirmed. The granting of the motion for summary judgment is reversed. The case is remanded for trial in accordance with this opinion. Abbott, J., not participating. E. Newton Vickers, Senior Judge, assigned.	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The opinion of the court was delivered by Six, J.: This case concerns appellate jurisdiction. K.S.A. 60-254(b), the multiple parties-multiple claims final judgment statute, is relied on by the parties as their key to appellate review. Multiple parties are not involved, thus the only question is, are there multiple claims? We say, “No” and dismiss the appeal for lack of jurisdiction. Polly Gillespie Townsend brings an interlocutory appeal. Her brother, Warren Brown Gillespie, moved for a district court division of litigation expenses incurred in their settlement and recovery of $2,250,000 in the underlying lawsuits. The law firm of Young, Bogle, McCausland, Wells & Clark, P.A., (Young, Bogle) represented both Warren and Polly in the litigation. Each sibling separately signed a contingent fee agreement with Young, Bogle. Warren advanced all litigation costs and expenses. The district court held that Polly was required to pay litigation costs and expenses, with the amount left for future determination. The journal entry contained a K.S.A. 60-254(b) “no just reason for delay” finding, but did not contain any K.S.A. 60-2102(b) interlocutory appeal findings. We ordered the parties to show cause why this appeal should not be dismissed for lack of jurisdiction as an improper ánd untimely interlocutory appeal. The case was transferred here under K.S.A. 20-3018(c) on our motion. FACTS The Gillespie litigation was the subject of three earlier appeals, Gillespie v. Seymour, 250 Kan. 123, 823 P.2d 782 (1991) (Gillespie I); 253 Kan. 169, 853 P.2d 692 (1993); and 255 Kan. 774, 877 P.2d 409 (1994). The factual background is set forth in Gillespie I, 250 Kan. at 125-29. Warren and Polly, as remainder beneficiaries, sought an accounting, including punitive damages, against the co-trustees (and others) of a trust established by their grandfather. The litigation also concerned various breach of trust allegations. The separate contingent fee agreements Polly and Warren each signed with Young, Bogle were similar, except that Polly had crossed out and initialed the phrase “but [Young, Bogle] shall be reimbursed for all out-of-pocket expenses incurred in the prosecution of said suit and claim.” Young, Bogle’s contingent fee percentage share was 45% in Warren’s agreement and 50% in Polly’s. During the litigation, Warren paid $480,521.09, the total of all litigation costs and expenses. After many appeals and a bankruptcy, the litigation was eventually setded for $2,250,000. The settlement proceeds were held in trust by Young, Bogle. The amounts not in controversy have been distributed. Polly has received $395,243, and interest, but claims she is entitled to $562,500 (50% of $1,125,000). Young, Bogle is holding the difference, $167,257, and interest, in trust. Warren claims the funds as Polly’s share of the litigation costs and expenses that he paid. Warren, by his attorneys, Young, Bogle, filed a motion under Model Rule of Professional Conduct (MRPC) 1.5(d) (1997 Kan. Ct. R. Annot. 289) requesting that the court divide the litigation expenses between himself and Polly. It appears that the motion should have referenced MRPC 1.5(e). In the motion, Warren alleged that Polly had orally agreed that she would share the litigation expenses equally with him in the event of an ultimate recovery (although she would not be responsible for any expenses if there was no recovery). The motion also identified the reasonableness of the expenses as an issue. (The record is silent on why Warren’s claim is only for $167,257, as one-half of the total expenses, $480,521.09, is $240,260.54.) Polly, represented by Morris, Laing, Evans, Brock & Kennedy, Chartered (Morris, Laing), responded, denying that she had agreed to share responsibility for any litigation expenses. Polly also argued that an MRPC 1.5(d) motion was improper for resolving this dispute. According to Polly, the controversy did not involve a fee dispute between an attorney and client, but rather an alleged oral contract between a brother and sister. Over Polly’s objection, Young, Bogle moved for, and the district court approved, withdrawal as Polly’s counsel due to a conflict of interest. Polly contended that Young, Bogle should have withdrawn from representing either party, as the firm now had a conflict of interest under MRPC 1.7 (1997 Kan. Ct. R. Annot. 297). The district court (1) withheld ruling on Polly’s motion to disqualify Young, Bogle, (2) decided that Warren’s MRPC 1.5(d) motion was proper, (3) held that the MRPC are incorporated as part of the contingent fee agreement between Polly and Young, Bogle, and (4) decided Polly was required to. pay litigation costs and expenses, which should be deducted before the contingent fee is calculated. The court did not adjudicate the reasonableness of the fees and expenses or decide what portion was Polly’s responsibility. DISCUSSION The propriety of the district court’s decision to certify under 60-254(b) is subject to appellate review. The standard of review is stated in St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc., 245 Kan. 258, 276, 777 P.2d 1259 (1989), cert. denied 493 U.S. 1036 (1990): “ ‘The court of appeals must, of course, scrutinize the district court’s evaluation of such factors as the interrelationship of the claims so as to prevent piecemeal appeals in cases which should be reviewed only as single units. But once such judicial concerns have been met, the discretionary judgment of the district court should be given substantial deference, for that cdurt is “the one most likely to be familiar with the case and with any justifiable reasons for delay.” [Citation omitted.] The reviewing court should disturb the trial court’s assessment of the equities only if it can say that the judge’s conclusion was clearly unreasonable.’ ” (Quoting Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 10, 64 L. Ed. 2d 1, 100 S. Ct. 1460 [1980], and adopting its rationale). Quoting Curtiss-Wright, 446 U.S. at 8, further, we said: “[T]he function of the district court under the Rule is to act as ‘dispatcher.’ The district court is to determine the ‘appropriate time’ when each final decision in a multiple claims action is ready for appeal. The district court’s discretion is to be exercised ‘ “in the interest of sound judicial administration.” ’ ” 245 Kan. at 276-77. K.S.A. 60-254(b) provides in part: “When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third-party claim or, when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” K.S.A. 60-254(b) is identical to Fed. R. Civ. Proc. 54(b). “Because Fed. R. Civ. Proc. 54(b) is identical to K.S.A. . . . 60-254(b), Kansas has followed the federal cases interpreting 54(b) certifications.” St. Paul Surplus Lines Ins. Co., 245 Kan. at 275. A leading text on federal procedure identifies the purposes of a 54(b) certification: “The basic purpose of Rule 54(b) is to avoid the possible injustice of a delay in entering judgment on a distinctly separate claim or as to fewer than all of the parties until the final adjudication of the entire case by making an immediate appeal available.” 10 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2654 (1983). “The rule attempts to strike a balance between the undesirability of more than one appeal in a single action and the need for making review available in multiple-party or multiple-claim situations at a time that best serves the needs of the litigants. Although it does this by empowering the court to enter a judgment before all the claims or rights of all the parties have been finally adjudicated, Ride 54(b) does not represent a departure from or an abandonment of the fundamental principle against splitting a claim and determining cases at the appellate level in piecemeal fashion.” 10 Wright, Miller & Kane, § 2654, p. 37. This dispute is between two plaintiffs over responsibility for litigation expenses incurred in their recently setded lawsuit. Warren seeks the $167,257, plus interest, now held in trust by Young, Bogle. Polly claims that same amount is wrongfully withheld from her. The district court made only a partial ruling on Warren’s motion.. The appealed order is interlocutory, governed by K.S.A. 60-2102(b), not 60-254(b). During oral argument, Polly’s counsel asserted that the K.S.A. 60-254(b) certification was proper, because if we reverse the district court, this case will be disposed of in that Warren’s motion will be denied. Young, Bogle would then turn over the withheld funds to Polly, and Warren would have to file a separate lawsuit against his sister to recover any of that money. Warren’s counsel also contends the 60-254(b) certification was proper because multiple claims and different fact situations are involved, citing St. Paul Surplus Lines Ins. Co., 245 Kan. 258; and Henderson v. Hassur, 1 Kan. App. 2d 103, 562 P.2d 108 (1977). Although neither party questions the certification, “[i]t is the duty of an appellate court on its own motion to raise the question of its jurisdiction, and when the record discloses a lack of jurisdiction it must dismiss the appeal.” Henderson, 1 Kan. App. 2d at 112. Multiple Claims Both parties contend that multiple claims are involved. The Court of Appeals quoted a multiple claims determination test in Pioneer Operations Co. v. Brandeberry, 14 Kan. App. 2d 289, 294-95, 789 P.2d 1182 (1990) (no multiple claims found; certification held improper): “ ‘In sharp contrast to determining the existence of multiple parties, the question of when a case presents multiple claims often is a difficult one.’ 10 Wright & Miller, § 2656, p. 49. ‘The fine between deciding one of several claims and deciding only part of a single claim is sometimes very obscure .... There is no generally accepted test that is used to determine whether more than one claim for relief is before the court.’ 10 Wright & Miller, § 2657, pp. 60-61. ‘Wright and Miller believe the Second Circuit has developed a workable test to determine whether multiple claims exist: “ ‘The ultimate determination of multiplicity of claims must rest in every case on whether the underlying factual bases for recovery state a number of different claims which could have been separately enforced’ [quoting Rieser v. Baltimore & Ohio R.R. Co., 224 F.2d 198, 199 (2dCir.), cert. denied 350 U.S. 1006 (1955)].” We endorse this test. See, Henderson, 1 Kan. App. 2d 103, for an extensive discussion of K.S.A. 60-254(b) certification. Warren argues there are two theories supporting his position on the merits in this matter, so we should find multiple claims. The first theory is that Polly implicitly agreed, as part of her contingent fee agreement with Young, Bogle, to bear responsibility for litigation expenses if there was a recovery. The second is that Warren and Polly had an oral agreement to share the litigation expenses in the event of a recovery. These theories arguably involve separate facts. However, two theories do not necessarily establish distinct claims. These “theories” are separate elements of Warren’s claim to the money. Warren claims the money belongs to him. Polly claims it belongs to her. If the district court ultimately decides the money (or some portion thereof) belongs to Warren, that will dispose of Polly’s claim, and vice versa. These are not multiple claims. Finality of Judgment The appealed journal entry says: “The Court further finds that this entry of judgment is an adjudication of less than all claims, that the Court makes an express determination that there is no just reason for delay, and pursuant to K.S.A. 60-254(b), hereby enters an express direction for entry of judgment that this is a matter for adjudication pursuant to K.M.R.P.C., Rule 1.5(d).” However, just above the quoted provision, the journal entry says: “The Court further finds that this ruling does not adjudicate the reasonableness of the fees and expenses nor what portion of those fees and expenses should be paid by Polly Gillespie Townsend.” The journal entry expressly provides that the issue of the reasonableness of the fees and expenses, or Polly’s share of those, remains to be determined. “Even if a section 254(b) certificate is issued, it is not binding on appeal; the trial court cannot thereby make an order final and therefore appealable, if it is not in fact final.” Elliott, Survey of Kansas Law: Civil Procedure, 27 Kan. L. Rev. 185, 194 (1979) (citing Henderson, 1 Kan. App. 2d 103). In Henderson, leaving open the issue of punitive damages prevented the judgment from being final. 1 Kan. App. 2d 103, ¶ 7. Here, leaving open three issues prevents finality of the judgment (the reasonableness of and responsibilities for the fees and expenses, the existence of an expense-sharing agreement between Warren and Polly, and the Young, Bogle disqualification). Otherwise, this case becomes a classic “piecemeal” appeal. Here, we would review the district court’s rulings that this dispute should be resolved in the MRPC 1.5(e) format and that MRPC 1.5 should be incorporated within Polly’s contingent fee contract. If affirmed, then the next appeal conceivably would address review of the district court’s rulings on (1) the reasonableness of the expenses, (2) the existence of the purported expense-sharing agreement, and (3) the disqualification of Young, Bogle. Polly’s argument that the K.S.A. 60-254(b) certification is proper because reversal will dispose of the case presents only one aspect of determining whether the possibility of a piecemeal appeal exists. The flaw in this “iffy” approach is that it requires us to address the merits of the appeal before appellate jurisdiction is established. Appellate jurisdiction would be obtained by chance. If we reverse we have it, if we affirm we do not. We apply an ending observation from Henderson here: “[S]hould a future appeal be taken in this case from a ‘final decision,’ a motion to utilize the present record and briefs, suitably supplemented, would be favorably received.” 1 Kan. App. 2d at 112-13. Finally, we include a tangential observation on Polly’s claim that Young, Bogle should be disqualified under MRPC 1.7. The question is not before us. The district court has reserved its ruling. Also, we do not have jurisdiction of this appeal. However, we do not infer, by lack of comment, endorsement of Young, Bogle’s MRPC 1.7 posture in this case. See Barragree v. Tri-County Electric Co-op, Inc., 263 Kan. 446, 950 P.2d 1351 (1997). Appeal dismissed. Abbott, J., not participating. David S. Knudson, J., assigned.	[ -48, 104, -15, 93, 88, 96, 32, 122, 105, -93, 103, 83, 105, 65, -123, 121, -30, 93, 65, 106, -3, -74, 31, 64, -6, -13, -47, -36, -67, 95, -20, -106, 76, 40, 10, 85, 70, 26, -63, -108, -114, 8, 24, -28, 121, -126, 48, 105, 22, 23, 53, -49, -13, 40, 57, -30, 72, 44, -119, -67, -110, -80, -113, 5, 126, 16, 35, 20, -104, 71, 64, 46, -108, -71, 40, -24, 114, -74, -126, 84, 43, -71, -120, -90, 98, 32, 17, -17, -100, 24, 47, 55, -99, -25, -112, 72, 99, 13, -73, -99, 124, 84, 3, -4, -18, 4, -97, -4, -113, -114, -106, -77, -115, -10, 16, 19, -25, -95, 16, 96, -49, -30, 92, -41, 50, -101, -98, -78 ]
The opinion of the court was delivered by Abbott, J.: This is a zoning appeal case. The trial court reversed the City of Olathe’s decision to rezone the property in question from “AG” (agricultural) to “R-l” (single-family residential). This appeal followed. The Milton R. Brown, Maynard H. Brown, and Ruth H. Brown Trust (Trust) owns approximately 94.31 acres of land on the southeast comer of 143rd Street and Pflumm Road located in the City of Olathe, Johnson County, Kansas. The land lies north of the Johnson County Executive Airport. If one pictures the half section of land a half mile east and west and 1 mile north and south, the trust property lies in the west half of the northwest quarter and in the northwest quarter of the southwest quarter. The land is adjacent to a strip 500 feet wide that runs to the north line of the northwest quarter. That 500-foot wide corridor is referred to as the critical flight corridor. The Johnson County Executive Airport owns or controls substantially all of the property described above which lies south of the Tmst property. All of this property is zoned for agricultural use. Andrew J. Schlagel, agent for the Tmst, filed an application for rezoning with the City of Olathe (City). The application requested that zoning of the Tmst property be changed from “AG” (agricultural) to “R-l” (single-family residential). A public hearing before the Olathe City Planning Commission (City Planning Commission) was set. Prior to this hearing, the Tmst submitted a concept plan to the City Planning Commission. The City planning staff sent a request for review of the proposed rezoning to the Johnson County planning staff, the Overland Park Department of Planning and Research, and the Johnson County Airport Commission (Airport Commission). The Airport Commission responded in writing, detailing several objections concerning the Trust property’s location in relation to the Johnson County Executive Airport. The Airport Commission listed the following concerns: (1) The property has a common boundary with airport property to the south; (2) the north threshold of the airport runway is 1,900 feet south of the southern boundary of the Trust properly; (3) high-intensity strobe fights, i.e., airport approach fights, are positioned between the Trust property and the airport, starting at 1,100 feet from the southeast comer of the Trust property and running toward the centerline of the airport runway; (4) the Tmst property lies under the aircraft traffic pattern for the airport, with the final direct approach for most aircraft being directly over the Tmst property; (5) the Tmst property lies within an area with a relatively high statistical probability of an aircraft accident, with the last major accident possibly occurring within the tree fine along the eastern boundary of the Tmst properly; and (6) the southeastern portion of the Tmst property lies within a relatively high noise area for the airport (60 Ldn), although below the FAA’s “no residential” threshold (65 Ldn). The Airport Commission summarized its concerns by indicating that the Executive Airport handles as many as 700 flights per day on a nice summer weekend and over 110,000 flights per year. The Airport Commission indicated that Johnson County had adopted special land use plans and regulations concerning development around the county’s two airports, with these same plans and regulations proposed to be adopted by the City of Olathe. The Airport Commission urged denial of the rezoning request. In a follow-up memorandum, written after the Airport Commission reviewed the City planning staff’s report, the Airport Commission indicated that while the apparent use of the property to the south of the Tmst property is agricultural, the primary use of that airport-owned property is for the FAA-required runway protection zone, which is required to prevent uses of land that conflict with landings and take-offs at the airport. The Airport Commission also requested that if rezoning is approved, there should be plat and deed notations indicating that the developed property is ad jacent to the Executive Airport, underlies the airport traffic pattern, and will be subject to a high frequency of low-flying aircraft. The Johnson County Office of Planning (County Planning Office) also responded in writing. The County Planning Office noted that the area in question was within the Airport Interest Area of the Johnson County Executive Airport Comprehensive Compatibility Plan prepared by a study group that focused on land use and development compatibility considerations for areas near the county’s two airports. The County Planning Office indicated that these plans and regulations had been proposed for adoption by each of the three cities nearest the airports, including the City of Olathe, and by the County. “The intention is joint adoption and administration of land use and development decisions in the airport area instead of unilateral planning and zoning control of a 1-mile wide area around the aiiports.” Further, the County Planning Office indicated that “[t]he City of Olathe has ‘approved’ the airport area plans but the approval action has not been published, so the adoption process is incomplete. It is our understanding that publication of the airport area plan approval is being withheld until the city has also approved the airport area zoning and subdivision regulations.” According to the County Planning Commission, the County-adopted plans proposed the following for the site on which the Trust property is located: “♦ Residential uses on lots not smaller than 2 acres. “• The east edge of the site (about 80 feet wide) would be in the Primary Flight Corridor for the north end of the Executive Airport runway and would be subject to the special land use controls for the flight corridor areas. “• A triangular-shaped area of about 8.5 acres at the southeast comer of this 91 acres is within the 60 Ldn sound level contour of the airport. It would be an area where special noise attenuation construction measures would be required to help reduce noise levels. . . . “• Affidavits of Interest would need to be filed if the plan and regulations had been adopted by the City of Olathe.” The County Planning Commission urged consideration of the Johnson County Executive Airport Comprehensive Compatibility Plan during the review of the Trust’s rezoning request. Finally, the City of Overland Park responded with some suggestions concerning street and cul-de-sac locations and setbacks, indicating a need for a street connection between the proposed project and any residential development on the tract to the east, if there were to be such in the future. The Ciiy planning staff report included discussions on the Trust property’s physical characteristics, the surrounding land use/zoning, the character of the area, the City’s “Comprehensive Plan,” the Johnson County Executive Airport concerns, the Johnson County and City of Overland Park planning staff comments, the compatibility of the proposed rezoning with the Draft Comprehensive Compatibility Plan for the Executive Airport, sewer and water availability, streets and right-of-way needs and conditions, and the submitted sketch plan. The City planning staff recommended denial of the requested rezoning, citing the following: “(1) The density allowed under the requested R-l zoning would exceed the rural residential designation of the Comprehensive Plan. “(2) The requested R-l zoning would not be compatible with the developed and developing rural residential character of this section of land. “(3) Although this property has been vacant for several years, there has not been any attempt to develop it with rural residential lots. “(4) The low-density residential development (shown 3.0 units per acre — allowed 4.5 units per acre) is inconsistent with the proposed Johnson County Executive Airport Comprehensive Compatibility Plans which designate this site as appropriate for airport rural residential on 2 acre minimum lots. “(5) The inadequate design of Pflumm Road, from 143rd to 151st Streets, to handle the anticipated volumes of residential traffic.” If the R-l zoning was approved, the Ciiy planning staff recommended the zoning be approved with the following stipulations: “(1) The subject tract shall be platted prior to development. “(2) The additional right-of-way required for 143rd Street and Pflumm Road shall be dedicated prior to the publication of the ordinance establishing the requested R-l zoning designation. “(3) As a minimum improvement Pflumm Road shall be constructed with a three (3) inch asphalt overlay from 143rd Street to 151st Street prior to a certificate of occupancy for any lot within the subdivision. “(4) Compliance with all Johnson County Executive Airport residential development design guidelines as approved by Johnson County and the city of Olathe. “(5) The subject tract shall have plat and deed notations that the property is adjacent to the Executive Airport, underlies the traffic pattern for the airport, and will be subject to a high frequency of over flights by aircraft at low altitudes. “(6) The subject tract shall be limited to a maximum of three (3.0) units per net acre.” After discussion, including comments from Lee Metcalf of the Airport Commission and Andy Schlagel for the Trust, the City Planning Commission voted unanimously to deny the zoning request, citing the reasons stated in the staff report. The rezoning application was next considered by the Olathe City Council (City Council). The City Council heard a presentation from the City planning staff and comments from the Trust’s agent. The County did not attend or speak at the City Council meeting. The City Council discussed and heard questions and answers concerning the following points on the rezoning application: (1) No federal guidelines would be violated by the rezoning. (2) The Airport Commission, via the County’s letter, had not established its “credibility” “legally or concretely” and should not be given additional weight. (3) The City has not adopted the County’s comprehensive plan concerning the airport. (4) Deed notations concerning the location of the airport should be required and included in the stipulations in the ordinance. (5) Mr. Schlagel would recommend to his clients that disclosure statements be required in addition to deed notations, as the deed restrictions may not be effective for purposes of notification. (6) Sewer availability for and sewer assessments on the Trust property would be happening in the near future. Surrounding rural residential homes have been developed with septic tanks where the lots are at least 3 acres. A petition to create a sewer district was circulating and extension of the sewer mainline extension should reach the area by the end of 1994. This discussion included the cost of developing the Trust property with sewers as opposed to developing it with septic tanks. (7) Surrounding roads are inadequate and road assessments and improvements would be a requirement before residential occupancy. Pflumm Road between 143rd Street and 151st Street along the east edge of the Trust property is gravel. Along the north edge of the property, 143rd street has an asphalt overlay which would need improvement. (8) If the zoning were approved, improvements in the water service to the Trust property would be required and some of it would be completed by the developer. (9) The economic viability of developing a subdivision with two or three acre lots with sewers under the current zoning was questionable, according to the Trust representatives. (10) The statistical probability of an aircraft accident on this property was discussed generally. There was some dispute as to whether the last aircraft accident actually happened on the Trust property or whether it happened in the vertical flight corridor. (11) The strobe fights would only be a problem during fog and inclement weather. The fights, when in use, would be somewhat shielded by a natural rise in the land. (12) There is a conflict between the City’s comprehensive plan and the proposed rezoning. The City’s 1988 comprehensive plan has this area slated for rural residential development, i.e., one unit per each 2 or 3 acre lot, while the airport comprehensive plan would propose rural residential lots of a minimum of 2 acres. (13) The Trust had owned the property for 15 to 20 years before it was annexed by the City. It has operated Hilltop Stables on the property during the time it has been zoned “Agricultural.” (14) The airport traffic pattern is generally over the Trust property because the residents on the east side of the airport complained about the noise. At that time, the airport operator agreed to move the traffic pattern to the west. The City Council then voted to approve the rezoning, Ordinance No. 94-40, on a vote of 5 to 1. Included in the Ordinance were the following stipulations: “a. The subject tract shall be platted prior to development. “b. The additional right-of-way required for 143rd Street and Pflumm Road shall be dedicated prior to the publication of the ordinance establishing the requested R-l zoning designation. “c. As a minimum improvement Pflumm Road shall be constructed with a three (3) inch asphalt overlay from 143rd Street to 151st Street prior to a certificate of occupancy for any lot within the subdivision. “d. Compliance with all Johnson County Executive Airport residential development design guidelines as approved by Johnson County and the city of Olathe. “e. The subject tract shall have plat and deed notations that the property is adjacent to the Executive Airport, underlies the traffic pattern for the airport, and will be subject to high frequency of over flights by aircraft at low altitudes. “f. The subject tract shall be limited to [a] maximum of three (3.0) units per net acre.” On July 21,1994, the Chairman of the Board of Johnson County Commissioners (County) sent a letter to the City Council expressing concern with the rezoning and requesting reconsideration of the rezoning application. The County noted that the City and the County had been cooperating on an airport area compatibility plan for 5 years and that the Trust property was in a critical location. The County reminded the City of the “Memorandum of Understanding executed in 1991” between the City and the County, as well as with the City of Overland Park and the City of Gardner. The County was acting with the understanding that the Memorandum of Understanding would remain in effect until the formal agreements, plans, and regulations concerning the airport comprehensive plan were adopted by all parties. The County pointed out that the City continued to practice the Memorandum’s notification procedures by sending zoning information to the County Planning Commission and the Airport Commission. After quoting specific language from the Memorandum, the County acknowledged that the Memorandum did not give the County “any controlling authority in this zoning case.” The County implied that, in the future, it would take action under its statutory authority concerning airport zoning. The City published Ordinance No. 94-40 in the Olathe Daily News authorizing the rezoning. The County filed suit, alleging that the City’s approval of the rezoning application was arbitrary, capricious, and unreasonable, that the City failed to obtain approval from the County as is required by K.S.A. 3-307e, that the City failed to follow and adhere to the procedure established in the 1991 Memorandum of Understanding, and that the City’s action was unlawful and, therefore, null and void. The Trust was permitted to intervene in the case. The district court bifurcated the case and requested briefing on the issue of reasonableness, with the question of lawfulness to be determined later, if necessary. After briefing by the parties, the district court heard oral arguments on the issue of the reasonableness of the City’s rezoning action and issued its decision, with the following findings and conclusions: “The court finds and determines that the action of the Council of the defendant City in adopting the subject rezoning ordinance was unreasonable, arbitrary and capricious for the reasons stated and authority cited by plaintiff in its memorandum (January 26, 1996) and in its reply (February 16, 1996), and, in doing so, specifically adopts the conclusions stated in plaintiff’s reply (February 16,1996) at pages 20-22, including the reason stated in paragraph 8 on page 22.” While the reasons stated and authority cited by the County in its January 26 memorandum and February 16 reply and incorporated by the district court are too lengthy to include in this opinion, the County’s conclusions in the February 16 reply follow: “The action taken by the Defendant City in approving the rezoning of the Intervenors’ property is unreasonable because: “1. The record does not contain substantial, competent evidence to support the decision to approve the rezoning; it does to deny the rezoning. “2. The zoning and uses of nearby property (the existing Johnson County Executive Airport) are not compatible with the proposed use of the property for high density residential development. “3. Due to the proximity of the subject real property to the existing airport, and the dangers associated with potential aircraft crashes, the subject property is not suitable for high density residential development. “4. Removal of the zoning restrictions upon the subject real property shall cause the property to become an incompatible land use with the existing airport, which in and of itself has a detrimental affect. “5. The Intervenors have not provided any substantial, competent evidence that they shall be left without any economical [sic] viable uses of the property if they are not provided with R-l district zoning. All they have attempted to illustrate is a potential loss of profit margin or increased cost of development. “6. Without proof of denial of all economical [sic] viable uses of their property, the relative gain to the public health, safety and welfare by denial of the rezoning outweighs unproven hardship imposed upon the Intervenor/ landowners. High density residential development near an airport is not prudent planning. Furthermore, the Intervenors may have other economical [sic] viable uses available for their property, which would not be incompatible with an existing airport. “7. The recommendation of the City Planning Department and the City Planning Commission, which was supported by findings and conclusions, was for denial of the rezoning. “8. The City Council voted to approve the rezoning without providing any reasons in support thereof. “9. The decision to approve the rezoning is in conflict with the City’s Comprehensive Plan and the County’s Compatibility Plans for permitted land uses upon the subject real property. “10. Based upon the facts provided to the City Council, the substantial, competent evidence on the record requires [sic] that the action taken by the Defendant City was unreasonable. “11. The preponderance of the evidence supports the claims of the Plaintiff Board that the actions taken by the Defendant City were unreasonable.” The City and the Trust appealed. The case was transferred from the Court of Appeals upon order of the Supreme Court pursuant to K.S.A. 20-3018(c). K.S.A. 12-760(a), concerning zoning decisions, provides in part: “Within 30 days of the final decision of the city or county, any person aggrieved thereby may maintain an action in the district court of the county to determine the reasonableness of such final decision.” The scope of review in zoning cases is governed by a series of concepts summarized in Combined Investment Co. v. Board of Butler County Comm'rs, 227 Kan. 17, 28, 605 P.2d 533 (1980): “(1) The local zoning authority, and not the court, has the right to prescribe, change or refuse to change, zoning. “(2) The district court’s power is limited to determining (a) the lawfulness of the action taken, and (b) the reasonableness of such action. “(3) There is a presumption that the zoning authority acted reasonably. “(4) The landowner has the burden of proving unreasonableness by a preponderance of the evidence. “(5) A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence. “(6) Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate. “(7) Whether action is reasonable or not is a question of law, to be determined upon the basis of the facts which were presented to the zoning authority. “(8) An appellate court must make the same review of the zoning authority’s action as did the district court.” These Combined Investment Co. concepts serve as a backdrop against which the factors considered by the City in reaching its decision are to be viewed. See Davis v. City of Leavenworth, 247 Kan. 486, 493, 802 P.2d 494 (1990). In Golden v. City of Overland Park, 224 Kan. 591, 597, 584 P.2d 130 (1978), we observed: “A mere yes or no vote upon a motion to grant or deny leaves a reviewing court, be it trial or appellate, in a quandary as to why or on what basis the board took its action. A board, council or commission, in denying or granting a specific zoning change, should enter a written order, summarizing the evidence before it and stating the factors which it considered in arriving at its determination.” In Davis, we commented: “Our observation [in Golden] continues to have merit. We commend it to any board, council, or commission denying or granting a specific zoning change.” 247 Kan. at 493. Golden enumerated eight factors which a zoning body should consider: (1) the character of the neighborhood; (2) the zoning uses of nearby properties; (3) the suitability of the property for the uses to which it is restricted; (4) the extent to which the change will detrimentally affect nearby property; (5) the length of time the property has been vacant as zoned; (6) the gain to the public health, safety, and welfare by the possible diminution in value of the developer s property as compared to the hardship imposed on the individual landowners; (7) the recommendations of a permanent or professional planning staff; and (8) the conformance of the requested change to the city’s master or comprehensive plan. 224 Kan. at 598. These are suggested factors only. Other factors may be important in an individual case. 224 Kan. at 599. Appellant City argues that since Golden was decided this court has softened its stand, holding that written orders from zoning bodies are not mandatory as long as the record is adequate for a determination of reasonableness. City cites Davis, 247 Kan. 486, and Landau v. City Council of Overland Park, 244 Kan. 257, 767 P.2d 1290 (1989). The City argues that Davis and Landau support a finding that the record before this court and the district court is adequate for a review of the reasonableness question. City contends that the following information was before the City, is contained in the record, and is adequate for such a determination: (1) the City planning staff report prepared prior to the public hearing; (2) the City Planning Commission s public hearing proceedings, including the staff report, the presentation by the city planner, and the testimony of representatives of the Trust and the Airport Commission, all transcribed; (3) the transcribed minutes of the City Council meeting, showing that the City Council’s discussion focused on the main issues; and (4) the audio tapes and video tapes of both the City Planning Commission hearing and the City Council meeting, available to the district court for review if necessary. Based on the availability of these items in the record, the City concludes that the district court erred in finding the record inadequate for review. We agree with the City that formal findings and conclusions from the zoning authority are not mandatory. See Davis, 247 Kan. 486; Landau, 244 Kan. 257. In Landau, the zoning authority, the City Council of Overland Park, denied a rezoning request. In the process of reaching this decision, the city council heard-testimony from the landowner requesting the rezoning, considered a report from the city planning commission, and heard testimony from an interested citizens’ group. The city council voted to deny the rezoning request, giving four reasons. These reasons did not comprehensively address the Golden factors. On appeal, this court noted that "[ajlthough the City Council would have presented a more sophisticated land use record for review had it specifically addressed the eight Golden factors in its decision-malting process, we clearly characterized those factors as ‘suggestions.’ ” 244 Kan. at 263. On appeal, this court reviewed the same record as was before the city council and the trial court and found the record sufficient for review. “We are not persuaded that the City’s decision was unreasonable merely because Golden’s eight factors were not either more specifically enumerated or subjected to an issue-oriented analysis.” 244 Kan. at 263. In Davis, we revisited the question of whether a zoning authority was required to specifically enumerate the Golden factors when it made its zoning decision. The facts and issues raised in Davis were veiy similar to those before the court here. There, we examined two issues: (1) whether the record was adequate for a determination of reasonableness; and (2) if so, whether the zoning authority acted reasonably in approving the rezoning request. 247 Kan. at 487. In addressing the adequacy of the record, the city argued, as does appellant City here, that the factors the city considered were apparent in the minutes and transcripts. After examining the discussion as shown by the city council minutes and the additional information presented to the city, this court agreed. 247 Kan. at 492. Although we emphasized the importance of using the Golden factors as a guide, we reiterated the Landau holding: “In Landau we held the Golden factors are merely guidelines or suggested factors (Syl. ¶ 1); a City’s decision will not be found unreasonable merely because the Golden factors were not specifically enumerated or subjected to an issue-oriented analysis (Syl. ¶ 2); and elected officials are closer to the electorate than the courts and, consequently, are more reflective of the community’s perception of its image (Syl. ¶ 4). 244 Kan. 257.” 247 Kan. at 496. The major difference between Davis and the instant case is that the City Council here did not give any specific reasons for its decision. This appears to be what the district court was concerned about, and it emphasized this point in its memorandum decision. However, it should be noted that the City Council did not have “[a] mere yes or no vote upon a motion to grant or deny” (Golden, 224 Kan. at 597), thereby leaving the reviewing court in a quandary as to why or on what basis the rezoning was approved. There was considerable discussion at the City Council meeting before the vote was taken. Under Davis and Landau, the City Council’s failure to enumerate reasons for its decision is not fatal to a review for reasonableness, and it was not for the district court herein. The testimony and discussions included in both the City Planning Commission minutes and the City Council minutes, as well as the reports and documents included in the record on appeal, provide sufficient information to review for reasonableness. While the district court was concerned about the lack of formal findings from the City Council, it also adopted additional conclusions from the County’s trial briefs that did analyze the reasonableness question. In fact, by all indications the district court reviewed the record before it, reaching the conclusion that the City’s rezoning was unreasonable. Based on the record before us, we must review it and determine whether the district court properly found the City’s decision to grant the Trust’s rezoning request was unreasonable. The Trust describes the Trust property as having a “developing residential character” and as “ready to be developed.” Additionally, the surrounding area is characterized as having some low-density single-family residential zoning to the west already in place. The Trust asserts that the property to the north is zoned R-l. Finally, the Trust concludes that the property itself, rolling slopes with no significant vegetation, is ideally suited for residential development. The City acknowledges that at the time of the rezoning decision, the character of the area was rural residential with a mixture of agricultural uses, large lot residential subdivisions, and typical sub-, urban homesteads. However, because of the encroaching development from Olathe and the eminent arrival of city sewer services, the character of the neighborhood is changing. With R-l zoning to the west and R-l zoning to the north, the area south and east of 143rd and Pflumm Road is also beginning to develop. Because the property to the immediate east of the Trust property is the critical landing and take-off corridor of the airport and will not be developed, the City contends that this will act as a buffer between the rural residential area farther to the east and the approved R-l rezoning of the Trust property. Finally, the City argues that the arrival of sewer service to the area makes greater residential density more likely and more easily supported. The sewer services can change the character from rural residential density to urban density. Given the changing nature of the area, the City’s zoning decision was reasonable on this point. All three parties’ characterizations of the neighborhood are accurate, and the City Council had all of this information before it when it reached its decision to approve the rezoning. While the County focuses on the rural aspect of the neighborhood, looking further to the east and south for support of this vision, the City and the Trust look to the north and west at the approaching residential development. Given our standard of review and the presumption in favor of the zoning authority, the City’s action was not so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large. The City appeared to be well aware of the diversity of development characteristics in this area, in fact, limiting the developer to 3 units per acre rather than the 4.5 units traditionally allowed under an R.-1 zoning designation. The City’s decision was reasonable on this point. The City had substantial information before it and considered the possible uses for the Trust property, as well as the changing nature of the surrounding area. The City has the right to change or refuse to change the zoning, and its decision carries the presumption of reasonableness. Although the land appears to be well-suited for agricultural use, it is located in a changing area where residential density is increasing. It is reasonable for the City to plan for the encroaching change in this area. The decision is not so wide of the mark that it lies outside the realm of fair debate. The City contends that the only evidence in the record of detrimental effect on nearby property is the effect the nearby airport will have on this property. The City Council considered the problems of the strobe lights, the landing corridor, the aircraft flight patterns, and the noise contour. After considering all of these issues, the City concluded that they could be addressed by the developer and by requiring notification to any future owners. The Trust notes also that the airport operations are what appear to be detrimental, not the zoning change. The Trust points out that the aircraft flight pattern over the Trust property is one purposefully imposed by the Airport Commission to avoid complaints from landowners to the east. The City Council discussed the airport problems extensively at its meeting. It also had before it the information from the County planning staff and the Airport Commission outlining what they saw as the future problems if this area were to be rezoned. However, given the stipulations included in the zoning ordinance, as passed, the City made an attempt to address these concerns. Additionally, no other property owners, outside of the Airport Commission, ap peared or sent letters objecting to the rezoning request. The City’s decision was not unreasonable on this basis. The City argues that the recommendation of denial from the City planning staff and Commission was based upon the fact that the City’s comprehensive plan and the airport comprehensive compatibility plan both show the area as rural residential. The professional staff did not have the economic considerations before it. Because of the encroaching development and the future availability of sewers, the City was reasonable in considering the economic impact of its decision on the landowner. The City considered these facts and reasonably decided not to follow the recommendation of its planning staff. Given the changing nature of the area since the adoption of the master plan, the City had the right to change the zoning from that given in the plan. The reports from the City planning staff and the City Planning Commission are nearly identical and both recommend denial of the rezoning request. However, both reports also include suggested stipulations for consideration should the City Council decide to grant the rezoning. These recommended stipulations are, in fact, the exact stipulations included in the final zoning Ordinance passed by the City Council and published in the newspaper. The City did not completely ignore the recommendation of its planning staff. In fact, the City implemented the suggested alternative recommendations. This was not unreasonable or arbitrary. The City’s comprehensive plan and the airport compatibility plan are not a part of the record. However, it is uncontroverted that these planning documents recommended rural residential development for this area. Rural residential zoning would allow for lower-density larger-lot residential development. The City Council was aware of the conflict between the comprehensive plan and the requested rezoning, as well as the conflict between the airport compatibility plan and the rezoning. Much of the discussion reported in the minutes of both the City Planning Commission and the City Council revolved around the issue of the appropriate density of the proposed residential development. Again, if one looks to the north and west of the Trust property, development is more dense than if one were to look to die south and east of the Trust property. The perspective of the City was toward the more dense, encroaching development. Formulation of comprehensive plans are provided for statutorily. K.S.A. 12-741 et seq. addresses planning, zoning and subdivision regulations in cities and counties. Cities may create planning commissions, as well as adopt and amend comprehensive plans. While certain procedures need to be followed when changing comprehensive plans once adopted, cities may amend these plans as they see fit. See, e.g., K.S.A. 12-747 and K.S.A. 12-749. Whether the city has followed the appropriate statutory procedures falls within the purview of the question of the lawfulness of the rezoning action. As noted above, however, the issue regarding the lawfulness of the rezoning remains unresolved in this case. Nonetheless, what is clear by this statutory scheme and by our case law is that a city may amend its comprehensive plan. However, in Golden, 224 Kan. at 598, and later, in Taco Bell v. City of Mission, 234 Kan 879, 894, 678 P.2d 133 (1984), we urged zoning authorities to examine either the “adopted or recognized” master plan during the rezoning decision-making process. While we recognized that cities are not bound by their comprehensive plans in making these rezoning decisions, we urged that the plans not be overlooked when changes in zoning are under consideration. The question therefore becomes, after an examination of the entire record, does this seeming disregard for both the City’s officially adopted comprehensive plan and the airport compatibility plan tip the scales toward a finding of unreasonableness on the part of the City? Given the information before the City Council and the adoption of the stipulations suggested by the City Planning Commission, the City’s decision to grant the Trust’s request for rezoning was not unreasonable. Again, there is a presumption that the zoning authority acted reasonably. The zoning authority, not the court, has the right to prescribe, change, or refuse to change zoning. A court may not substitute its judgment for that of the administrative body and should not declare the action unreasonable unless clearly compelled to do so by the evidence. Given this standard of review, the City’s disregard for both zoning plans was not unreasonable. Reversed and remanded for further proceedings on the question of the lawfulness of the City’s approval of the rezoning application.	[ 112, 108, -11, 76, -104, -64, 56, -104, 81, -3, -26, 83, 103, -24, 29, 59, -82, 29, -28, 105, -27, -74, 83, -109, -16, -13, -38, 124, -8, 93, 118, -41, 74, 81, 74, 53, 6, -12, 15, 30, -34, 15, -117, 65, -35, 0, 62, 111, 26, 78, 20, 15, -13, 45, 25, -61, -24, 108, 91, -23, 3, -40, -7, -123, 126, 79, -128, -92, -112, -57, 88, 43, -48, 57, 104, -120, 85, -90, -106, -28, 7, -37, -115, -86, 98, 64, 76, -17, -12, -113, 14, -6, 45, -29, -124, 24, 112, -128, -108, -99, 117, 22, 10, -4, -17, 5, 27, 120, -121, -58, -48, 49, -49, -48, -126, 1, -5, -43, 17, 96, -55, -89, 94, -58, 16, 59, -89, -72 ]
Per Curiam: The petitioner, Steven R. Smith, was disbarred by this court on July 12, 1991. In re Smith, 249 Kan. 227, 814 P.2d 445 (1991). On August 23,1996, Smith filed a petition with this court, seeking reinstatement to practice law in Kansas pursuant to Supreme Court Rule 219 (1997 Kan. Ct. R. Annot. 245). On September 9, 1996, the petition was referred to the Disciplinary Administrator for consideration by a panel of the Kansas Board for Discipline of Attorneys. On April 9, 1997, a hearing was held before the panel. On November 17, 1997, the panel filed its report, setting out a detailed analysis of petitioner’s original misconduct and his subsequent conduct, together with the panel’s findings and recommendations. The panel unanimously recommended that petitioner be reinstated to the practice of law in Kansas. Since the report was favorable, nothing further was required of petitioner and, pursuant to Supreme Court Rule 219(d), the matter is deemed submitted for consideration by this court. The panel reviewed and applied the eight factors set forth in State v. Russo, 230 Kan. 5, Syl. ¶ 4, 630 P.2d 711 (1981), concluding that all the factors favored petitioner’s reinstatement to the practice of law. The panel found the crucial factor to be petitioner’s rehabilitation “balanced against the seriousness of the original conduct.” The panel concluded: <cWe have never heard evidence of rehabilitation as convincing as the Petitioner’s, and we have never been as confident at the close of the hearing that the Petitioner has truly changed and is unlikely to engage in future unethical conduct.” As we noted in Russo, the reports and recommendations of the Board for Discipline of Attorneys and its hearing panel are advisory and not binding upon this court. Notwithstanding the panel’s recommendation, a majority of this court is of the opinion that reinstatement should be denied. A majority of this court does not agree with the panel’s conclusions that petitioner’s rehabilitation, at this time, balances the seriousness of the original conduct. This court noted in the original disciplinary proceedings that petitioner admitted to misappropriating and converting funds of clients and of the law firm. Although the exact amount probably will never be known, we noted that petitioner had either reimbursed or agreed to pay a total of $63,412. In addition, petitioner was charged with two counts of misdemeanor theft and two counts of felony theft. Petitioner entered into a diversion agreement in Sedgwick County District Court on the four theft charges. We do not take the recommendation of the panel lightly. In denying Russo’s petition for reinstatement the second time, this court noted that other jurisdictions had found certain moral, ethical, or criminal violations to be so serious as to require permanent disbarment. We said: “While we agree that the foregoing violations are extremely serious, in our opinion, none approaches the seriousness of the conduct of petitioner.” In re Russo, 244 Kan. 3, 5, 765 P.2d 166 (1988). As in Russo, a majority of the members of this court is of the opinion that, due to the seriousness of petitioner’s misconduct, it would not be in the best interests of justice and the people of the state of Kansas to reinstate petitioner to the practice of law. Disbarment is not permanent, but our research failed to disclose a reported case in which a disbarred attorney was reinstated to the practice of law in Kansas. This is a reflection of how seriously this court views disbarment. The petition for reinstatement to the practice of law in Kansas must be and is hereby denied.	[ -112, -22, -60, -36, 13, -32, 58, -98, 113, -5, 103, 115, 109, -98, 1, 107, 98, 61, 80, 105, -41, -78, 87, -127, 126, -69, -38, -35, -71, 95, -12, -67, 72, 48, 26, -43, 38, -56, -47, 20, -86, 5, 9, -59, 91, -128, -74, 34, -108, 3, 49, 94, -13, 14, 25, 69, 41, 44, 123, -83, 80, -103, -102, 5, 111, 5, -95, 20, 60, -121, 80, 47, -100, 57, 8, -24, 115, 86, -122, 112, 79, -119, 12, 102, 98, -94, 17, -9, -72, -100, 63, 50, 29, -90, -47, 88, 67, 69, -106, -35, 118, 20, 43, 120, -25, 5, 21, 108, 13, -54, -44, -77, 95, 53, -54, 75, -21, -122, 0, 101, -39, -30, 95, 83, 115, -101, -114, -28 ]
The opinion of the court was delivered by Abbott, J.: This is a direct appeal by the defendant, Undra D. Lee, from his convictions by a jury of first-degree murder, aggravated kidnapping, aggravated assault, and kidnapping. Lee contends that the trial court erred in not instructing on second-degree murder; that certain evidence was erroneously introduced at trial; that the statute of limitations had run on all charges except for the murder charge; and that reversible error occurred by reason of the State’s peremptoiy strike of an African-American juror. On May 31, 1994, human bones were found in a field in rural Sedgwick County. The remains were identified as those of Marqueta Smallwood, who had disappeared in 1993. The coroner concluded she had died as a result of multiple gunshot wounds. When the facts are viewed as we are required to view them on appeal, they show the following: Lee ran a drug operation out of the home of Allen Brooks. Marqueta owed Lee drug money. Lee, James C. Sanders (Lee’s uncle), and Glenn Whistnant went to Steven Alexander’s home, and Sanders and Whistnant forcibly removed Marqueta. Sanders put a gun to Alexander’s head and backed out of the home with Alexander in tow. (The kidnapping charge arose from this incident.) Roselyn Surratt, a friend of Marqueta’s, was a resident of the Alexander home and was present when Marqueta and Alexander were removed from the home. (The aggravated assault charge arose from threats made to Surratt during this incident.) The aggravated kidnapping and first-degree murder charges arose because Marqueta was forcibly taken from Alexander’s home and killed. Marqueta was taken to Brooks’ home, forced to disrobe, and questioned intensely for some 2 hours. Before being taken from the Alexander home, Marqueta admitted she had taken the drug money and said, “You might as well go on ahead and kill me.” She was told, “That wouldn’t be any problem.” While at Brooks’ home, Lee was angry, and Marqueta was upset and crying and requesting that she not be killed. Marqueta was next taken to the field where her remains were ultimately located. In the field, another long conversation took place concerning the drug money. Lee then gave Marqueta permission to walk home. When she had walked some 150 yards away from Lee, Sanders, and Whistnant, Lee sent Sanders to bring her back. Sanders testified that Lee had been discussing shooting Marqueta. Whistnant testified Lee had told him he was going to “waste Marqueta.” Lee tried to get Whistnant to shoot Marqueta, but Whistnant refused. After further discussion concerning the missing drug money, Marqueta again requested that she not be killed. Lee shot her and Marqueta fell down. Lee then walked up to Marqueta as she lay on the ground and shot her again. INSTRUCTIONS Lee appeals the trial court’s failure to provide the jury with instructions on the lesser included crimes of premeditated murder. Lee acknowledges the rule that a trial court’s duty to instruct on a lesser included crime, even in a premeditated murder case, arises only if there is evidence upon which the accused might reasonably be convicted of the lesser offense. See State v. Linn, 251 Kan. 797, Syl. ¶ 5, 840 P.2d 1133 (1992). Lee alleges that there was evidence presented at trial which might have reasonably supported a conviction for second-degree murder. In State v. Dixon, 252 Kan. 39, 43, 843 P.2d 182 (1992), this court stated: “The duty of the district court to instruct on a lesser included offense ‘arises only where there is evidence upon which the accused might reasonably be convicted of the lesser offense.’ Seelke, 221 Kan. at 675. Because reasonableness is an element of this test, there is some weighing of the evidence which occurs. A finding of sufficient evidence tending to show the lesser degree of the crime triggers the duty.” In later cases, we said: “The defendant has a right to have the court instruct the jury on all lesser included offenses established by substantial evidence, however weak, unsatisfactory, or inconclusive the evidence may appear to the court. Even the unsupported testimony of the defendant alone, if tending to establish such lesser offense, is sufficient to require the court to so instruct. However, the evidence must be substantial and there must be evidence which, when viewed in a light most favorable to the defendant, would justify a jury finding in accordance with the defendant’s theory.” State v. Harmon, 254 Kan. 87, Syl. ¶ 1, 865 P.2d 1011 (1993). See State v. Shortey, 256 Kan. 166, Syl. ¶ 2, 884 P.2d 426 (1994). Lee’s evidence of second-degree murder is not substantial. Even when viewed in a light most favorable to Lee, the evidence is not enough to justify a jury finding that Lee did not act with premeditation or deliberation in shooting Marqueta. Either Lee or one of the men following his orders told Marqueta that it would not be a problem to kill her. Whistnant informed the police that Lee told him (Whistnant) that he (Lee) was going to “waste” Marqueta. Finally, Lee asked Whistnant to kill Marqueta in the field. When Whistnant refused, Lee did it himself. All of this evidence clearly indicates premeditation. Thus, in light of this evidence, Lee could not have reasonably been convicted of second-degree murder. As such, an instruction on the lesser included offense of second-degree murder was not necessary. The trial court did not err in failing to provide lesser included offense instructions. GUN AND DRUG EVIDENCE Shortly before opening statements began, the defense realized that the State had several firearms behind its table. Most of the guns had been seized during a search of Brooks’ drug house, executed pursuant to a warrant, which occurred 5 days after Marqueta’s disappearance. One' of the guns had been seized during a search of Lee’s rented room when he was arrested for the crimes at issue. The defense objected to the presence of the guns, claiming that they had no real relevance to the case and that the veiy presence of the guns was prejudicial to Lee. The defense moved that the guns be taken out of the courtroom until the trial court had had an opportunity to rule on the admissibility of the guns. The trial court denied this motion. The trial court found that it would be cumbersome for the State to go outside the courtroom to get a gun each time it wanted to offer one of the guns into evidence. The court allowed the State to keep the firearms in the courtroom. Further, the court ruled that it would allow the State to refer to the guns in its opening statement as long as the State had “a good-faith belief [that the guns could] be admitted into evidence.” Upon this ruling, the State presented its opening statement. The prosecution referred to Lee as a drug lord who ran his business from Brooks’ drug house and who dominated the others because he had “control of the drugs.” The prosecution then referred to the guns in its opening statement by stating: “Now, while the enforcers, G-Dog and Semaj, would be at the door watching for the police, armed — G-Dog usually with a sawed off shotgun and Semaj . . . armed with weapons that were bought for them by this man; 9 millimeters, Glocks, different kinds of handguns . . . .” In its case in chief, the State also questioned some witnesses about the guns found during the searches. During Steven Alexander’s testimony, the State showed him Exhibit 11, a sawed-off shotgun. Alexander testified that the gun looked similar to the one which was pointed at his head on the evening Marqueta disappeared, but that he could not be certain it was the same gun. Roselyn Surratt also testified, and she made a tentative identification of the gun, pointing out that the gun had tape on the handle, as did the one pointed at her on the night Marqueta disappeared. Whistnant, on the other hand, testified that Exhibit 11 was not the same sawed-off shotgun he used on the night in question. Whistnant testified that the gun he carried on the night of Marqueta’s disappearance was a two-barrel shotgun, while the Exhibit 11 gun was an “over and under” shotgun. Vanessa Miller, another member of Lee’s drug ring who testified for the State, identified Exhibit 11 as either the gun that was behind her as she sold drugs at Brooks’ house or as the gun that Whistnant would carry. During Vanessa Miller’s testimony, the State asked her if she recognized anything on a panel of photographs. The photographs were of Brooks’ drug house when it was searched. They depicted various evidence seized during the search, including guns and drugs. Lee objected to the pictures and to the line of questioning. The defense pointed out that Lee was not present when the search warrant was served and that there was no evidence tying the guns to Lee. According to Lee, any probative effect the evidence might have was clearly outweighed by the inflammatory nature of the evidence. In response to Lee’s objection, the State claimed the evidence was relevant to corroborate its witnesses’ testimony that Lee was the head of a drug organization and that Marqueta was killed as a direct result of her involvement with the drug organization. In addition to entering the guns and photographs into evidence, the State called Detective Alan Prince of the Drug Interdiction Unit as a witness. He testified about the specifics of the evidence found at the time of the drug raid. The defense counsel objected to the testimony, stating that the evidence brought in other crimes and wrongs attributed to Lee, thereby creating prejudice that outweighed the probative value of the evidence. Detective Prince testified that the search of the drug house revealed a sawed-off shotgun in the dining room, a rifle in the garage, and a pistol in a coat in Brooks’ bedroom. Detective Prince was permitted to testify about contraband and surveillance equipment found during the search. Detective Prince stated that 29 grams of crack cocaine and 10 firearms were seized. On cross-examination, defense counsel asked if there was any evidence that Lee lived at Brooks’ drug house. The detective responded that there was not. The State also requested permission to introduce evidence that when Lee was arrested in April 1993, he had drugs in his car and a .22 caliber Ruger pistol under a mattress in his rented room. The prosecution wanted to introduce evidence of the pistol and its seizure because Marqueta was probably shot with a .22 caliber gun. The defense objected, claiming that the gun was irrelevant and that the evidence would be more prejudicial than probative. Finding that the evidence was relevant, the trial court permitted its admission. The defense counsel points out that it is unclear what type of gun Marqueta was shot with or even what type of gun Lee was carrying that night. Sanders testified that Lee owned a .22 caliber pistol. However, Sanders testified that on the night Marqueta was shot, Lee carried a .9 mm Glock 17. Later on, Sanders claimed that the shot fired at Marqueta sounded like a .22. However, he specifically stated that the gun had a blue steel finish and was not nickel plated. The Ruger found under Lee’s mattress when he was arrested had a nickel finish, not a blue steel finish. Further, the caliber of the gun that killed Marqueta was never conclusively determined, although the policeman who testified was fairly sure one of the bullets was from a .22. “Relevant evidence” has been defined as “any evidence having any tendency to prove a material fact. K.S.A. 60-401(b). ‘To be admissible, evidence must be confined to issues but need not bear directly upon them.’ [Citation omitted.]” State v. Haddock, 257 Kan. 964, 981, 897 P.2d 152 (1995). Based on this definition, the State claims the evidence seized during the search of the drug house and Lee’s rented room was relevant to the murder, kidnapping, and assault charges and was properly admitted into evidence. At the search of the drug house, the police found a sawed-off shotgun, two .9 mm pistols, a .22 caliber pistol, and drug paraphernalia. When Lee’s rented room was searched, the police found a Ruger .22. The night Marqueta was killed, Whistnant had a .9 mm, Sanders had a sawed-off shotgun, and Lee had a .22. Alexander and Surratt testified that the shotgun found during a search of the drug house looked similar to the weapon pointed at them on the night in question. After Marqueta was kidnapped from her residence, she was taken to and questioned at Brooks’ drug house, where the drug paraphernalia and guns were later found. Although there was some evidence indicating that the weapons found at the drug house were not the same weapons used on the night of the murder, there was also sufficient testimony indicating that these weapons were used in the murder and kidnapping. This testimony alone was enough to qualify the gun and drug evidence as relevant. Further, the challenged evidence was properly admitted into trial because it corroborated the testimony of the accomplices. The evidence in question corroborated the accomplices’ testimony regarding Lee’s drug ring and their testimony that Marqueta owed Lee drug money. The evidence also corroborated certain testimony regarding the events of the evening, including who carried what type of gun. “[A] trial court’s decision concerning the admissibility of evidence will not be disturbed on appeal absent a showing of abuse of discretion. Ryan v. Kansas Power & Light Co., 249 Kan. 1, 11, 815 P.2d 528 (1991); see Enlow v. Sears, Roebuck & Co., 249 Kan. 732, Syl. ¶ 9, 822 P.2d 617 (1991). ‘An abuse of discretion exists only when no reasonable person would take the view adopted by the trial court.’ Enlow, 249 Kan. 732, Syl. ¶ 9. This general principle applies to rulings on the relevancy of evidence. Tucker v. Lower, 200 Kan. 1, 6, 434 P.2d 320 (1967).” ’ City of Olathe v. Stott, 253 Kan. 687, 700, 861 P.2d 1287 (1993).” Shirley v. Smith, 261 Kan. 685, 697, 933 P.2d 651 (1997). “ ‘Subject to certain exclusionary rules, the “[ajdmissibility of physical evidence is within the sound discretion of the court and is to be determined by the court on the basis of its relevance and its connection with the accused and the crime charged.” State v. Beard, 220 Kan. 580, Syl. ¶ 3, 552 P.2d 900 (1976). In State v. Ji, 251 Kan. at 15, we said: “[Wjhen a physical object is offered into evidence and a question arises as to its connection with either the defendant or the crime charged, unless it is clearly irrelevant, the object should be admitted for such weight and effect as the jury sees fit to give it.” ’ ” State v. Bornholdt, 261 Kan. 644, 659, 932 P.2d 964 (1997) (quoting State v. Sexton, 256 Kan. 344, 353, 886 P.2d 811 [1994]). It is true the evidence was prejudicial to Lee, but it was not so prejudicial as to outweigh the probative effect of the evidence. See K.S.A. 60-445. The evidence of the guns and drugs seized during a search of the drug house and of Lee’s rented room was properly admitted into evidence. Further, K.S.A. 60-447 was not raised in the trial court, and evidence was not admitted pursuant to K.S.A. 60-455. The defendant herein did not request a limiting instruction and raised no objection to the lack of an instruction. Thus, the lack of 60-455 motion or a limiting instruction did not create reversible error. Lee is not entitled to relief on this issue. The relevant evidence was admitted because it corroborated the accomplices’ testimony. The defendant herein did not request a limiting instruction and raised no objection to the lack of an instruction. Thus, the lack of a limiting instruction did not create reversible error. STATUTE OF LIMITATIONS K.S.A. 1996 Supp. 21-3106 provides in pertinent part: “(1) A prosecution for murder may be commenced at any time. “(5) Except as provided by subsection (7), a prosecution for any crime not governed by subsection (1), (2), (3), (4), and (5) must be commenced within two years after it is committed.” This 2-year time period begins to run on the day after the offense is committed. K.S.A. 1996 Supp. 21-3106(8). The 2-year time period stops running when a prosecution is commenced by the filing of a complaint or information, an indictment is returned, and a warrant is delivered to the sheriff or other officer for execution. K.S.A. 1996 Supp. 21-3106(9). The crimes Lee was charged with — murder, kidnapping, aggravated kidnapping, and aggravated assault — occurred sometime between January 3, 1993, and January 16, 1993. The 2-year statute of limitations for the charged crimes of kidnapping, aggravated kidnapping, and assault began to run on January 17, 1993, and expired on January 17, 1995. Such time limit did not apply to the charged crime of murder. Murder may be prosecuted at any time, regardless of the time elapsed since the commission of the crime. The complaint charging Lee with murder, kidnapping, aggravated kidnapping, and aggravated assault was not filed until February 27, 1995. A warrant for Lee’s arrest was issued on that same day. Thus, the prosecution for the charged crimes of kidnapping, aggravated kidnapping, and aggravated assault was not commenced within 2 years of the commission of the crimes. However, this 2-year time period may be tolled under certain circumstances, including the accused’s absence from the state. K.S.A. 1996 Supp. 21-3106(7)(a). On September 6,1995, the State filed a motion in limine, asking the trial court to find the 2-year statute of limitations as to the charged crimes of kidnapping, aggravated kidnapping, and aggravated assault had been tolled during the time that Lee had been out of the state between the commission of the crimes (January 16, 1993) and the filing of the complaint (February 27,1995). Lee had been out of the state and in the custody of the federal government beginning November 10, 1993. He had been incarcerated in federal prisons in Missouri and Oklahoma from November 23, 1993, until his return to Kansas on April 10, 1995, to stand trial for the crimes charged herein. Lee argued that his absence from the state was involuntary and thus could not be used against him to toll the running of the statute of limitations. The trial court found that the question was one of law. It held that Lee’s absence from the state tolled the running of the 2-year statute of limitations. The trial court stated: “I’ve read all of these cases and I don’t think that voluntariness is the test in this particular case, and even if volunteering was the test, one could reasonably argue that at least [the defendant’s] voluntary actions were the cause of being taken out of the state into federal prison.” Lee appeals the trial court’s ruling, arguing that his absence from the state could not be used to toll the running of the 2-year statute of limitations for the crimes charged against him because his absence was involuntary, not voluntary. In support of his position, he cites State v. Houck, 240 Kan. 130, 727 P.2d 460 (1986). In Houck, the State failed to prosecute the defendant until almost 3 years after the crimes had occurred. The State claimed that the defendant’s absence from the state during part of this time tolled the 2-year statute of limitations. The defendant had been on parole in Kansas, and he asked for permission to move to Arkansas during the statute of limitations period. The defendant was under the joint supervision of Kansas and Arkansas parole officers during all the time that he was in Arkansas. Because of this joint supervision, the defendant contended that he was in constructive custody of the State. Thus, the defendant claims that he was never actually “absent” from the state and that the tolling provision was never activated. As such, the defendant asserted that the State’s prosecution of him was barred by the 2-year statute of limitations. This court disagreed with the defendant. This court held that the defendant was voluntarily absent from the state and that the 2-year statute of limitations was tolled during his absence. In so holding, the court stated: “Houck voluntarily sought leave to move to Arkansas. He left the state of his own free will and remained out of state as a personal choice during the period in question. He was not ordered to leave the state; he was granted permission upon his request.” 240 Kan. at 136. Further, Lee contends that this interpretation of the absence tolling statute, requiring voluntariness, is analogous to this court’s interpretation of the concealment tolling statute. Under 21-3106(7)(c), the 2-year statute of limitations may be tolled if the fact of the crime is concealed. However, such tolling exception has been interpreted to require active, voluntary concealment of the crime by the defendant in order for the tolling to be effective, not passive involuntary concealment on the defendant’s part. The defendant’s conduct must have been “calculated and designed to prevent discovery of the crime charged; mere silence, inaction, or nondisclosure is not enough.” State v. Palmer, 248 Kan. 681, 686, 810 P.2d 734 (1991). Since 21-3106(7)(c) requires voluntary, active concealment of a crime to activate the tolling process, Lee claims that 21-3106(7)(a) also requires voluntary absence from the state to activate the tolling process. Since he was not voluntarily absent from the state, but was involuntarily incarcerated in another state, Lee claims that his absence did not activate the tolling provision of 21-3106(7)(a). As Lee points out, there is no allegation that the State did not know where to locate him during its investigation, nor is there any allegation that the State experienced difficulty in having Lee returned from the out-of-state federal penitentiary in order to stand trial. According to Lee, the only excuse offered by the State for filing the charges late was that it wanted to get the testifying accomplices “through the system” before charges were filed. According to the State, it is irrelevant for tolling purposes whether Lee was voluntarily or involuntarily absent from the state, just as long as he was actually absent. As we read 21-3106, it is unambiguous and only requires that “[t]he accused is absent from the state” in order to toll the statute of limitations, regardless of whether the absence is voluntary or involuntary. State v. Hill, 145 Kan. 19, 64 P.2d 71 (1937), supports our conclusion. In Hill, the defendant was charged with a crime more than 2 years after its occurrence. Thus, the defendant claimed that the statute of limitations for the crime had passed and argued that he could not be prosecuted for the crime. However, the defendant lived in South Coffeyville, Oklahoma. As such, the prosecution claimed that the defendant was absent from the state and that his absence tolled the statute of limitations for the charged crimes. The state line runs through Coffeyville, separating it into South Coffeyville, Oklahoma, and Coffeyville, Kansas. The defendant came into Coffeyville, Kansas, on an almost daily basis, and his address and presence in South Coffeyville was common knowledge. Nevertheless, this court had no difficulty in holding the defendant was absent from the state of Kansas so as to toll the statute of limitations. Further, in State v. Wyman, 198 Kan. 666, 426 P.2d 26 (1967), this court held that where a defendant has been absent from the state, neither concealment of his person, nor of the crime itself, is required to toll the statute of limitations. Absence from the state alone, regardless of whether the absence is voluntary, is sufficient to toll the statute in the majority of states. See Grayer v. State, 234 Ark. 548, 353 S.W.2d 148 (1962); Scherling v. Superior Court, 22 Cal. 3d 493, 149 Cal. Rptr. 597, 585 P.2d 219 (1978); People v. Carman, 385 Ill. 23, 52 N.E.2d 197 (1943); Couture v. Commonwealth, 338 Mass. 31, 153 N.E.2d 625 (1958); State v. Williams, 92 N.H. 377, 31 A.2d 369 (1943); State v. Ansell, 36 Wash. App. 492, 675 P.2d 614, rev. denied 101 Wash. 2d 1006 (1984). This also seems to be the majority rule when the accused is held in a prison out of state. See Traxler v. State, 96 Okla. Crim. 231, 251 P.2d 815 (1952). If we adopted Lee’s “voluntary absence” theory, an accused who voluntarily left the state for a noble reason (to care for elderly parents, to support a family, to be with family, etc.), would be in a worse position than an accused who commits another crime or crimes and involuntarily ends up incarcerated in another state because the voluntary absence would toll the statute of limitations against the defendant while the involuntary absence would not. We believe our legislature has clearly spoken. We hold that an accused’s absence from Kansas, due to incarceration in an out-of-state prison, tolls the running of the statute of limitations for criminal offenses until the accused is returned to Kansas. Thus, the State’s prosecution against Lee for kidnapping, aggravated kidnapping, and aggravated battery is not time barred. PEREMPTORY STRIKE Lee is African-American. The State exercised a peremptory strike and struck Mrs. P., the only African-American juror, thereby creating a monochromatic jury. Lee objected to the strike. The trial court ruled that the State provided a race neutral reason to strike Mrs. P. and upheld the strike as constitutional. Lee appeals the trial court’s ruling and challenges the State’s strike of Mrs. P. as an unconstitutional race-based strike. See Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). Mrs. P. was a widowed nurse with seven children. During voir dire, she stated that she was unsure about what effect a witness’ admission to having used crack cocaine would have on her judgment of the witness’ credibility. The prosecution asked: “Do you believe that the witnesses if they tell you they used crack cocaine, do you believe — will you judge their credit even though they will tell you they broke the law?” Mrs. P. responded, “That’s kind of hard. I don’t know. ... I would feel like maybe if they did use it, they wouldn’t be too truthful.” On further questioning, the prosecution asked if the fact that a witness used drugs would affect the way Mrs. P. would judge credibility. Mrs. P. stated, “I don’t think so.” Based on her responses, the State used a peremptory strike and struck Mrs. P. from the jury pool. The defense objected to the State’s exercise of its peremptory strike. In response to this objection, the State claimed that Mrs. P.’s equivocal statements about how she would judge the credibility of drug users and sellers indicated that she had a problem with drugs and credibility; a problem that was qualitatively different from other jurors. The State also claimed that it struck Mrs. G., a Caucasian jury pool member, for the same reasons. However, the defense pointed out that other Caucasian venirepersons made responses that were very similar to Mrs. P.’s response, but they were not struck from the jury pool. On appeal, the defense specifically points to Juror C., a Caucasian juror, who was also a healthcare worker. She responded that she believed drug use had a negative impact on credibility. She stated, “I would be able to listen to what they had to say, but as far as them taking drugs or being on drugs, even if it was now, I mean naturally they would lose a little bit of credit because they might be high while they are testifying for all I know.” She then agreed that she would watch the demeanor of the witness and determine for herself whether she believed the witness. The State did not peremptorily strike Juror C for this response. Instead, Juror C served as an alternate juror. According to Lee, the only difference between Mrs. P., who was struck from the jury pool, and Juror C, who served as an alternate juror, was race, indicating that Mrs. P. was struck for a race-based reason. The State argues that it was justified in striking Mrs. P. due to her potential refusal to see witnesses who use and sell drugs as credible. As the State points out, its case was built on the testimony of drug users and sellers. In a case supported by witnesses who admittedly sold and used drugs, the State wanted to try this case with jurors who would not discount out of the hand the testimony of its witnesses. Mrs. P. stated she did not know how she would judge the credibility of witnesses who sold and used drugs. Thus, the State claims it was focusing on credibility assessment issues, not race, when it struck Mrs. P. “The appellate standard of review applicable to a trial court’s ruling that the State did or did not act with discriminatory purpose in exercising a peremptory challenge under Batson is deferential to the trial court, regardless of whether the standard is phrased as ‘abuse of discretion’ or ‘clearly erroneous.’ See, e.g., State v. Kingsley, 252 Kan. 761, 772, 851 P.2d 370 (1993) (appellate review of a trial court’s acceptance of the State’s reasons as racially neutral for removal of juror ‘is on the basis of abuse of discretion’). We endorse abuse of discretion as the phrase to describe the deferential standard to be applied. Judicial discretion is abused only when exercised in an arbitrary, fanciful, or unreasonable manner, or in other words, when no reasonable person would take the view adopted by the trial court. State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 (1991). “Batson held that ‘the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.’ 476 U.S. at 89. Batson outlined a three-step process for evaluating claims of discrimination in jury selection that ‘permits prompt rulings on objections to peremptory challenges without substantial disruption of the jury selection process.’ Hernandez v. New York, 500 U.S. 352, 358, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991). The three-step analysis outlined in Batson and Hernandez was set forth in State v. Poole, 252 Kan. 108, 843 P.2d 689 (1992): “First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. [Batson, 476 U.S. at 96-97.] Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. [476 U.S. at 97-98.] Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. [476 U.S. at 98.]” ’ 252 Kan. at 110 (quoting Hernandez, 500 U.S. at 358-59). “After hearing the State’s explanations, and having observed the entire voir dire process, the trial court, under Batson, is to make a purely factual determination: Has the prosecution purposefully discriminated by exercising peremptory challenges against persons solely on account of their race? Batson and Hernandez make this point clear: ‘As in any equal protection case, the “burden is, of course,” on the defendant who alleges discriminatory selection . . . “to prove the existence of purposeful discrimination.” [Citations omitted.] In deciding if the defendant has carried his burden of persuasion, a court must undertake a “sensitive inquiry into such circumstantial and direct evidence of intent as maybe available.” [Citation omitted.]’ Batson, 476 U.S. at 93. (Emphasis added.) The Supreme Court noted later in Batson, ‘Since the trial judge’s findings in the context under consideration here will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.’ 476 U.S. at 98 n. 21. “Batson’s treatment of intent to discriminate as a pure issue of fact, subject to review under a deferential standard, accords with our treatment of that issue in other equal protection cases. [Citations omitted.] . . . ‘Deference to trial court findings on tire issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding will “largely turn on evaluation of credibility.” [Citation omitted.] In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. . . . [the evaluation of which] lies “peculiarly within a trial judge’s province.” [Citations omitted.]’ . . . Hernandez, 500 U.S. at 364-65. “The Batson analysis avoids placing a determinative emphasis on anyone factor. The primary decision on the question whether the State has acted with an unlawful purpose is placed by Batson in the hands of the trial judge. The trial judge can objectively compare numbers or other facts and subjectively evaluate the credibility of the State’s counsel in explaining the reasons for each challenged strike. “ . . . The ultimate decision is on whether the State has purposefully discriminated. The trial court can consider any ‘circumstantial and direct evidence of intent as may be available.’ Batson, 476 U.S. at 93. The fact that a prosecutor strikes an African-American juror, supposedly for Reason A, but does not strike a white juror, who exhibited the same Reason A, is certainly circumstantial evidence that the State is purposefully discriminating against African-Americans. This kind of circumstantial evidence may be sufficiently compelling in some cases to convince a trial court that the State is purposefully discriminating and that its race-neutral reasons are pretextual. However, comparison-based circumstantial evidence should not be considered conclusive in eveiy case, as a matter of law. “Whether the State’s reason is legitimate, or whether it is merely a pretext for a true discriminatoiy motive of seeking an all-white juiy, should be evaluated based on all of the available direct and circumstantial evidence of intent. The similarity of white jurors who were not challenged should be included in the evaluation. Under the Batson framework, the trial court is given primary responsibility for making that evaluation. Appellate courts are to review the trial court’s decision with deference.” State v. Walston, 256 Kan. 372, 373-81, 886 P.2d 349 (1994). Here, Lee made a prima facie showing that the prosecution had exercised a peremptory challenge on the basis of race because the State struck Mrs. P., leaving no African-American on the jury. The prosecution then articulated a race-neutral explanation for striking the juror in question. The prosecution explained that Mrs. P.’s equivocal statements about how she would judge the credibility of drug users and sellers indicated that she might have a problem accepting the State’s case because it was built almost entirely on the testimony of drug users and sellers. After hearing this explanation and having observed the entire voir dire process, the trial court then made a “sensitive inquiry” into the circumstantial and direct evidence to determine whether the prosecution purposefully discriminated by exercising peremptory challenges against persons solely on account of their race. The fact that the prosecution struck Mrs. P., an African-American juror, for credibility assessment issues, but did not strike Juror C, a Caucasian juror who exhibited similar credibility assessment problems, was circumstantial evidence that the State was purposefully discriminating against African-Americans. This kind of circumstantial evidence may be sufficient to prove that the State’s race-neutral reason for a peremptory challenge was pretextual, but it cannot be considered conclusive evidence in every case as a matter of law. Thus, the trial court properly avoided placing a determinative emphasis on this one factor. Instead, relying on both direct and circumstantial evidence, the trial court objectively compared the numbers and subjectively evaluated the credibility of the State’s counsel in explaining the reason for the challenged strike. Upon such evaluation, the trial court made a finding of fact and ruled that the prosecution did not purposefully discriminate by exercising a peremptory strike against a person solely on account of her race. This finding turned largely on the trial court’s evaluation of the prosecutor’s credibility; thus, this court should give the trial court’s finding great deference. We do not think the trial court abused its discretion. From the record, the State only struck one African-American. The State’s reason for striking this jury pool member is supported by the record and makes sense considering the State’s case was based almost entirely on drug users and sellers. It is true that some other non-African-American jury pool members expressed the same credibility assessment concerns as Mrs. P. did. Some of these Caucasian persons were struck and some were not. The degree of each person’s credibility concerns varied. Thus, the State had the discretion to strike only those persons who seemed to have the most problem believing drug users and sellers as credible witnesses. The State did not have to strike all venirepersons who expressed this credibility concern in order to remain within constitutional boundaries. Further, most other venirepersons who expressed this credibility concern only stated that drug use would be one factor in a witness’ overall credibility and would not alone determine whether they believed the witness. From Mrs. P.’s answers, the State could not tell if this would also be the case with her or if she would consider drug use a determative factor in not believing a certain witness. The trial court did not abuse its discretion when it ruled that the prosecution did not purposefully discriminate in its exercise of its peremptory challenges. The trial court did not commit error when it denied Lee’s objection to the State’s peremptory strike of Mrs. P. This issue fails. Affirmed.	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The opinion of the court was delivered by West, J.: The defendant was prosecuted under section 2 of chapter 179 of the Laws of 1913, which provides that any person who shall keep or assist in maintaining a house of concubinage or where the same is practiced, permitted or allowed on premises owned or leased by him or under his control shall be deemed guilty of a felony. The information charged that on or about November 27, 1913, the defendant did unlawfully and feloniously keep and maintain a house o t concubinage at a certain number on East Third street of Ottawa, Franklin county, “in which said house the defendant, Elisha Ball, did live and cohabit in concubinage for more than one year from said date with a certain female person,” naming her, “and doth since, hitherto continue to so keep and maintain said house contrary,” etc. The defendant was convicted and appeals, assigning numerous errors. It is argued that there was no arraignment or waiver thereof, but the counter-abstract expressly shows by the journal entry copied therein a waiver of arraignment in open court and a plea of not guilty. It is complained that the motion to quash was overruled, and that the information was bad for failure to change whether the defendant was owner, lessee or tenant of the'house in question or a boarder therein. The statute makes it a crime to maintain a place of this sort. Section 3 is leveléd against any person who as owner or agent knowingly permits a place under his control to be thus used, and section 4 provides for forfeiture of a lease thus abused by a tenant. It is claimed by the state that the information follows the language of the statute, and is therefore sufficient. But the express allegation that the premises were owned or leased by the defendant or under his control was. omitted, and the question remains whether this essential allegation is stated substantially or in effect. The direct charge that the defendant unlawfully and feloniously kept and maintained a house of concubinage at the place described, and that in such house did for more than one year live and cohabit in concubinage, can not be true unless the premises were under his control to such an extent as to render him amenable to the statute in question, and under the modem construction of criminal pleadings it must be held that this information fairly and sufficiently advised the defendant of “the nature and cause of the accusation against him.” The fact that the one year back of December 23, 1913, when the information was filed would cover a time prior to the. enactment and taking effect of the statute, and the further fact that the information did not state that the woman in question was not the defendant’s wife, we do not regard as material, for the reason that the time between the taking effect of the act and the filing of the information was sufficient for the admission of proper evidence regardless of the remainder of the time so charged, and for the further reason that the language of the information makes it impossible that the parties in question could have been husband and wife. The admission of certain evidence touching the conduct of the parties and their manifestations of mutual affection was proper. The fact that the parties stayed at a certain house as man and wife some seven or eight years prior to the trial, while somewhat remote, was not incompetent, the weight and effect of such fact being for the jury, and was proper, not for the purpose of proving a different offense but to show the conduct, disposition and inclination of the parties. (The State v. Ling, 91 Kan. 647, 651, 138 Pac. 376, and cases cited; State v. Bridgman, 49 Vt. 202, 24 Am. Rep. 124; People v. Skutt, 96 Mich. 449, 56 N. W. 11; 1 R. C. L., p. 646.) (See, also, The State v. Briggs, 74 Kan. 377, 381, 86 Pac. 447; The State v. Hetrick, 84 Kan. 157, 113 Pac. 383; The State v. Wheeler, 89 Kan. 160, 165, 130 Pac. 656.) The admission of evidence touching the reputation of the woman nine and one-half miles from where she was living at the time of the trial was proper, the witness stating that he had lived near her in the country where she formerly lived, and had known her for twenty years. (The State v. Tawney, 78 Kan. 855, 99 Pac. 268.) The remark of the trial court, made in passing on this question, criticizing the decision just cited, was not such as to prejudice the jury against the defendant. There was testimony to the effect that when the defendant found that his paramour had married he expressed himself very strongly, and said he would kill the husband before he should live with her. It appears, also, that the newly-wedded couple soon separated. The evidence touching these statements was competent for the purpose of showing the sentiments of the defendant towards the bride. Instruction No. 1 asked for by the defendant was substantially given, and likewise instruction No. 3, while instruction No. 2 that concubinage is an agreement, etc., was properly refused. The only other error mentioned in the brief is that assigned upon the refusal to set aside the verdict on the ground that it is contrary to law and not supported by the evidence. Without repeating the facts, condi tions and circumstances shown by the abstract, it is sufficient to say that the evidence of the relations of the parties, the location of the rooms occupied by them, their conduct and association furnish abundant ground to support the verdict. The judgment is affirmed.	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The opinion of the court was delivered by Smith, J.: This action was brought in the district court of Wyandotte county to foreclose a mechanic’s lien on December 18, 1912, by the M. R. Smith Lumber Company, a corporation, against defendants, R. R. Russell, C. H. R. McElroy, John H. Finley, The Old Colony Investment Company, and their unknown heirs, trustees, executors, administrators, successors, and assigns. Service was made by publication as to a part of the defendants. C. H. R. McElroy and Sallie H. McElroy, husband and wife, answered separately, she having entered a voluntary appearance. The case was tried before the court without a jury, judgment was rendered in favor of the plaintiff for $1806.69 and costs, and the lien allowed. The McElroys appeal. It is urged that R. R. Russell had no sufficient title to the real estate upon which to base a mechanic’s lien. It is, however, undisputed that on May 13, 1911, he informed the lumber company that he was about to build a number of houses at 18th and Orville avenue, the location upon which the lien is claimed; that on the same day and thereafter lumber was delivered on the contract to Frazier, the carpenter, who built the houses, according to Russell’s directions; and that on June 19, 1911, Russell acquired record title to the real estate in question. The court found that Russell was exercising all the rights of possession and ownership over the real estate, and while there is no evidence of the existence of a contract of purchase at the time of the order and contract for the lumber, the circumstances are sufficient to justify the finding that he had some ownership in the property, which is all that is necessary. (Mortgage Trust Co. v. Sutton, 46 Kan. 166, 26 Pac. 406.) The lumber and material were furnished by the lumber company to build four houses upon land to which Russell acquired a deed, shortly after the making of the contract. The court further found that the lumber and material furnished by the lumber company at 18th and Orville avenue, as set out in the itemized account attached to the statement for mechanic’s lien, was used by Russell’s agent and foreman in building the four houses and other improvements upon the real estate described in the petition and the statement for a lien. The second asignment of error is that the contract for the lumber and material for the four houses was not an entire contract within the meaning of the law. There was only one contract, and Russell informed the lumber company that he expected to build several houses on the tract at the corner of 18th and Orville avenue, and to let Frazier have whatever lumber he ordered for the purpose. Whether this tract was a single lot or parts of adjoining lots the record does not disclose, although the location is definitely described as beginning at a point on the north line of Orville avenue, twenty-seven and one-half feet west of the southeast corner of lot thirty in block one, Graceland avenue, an addition to Kansas City, Wyandotte county, Kansas. Russell told the lumber company’s bookkeeper and agent, with whom he made the contract, that he “had quite a bit of ground there and would probably build all over it.” In Carr v. Hooper, 48 Kan. 253, 29 Pac. 398, it was said: “Where work and material are furnished in the erection of five buildings upon a single lot under an entire contract with the owner, a lien attaches to the lot and buildings for all the material and labor furnished, and the release of a part of such lot by the contractor from the lien, to enable the owner to secure a loan thereon, will not defeat the lien on the other portion of the lot.” (Syl. ¶3.) So long as it was one tract of land upon which the four houses were built, which is not controverted in this case, it makes no difference whether it consisted of one lot only or of more lots or parts of lots. The contract was entire and a lien would attach for material furnished for building houses all over the tract, if such houses had been built. (See, also, Wilson v. Howell, 48 Kan. 150, 29 Pac. 151.) Again, it is contended that the statement for a mechanic’s lien was invalid for the reason that it did not name the proper person as the owner of the property. It is contended that the person who was the owner of the property at the time the' statement for the lien was filed was the proper person to be named under the provisions of the statute. On the contrary, we think that the owner which the statute requires to be named is the person with whom the contract was made as owner. The question here was discussed in Lang v. Adams, 71 Kan. 309, 80 Pac. 393. It was there said: “As the statute makes the contract with the owner the basis of a lien no one but the owner or some one representing him can create a lien upon his property. In the statement for the lien by the contractor he must name the owner with whom the contract was made.” (p. 311.) We conclude that there was no defect in the statement for lien in this respect. The petition does charge and it is, in substance, found that Russell was the owner of the tract at the time the contract was made. The fourth assignment of error is that this action was not timely commenced. No issue upon the time of commencing the action was presented by the answer, by motion or otherwise, in the district court. This court has only appellate jurisdiction in the matter. The appellants were nonresidents of the state and voluntarily appeared and answered to the petition on the merits, submitting themselves to the jurisdiction of the court, and can not be heard here for the first time to say that the court had no jurisdiction to hear the case. (Adolph Cohen v. C. B. Trowbridge, 6 Kan. 385; Croan v. Baden, 73 Kan. 364, 85 Pac. 532; Vail v. School District, 86 Kan. 808, 122 Pac. 885.) The fifth assignment of error is that if any lien ever existed it has been released. The ground for this contention is that the lien upon a portion of the tract of land was released in consideration of the payment of $570.84. This seems to have been a fair proportionate amount of the entire lien and the appellants were not injured thereby, and the release thereof will not defeat the lien on the other portion of the property. (See Carr v. Hooper, 48 Kan. 253, 29 Pac. 398.) The defendants submitted special questions of fact to be answered by the court, which the court refused to answer, but made findings of fact and conclusions of law separately. This is urged as error. The submission of special questions may be fairly construed as- a request to make special findings of fact and conclusions of law as provided by section 297 of the civil code, but the court is not required to answer special questions. It is the duty of the court, on request, to make separate findings of fact and conclusions of law as was done in this case. The proper practice was discussed in Vickers v. Buck, 70 Kan. 584, 79 Pac. 160. If material facts in issue have been omitted in the findings it is the duty of the court, on request, to make additional findings on such issues. No additional findings having been requested after the court made its findings, no error was committed in this respect. The last assignment of error is that the court erred in refusing the appellants a new trial, and the reasons assigned for demanding a new trial were the alleged errors already considered. As we have not found any error in the proceedings thus far there was no error in refusing a new trial. The judgment is affirmed.	[ 113, 106, -68, -100, 10, 96, 42, -38, 91, -79, -92, 83, -51, -122, 69, 111, 98, 125, 97, 104, 102, -77, 7, -21, -46, -13, -13, -51, -72, -51, -76, -113, 76, 48, 74, -97, -90, -128, -59, 92, 14, 5, 40, -19, -39, 64, 52, -21, 4, 74, 81, 60, -13, 46, 25, -53, 8, 42, -17, 41, -16, -7, -77, -97, 95, 23, 49, 68, -104, -63, 72, 10, -112, 53, -120, -24, 115, -74, -122, 116, 77, 25, 44, 38, 99, 3, 29, -17, -24, -104, 46, -77, -99, -90, -110, 88, 51, 96, -66, -103, 109, 80, 6, -2, -26, 5, 29, 104, 7, -117, -14, -111, 15, 56, -101, 7, -34, -125, 32, 113, -51, -78, 95, 98, 115, 27, -121, -71 ]
The opinion of the court was delivered by Mason, J.: Martha L. Schmidt brought an action against several defendants for injuries caused by the bite of a dog. While the case was pending the plaintiff died, and the action was revived in the name of the administrator. The matter was then settled by the defendants paying $1000, in consideration of which the administrator executed a release in these words: “Before the completion of the trial of the above entitled action I agree with said defendants with the consent of the probate court, to accept the sum of $1000, in full of all damages claimed in said action and to dismiss the same at their costs. “And thereupon I dismissed said action with prejudice and hereby acknowledge the receipt from said defendants of said sum of $1000, which I accept as payment in full of all claims for damages against said defendants or any of them this 9th day of March, 1911.” Thereafter the administrator began a new action against the same defendants, for the benefit of the next of kin, alleging that the death of Martha L. Schmidt resulted from the effects off the dog’s bite. A demurrer to the evidence was sustained upon the ground that the proceedings already referred to constituted a bar. The plaintiff appeals. Our statute provides that “when the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injury for'the same act or omission.” (Civ. Code, § 419.) By the great weight of authority an action can not be maintained under' such a statute where the injured person in his lifetime has made a settlement and released his claim for the loss occasioned to him. Such is the law in this state. The conflict in the cases is noted, and the reasons for the rule stated, in Sewall v. Railway Co., 78 Kan. 1, 11-16, 96 Pac. 1007. See, also, Note, 27 L. R. A., n. s., 176; Note, 1 Ann. Cas. 232; 1 C. J. 526; Perry v. P., B. and W. R. R., 24 Del. 399, 77 Atl. 725; Mooney v. City of Chicago, 239 Ill. 414, 88 N. E. 194; Melitch v. United Rwys. & E. Co., 121 Md. 457, 88 Atl. 229. Upon the death of Mrs. Schmidt her cause of action survived and could be prosecuted by the administrator (Civ. Code, § 417), unless her death was the result of the bite of the dog, in which case no action could be maintained except under the death-claim statute. (City of Eureka v. Merrifield, 53 Kan. 794, 37 Pac. 113; Martin v. Railway Co., 58 Kan. 475, 49 Pac. 605.) Inasmuch as the adminstrator elected to prosecute the original action — a course open to him only if the death was not due to the bite — and received a substantial sum on that theory, he can not be permitted to assert the contrary and so obtain a second recovery. This result is a necessary consequence of the view that no cause of action for the benefit of the next of kin can exist where the claim of the injured person has been released or satisfied. In a situation entirely similar to that here presented it was said: “If ... by settlement or recovery in or as of his lifetime no right of action existed or remained in the intestate, none survived to his executor or administrator. So also, if, by settlement or recovery by the intestate in or as of his lifetime no liability rested upon the wrongdoer at his decease, none survived his death against the wrongdoer. Although such recovery should be by an executor or administrator in a suit commenced by the intestate, or commenced by such executor or administrator, if the recovery be in the right of the intestate while living, such recovery, in legal effect, would antedate the death of the intestate, exhaust his right of action, and nothing would refnain to survive for a subsequent action. It would also exhaust the liability of the wrongdoer, and no liability would remain to be enforced in a subsequent suit.” (James Legg, jr., Admr. v. Henry S. Britton, 64 Vt. 652: 658, 24 Atl. 1016.) (See, also, McGahey v. Nassau Electric R. R. Co., 51 N. Y. App. Div. 281, affirmed in 166 N. Y. 617, 59 N. E. 1126.) The j udgment is affirmed.	[ -48, 124, -36, -115, 10, 96, 58, -38, 119, -127, -75, -45, -83, 65, 5, 111, 115, 109, 81, 107, 86, -77, 23, -118, -14, -13, -47, 85, -77, 110, -27, -41, 77, 32, 10, 85, 103, -29, -63, 84, 10, 4, -120, -19, -5, 64, 48, 127, 18, 6, 53, 30, -21, 42, 24, -57, 40, 40, -6, -83, -112, -71, -70, 13, 109, 2, -125, 38, -100, -89, -36, 40, 16, 49, 16, -24, 114, -74, -58, 118, 109, -71, 12, 98, 98, 33, 85, -19, -112, -104, 47, 54, -115, -90, -72, 89, -118, 13, -66, -99, 100, 84, 7, 116, -12, 20, 77, -84, 69, -50, -42, -77, -49, 124, -98, 1, -17, -125, 36, 81, -116, -96, 92, 103, 121, -37, -97, -100 ]
The opinion of the court was delivered by Porter, J.: The proceeding originated in the probate court, and was appealed to the district court. The appellant here, who was the appellee there, filed a motion to dismiss the appeal, which was overruled, and this is the order-we are asked to review. The cause was tried on its merits and finally disposed of October 15, 1912. The appeal to this court was'taken on September 6, 1913. 'The appellee has filed a motion to dismiss the cause, and the motion must be sustained. The facts upon which the trial court overruled the motion to dismiss the appeal from the probate court were not disputed, and the ruling was upon a question of law only, so that no motion for a new trial in the district court was necessary to have a review of the order. (Wagner v. Railway Co., 73 Kan. 283, 85 Pac. 299; Nichols v. Trueman, 80 Kan. 89, 101 Pac. 633.) The time in which the appellant could appeal commenced when the cause was finally disposed of. (McIntosh v. Wheeler, 58 Kan. 324, 49 Pac. 77.) He could not extend the time by the filing of an unnecessary motion for a new trial. (Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36,'48, 39 Pac. 718.) Appellant has not brought up the record of the proceedings on the merits, and the only question presented here is the ruling of the district court on his motion to dismiss, which can not be considered for the reason that this appeal was not brought within proper time. . (Dyal v. City of Topeka, 35 Kan. 62, 10 Pac. 161.) It is appellant’s contention that his right to appeal within a year accrued to him before chapter 241 of the Laws of 1913, limiting the time to six months, was passed. The act took effect on July 1, 1913, and contains no saving clause limiting its effect. In general terms it provides that the appeal in all cases shall be perfected within six months from the rendition of the judgment or order appealed from. It has been settled that there is no vested right to an appeal, and that the legislature may take away from the defeated party the privilege before his appeal has been taken. (Coal Co. v. Barber, 47 Kan. 29, 27 Pac. 114; Kansas City v. Dore, 75 Kan. 23, 88 Pac. 539.') It follows, therefore, that the cause will be dismissed.	[ 118, 106, -4, -98, -54, 96, 34, -104, 64, 97, 37, 83, -83, 18, 20, 125, 83, 13, 81, 123, -60, -109, 23, -119, -14, -13, 80, -33, -9, -36, 100, 118, 76, 48, 74, -107, 70, -56, -59, 84, -114, 0, 9, -20, -47, 8, 48, 123, 118, 31, -47, 126, -13, 42, 24, -58, -23, 61, -37, -67, -48, 48, -125, 13, 111, 20, -95, 5, -34, -59, 96, 46, 28, 17, 11, -20, 113, -90, -122, -44, 99, -103, 40, 98, 98, 33, 21, -17, -88, -120, 38, 22, -97, -89, -112, 88, 107, 105, -74, -103, 117, 48, 7, -2, -26, -107, 21, 44, 4, -117, -108, -77, 31, 60, -112, -126, -5, -95, 48, 112, -115, 96, 94, 71, 51, 27, -114, -104 ]
Per Curiam: Possibly the language of the opinion as to the acquiescence of appellee in the disposition of the wheat by Lingenfelter is too strong, although it is not disputed that the appellee did discuss the place of selling the wheat with Lingenfelter; neither is it disputed that she selected Lane to attend to the weighing of the wheat. Lane testified on the trial that he superintended the weighing of the wheat except a small amount obtained from the second threshing. It is immaterial, however, whether or not she ratified the action of her attorney. The wheat, standing, had been attached in an action brought before a justice of the peace by appellant Bell against R. Z. Ballard as owner. Bell obtained judgment against Ballard and an order sustaining the attachment. Lingenfelter’s predecessor as sheriff had made the attachment. Mrs. Tuttle intervened and secured an order from the justice court dissolving the attachment, and Bell, by his attorney, Schwinn, had appealed, or attempted to appeal, from such order to the district court. Mr. Ready was the attorney for Mrs. Tuttle both in the justice court and in the district court, and Mr. Schwinn was in each court the opposing attorney. The time to harvest the wheat was approaching and evidently the wheat should be harvested and marketed. Lingenfelter testified on the trial in the district court, presumably in the presence of both these attorneys, that both authorized him to harvest, thresh and market the wheat; that he had done so, had the money obtained therefor, and was ready to pay it out on the order of the court.. It was a matter directly involved in the employment of the attorneys, and in which, by virtue of their employment, they were the agents, respectively, of their different clients. It is said the jury had a right to disregard the evidence of Lingenfelter because he had told Mrs. Tuttle that he thought he would have to hold the wheat. • It did not devolve upon the sheriff to decide at his peril his right to hold possession of the wheat, especially as the qúestion was in litigation. If there was any substantial reason why the jury should ignore Lingenfelter’s evidence, of course they had the right to do so. But it seems almost inconceivable that a witness with no direct interest involved should testify in the presence of the two men who, he says, gave him authority to harvest, thresh, sell and account for the wheat unless there was a basis for the statement. The story was true or it was a fabrication, and if a fabrication, that fact, we assume, could have been proven by either or both of the attorneys. The appeal was not and probably could not be heard until after harvest, and the arrangement to save the wheat, as testified to by Lingenfelter, seems a natural and reasonable thing to be done under the circumstances. No witness denied his statement and it was error to discard it. Under the circumstances we think the verdict and judgment as rendered were contrary to the evidence. We adhere to the-decision modifying the judgment.	[ 48, -20, -4, -115, 74, -96, 58, -40, 81, -95, -89, 83, -23, -33, 20, 57, 115, 45, 85, 42, -42, -74, 3, 81, -10, -13, -47, -43, -79, 79, -27, -36, 77, 48, 66, -43, -29, -126, -59, 28, -116, 5, -119, -23, -38, -48, 48, 127, 86, 75, 97, -66, -13, 40, -65, -57, 105, 44, 107, 61, 96, 112, -70, 14, 111, 22, -110, 38, -104, 7, -40, 110, -104, 49, 1, -32, 123, -74, -126, 84, 11, -71, 8, 102, 110, 33, 13, -17, -104, -120, 46, -17, 47, -89, -111, 64, 9, 101, -66, -97, 103, 80, 6, -2, -11, -52, 30, 116, 9, -50, -42, -73, -113, 118, -100, 3, -21, -125, 20, 97, -51, -66, 92, 69, 112, -101, -50, -92 ]
The opinion of the court was delivered by Johnston, C. J.: This is an appeal from a ruling refusing to revive a judgment. In a divorce action a judgment was rendered granting Maria Chumos a divorce from Constantine G. Chumos and awarding her the custody of their three children upon the condition that if she should leave the jurisdiction of the court she might take the youngest child, a daughter, with her, but in such case she was required to deliver the other two children to their father, to be cared for by him until her return.- It was also adjudged that she and the children be granted alimony in the sum of $12,000, to be paid in monthly installments of $75. It appears that he had obtained a certificate issued in her favor by a bank of Greece for eleven thousand drachmas and had pledged it to the Central National Bank of Topeka for a debt of his own, and it Avas adjudged that as soon as he obtained the release of the certificate and had deposited it with the clerk of the court a credit should be given to him for the amount of the same on the alimony-award of $12,000, and it was further adjudged that he be prohibited from pledging or using her certificate for any other of his debts. Shortly after the judgment was rendered Maria Chumos removed to Pennsylvania, taking with her the youngest child, who was then about three years of age. After removing from Kansas, and on January 6, 1912, Mrs. Chumos died at Oil City, Pa. Soon afterwards her brother, A. D. Chacona, was appointed by a court of Pennsylvania and duly qualified as executor of her estate. It also appears that the Pennsylvania court appointed some one other than Chacona as guardian of the infant daughter, and that subsequently this child was taken to Greece with the knowledge and consent of Chacona. A motion was made by Chacona, as executor of the estate of Maria Chumos, deceased, to revive the judgment given in the divorce proceeding, and on October 12, 1912, the motion was refused upon the ground that Panagiota Chumos, the infant daughter, had been removed from this country to Greece with the knowledge and consent of Chacona, the executor, and it was therefore adjudged that he had no standing in court to ask for a revivor, and that his motion would not be considered until he returned or caused the return of Panagiota Chumos to the jurisdiction of the district court. In support of the ruling it is contended that upon the death of Maria Chumos the natural guardianship of the daughter devolved upon the father, Constantine G. Chumos, and that thereafter the domicile of the father became the domicile of the child. Modern Woodmen v. Hester, 66 Kan. 129, 71 Pac. 279, is an authority for this contention. It appears, too, that the probate court of Shawnee county, where the father resides, has recently appointed him as guardian of his children. Shortly after the granting of the divorce the mother gave the custody of the two sons to the father and he cared for them until the death of Nicholas, and ever since that time has cared for the son George, and now desires and has taken steps to obtain the custody of his daughter. In the judgment of divorce it was provided, among other things, that in case the custody of the children, or any of them, was thereafter changed from the mother to the father the court was at liberty to reduce the award of alimony, and that if the mother should die or marry again before the entire award had been paid the remaining- payments should be made to the children. A number of the monthly payments that had accrued to her and the children prior to her death were not paid by the father. The right of the father to the custody of his daug-hter, which may be conceded, and her unauthorized removal to Greece have no direct bearing upon the question of revivor. The judgment sought to be revived involved property rights held by Mrs. Chumos at the time of her death which required the determination of the court. She owned the certificate for eleven thousand drachmas, which is the equivalent of about $2015 and which her husband was required to return. Payments of alimony which had accrued prior to her death had not been made. These amounts belonged to her estate, and if the judgment was permitted to die they would be lost to the estate, to her children, and to those legally entitled to the estate. Chacona is the personal representative of the deceased, and it is his duty to take such action as will preserve the assets of the estate and make a proper distribution of it. To do so it devolved on him to procure a revivor of the judgment which was record evidence of the indebtedness to the estate. Being the personal representative of the deceased, he was entitled to have the judgment revived as to these property rights, providing compliance was made with the conditions of the code authorizing a revivor. Upon the death of a plaintiff the action is to be revived in the name of the representative. to whom the right has passed, providing it is done in the prescribed way and within two years after the death of the plaintiff. (Civ. Code, §§ 428, 437.) Under a somewhat similar provision the supreme court of Ohio held that the right to revive “is not dependent on the discretion of the court or of the judge making the order, but, under the conditions and within the time therein limited, is a matter of right.” (Carter v. Jennings, 24 Ohio St. 182, 188.) In Gillette v. Morrison, 7 Neb. 263, it was held, on a motion to revive after the death of a party, that the merits are not open to consideration, and the only question for decision is, Has the party died and who are his representatives and heirs that are entitled to substitution. It was also held that if the application was in due form and made within the prescribed time the order of revivor must be granted as a matter of right. Here there is no question as to the representative capacity of Chacona nor to the form; of the motion which he has made, neither is there any contention that it was not made in good time. The only objection is that the daughter of the deceased was taken to Greece with the knowledge and consent of Chacona. However, he was not the guardian of the child and was in no way responsible for her custody. His consent to the removal conferred no right on any one and was wholly ineffectual. As executor he had no function to perform with respect to the custody of the child, he had no responsibility as to the actions of its guardian, and he could not, by consent or otherwise, do that which would affect the rights of those entitled to her custody. The fact that he knew or consented to her removal did not deprive him of his official position as executor nor take away his right to a revival of the judgment. The revival of the judgment will not prevent the court from regulating the payments of alimony in accordance with the provisions of the judgment and the changed con ditions nor from ordering the withholding of payment of the adjudged alimony until the child is returned to the custody of her legal guardian. The decision of the court will be reversed with directions to allow the motion and to enter an- order of revivor.	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The opinion of the court was delivered by Benson, J.: In this action for partition the question to be determined is whether Ida Jane Rogers, formerly the wife of Ray Victor Rogers, owns one-tenth or only one-twentieth of 280 acres of land, the subject of the action. In February, 1912, Mr. Rogers owned an undivided one-tenth of the land by inheritance. In an action for divorce, commenced in the Linn county district court against him on that date, his wife aslced for alimony, making the following statements in her petition: “That J. J. Rogers, the father of said defendant (Ray Victor Rogers), died intestate in January, 1909, leaving as his sole surviving heirs his wife, Mary Rogers, and five children who are now at the age of majority. . . . That at the time of his death the said J. J. Rogers was the owner of the following described real estate situated in Linn county, Kansas, to-wit: (Description of land.) “That said real estate has never been divided among the several heirs to the estate of the said J. J. Rogers, deceased. That said defendant and this plaintiff now own an undivided one-tenth interest in an undivided one-half interest in the above described land.” The petition concluded with a prayer for divorce and that she be granted for alimony “The undivided one-tenth interest in the undivided one-half interest in the following-described land situated in Linn county, Kansas, to-wit:” (Repeating description.) Service in the divorce action was made by publication. The husband made no appearance. When the case was called for trial the petition was amended by leave of the court, but without notice to the husband, by striking from the petition and publication notice the words italicized in the quotation. On the trial of that action the court granted a divorce as prayed for and entered in the decree a finding that at the time of his death the father of the defendant owned the tract of 280 acres, which had not been divided among his widow and five children, his only heirs, and that: “Said defendant and this plaintiff now own an undivided one-tenth (Mo) interest in the above described real estate. “That the plaintiff is entitled to the interest of the said defendant Ray Victor Rogers in the said lands belonging to the estate of his father John J. Rogers, as alimony.” This finding was followed by a formal judgment awarding the one-tenth interest in the land to Mrs. Rogers as alimony. •On the trial of this action for partition the files and record of the divorce action were introduced in evidence. No other evidence was offered. Judgment was rendered in favor of Mrs. Rogers for one-twentieth of the land, and in favor of Mr. Rogers for the one-twentieth in dispute. There is no controversy concerning other interests. Mrs. Rogers appeals, relying upon the decree in the divorce action giving her one tenth. Mr. Rogers’ contention is that the district court exceeded its jurisdiction in the divorce suit in awarding a one-tenth interest in the land instead of one-twentieth as alimony; that the decree is void as to such excess, and therefore subject to collateral attack. Jurisdiction to render judgment in the divorce suit for the one-twentieth interest is admitted. The sole question left for decision is whether the judgment was void as to the other one-twentieth. For Mrs. Rogers it is insisted that the subject of action or res in the suit for divorce and alimony was the tract of land — the physical thing situated in the county, which, in connection with the publication, gave the court jurisdiction to award alimony. On the other hand, it is contended that the particular undivided interest in the tract described in the petition was the subject and could only be considered, and that any attempt to adjudicate upon a larger interest was in excess of jurisdiction and void. The question thus presented and argued does not necessarily arise in this case, for the husband’s interest in the property sought as alimony was fully described aside from the mistaken recital that it was one-tenth of one-half of the tract. The devolution of the defendant’s entire interest was stated. It was alleged that his father died intestate owning the tract of land in fee, leaving a wife and five children, his only heirs, among them Ray Victor, and that no division of the land had ever been made. To this complete description was added a statement that the defendant (and plaintiff) now own an undivided one-tenth interest in an undivided one-half interest— a patent ambiguity, or a mere mistaken conclusion. “The papers and entries in a judicial -proceeding, from the summons or initiative paper to the final judgment or decree of confirmation, being one single instrument, in a collateral attack on account of a misdescription of land the same rules are applied as in the construction of grants, and if there are certain things which identify the corpus or thing intended to be affected or sold the addition of a false or mistaken description will not vitiate it.” (Van Fleet on-Collateral Attack, § 774.) It was held in Sharp v. McColm, 79 Kan. 772, 101 Pac. 659, that a correct description in a copy of a mortgage attached to a petition controlled the recitals in the body of the petition at variance with the copy. In Wesner v. O’Brien, 56 Kan. 724, 44 Pac. 1090, 32 L. R. A. 289, 54 Am. St. Rep. 604, it was held, under the old code allowing publication service in actions for divorce against a nonresident, that lands situated anywhere in the state, properly described in the petition and notice, could be appropriated as alimony. In section 78 of the present civil code, alimony is expressly included among the actions in which constructive service may be made. It was said in the Wesner case: “The essential matter is that the defendant shall have legal notice of the proposed appropriation, and this is afforded by the publication notice which warns the defendant that one of the purposes of the proceeding is the sequestration of the land. It refers interested parties to the petition, in which the land is definitely described, and wherein it is asked that the land be set apart as alimony.” (p. 728.) Assuming, but not deciding, that it is still necessary to describe in a petition for alimony the land sought to be applied, it must be held, within the principles fully discussed in the Sharp case, that the description was sufficient to give jurisdiction. An ambiguous description, or a sufficient description followed by an insufficient one, or a mistake in a conclusion deduced from facts stated, may make a judgment irregular, or erroneous, and subject to reversal or correction on appeal, but does not make it void. It was held in the Sharp case that a description of the real estate was not necessary in a publication notice in a suit for foreclosure and that a misdescription of the section subdivision did not defeat jurisdiction. It was said in the opinion: “The presence in a county of any land belonging to a nonresident defendant subjects such land to the power of the court for that county, and if the defendant be advised that land will be sold under a mortgage or under an attachment, or will be partitioned, or that the - title to land will be quieted, or the like, jurisdiction to proceed is complete. When jurisdiction has once attached every subsequent act of the court taken pursuant to the petition is but the exercise of jurisdiction, which may extend to any tract of land made the subject of the action by the petition.” (Sharp v. McColm, 79 Kan. 772, 777, 101 Pac. 659.) Various phases of the general subject were considered in Garrett v. Struble, 57 Kan. 508, 46 Pac. 943; Douglass v. Byers, 59 Kan. 481, 53 Pac. 523; and Caldwell v. Bigger, 76 Kan. 49, 90 Pac. 1095. Having obtained jurisdiction to proceed in the suit for divorce and alimony, the district court had ample power to allow the amendment and to render the judgment awarding one-tenth of the tract to Mrs. Rogers as alimony. If erroneous, which we do not decide, it was not void. A motion to dismiss this appeal is filed, based upon two grounds: First, that after the judgment in partition had been rendered awarding to Ray Victor Rogers one-twentieth of the land, Mrs. Rogers commenced an action for the recovery of money against her former husband and caused an order of attachment to be issued and levied upon that interest; and, second, that the judgment for alimony in the divorce action was modified upon motion of the defendant therein so that it awarded to Mrs. Rogers only one-twentieth of the land. In an affidavit in support of the motion to dismiss, it is stated that the judgment was so modified on December 31, 1912, but the affidavit does not state whether notice of the application for the modification was given, or whether Mrs. Rogers appeared. Upon the first ground it is sufficient to say that a levy of the attachment upon the interest in dispute does not preclude the appellant from asserting her claim to that interest. If, as we hold, the interest in the property levied upon did not belong to Mr. Rogers, he was not injured by the levy. In the absence of information other than that given in the affidavit the appeal will not be dismissed. The modification may have been ordered without notice upon the theory held by the district court that the judgment for the excess over one-tenth of the land was void, and therefore could be set aside at any time with or without notice. In any event the effect of the alleged modification should not be determined upon this motion to dismiss the appeal. The cause is remanded with directions to modify the judgment by awarding one-tenth of the land to the appellant. The costs of the appeal will be taxed against Ray Victor Rogers.	[ 113, 104, -11, 28, -120, -32, -22, -40, 122, -95, -91, 83, -23, -38, 4, 121, 98, 15, 81, 105, -26, -77, 23, -93, 18, -77, -7, -49, -80, 93, -27, -42, 76, 32, -118, -107, -28, -56, -63, 84, -50, -124, 11, 124, -37, 96, 52, 99, 64, 11, 81, -65, -13, 41, 60, -31, 108, 46, 95, -92, 16, -8, -118, -113, -33, 18, 17, 2, -14, -91, 72, 46, -104, 49, 8, -20, 119, -90, 22, 116, 69, -119, 25, 102, 103, 55, -107, -17, 112, -104, 14, -69, -115, -89, -74, 80, 99, 68, -65, -99, 105, -44, 11, -4, -7, 93, 28, 96, 9, -117, -42, -111, 15, 56, -100, 18, -13, -124, -80, 97, -55, -94, 93, 119, 50, -101, -49, -76 ]
The opinion of the court was delivered by West, J.: The plaintiffs sued to quiet title to a ten-acre tract of land. From an adverse judgment they appeal, and the questions involved concern the effect of an administrators’ sale and the matter of adverse possession. The trial court made findings of fact which appear to be satisfactory to both parties, the controversy being over the conclusions of law. From these findings it appears that the land was embraced in a larger body, which passed by the will of Soranus L. Brettun in 1881; that under this will the widow, Margaret, took a life estate. Charles L. Black, a grandson, took one-third in fee, and two other grandchildren, Caroline Louise Crapster, now Bangs, and Brettun Crapster, each took a life estate in one-third, and after the death of Caroline' Louise her children were to have her one-third in fee. Caroline Louise married defendant A. C. Bangs, and Brettun C. died before this action was begun, leaving a widow, Jennie G. Crapster, and two children, Bretta V. and Caroline L. In October, 1883, the executors of the will secured an order to sell the real estate for the payment of the real estate now in controversy for the payment of debts of'the testator, and it was ordered that notice be given to Caroline L. and Brettun, who were designated as the sole heirs at law of Soranus L. Brettun. Margaret Brettun and Charles C. Black were the executors, and of course had notice of their own proceeding. Notice was served as directed and an order was made directing a sale of the real estate, including that now in controversy, and a deed was ordered executed and recorded. When notice was served, however, Caroline L. Bangs had an infant son, Milton A. Bangs, then between two and three months old, on whom no service was made. Afterwards in certain other litigation all the interest of Charles C. Black was extinguished. In August, 1886, a sister of Milton A. Bangs, Margaret E., was born. In November, 1890, Ruth T. was born, and in February, 1892, Phyllis G. Bangs was born. Milton A. Bangs’ majority was reached in 1904, and those of his three sisters, respectively, in 1904, 1908 and 1910. Certain other defendants filed disclaimers and need not be further mentioned. In June, 1885, the grantee of the administrators executed a warranty deed to George E. Knickerbocker purporting to convey a full and complete title to the north five acres of the tract in question, and in June, 1887, he executed a warranty deed to the same grantee purporting to convey a complete title to the south five acres. Immediately after the purchase of these tracts George E. Knickerbocker fenced the land, planted an orchard and put on improvements costing about $500, which was the purchase price of the land, and until his death held open, notorious and exclusive possession, claiming to own the tract as against the defendants and the world. He was absent from Kansas from April 1, 1889, until his death, March 25, 1891. In April, 1891, the plaintiffs, being the widow and daughters of George E. Knickerbocker, returned to Kansas, and in a year or two buildings and improvements were placed upon the land to the value of $800, the plaintiffs occupying the tract as their homestead from 1892 or 1893, and from their return, in April, 1891, up to the commencement of this action, August 7, 1912, they held open, notorious, tangible, exclusive and adverse possession. It is claimed by the plaintiffs that as no proceeding was begun within five years to attack the administrators’ deed, and none of any kind by either of the heirs within two years after reaching majority, they are barred from any defense to this action, the defend.ants contending that the deed was void and that the title still remains in the heirs of Caroline Louise Bangs. The deed as to Milton A. Bangs was void for want of notice to him, and the form of the order of sale and also of the deed, by which each purported to cover the entire title to the land, could have no effect to divest such estate therein as belonged to a minor on whom service was omitted, but the court found that for much more than fifteen years beyond the two years succeeding the majority of each of the heirs the appellants were in open, notorious, exclusive and adverse possession as against the world. Whatever rights each of these minors had, when coming of age, to set aside the administrators’ deed or to have his interest in the land adjudicated, the statute made it imperative that such rights should be asserted within the time fixed, in order to prevent the ripening of full and complete title by adverse possession. It is only necessary to decide, as we must and do decide, that the defendants have slept upon their rights and their defense is barred. (Young v. Walker, 26 Kan. 242, 248-251; Thompson v. Burge, 60 Kan. 549, 57 Pac. 110; O’Keefe v. Behrens, 73 Kan. 469, 85 Pac. 555; Crapster v. Taylor, 74 Kan. 771, 87 Pac. 1139; James v. Logan, 82 Kan. 285, 290, 291, 108 Pac. 81; Freeman v. Funk, 85 Kan. 473, 117 Pac. 1024.) It is suggested that the plaintiffs hold under the life tenants and can not be heard to question the validity of the administrators’ sale, and that a life tenant can not quiet title as against a remainderman. Probably the adverse possession found by the court would be fully sufficient for the purposes of the plaintiffs regardless of the administrators’ proceedings or deed, and certainly there is nothing in the findings to indicate in the slightest degree that the plaintiffs have ever held in subserviency to the interest of the remainder-man. (See Nelson v. Oberg, 88 Kan. 14,127 Pac. 767.) • It follows, therefore, that the judgment must be reversed, and the case is remanded with directions to enter j udgment in accordance herewith.	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The opinion of the court was delivered by MASON, J.: In 1904 a high school was established in Trego county under a special act (Laws 1903, ch. 473) making applicable thereto the provisions of the general law relating to counties having six thousand inhabitants or over (Gen. Stat. 1909, §§7765-7783). A board’of trustees was chosen. T. B. Hays offered them a tract suitable for a site for the school for $1000. The board voted to accept it if it could be had without cost to the county. For the purpose of paying for the site a number of indviduals contributed to a fund which, including cash, promissory notes, and oral promises to pay, amounted to $1600, equal to the full value of the property, Hays contributing $200 of it. Hays and his wife accepted the results of this subscription and executed a deed to the trustees, which was in the usual form, excepting that the portion reciting the consideration was made to read as follows: “In consideration of the sum of one dollar and the further consideration that the said county erect a building and maintain a county high school therein or revert to the original owner and °94oo dollars.” A building worth $28,000 was erected, in which the school has ever since been maintained. The present action was brought in behalf of the county, asking that the deed be canceled and that Hays and his wife be required to execute a new conveyance to the county, and that they and the trustees be barred from all interest in the land. The trial court entered a decree excluding Hays and his wife from any interest in the .property, and declaring the county to be the equitable owner, but leaving the legal title in the trustees. Appeals are taken both by the county and by Hays and his wife. The statute (Gen. Stat. 1909, § 7773) provides that the board of trustees shall select “the best site that can be obtained without expense to the county, and the title thereof shall be vested in the said county.” The county maintains that in view of this provision the full title should be vested in it. We regard the judgment ren dered as a complete protection to the county. It is declared to be the equitable or beneficial owner of the property, and no substantial injury or inconvenience can result from the fact that the trustees are suffered to retain the naked legal title. The public is the actual owner, and it is not very material in what officers the formal title rests. Hays and his wife contend that they should not have been decreed to have no interest in the property, because, if a high school should cease to be maintained upon it, it would revert to them, or their successors, by virtue of the provisions of the deed. The soundness of their contention turns upon whether the phrase “erect and maintain a county high school therein” should be interpreted as though it read “erect and forever maintain,” giving the clause in which it occurs the effect of a provision that the title should revert to the grantor if the maintenance of a high school upon the property should cease. They place some reliance upon the case of Randall v. Wentworth, 100 Maine, 177, 60 Atl. 87. There a deed to a-Trotting Park Association contained this provision: “The above named Association to erect and maintain a fence around the remainder .of the lot, of which the above mentioned ten acres was a part, and lying between said Association’s track and the county road, said Association or their successors failing to erect and maintain a suitable fence this instrument becomes null and void.” (p. 178.) The association built a fence, but after a period of some ten years ceased to maintain it, and this condition continued for five years. The title was held to have reverted to the grantor. In the circumstances stated a purpose to require the permanent maintenance of the fence, under the penalty of a forfeiture of the property by its discontinuance, is reasonably clear. But in the present case the language chosen, in view of the entire situation, seems rather to impose the condition that a school shall be established upon the tract, and to vest a complete title in the public upon the fulfillment of that condition. The building has been erected and the school is established and maintained, not colorably merely, but in obvious good faith as a permanent institution. A note on the general subject includes cases holding that a condition for the “permanent” location of a school is complied with by its maintenance for a reasonable period. (Note, 44 L. R. A., n. s., 1220, 1225.) As suggested in the note referred to (p. 1221) language providing for a forfeiture of title is construed strictly against the grantor. In a case which illustrates the general rule of interpretation, and in which the facts are somewhat analogous to those here, presented, a deed contained this provision: “The above ground is deeded to the State of Indiana expressly for the use and purpose of depot grounds for the Madison and Indianapolis railroad. Now, therefore, be it known, that in case the State of Indiana shall fail to erect buildings and occupy said ground for the use and purpose above mentioned, then and in that-case the above specified ground shall revert back to the donors.” (Jeffersonville, Madison and Indianapolis R. R. Co. et al. v. Barbour et al., 89 Ind. 375, 376.) A depot was maintained on the tract conveyed for about thirty years, and then removed. In an action to declare the title forfeited the court said: “In determining whether a condition subsequent in a deed has been broken or not, construction is required in nearly every case. But little assistance can be had from examining other cases, except to ascertain rules for interpretation. Each case differs so widely from all others that even rules of construction can not be wholly depended upon. The application of good sense and sound equity are as much to be relied upon as subtle and artificial rules of construction. The point, of course, to be arrived at in every case, is to ascertain the intention of the parties. And we may suppose in this case, from the language of the deed and the sur-rounding circumstances of the transaction, . . . that the grantors’ object in the conveyance was satisfied in the occupancy of the premises by the railroad, for depot purposes, for a period of time nearly equal in duration to the average of human life.” (p. 379.). The judgment is affirmed.	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The opinion of the court was delivered by Porter, J.: In this case the state, on the relation of the county attorney of Wyandotte county, questions the validity of certain ordinances passed by the city of Kansas City, for the annexation of certain territory to the city. The court sustained a demurrer to the petition and rendered judgment in favor of the city, from which the plaintiff has appealed. The sole question involves the proper construction to be placed upon the language of section 1220 of the General Statutes of 1909, authorizing the extension of the limits and boundaries of cities of the first class. The portion of the statute to be construed reads: “Whenever any land adjoining or touching the limits of any city has been subdivided into blocks and lots, or whenever any unplatted piece of land lies within (or mainly within) any city, or any tract not exceeding twenty acres is so situated that two-thirds of any line or boundary thereof lies upon or touches the boundary-line of such city, said lands, platted or unplatted, may be added to, taken into and made a part of such city by ordinance duly passed.” Our attention has been called to an error in the printed statute which is not of much consequence. The word “or” is substituted for the word “of,” as appears from the original draft of the act, which was House bill No. 116. The statute should read: “two-thirds of any line of boundary,” instead of “two-thirds of any line or boundary.” It is the contention of appellant that the statute should be construed to mean two-thirds of the entire boundary of any unplatted tract not exceeding twenty acres; that is to say, that the legislature meant two-thirds of the entire boundary or perimeter of such tract. The trial court upheld the city’s contention and construed the statute to mean the same as if it had read: “Having any one side or boundary, two-thirds of which lies upon or touches the boundary-line of such city.” The precise question has never been before the court. Both plaintiff and defendant quote from the language of the court in the opinion in the case of Chaves v. Atchison, 77 Kan. 176, 93 Pac. 624, where, in speaking of the provision for annexing territory to cities of the first class, it was said: “In this act, . . . provision is made for annexing three classes of lands: . . . third, a tract of platted or unplatted land, not exceeding twenty acres in area, having a boundary-line two-thirds of which lies upon or touches the boundary-line of the city.” (p. 177.) (Italics ours.) The defendant attaches some importance to the use by the court of the expression “a boundary-line two- thirds of which,” etc., while the plaintiff emphasizes the use of the expression, “the boundary-line of the city,” as indicating a construction favorable to the contention of the state. As remarked, the question here presented was not before the court at that time. Tracts of land in Kansas are usually four-sided; sometimes, but not often, they are three-sided. The several tracts annexed by the ordinances in this case are each four-sided. None of the tracts, however, forms a square or parallelogram. Ordinance No. 11,965 annexed a tract the western boundary of which is a straight line adjoining the city for a distance of 1340 feet. Ordinance No. 11,979 annexed a tract the western boundary of which is a straight line 1750 feet in length; lying upon and touching the boundary-line of the city. Ordinance No. 11,996 annexed a tract the western boundary of which is a straight line 2040 feet in length, touching the boundary-line of the city. The Missouri river forms the north boundary-line of each tract; the south boundary of each being the right-of-way of the Missouri Pacific railway, which runs in a northwesterly direction. We think the contention of the city must be sustained, and that the only reasonable construction to be placed upon the language of the statute is that the legislature meant two-thirds of any single boundary where the tract contains less than twenty acres. “Any line of boundary” means, of course, the same thing as “any boundary-line.” The construction contended for by appellant requires us to ignore entirely the use of the word “any.” In construing statutes the courts have given different meanings to this word, according to the sense in which it is used, as determined by the context. In many cases “any” has been construed to mean the same as “every.” On the other hand, “any” has often been held to mean any one out of a number. (See 1 Words and Phrases, pp. 412 et seq.) The first definition given by Webster’s International Dictionary is: “One indifferently, out of an indefinite number; one indefinitely, whosoever or whatsoever it may be.” It was undoubtedly used, we think, in the latter sense in the statute under consideration. Had it seen fit, the legislature might have provided that a tract of this character should not be annexed unless two-thirds of its entire boundary touched the boundary-lines of the city; but had that been the intention, it would doubtless have used language more appropriate, and would not have used the word “any” in reference to boundary-lines. Besides, if 'such had been the intention, the legislature would hardly have made provision for a third classification of tracts of land, because it seems apparent that where two-thirds of the entire boundary of a tract of land adjoins a city, the tract must lie mainly within the city, and it would then fall within the second class, which provides that “whenever any unplatted piece of land lies within (or mainly within) any city,” it may be taken into the city by ordinance. Aside, therefore, from the force which must be given to the words “any boundary-line,” the fact that the legislature saw fit to make a separate classification for tracts of land not exceeding twenty acres satisfies us that the construction given to the statute by the trial court is the correct one. The judgment is affirmed.	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The opinion of the court was delivered by Burch, J.: 'This case was before the court on the occasion of a former appeal. (Bailey v. Kelly, 86 Kan. 911, 122 Pac. 1027.) The action was commenced against a landlord to recover damages resulting from the death of his tenant’s servant who fell into a defectively covered cistern on the leased premises. The cistern was in a shed in the rear of the kitchen of a building used as a restaurant. The defect in the covering of the cistern existed at the time the premises were leased, was open to view, and the character of the covering was observed by the tenant when he took possession. The lease was without warranty and with out covenant to repair, on the landlord’s part. At the first trial the court sustained a demurrer to the plaintiff’s evidence on the ground that the landlord rested under no liability. This court held otherwise, as indicated in paragraph one of the syllabus of the first opinion. “Where a nuisance dangerous to life is created by the owner on his premises, or through his gross negligence is suffered to remain there, he can not by leasing the property to another avoid his own liability to any person who is rightfully upon the premises and who, without fault, is injured by reason of such nuisance; and this liability extends to a servant of the tenant, notwithstanding the tenant, by reason of his own fault or neglect or knowledge of the danger, could not have maintained an action against the owner for any injury suffered by himself.” (Syl. ¶ 1.) At the second trial the court, after it had overruled a demurrer to the plaintiff’s evidence, instructed the jury in accordance with this decision and a verdict was returned for the plaintiff. The defendant appeals and renews his contention that the law does not authorize the recovery of damages from him. A majority of the members of the court are convinced that the former decision was wrong. That the former decision was substantially unsupported by authority and was rendered a,gainst the settled law of this country is clear. (Notes, 34 L. R. A., 824; 34 L. R. A., n. s., 798; 39 L. R. A., n. s„ 378; 48 L. R. A., n. s., 917; 50 L. R. A., n. s., 286; see, also, 49 L. R. A., n. s., 1120.) The notes cited refer to others and present a comprehensive view of the case law on the subject. The court was conscious of the fact that it was extending the liability of the landlord as that liability had been previously understood, but believed the extension to be justifiable. The distinction between the undefined body known as the public and a group of persons comprising a restaurant keeper, his family, and his employees becomes quite shadowy. That such a group, composed in part of persons drawn from the general public, would be assembled on the premises by the tenant was fairly within the landlord’s contemplation. When the landlord takes rent for premises containing a public nuisance he is liable. In this case the landlord took rent for the use of premises containing a pitfall which a portion of the public selected by the tenant was obliged to encounter. Consequently the court applied the nuisance theory and held the defendant liable. The difficulty with this decision is that it is not closely discriminative with respect to facts, ignores ideas of legal duty which experience has demonstrated to be well founded and fair, and involves the law in confusion concerning some of its fundamental principles. A description of the leased premises appears in the former opinion (86 Kan. 912), and need not be repeated in full. The cistern was covered by a wooden platform about four feet square, raised four inches from the ground, upon which the lid or covering lay. The structure was in plain view, and the lid was adequate as a covering. Its only defect consisted in the fact that it might be displaced, and the casualty occurred in the most fortuitous way. Laundry work for the restaurant was done twice a week, the washing machine being operated by a gasoline engine. Water for this work was drawn from the cistern by means of a bucket and rope. The covering would usually be laid back against the coal house when water was being procured. At other times it was kept over the opening. On this occasion laundry work was in progress. The tenant had just drawn some water from the cistern, and had gone back to the washing machine. The covering was not replaced carefully, and was lying so that one corner.was over the opening into the cistern. The deceased stepped on this corner of> the covering, which allowed her to fall into the cistern, and the covering then righted itself and fell into place over the opening. For almost two years the tenant had used the cistern in safety in exactly the same condition, and if the covering had been used according to its purpose and design the accident would not have occurred. Under the foregoing circumstances it smacks somewhat of hyperbole to call the cistern a nuisance, the characteristic of which is that it must or will injure that portion of the public who may be compelled to come in contact with it: (Black’s Law Dictionary, title, Nuisance.) Broadly speaking, “nuisance, no&umentum, or annoyance, signifies anything that worketh hurt, inconvenience or damage.” (3 Blackstone’s Commentaries, ch. 13, p. 216.) But in legal phraseology the term is applied to that class of wrongs that arises “from the unreasonable, unwarrantable or unlawful use by a person of his own property . . . producing such material annoyance, inconvenience, discomfort or hurt, that the law will presume a consequent damage.” (1 Wood on Nuisances, 3d ed., § 1.) Unless prejudice or damage threaten or result as a necessary consequence of the act done there is no nuisance. “It is a nuisance . . . to do any act therein that in its consequences must necessarily tend to the prejudice of one’s neighbors.” (Blackstone’s Commentaries, ch. 13, p. 218.) “In order to create a nuisance from the use of property a material, substantial and appreciable injury must be occasioned to the person or property of another.” (Joyce, Law of Nuisances, § 22.) “Injury and damage must concur as results of an act or thing in order to make it a nuisance.” (1 Wood on Nuisances, 3d ed., § 5.) A nuisance may result from negligence. But negligence is not involved in a nuisance action, either as essential to the cause of action or as a ground of defense. (29 Cyc. 1155.) In this case the evidence indicates that before the lease was made the building was locked, and prospective tenants procured the key from the landlord in order to inspect the premises. In any event the property did not threaten the public or any portion of the public. The cistern was occasioning no injury or damage to any one, rendering its maintenance intolerable. The change of possession from the landlord to the tenant did not change the lawful character of the landlord’s conduct. When the deceased came upon the premises and commenced to work for the tenant she acquired no cause of action against either the landlord or the tenant for injuries suffered or threatened on account of the cistern, or for the abatement of the cistern as a nuisance, under any known principle of law. If a master negligently furnish his servant an unsafe place in which to work nothing is gained and confusion results from calling the place a nuisance. The vehemence of the term adds nothing to the situation and relations of the parties, and can not justify a departure from the law of negligence applicable to them. The present case is one of that character, and the nuisance theory, when applied to it, breaks down. The fact that the front room of the building was open to such portion of the public as desired to patronize the restaurant has no relevancy to the subject under consideration. The situation at the rear of the building was precisely the same as that of any private family employing servants to perform various household functions. The result is that the facts fail to bring the case within the category of those nuisance cases in which, the lessor has been held to be liable for injuries sustained by third persons. It is admitted that the ordinary inspection which the landlord has the right to expect a tenant will make did in fact disclose to the tenant the condition of the cistern. He could not have recovered if he had been in jured. There is no contention that the lease was not made in perfect good faith, and there is no j ustification for speaking of the landlord’s conduct as gross or wanton. The deceased was sixteen years old, large for her age, healthy, intelligent, and in possession of all her faculties. When she commenced working for the tenant he pointed out to her the location of the cistern, but the jury found that in some six weeks’ service which occasionally brought her in proximity to the cistern the fact the cover was loose was not brought to her attention. Only upon this narrow margin could recovery be had, even from the tenant, and' notwith-' standing the shocking character of the accident, reckless indifference to the safety of others does not appear on the part of anybody responsible for the condition of the premises. If, however, it once be conceded that the law of negligence governs the case, want of privity between the landlord and the tenant’s servant defeats the action, however indefensible the conduct of the tenant in placing the servant at work in proximity to the cistern. The undertaking of the landlord is not to furnish premises to be used as a place or instrumentality for the. accomplishment of certain purposes by others, which he is bound to make fit for the contemplated use, like staging, scaffoldng, hoisting apparatus, and other appliances, within the rule of Heaven v. Pender, L. R. 11 Q. B. Div. 503. (See Aaron v. Telephone Co., 89 Kan. 186, 131 Pac. 582.) The lessor grants an estate in the premises to the lessee and surrenders dominion over them to the lessee under conditions as definitely understood as if expressed in a written instrument of lease. “The mere letting without additional stipulations by the lessor, simply implies that he holds the title and that the lessee shall quietly enjoy the use and occupation during his tenancy; and not that the premises are or shall be in any particular condition or state of repair, or that they are suitable for the purpose for which they were let.” (2 Cooley on Torts, 3d ed., p. 1276.) The tenant may or may not invite third persons, servants, patrons, guests, and others, upon the premises, as he pleases, but the landlord extends and can extend no such invitation, either expressly or by implication. He can not himself enter upon the tenant’s possession, even to repair, unless the right be reserved or permission obtained, much less grant licenses to others. The result is, the negligence theory of liability, suggested in the syllabus of the former opinion, breaks down for lack of any legal duty on the landlord’s part to sustain it.' The principle upon which the lessor of premises is held liable to third persons for nuisances existing at the time the tenancy was created is this: The landlord having posession and control of his land, or the right to possess and control it, owes the public, who are suffering or must suffer from the nuisance, the duty to abate it and must respond in damages for a breach of the duty. The duty and the liability are not satisfied by the simple act of leasing the premises, and' continue until the nuisance is abated. Much is said in the decisions concerning a presumption- that the landlord contemplates a continuance of the nuisance while the tenant is in possession. The presumption is gratuitous and fictional as often as otherwise. The rent reserved is frequently reduced because of the condition of the premises, and with the expectation that the tenant will put them in order. Frequently the landlord takes from the tenant a covenant that the tenant will repair. The majority of courts hold that the liability of the landlord is not ended because of a lease containing such a covenant, and it seems sufficient to say that the landlord’s obligation having once arisen he can not shift or evade or discharge it by leasing to another, but that the obligation continues until the public peril is actually removed. When the condition of property is such that it does not impair the public safety the landlord owes no duty to the public or to any member of the public to change the condition. When he comes to deal with a specific individual as a prospective tenant, he owes that individual no duty except not to entrap him by concealing facts which ordinary inspection would not reveal, and he owes no other individual any duty at all. The landlord may in perfect good conscience offer his property, such as it is, to a tenant who takes it, such as it is, on satisfactory terms, just as the landlord and tenant did in this case. This is true although buildings may be in tumble-down condition, excavations may be unguarded, or the premises may be otherwise uninhabitable or in unsafe condition for use. The only exception is that of property devoted to public use, such as wharves, railroads, elevators, public halls, and the like. Negotiations having been fairly concluded and possession having been given to the tenant, no obligation on the part of the landlord to safeguard or to repair remains unfulfilled. After that, no obligation to repair arises during the tenancy unless the landlord has contracted to do so. This is true even although the tenant create a nuisance on the premises, dangerous to the public. “It is a rule of the common law, applicable here, that ‘the occupier and not the landlord is bound as between himself and the public so far to keep the premises in repair that they may be safe for the public.’ ” (De Tarr v. Heim, 62 Kan. 188, 192, 61 Pac. 689.) The principles just stated govern the present controversy. If it be unsound in morals or otherwise contrary to public policy to rest the duty of making and keeping premises fit for occupation and use upon occupation and use and not upon title, the existing law should be abrogated and a new set of rules should be adopted. The court does not have before it the result of any social survey of the subject, and it is not perceived that the established usage is so offensive to the sense of justice that the court should anticipate legislation by proper authority, or if it does, leap at once to the unconditional remedy of downright damages. To engraft an exception upon the law for this particular case is to recognize the first of a wilderness of single instances. To cistern cases must soon be added cases involving defective railings about steps, stairways, porches, and areas, whereby the tenant’s servants are injured. If after the fact of a distressing accident a jury should conclude to find negligence in maintaining some structure or place where the tenant’s children invited some friends to play, the landlord must respond in damages. The list is certain to grow until it may be impossible to say what is the rule and what an exception. If the property law of the state is to be changed and a general duty is to be imposed upon the landlord to make his premises secure for use by tenants and whomsoever a tenant may invite there, the legislature should create the obligation and not the courts. Instead of being genuinely progressive, the former decision was merely arbitrary and it is overruled. The judgment of the district court is reversed and the cause is remanded with direction to sustain the demurrer to the plaintiffs’ evidence. Johnston, C. J., Mason, J., and Benson, J., dissenting.	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The opinion of the court was delivered by Larson, J.; This is a sentencing appeal. The issue is whether K.S.A. 1996 Supp. 21-4603d allows imprisonment without a departure where the offender committed the felony during incarceration, although not while serving a sentence for a felony. In December 1996, Matthew C. Marsh escaped from the Osborne County jail, where he was being held on charges of burglary and interference with parental custody. During the escape, Marsh stole a truck. He was subsequently charged with, pled no contest to, and was convicted of aggravated escape from custody, K.S.A. 1996 Supp. 21-3810(a) and felony theft of property, K.S.A. 21-3701. No plea or finding regarding the burglary and custody charges had occurred, nor had Marsh been previously convicted of a felony at the time of his escape. At the time of his sentencing in March 1997, the presentence investigation report (PSI) properly indicated Marsh’s criminal history score was I. The aggravated escape from custody offense was listed as a nonperson felony, severity level 8 crime, and the theft offense was listed as a nonperson felony, severity level 9 crime. Both crimes were marked on the PSI report as presumptive prison, with the boxes marked presumptive probation whited out. Under the section for special rules applicable to this case, there was a check indicating the crime was committed while in custody. Marsh’s counsel argued that although the PSI report had marked Marsh for presumptive imprisonment, the crimes fell within the presumptive probation boxes. Marsh’s trial counsel further asserted that K.S.A. 1996 Supp. 21-4603d did not apply because Marsh had no previous felony convictions and had not been sentenced for the felonies for which he was being held at the time of his escape from custody. The trial court, however, sentenced Marsh to imprisonment for both crimes, to be served concurrently, stating: “The court notes he was being held in the Osborne County jail for the felonies of burglary and interference with parental custody. While being held on those felonies, he escaped from the county jail; that while he had escaped, he committed new crimes in this county of theft .... The court does not believe it’s appropriate, when someone is being housed in a jail and they escape, that they be placed on probation. The risk is inherent of escape and running out of custody. It is not a normal criminal act. There is an inherent risk with that. The court believes it’s appropriate to sentence him to incarceration for the 8 months, as specified.” The journal entry of judgment followed the Kansas Sentencing Guidelines form and indicated the aggravated escape from custody conviction required presumptive prison for 8 months and was within the standard guidelines range. The court checked “other” under special rule applicable to the sentence, adding “in custody for felony.” The box in this section captioned “Crime Committed While on Probation, Parole, Etc.” was left unmarked. Section IV of the form, “Departure Information,” which must be filled out when a departure sentence is imposed, was left blank. The concurrent felony theft conviction sentence was marked in almost the same fashion. Marsh appeals his sentences, claiming he will have likely served his sentence by the time this case is resolved. Our jurisdiction is pursuant to K.S.A. 20-3018(c). Standard of Review The issue before us is whether the sentence imposed by the trial court is a legally proper sentence and conforms to the guidelines. We are faced with a narrow question of statutory interpretation, which is a question of law over which we have unlimited review. State v. Arculeo, 261 Kan. 286, 290, 933 P.2d 122 (1997). Does KS.A. 1996 Supp. 21-4603d apply when a person is being held in custody pending trial on felony charges? The only statutory authority that could apply in this case to convert a presumptive nonprison sentence to a presumptive prison sentence without a departure being imposed is K.S.A. 1996 Supp. 21-4603d(a). The State and the trial court have not cited any other statutory authority to support Marsh’s sentence of imprisonment. The relevant portion of K.S.A. 1996 Supp. 21-4603d(a) provides: “When a new felony is committed while the offender is incarcerated and serving a sentence for a felomj or while the offender is on probation, assignment to a community correctional services program, parole, conditional release, or post-release supervision for a felony, a new sentence shall be imposed pursuant to the consecutive sentencing requirements of K.S.A. 21-4608, and amendments thereto, and the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure.” (Emphasis added.) The critical provision of this statute states that it applies “[w]hen a new felony is committed while the offender is incarcerated and serving a sentence for a felony,” Both Marsh and the State clearly admit this is not the situation in this case. Marsh was not serving a sentence for a felony at the time he escaped. The State, both by its brief and in oral argument, concedes this statutory requirement is not met, but attempts to justify the sentence by contending that substantial and compelling reasons were given for the sentence of imprisonment, which was in effect a departure. The position of both parties is dictated by our interpretation of 21-4603d in State v. Arculeo, 261 Kan. 286, where we determined that the term “conditional release” as used in the statute at issue here only applies to those who have already been sentenced for a prior felony conviction and does not apply to a person released on bond pending sentencing in that same case. Our opinion noted that applying this definition of conditional release would mean that all six categories of circumstances in 21-4603d(a) deal with situations in which the offender committed the new felony after he or she had been previously sentenced for a prior felony offense. The analysis in Arculeo is bolstered by our discussion in State v. Reed, 237 Kan. 685, 703 P.2d 756 (1985), which need not be referred to in detail because of the parties’ agreement as to this issue in this case. The parties also cite State v. Burrows, 23 Kan. App. 2d 342, 929 P.2d 1391, rev. denied 261 Kan. 1085 (1997), as an additional case in which the provisions of 21-4603d were applied. However, in Burrows there was a specific finding that Burrows committed a new crime after he escaped from incarceration in Oklahoma for a felony conviction. As Burrows had been both convicted and incarcerated, the statute clearly applied, which is totally different from the situation here. It is clear that a presumptive nonprison sentence cannot be converted to one of imprisonment under the facts in this case. Thus, only if a departure sentence was entered can the present sentence be properly imposed. Was a departure sentence legally imposed? The short answer to this fallback argument of the State is that a departure sentence clearly was not imposed. The requirements for entering a departure sentence are set forth in K.S.A. 21-4718 and K.S.A. 1996 Supp. 21-4716. K.S.A. 21-4718 sets out the procedural requirements for imposing a departure sentence. Subsection (a) provides that a hearing shall be held upon motion of either party for the court to consider imposition of a departure sentence. The rest of the statute reads: “(b) If the court decides to depart on its own volition, without a motion from the state or the defendant, the court must notify all parties of its intent and allow reasonable time for either party to respond if they request. The notice shall state the type of departure intended by the court and the reasons and factors relied upon. “(c) In each case in which the court imposes a sentence that deviates from the presumptive sentence, the court shall make findings of fact as to the reasons for departure regardless of whether a hearing is requested.” K.S.A. 1996 Supp. 21-4716(a) requires a sentencing judge departing from the presumptive sentence to state on the record at the time of the sentencing the substantial and compelling reasons for the departure. Such was not done here. In this case, the PSI report stated the crimes warranted a presumptive prison sentence. There was no indication, however, that the court considered the imposition of the sentence to be a departure. Rather, it was apparent the court believed a special rule applied in the present situation which would allow the convictions to be considered presumptive prison rather than presumptive non-prison. Additionally, the court did not announce at the hearing that it was imposing a departure sentence. Nor did it make any specific findings of fact as to why a departure sentence was being imposed. Further, the journal entry of judgment failed to reflect that the sentence was a departure, and the section required thereon to justify a departure sentence was left blank. In further support of this conclusion, the part of K.S.A. 1996 Supp. 21-4603d which immediately follows the paragraph previously analyzed requires consideration of a defendant in Marsh’s position on the sentencing grid for placement at the Labette Correctional Conservation Camp before imprisonment is imposed. No such consideration by the court was shown on the record of the sentencing hearing. Based on the facts in this case, a departure sentence was not properly considered or entered. Therefore, we vacate the sentence imposed and remand for resentencing.	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The opinion of the court was delivered by Allegrucci, J.: This is an election contest based on alleged violations of the statutory provisions governing advance voting, K.S.A. 25-1117 et seq. On April 1, 1997, the voters of Hodgeman County said “no” to the question whether corporate hog production facilities should be permitted within the geographical boundaries of their county. Anthony Cure and Emmett Aistrup (Contestants), voters registered in the county, asked the district court to set aside the election results and order that the question be resubmitted. The district court upheld the election. Pursuant to K.S.A. 25-1450, Contestants appealed to this court for review of the district court’s determination. The question of whether corporate hog production facilities should be permitted within the geographical boundaries of the county was submitted to the voters of Hodgeman County on April 1, 1997. A total of 1,084 votes were cast, 100 advance votes were counted, and the question was defeated by 22 votes. On April 11, 1997, Contestants filed a notice of contest in the district court, alleging that illegal votes were received, error or fraud occurred in computing the results of the election, and votes not in substantial compliance with the statutes governing advance voting were counted. Contestants alleged that these problems could change the results of the election. They asked the district court to set aside the election results and order the question be resubmitted. Evidence was presented on April 22. On May 30, 1997, the district court filed its journal entry of judgment in favor of the contestees, the Board of County Commissioners of Hodgeman County. The district court specified the following findings and conclusions: “(1) That technical errors did occur in the procedures of the Advance Voting Act provisions under K.S.A. 25-1117 et seq.; “(2) That the Court believes that no vote was counted in this election from any unregistered voter; “(3) That the Court has not heard evidence to support any belief that any vote tampering has occurred in this election; “(4) That the Contestants’ arguments by counsel are on point. However, the Court, because the nature of elections and constitutional rights of voting involved will enter a decision on the side [of] confirming the election absent a clear showing that the standard of review in these cases has not changed from previous case law; “(5) That the Court determines that the election results of the corporate swine production facility question submitted [on] April 1, 1997 in Hodgeman County, Kansas shall stand as approved by the Board of Canvassers.” Contestants appealed the district court’s ruling directly to this court pursuant to K.S.A. 25-1450. On appeal, they do not attack the factual findings of the district court. In the district court, Contestants alleged that there were at least 64 questionable votes. On appeal, they continue to challenge 47 of those votes. The issue raised in this appeal is whether the district court should have invalidated the election because of the alleged violations of the advance voting provisions of K.S.A. 25-1117 et seq. Contestants contend that 47 illegal advance votes were cast. The election margin was only 22 votes. Thus, the outcome of the election would be affected if more than 22 of the challenged votes were invalidated. Contestants identify three categories of alleged illegality: 1. Thirty-two votes were cast where capable voters were assisted, in violation of K.S.A. 1996 Supp. 25-1124(b); K.S.A. 1996 Supp. 25-1122(b) and (c); K.S.A. 1996 Supp. 25-1123; and K.S.A. 1996 Supp. 25-1124(a). 2. Eleven votes were cast too early, in violation of K.S.A. 1996 Supp. 25-1122(c). 3. Four “absentee” votes were counted where the envelopes were unsigned, in violation of K.S.A. 1996 Supp. 25-1136(b). Contestants contend that the requirements set out in 25-1122, - 1123, and -1124 are mandatory rather than directive. Their contention is based on K.S.A. 1996 Supp. 25-1139, which provides: “No advance voting ballot shall be counted unless marked and transmitted as required by article 11 of chapter 25 of Kansas Statutes Annotated and amendments thereto, except as is otherwise provided in article 12 of such chapter 25.” The district court refused to disturb the election result because there was no fraud involved, all voters were eligible, and there was substantial compliance with the statutes. Building on their contention that the statutory provisions for advance voting are mandatory, Contestants argue that the substantial compliance standard applied by the district court would be appropriate only where the alleged irregularities involve nonmandatory provisions of the statutes. In other words, Contestants’ position is that in this case where mandatory provisions have been violated, a strict adherence standard must be applied regardless of whether fraud was present. With regard to its authority in an election contest, this court has stated: “At common law there was no right to contest in court any public election. All election law is created either by the constitution or by statute.” Lambeth v. Levens, 237 Kan. 614, 618, 702 P.2d 320 (1985). K.S.A. 25-1117 et seq. establish the procedures for advance voting. Any registered voter is eligible to vote by advance voting ballot on all offices and questions submitted. K.S.A. 1996 Supp. 25-1119(a). Advance votes “shall be cast and received and canvassed as provided in this act.” K.S.A. 1996 Supp. 25-1119(b). K.S.A. 25-1435 provides, in part: “Any registered voter may contest the determination of the result of any question submitted election at which such voter had the right to vote.” The grounds for contest are set out in K.S.A. 25-1436. Contestants base their challenge on subsection (c), which provides in part: “Any contest of election to which K.S.A. 25-1435, and amendments thereto, applies shall be brought on any one or more of the following grounds: . . . . (c) illegal votes were received . . . which could change the result of the election.” In the district court, the parties presented exhibits, witnesses, and arguments. After reviewing the evidence, the district court made the following findings: Technical errors occurred in the procedures of the Advance Voting Act provisions; no vote was counted from any unregistered voter; and no vote tampering occurred in this election. The district court concluded with respect to the law that the test to be applied by a court in an election contest remains as stated by this court in earlier cases, Lambeth, for example: “An election irregularity will not invalidate an election unless it is shown to have frustrated or to have tended to prevent the free expression of the electors’ intent, or to have otherwise misled them.” 237 Kan. 614, Syl. ¶ 2. Applying the principle stated in Lambeth to its findings, the district court concluded that the election results should stand. On appeal, Contestants characterize the statutory procedures for advance voting as mandatory safeguards. They note that this court is not bound by the district court’s interpretation of a statute, which is a question of law. See In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 1, 930 P.2d 1366 (1997). Contestants urge the court to require strict adherence to the statutory procedures and to rank the integrity of the election process above the resolution of this one particular election. The County Commissioners contend that the court should not invalidate an election where there has been substantial compliance with the governing statutes. They quote the following from Lambeth: “A substantial compliance with the law regulating the conduct of elections is sufficient, and when the election has been held and the will of the electors has been manifested thereby, the election should be upheld even though there may have been attendant informalities and in some respects a failure to comply with statutory requirements; mere irregularities should not be permitted to frustrate the will of the voters, nor should the carelessness of election officials. 29 C.J.S., Elections § 214(1). See also Kimsey v. Board of Education, 211 Kan. 618, 629, 507 P.2d 180 (1973); and Brown v. Summerfield Rural High School Dist. No. 3, 175 Kan. 310, 262 P.2d 943 (1953).” 237 Kan. at 617. Contestants contend that Lambeth and the authorities cited in this excerpt have no application to mandatory election requirements. A careful reading of Lambeth, however, reveals otherwise. In arguing for requiring strict adherence to the statutes, Contestants justify the rigorous standard by characterizing the statutes as mandatory. What they would interpret as mandatory and the effect they would attribute to categorizing a statute as mandatory, however, are not in accord with this court’s reasoning in Lambeth. Contestants contend that the use of the verb “shall” in a statute makes it mandatory and, therefore, an absolute requirement for any election that will withstand a challenge irrespective of any other considerations. If the statutes governing elections are examined with Contestants’ argument in mind, it becomes clear that no election would ever survive judicial scrutiny. Every unvarying aspect of the business of conducting elections is described by the legislature with the verb “shall”; e.g., the Secretary of State shall prescribe the forms, and the forms shall be transmitted to the county election officers 35 days before an election, K.S.A. 1996 Supp. 25-1121; ballot envelopes shall contain a statement guaranteeing confidentiality, K.S.A. 1996 Supp. 25-1120; if voting machines are authorized, the county election officer shall equip his or her office with a sufficient number of voting machines for advance voting voters to use, K.S.A. 1996 Supp. 25-1122a; a list of advance voting voters shall be given to the supervising judge with the voting sup plies, and if additional advance voting ballots are received, those voters names shall be promptly added to the list, K.S.A. 1996 Supp. 25-1126. Examination of the statutes also shows that the legislature spelled out what acts were to be punishable as unlawful acts. K.S.A. 1996 Supp. 25-1128 makes it a class C misdemeanor for any voter to vote more than once, for an unregistered voter to vote, or for any person willfully to falsify a declaration form. These are willful commissions that jeopardize the integrity of the election. In contrast, “violations” of the statutes prescribing protocol could be, and seem to be in the present case, unwitting omissions. Thus, the better view seems to be that the verb “shall” in the statutes at issue indicates that the legislature expects the protocol to be followed and that it was not merely passing time by drafting and enacting the legislation, but that failure to dot all the i’s does not constitute illegal conduct or invalidate an election. Contestants note that 29 C.J.S., Elections § 214(1), is cited by this court in Lambeth. They derive their theory of the distinction between violations of directoiy and of mandatory provisions of election laws from the discussion at 29 C.J.S., Elections § 214(2), pp. 606-09, where it is stated: “The difference between mandatory and directory provisions of election statutes lies in the consequence of nonobservance; an act done in violation of a mandatory provision is void, whereas an act done in violation of a directory provision, while improper, may nevertheless be valid. . . . Statutes giving directions as to the mode and manner of conducting elections will be construed by the courts as directory, unless a noncompliance with their terms is expressly declared to be fatal, or will change or render doubtful the result, as where the statute merely provides that certain things shall be done in a given manner and time without declaring that conformity to such provisions is essential to the validity of the election. Generally, a voter is held to strict, or substantial, compliance with regulations laid down for his own guidance, but is not disfranchised for the noncompliance of other persons with rules laid down for their guidance. “... If the statute simply provides that certain acts or things shall be done in a particular time or in a particular manner, without declaring that their performance is essential to the validity of the election, they will be regarded as mandatory if they affect the actual merits of the election, and they will be regarded as directory if they do not. “[I]t has been held that many election regulations which are mandatory, and may be enforced, before the election are not mandatory, or are merely directory, after the election, and that the provisions of the election laws are mandatory if enforcement is sought before the election. . . . [Thus], a statute prescribing the duties of election officers may be held either mandatory or directory according to the time and manner in which it is questioned; before election it is mandatory if direct proceedings for its enforcement are brought, but after election it should be held directory, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or the ascertainment of the result, or unless the provisions affect an essential element of the election, or it is expressly declared by the statute that the particular act is essential to the validity of the election, or that its omission will render it void. In short, after an election has been held and the voters have spoken, the election will not be held invalid and the voice of the people thwarted in the absence of fraud, prejudice, or definite legislative pronouncement thereon.” The Kansas cases cited in Corpus Juris Secundum for the quoted principles are: Brown v. Summerfield Rural High School Dist. No. 3, 175 Kan. 310, 262 P.2d 943 (1953); State v. Tipton, 166 Kan. 145, 199 P.2d 463 (1948); and Hooper v. McNaughton, 113 Kan. 405, 214 Pac. 613 (1923). All are cited in Lambeth. In Brown, a taxpayer contested an election in which the majority favored issuing bonds for the purpose of building a new school. The contestant objected to the absence of voting booths where ballots could be marked in private. The court concluded that the law did not require booths for the bond election. 175 Kan. at 314. The court further noted that the contestant had not alleged that the outcome of the election was affected by the lack of privacy. 175 Kan. at 315-16. Tipton was a proceeding in mandamus to compel the clerk of Morton County to place John Hardwick’s name on the general election ballot as a Republican nominee for county commissioner. The county clerk declined to print Hardwick’s name on the general election ballot as a Republican nominee on the ground that, as a registered Democrat, he was ineligible for the Republican nomination. The court found nothing in the election statutes that precluded a member of one party from receiving the nomination of another. Moreover, the court indicated that it would not interfere with the substantial election rights of the public on account of an irregularity in the procedure. 166 Kan. at 149-50. Hooper, like Brown, involved a statute intended to ensure secrecy in balloting, and, as in Brown and Tipton, the court upheld the election results even though some of the statutory formalities had not been observed. The unsuccessful candidate for county attorney contended that ballots from the Soldiers’ Home should have been excluded from the count because some of the elderly and infirm residents did not fold their ballots so as to conceal the marks on them. After defining mandatory and directory provisions relative to one another, the court stated: “The primary object of an election law, which transcends all other objects in importance, is to provide means for effective exercise of suffrage. Secrecy is subsidiary, a means to that end. To vitiate a ballot, disregard of secrecy must be so mischievous as to warrant disfranchisement. To insure secrecy, the statute requires that the curtains of voting booths must come to within two feet of the floor of the polling place. No one would contend that, if the curtain of one of a number of booths at a precinct should, through inadvertence, be six inches short, the election at that precinct would be void. . . ■. Whén the legislative intention is not so plain, whether nonobservance of a regulation avoids a ballot, depends on the intimacy of the relation between the regulation and the general purpose to be accomplished, and the nature and extent of the departure. Generally, a voter may be held to strict compliance with rules laid down for his own guidance. Generally, he is not disfranchised for nonconformity by others with rules laid down for their guidance.” 113 Kan. at 407. The other case cited in Lambeth is Kimsey, and, according to Contestants, it does not involve mandatory statutory provisions. The court stated: “In question is an election held February 26, 1972, at which the bond proposition carried by a vote of 1388 for, to 1163 against. Plaintiffs claim several procedural deficiencies and irregularities, some of which they assert are serious enough, standing alone, to invalidate the election, and some of which they concede must be shown to have affected the outcome. We accept this classification of their claims and shall treat them accordingly.” 211 Kan. at 620. After thorough discussion of plaintiffs’ claims, the court concluded that “the election was not invalid for any of the reasons asserted.” 211 Kan. at 630. The primary contention was that the board of education had not satisfied the following mandatory requirement: “The board shall adopt a resolution stating the purpose for which bonds are to be issued and the estimated amount thereof.” K.S.A. 1971 Supp. 72-6761. The court was unconvinced: “[T]he record shows substantial compliance with the statute, particularly in light of its purpose and function.” 211 Kan. at 620. Review of the general principles, as stated in the treatise, and the principles applied by Kansas courts in election contests does not support the position of either a crisp distinction between mandatory and directory election provisions or a mechanical characterization of the provisions at issue. It suggests, instead, a practical approach focusing on the purpose of the statute and the question whether the challenged act or omission impeded voters in exercising their voting rights. This court’s opinion in Lambeth is not only instructive, but controlling. In Contestants’ concentration on mandatory versus directory provisions, they have ignored the lessons of Lambeth. The first of those lessons is that an election contest in the courts of this state is controlled by the statute or statutes that authorize what judicial relief can be granted. The key passage in Lambeth on this principle is the following: “An election cannot be declared void unless such relief is authorized by law since there is no inherent power in the courts to pass on the validity of elections. An election cannot be declared void where a statute otherwise limits and prescribes the duties of the court on the trial of a contest. Since the legislature has determined when the courts may order a new election, the courts are limited to those remedies.” 237 Kan. at 621. The statutes governing the conduct of voters or election officials and other election matters cannot control the remedy. Allegations of specific irregularities or illegalities are to be considered and determined according to the pertinent statutory provisions, but, once the determination is made, its effect is controlled by the statute or statutes that authorize what judicial relief can be granted. In this regard, the categorization of conduct or votes as illegal or not is the key. The distinction between mandatory and directory provisions is lightly applied, if at all. Applying the fundamental principle that its authority to grant relief is prescribed and proscribed by legislation where elections are concerned, the court in Lambeth formulated its ruling on that basis. The court looked to K.S.A. 25-1436 (Ensley 1981) and K.S.A. 25-1448 (Ensley 1981), which then stated in pertinent part: “Any contest of election to which K.S.A. 25-1435 applies shall be brought on any one or more of the following grounds: (a) The person to whom a certificate of election was issued was ineligible to hold such office at the time of the election. (b) some voters were deprived of the right of voting for a candidate or on a question submitted, when such voters had the right under the election laws of this state to vote thereon, and such deprival could change the result of the election; (c) illegal votes were received or legal votes were rejected which would change the result of the election; (d) error or fraud occurred in computing the results of the election which would change the result of the election; (e) the person to whom the certificate of election was issued offered or gave, or caused to be offered or given, a bribe to any person charged by law with any election duty, for the purpose of procuring such person’s election; or (f) any other cause which shows that another was the person to whom the certificate of election for such office should have been issued.” K.S.A. 25-1436 (Ensley 1981). “[I]n case of an appeal, upon the final judicial determination of the contest, if the contestant succeeds in the contest, the court may invalidate and revoke any election certificate which has been issued to the contestee, and the secretary of state or county election officer authorized to issue the certificate of election shall issue the certificate to the person the court finds is entitled thereto; except that in cases where the court has found that the contestant prevails in the contest on the grounds provided for in subsection (a), (b), or (e) of K.S.A. 25-1436, then the court may order another election for such office to be held within thirty (30) days after the date of such order or may make such other orders as the court deems appropriate.” K.S.A. 25-1448 (Ensley 1981). The allegation that had possible merit was that Alta Lewis had cast an illegal absentee ballot. Because the district court had not determined whether the absentee ballot marked by Alta Lewis for her husband was illegal, the matter was remanded for that determination. Its legality depended on whether she cast the absentee vote in accordance with her husband’s wishes; if not, she in effect voted twice in violation of K.S.A. 25-2416(b), which made it illegal to vote more than once in the same election. K.S.A. 25-1448 (Ensley 1981) did not authorize the court to order another election on the ground that an illegal vote was received which would change the result of the election, 25-1436(c). This court’s direction to the district court, therefore, included the following: “[I]f the illegal vote was cast for Lambeth and the election then results in a tie, Levens shall be declared elected sheriff of Hamilton County having been previously selected by lot.” 237 Kan. at 623. Although the contestants had made much of Alta Lewis’ failure to furnish an affidavit attesting that she assisted in marking the absentee ballot, as required by K.S.A. 1984 Supp. 25-1124(c), the court concluded that the allegation did not merit consideration because her conduct “did not frustrate, prevent free expression or mislead others.” 237 Kan. at 617. Contestants in the present case insist that Lambeth is not controlling precedent because it did not involve mandatory provisions. It appears that they may be referring to the statutory provisions requiring a person who assisted a disabled voter to furnish an affidavit. That provision, K.S.A. 1984 Supp. 25-1124(c), exhibited the language that Contestants point to in arguing that the statutes at issue here are mandatory, that is, the verb used is “shall.” K.S.A. 1984 Supp. 25-1124(c) provided: “The county election officer shall allow a person to assist a sick, physically disabled or illiterate voter in marking and transmitting an absentee ballot, provided an affidavit is signed by the person who renders assistance to the sick, physically disabled or illiterate voter and submitted to the county election office with the absentee ballot. The affidavit shall be on a form prescribed by the secretary of state and shall contain a statement from the person providing assistance that the person has not exercised undue influence on the voting decision of the sick, physically disabled or illiterate voter and that the person providing assistance has marked the ballots as instructed by the sick or physically disabled voter.” It may also be noted that K.S.A. 1984 Supp. 25-1124(d) made it a felony to knowingly and willfully fail to furnish the affidavit. As Contestants assert, this court did not regard these statutory provisions as being mandatory. This hardly helps Contestants’ cause, however, because the provisions are quite comparable to the ones Contestants call mandatory for the purpose of the present case. Moreover, violation of these statutes was not a basis for disturbing the election results; the statutory violation that was regarded as a possible basis for overturning the election made voting twice an illegal act. All the statutory provisions at issue in the present case are part of the Advance Voting Act, which permits any registered voter to vote before the scheduled election, on a temporary or a permanent basis. An application for an advance voting ballot is to be accompanied by an affirmation of eligibility. Advance voters may obtain their ballots by mail or in person in the office of the county election officer. Advance voting ballots received by mail are to be returned to the county election officer in a sealed ballot envelope bearing the same number as the ballot. Any sick, physically disabled, or illiterate voter may receive assistance in applying for an advance voting ballot, marking it, and transmitting it. When returned to the county election officer, the ballot must be accompanied by the statement of the person who rendered assistance to the effect that he or she did not exert undue influence on the voting decision and that he or she marked the ballot according to the voter’s instructions. We first consider Contestants’ allegation that 32 votes were illegal because capable voters received ballots from third persons. In the statement of facts in their brief, Contestants assert that “at least 32 voters who received assistance with their advance ballots were neither sick, physically disabled, nor illiterate” and that “ballots were transmitted to these voters through third parties” rather than in person or by mail. Part of the record consists of 34 photocopies of a form titled “Application for Advance Voting Ballot on Behalf of an Elector,” which were introduced at trial as Contestants’ Exhibit 2. Everett Beltz, County Clerk of Hodgeman County, was asked if he knew “whether any of the voters identified in that exhibit are sick, physically disabled or illiterate?” He answered, 'Well, I don’t think so, no.” He testified that he mailed two advance voting ballots for which there were applications. Beltz also testified that the advance voting ballots were given to the person who signed the application form. In each instance, the applicant is a different person from the advance voter. Examination of the application forms shows that in one instance the ballot was given to someone other than the person who signed the application form, but it still was given to someone other than the advance voter. It also shows that in nearly every case it was noted on the application form to whom the ballot was given. In other words, there does not seem to have been any effort at deception. Nine of the application forms do not bear any notation indicating that the advance voting ballots that were given to someone other than the voter ever were returned to the election official, i.e., 9 of the 32 at issue. In other words, there may not be as many votes at issue as Contestants claim. By comparing the evidence with Contestants’ assertions, it becomes apparent that they have overstated their case. What is established by the record is that 23 advance voters received their ballots from third persons rather than from an election official or through the mail. What is not established is whether any of them received assistance in marking his or her ballot, and, if so, whether they were sick, physically disabled, or illiterate. With respect to the latter, Beltz testified broadly that he did not think that any were in that category, but he did not pretend to have personal knowledge about each. Contestants contend that K.S.A. 1996 Supp. 25-1123 and - 1124(a) require advance voting ballots to be mailed to the voters if the voters do not pick them up in person from the election official. We note that 25-1123 actually applies “[w]hen an application for an advance voting ballot has been filed in accordance with K.S.A. 25-1122.” Examination of K.S.A. 1996 Supp. 25-1122 reveals no mention of applications made on behalf of an elector. K.S.A. 1996 Supp. 25-1124(b) and (c) permit any sick, physically disabled, or illiterate voter to be assisted in applying for an advance voting ballot. It would not be unreasonable to infer that a voter who is not sick, physically disabled, or illiterate is not eligible for assistance, but the statutory scheme does not include any express prohibition. Contestants urge the court to look at a subsection that was added to K.S.A. 1996 Supp. 25-1128 during the 1997 legislative session, but was not effective at the time of the contested election. The referenced section states: “No person, unless authorized by K.S.A. 25-1122 or K.S.A. 25-1124, and amendments thereto, shall intercept, interfere with, or delay the transmission of advance voting ballots from the county election officer to the voter.” L. 1997, ch. 124, § 4(c). This statute does not appear to be aimed at transmission, with the voter’s permission, of an advance voting ballot from the county election officer to the voter. There is nothing in the record of the present case from which the court could find that there had been interception, interference, or delay in the transmission of any of the advance voting ballots at issue. Thus, even if the statute had been in effect at the time of the Hodgeman County election, it would not seem to have any direct or indirect application to the circumstances alleged or established in the present case. With regard to the issue of assisting voters, Contestants contend that Lambeth “stand[s] squarely for the interpretation that assisted votes cast by persons not entitled to assistance are illegal and not properly counted.” This proposition is not supported by Lambeth. The voter who was assisted in that case, Alta Lewis’ husband, at the very least required assistance and may actually not have had the capacity to understand what he was being assisted with. There was no question of entitlement to assistance. The question was whether Alta Lewis assisted her husband by marking his ballot according to his preference or whether she cast her own vote twice by marking both her own ballot and his as she preferred. Finally, Contestants cite several out-of-state cases and rely rather heavily on one from Mississippi, Lewis v. Griffith, 664 So. 2d 177 (Miss. 1995). In that case, the Mississippi Supreme Court overturned an election on the basis of “ ‘a total departure from the fundamental provisions of the statute [so] as to destroy the integrity of the election and make the will of the qualified voters impossible to ascertain.’ ” 664 So. 2d at 186 (quoting Riley v. Clayton, 441 So. 2d 1322, 1328 [Miss. 1983]). Lewis involved a municipal election where the declared winner had a total of 116 votes and the loser had 115 votes. At issue were three absentee ballots, which were hand-delivered to her able-bodied relatives by the town clerk when absentee ballots were not available to other citizens. Although the result seems to be clear-cut, we note that the court was quite fragmented. Three justices concurred without a separate written opinion, two other justices filed a concurring opinion, and three other justices filed a separate written dissenting opinion. See 664 So. 2d at 189. The dissenting justices emphasized that there was no evi dence of fraud, misconduct, or other intentional wrongdoing and that in the only Mississippi case on point the court refused to invalidate an election based solely on technical irregularities. 664 So. 2d at 190 (Smith, J., dissenting). In other words, what little precedential value a Mississippi case interpreting statutes of that state might have for the present case is further diminished by the disagreement within the Mississippi court. In any event, assisting an able-bodied voter in applying for an advance voting ballot is not among the unlawful advance voting acts set out in K.S.A. 1996 Supp. 25-1128, which provides: “(a) No voter shall mark or transmit to the county election officer more than one advance voting ballot, or set of one of each kind of ballot, if the voter is entitled to vote more than one such ballot at a particular election. “(b) No person, unless authorized by K.S.A. 25-1119 and amendments thereto, shall mark, sign or transmit to the county election officer any advance voting ballot or advance voting ballot envelope. “(c) No person shall willfully and falsely affirm, declare or subscribe to any material fact in an affirmation form for an advance voting ballot, or set of advance voting ballots if the voter is entitled to vote more than one kind of advance voting ballot at a particular election, or in a declaration form on an advance voting ballot envelope. “(d) Nothing in this section shall be construed to prohibit any person from mailing, carrying or otherwise conveying advance voting ballots or sets of advance voting ballots to the county election officer upon request of advance voting voters. “(e) Violation of any provision of this section is a class C misdemeanor.” With no express statutory prohibition on third persons transmitting advance voting ballots to advance voters and no categorization of this conduct as unlawful or illegal, there is no merit in Contestants’ complaint. At best, their complaint is analogous to the charge in Lambeth that Alta Lewis failed to furnish an affidavit about assisting her ailing husband in marking his ballot. Here, the complained-of conduct does not constitute an illegal act. The district court was correct in finding such violations did not require that the election be invalidated. Contestants next contend that 11 votes were cast too far in advance of the election, that is, before the time specified in K.S.A. 1996 Supp. 25-1122(c). K.S.A. 1996 Supp. 25-1122 provides, in part: “(a) Any person described in K.S.A. 25-1119, and amendments thereto, may file with the county election officer where such person is a resident, or where such person is authorized by law to vote as a former precinct resident, an application for an advance voting ballot. “(b) Applications for advance voting ballots to be transmitted to the voter by mail shall be filed only at the following times: (4) For the general election occurring on the first Tuesday in April, between January 1 of the year of such election and the last business day of the week preceding such general election. (5) For question submitted elections occurring on the date of a . . . general election, the same as is provided for ballots for election of officers at such election. “The county election officer of any county may receive applications prior to the time specified in this subsection (b) and hold such applications until the beginning of the prescribed application period. Such applications shall be treated as filed on that date. “(c) Except as otherwise provided in subsection (e), applications made by persons specified in K.S.A. 25-1119, and amendments thereto, for advance voting ballots to be transmitted to the voter in person in the office of the county election officer shall be filed only on the Tuesday next preceding the election, or such earlier date as the county election officer may designate, on each subsequent business day and, if the county election officer so provides, on Saturday, until no later than 12:00 noon on the day preceding such election. Upon receipt of any such application, properly executed, the county election officer shall deliver to the voter such ballots and instructions as are provided for in this act.” As a practical matter, an application for an advance voting ballot that will be given to the voter in person in the office of the county election officer and the advance voting ballot will be completed by the voter during the same visit to the election officer’s office. Thus, for the purpose of determining when balloting is permitted, Contestants seem to use “application for a ballot” and “a ballot” synonymously. K.S.A. 1996 Supp. 25-1119, which is referred to in portions of the statute quoted above, provides: “(a) Any registered voter is eligible to vote by advance voting ballot on all offices and to vote by advance voting ballot on questions submitted on which such elector would otherwise be entitled to vote. “(b) The votes of such electors shall be cast and received and canvassed as provided in this act.” Eleven persons received their ballots and voted in the office of the county election officer (rather than having their ballots mailed to them) before March 25. The first was Gerald Pitts, who voted in the office on March 13, 1997. Everett Beltz, the Hodgeman County election officer, testified that he did not publish a notice of the date on which advance voting would commence in his office. It is Contestants’ contention that, absent Beltz’ giving notice of an earlier date, the earliest possible time when advance balloting was allowed under the statute was March 25, 1997, the Tuesday preceding Tuesday, April 1, 1997, the day of the election. A plain reading of the statute, however, does not support their interpretation. There is no statutory prohibition on advance votes being cast more than a week before the election. K.S.A. 1996 Supp. 25-1122(c) permits them to be cast at any time upon or after designation by the county election officer, and the method of designation is neither specified nor qualified. In those circumstances, it seems as if the election officer designates the date on which applications will begin to be taken when a registered voter visits the election officer’s office and becomes the first person allowed to complete an application for an advance voting ballot and to cast his or her ballot in any given election. In this case, Gerald Pitts completed an application for an advance voting ballot and voted in the election officer’s office on March 13, 1997. By his action, the election officer effectively designated March 13 as the earliest date on which he would take applications for advance voting ballots to be handed to the voter, rather than mailed, for the question submitted election of April 1, 1997. The election officer’s discretion to designate when applications will be accepted probably should be tempered with a reasonableness requirement. After all, someone who voted too far ahead might not have the benefit of all the information made available during the campaign. Contestants argue that a public notice is required in order for the election officer to designate an early date for accepting applications for advance voting ballots. They contend that any other rule would create “an uneven playing field where the rules of the election are defined on a voter-by-voter basis at the whim of the election officer.” This argument might carry some weight if, for example, there were evidence that Everett Beltz’ acceptance of Gerald Pitts’ application had been preceded shortly by his refusal of another. In such a case, the reasonableness of the designation might be in question. In the present circumstances, it is not. Where there is no evidence of differential treatment, similarly situáted voters are not on an uneven field. Finally, Contestants challenge four “absentee” votes. The record contains four manila envelopes with the words “absentee ballot” printed on them, which appeared to have been sealed at one time and then opened. The printed “Declaration of Absent Voter,” which appears on each envelope and is to be completed and signed, is blank on each of these four envelopes. Contestants complain that the votes were counted in spite of “[a]t least four of the [advance voting] ballot envelopes produced at trial lacking] the signature of the voter.” They contend that, instead of counting the votes, the election officer should have marked the envelopes as “provisional” and placed them in a separate sealed container. Contestants cite K.S.A. 1996 Supp. 25-1136, which provides: “(a) The vote of any advance voting voter may be challenged in the same manner as other votes are challenged, as nearly as may be, and the judges of the special election board shall determine the validity of each advance voting ballot. Whenever the judges determine that the form accompanying an advance voting ballot is insufficient, or that the voter is not a registered voter, or the challenge is otherwise sustained, the. advance voting ballot envelope shall not be opened. In all such cáses, the judges shall endorse on the back of the envelope the word ‘provisional’ and state the reason for sustaining the challenge. “(b) Any advance voting ballot envelope which has not been signed shall not be opened, and no vote on the ballot therein shall be counted. Such envelope or ballot shall be challenged in the same manner in which other votes are challenged. “(c) Whenever it shall be made to appear to the judges of a special election ■board by sufficient proof that an advance voting voter has died, the envelope containing the advance voting ballot of such deceased voter shall not be opened. In all such cases, the judges shall endorse on the back of the envelope the word ‘provisional’ and the reason for. sustaining the challenge. “(d) If objection is made to an advance voting ballot because.of form, condition, or marking thereof, the ballot shall be marked ‘void’ if the judges uphold the objection to the entire ballot, and otherwise shall be marked on the back thereof, ‘objected to’ with a statement of the substance of the objection. “(e) Void, provisional and objected to advance voting ballots shall be transmitted to the county election officer in the same manner as personally cast provisional .ballots are transmitted but shall be placed in separate envelopes or sacks, appro priately labeled and sealed. Votes contained in void and provisional advance voting ballots shall not be included in the total of votes certified by the special election board. Void, provisional and objected to advance voting ballots shall be reviewed by the board of county canvassers, and such board shall finally determine the acceptance or rejection of each void, provisional or objected to ballot.” What Contestants do not address is the correct timing of a challenge to an advance voting envelope or ballot on the basis of an unmarked or insufficiently marked envelope. The statute contemplates that the judges of the special election board will determine the merit of a challenge. If a challenge is sustained, they are to indicate so by marking the envelope. It is then to be transmitted to the county election officer. Because of the successful challenge, the special election board’s certified vote totals should not include the votes from the envelopes. Final determination whether to count the votes is to be made by the board of county canvassers upon review of the envelopes marked by the judges of the special election board. There is no indication in the present case that any timely challenge or objection was made to the four unmarked envelopes. Just as departures from tire statutory procedure for advance voting should not routinely result in judicial overturning of election results, departures from the statutory procedure for challenging advance votes should not automatically invalidate the challenge. The importance of the statutorily prescribed procedures for both, though, is illustrated by the evidence in the record in the present case. As a result of the departures, the record is wholly inadequate. What the record contains is four manila envelopes, blank except for the preprinted material. Each appears to have been sealed and then opened. Each is empty. If there is testimony identifying these particular envelopes as having contained completed ballots, it has not been brought to our attention. In its absence, there is no way of knowing whether these envelopes ever contained ballots. Thése envelopes do not provide a basis upon which the court could invalidate four votes. In any event, the invalidation of four votes would have no effect on the outcome of the election, which was decided by a 22-vote margin. Contestants contend that the county election officer’s destruction of election materials earlier than allowed by statute should be “an additional basis” for the court’s invalidating the election. K.S.A. 1996 Supp. 25-2709 provides: “The following election records may be destroyed after they have been on file for the period stated: ... (6) Affidavits required to be filed by the election laws of the state of Kansas, including advance voting and mail ballot envelopes containing voters’ declarations, two years.” According to Contestants’ calculations, there should have been 59 advance voting ballot envelopes retained by the county election officer in this case, but “21 days after the election, only 24 advance ballot envelopes could be located.” Contestants urge the court to “adopt a bright line rule condemning the unlawful destruction of election records and requiring new elections where such destruction compromises confidence in the outcome of an election.” At trial, Beltz, the county election officer, was asked if he had kept the envelopes. He testified that he had not, that instead he had given “them to Mrs. Baldwin for her — where she keeps history and she stores her stuff in those envelopes.” Then the following exchange occurred between counsel for Contestants and Beltz: “Q. Did you give all the envelopes to Mrs. Baldwin? “A. No, I think — not all of them, because she didn’t ask for them just a few days before the election. She wanted them so I saved them all. “Q. So, is it your testimony that all of the ballots that were mailed back to you, you gave to Mrs. Baldwin? “A. No, I’m not saying that, because I don’t know for sure. “Q. What happened to the envelopes that came back to the office that you said you let people take them out and put in the machine? “A. Well, just let them put them in the trash can because I didn’t think — they voted them right there. “Q. Do you know you’re supposed to maintain those envelopes? “A. I think I probably am. “Q. Do you know for how long [you’re] supposed to keep those envelopes? “A. I heard somebody say two years. “Q. That was probably me in my opening statement.” In his brief, the Hodgeman County Attorney identifies Mrs. Baldwin as “a local genealogist” to whom the envelopes were given “for the purpose of storing newspaper clippings.” There is no question that the practices of the Hodgeman County election officer were sloppy, but there is no allegation and certainly no evidence of vote tampering in this case. The election officer’s providing the local historian with envelopes in which to store her source material is not the sort of conduct that sets off alarms. There is no statutory sanction for election materials’ being destroyed before the period specified in 25-2709 has passed. Contestants characterize tiie election officer’s failing to retain the envelopes as “the unlawful destruction of election records,” but they have not directed the court’s attention to any statutory penalty for it. We cannot condone the lack of professionalism of the election officer, and the county officials should take positive steps to cure the deficiencies. Nonetheless, we adhere to the policy expressed in Lambeth of upholding election results in the absence of fraud or conduct declared by the legislature to be illegal; thus, the outcome of the election must be confirmed. Contestants predict that “[ajnything short of reversal will signal that a clear legislative mandate means nothing and that election safeguards depend upon the fancy of individual election officers rather than rules of law.” We find no justification for such a bleak view. It reflects their position, which has not been shared by this court in election contest appeals, that the court-imposed sanction for each and every departure from prescribed election procedures ought to be election invalidation. Their position, as noted earlier in this opinion, ignores the absence of statutory authority for the court to invalidate the results of an election as a means of enforcing procedural rules. Their position depends in large measure on the mandatory language, i.e., the verb “shall,” in the procedural statutes. One of the principal purposes the legislature intended , to serve by formulating the procedures undoubtedly was the safeguarding of the integrity of elections. To this end, the legislature framed the procedures in mandatory terms. It intended for the procedures to be followed by state and local election officials. That the legislature did not intend for incidental procedural departures to result in elections being overturned where there was no evidence of fraud can be seen in the absence of enforcement provisions. The legislature’s lack of attention to creating sanctions for purely pro cedural departures stands in contrast to its delineation of unlawful acts and penalties, for example, K.S.A. 1996 Supp. 25-1128. Here, there were no violations of the provisions of the Advance Voting Act that prevented a Hodgeman County voter from exercising his or her right to vote. The judgment of the district court is affirmed. Lockett, J., not participating. Richard W. Wahl, Senior Judge, assigned.	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The opinion of the court was delivered by Wahl, J.: This appeal involves a dispute between a lessor and a lessee over the proper apportionment of a condemnation award resulting from an eminent domain action. On November 30, 1995, the City of Overland Park filed a petition to condemn several tracts of land for the purpose of acquiring rights-of-way and easements for the construction and the improvement of the intersection of 151st Street and Metcalf Avenue. One of the condemned tracts included real estate and improvements owned by the appellant, Dale F. Jenkins Revocable Trust (Jenkins). Appellee Allen A. Newell (Newell), á barber shop owner, was the lessee of part of this tract. Newell’s barber shop was a one-man, three-chair operation leasing 340 square feet in a commercial building on the tract. In his answer to the condemnation petition, Newell stated he was a tenant with a valid lease having a bonus value under Kansas condemnation laws, which lease had to be acquired with fair market value being awarded to Newell plus interest, moving, and relocation expenses. As part of the construction project, it was necessary to demolish the improvements on the tract, including the commercial building and a car repair shop. As a result of the condemnation, each of the commercial leases was terminated and each tenant was released from any obligation for further payment of rent as of the date of taking. In due course, the district court entered an order appointing appraisers and setting a time for filing of the appraisers’ report. On February 22,1996, the appraisers filed a report appraising the tract in question in the amount of $175,500. The district judge entered an order approving the appraisers’ report on the same day. Pursuant to K.S.A. 26-517, Newell filed a motion requesting the district court to apportion the appraisers’ award of $175,500 among the lessor, Jenkins, and the lessees. Newell was the only tenant asserting a claim for the market value of the unexpired term of the lease. The district court conducted hearings pursuant to K.S.A. 26-517, which provides: “In any action involving the condemnation of real property in which there is a dispute among the parties in interest as to the division of the amount of the appraisers’ award or the amount of the final judgment, the district court shall, upon motion by any such party in interest, determine the final distribution of the amount of the appraisers’ award or the amount of the final judgment.” The Eminent Domain Procedure Act, K.S.A. 26-501 etseq., provides for bifurcated proceedings in determining compensation. Under the “undivided fee rule” followed in Kansas, the total award for the condemned property is determined in the first proceeding, without consideration of the competing demands of the various holders of interests in the land. Thereafter, if various parties in interest cannot agree among themselves as to the division of that award, the court allocates the award pursuant to K.S.A. 26-517. See City of Manhattan v. Kent, 228 Kan. 513, 519, 618 P.2d 1180 (1980). As for the valuation of leasehold interests in eminent domain proceedings, K.S.A. 26-517 does not provide guidelines for the division of tibe condemnation award among the parties in interest. In order to understand their positions, it is helpful to detail the contentions of Newell and Jenkins. At the apportionment hearing, Newell testified that, as a result of the condemnation, he had to move his barber shop 4.6 miles west of Stanley to Olathe. Newell’s original Stanley lease was for a term of 1 year from November 1, 1990, to October 31, 1991, for $11.11 per square foot. The rent increased to $11.56 per square foot in 1991, $12.22 in 1993, and $14.81 in 1996, and would increase to $15.99 in 1998 and $17.40 in 2000. His Stanley shop was a three-chair barber shop and measured 340 square feet. He shared parking, restrooms, and the hallway with other tenants. His rent was $330 per month plus his share of the utilities. He stated the primary attributes of the Stanley lease were its size, which perfectly suited his needs, its location at a busy intersection, and the lengthy term of the lease. Newell testified that as soon as he was informed that he would have to vacate the commercial, building, he began to search for another location in the Stanley area but he could not find a lease with the same terms as the Stanley lease. He was unable to obtain a lease in the new Stanley Price Chopper shopping center or at Stanley Station, another shopping center, because both centers already had barber shops and no-compete clauses prevented these shopping centers from leasing space to a second barber shop. New-ell stated he investigated the possibility of purchasing an older house, but found it to be financially prohibitive. He also examined several other lease possibilities in the Stanley area, but either the term was too short or the space was larger than he needed. It was Newell’s opinion that the Stanley lease was the exact size he wanted, the price was “great,” and the location was “terrific.” Newell was unable to find a lease for 350 square feet, which was all that he required for his shop. Instead, he had to lease 1,100 square feet at the Olathe location for a total of $11 per square foot. Newell stated that, despite the additional space, he only had the same three barber chairs he had in his Stanley location. He stressed that he had blocked off the unused space and had no intention of expanding his business. Newell testified his Olathe location was the smallest and best location he could find. His new location had better parking. He had one restroom of his own in the new location, while he had two communal restrooms in the Stanley location. When asked whether the new location was “far superior” to the old, Newell responded that the building was newer, but the location was not as good because considerable traffic passed by his shop every day in Stanley, while in Olathe, he was located in a developing residential area with much lighter traffic. He agreed that the appearance of the new building was superior and that access was a little better. Clark Scroggin, a commercial real estate appraiser, testified for Newell. He stated he examined other comparable properties in the area to ascertain a market level of rent, examined the contract rent for the Stanley and Olathe leases, and made comparisons between those and other comparable rentals in the market. He also reviewed comparables used by Jenkins’ expert real estate appraiser and found the new Olathe lease to be in the same geographic area and generally similar in nature to the marketplace in Stanley. In analyzing the Stanley lease, Scroggin stated: “The most unique thing about [the Stanley lease] was that it was approximately 300 sq. ft., which is virtually impossible to find anywhere in the market and certainly not available in the subject neighborhood.” He also found it unique that Newell could rent a small space for such a long term. Scroggin performed a market data study of existing leaseholds, including the Olathe leasehold, to determine a market level of rent, and he determined that the Olathe leasehold was the most accurate for comparison purposes. Scroggin stated that he performed an analysis to compare the contract rent of the Stanley lease to the market rent, then abstracted the difference and abstracted it to a present worth based upon an 8% discount rate. Scroggin testified that the present worth of the Stanley lease was $24,201 and the present worth of the Olathe lease was $64,823. He stated in his report that Newell had a very favorable lease in place in Stanley which could not be matched in the current marketplace. Scroggin also testified that the other Stanley comparable leases he researched were equivalent to Newell’s Olathe lease. He concluded that the rent for the Olathe shop was equivalent to market rent in Stanley. He also used the Olathe lease as a comparable because the rent there was lower than the rent at Price Chopper and Stanley Station. He stated he considered the Stanley lease far superior to Olathe in location but inferior in construction and condition. Scroggin testified that the parking ratio at the two locations was about the same. When asked if he had assigned any percentage adjustment for these various factors, Scroggin stated: “No. My conclusion was that the inferior aspects, the construction type, and the condition of the property would offset the superior nature of the location, and so I have used those figures as they are. ... I made adjustments. The net adjustment was zero, so the unadjusted rent would be the same as the adjusted.” Bruce Baker, a real estate expert, also testified for Newell. He noted that the most striking attribute of the Stanley lease was its location at the comer of 151st and Metcalf, the length of the lease, and the rental rate. Kevin Nunnink, a real estate appraiser, testified for Jenkins. He reviewed comparable rental properties and stated that he compared the contract rent of Newell’s Stanley lease to the market rent and concluded that there was no benefit of the bargain to Newell and that Newell’s leasehold was of no value. Nunnink only used comparables in Stanley for his appraisal. Nunnink’s first comparable was 1,000 square feet at a rental rate of $11 per month, and his second was 1,200 square feet at a rate of $10.72 per month. His third comparable lease was 3,878 square feet. Nunnink testified that since the contract rate of Newell’s lease over the entire term of the Stanley lease was $14.17 and the range for market rent in Stanley was between $10 and $11 per square foot, there was no benefit to Newell and no positive leasehold interest in the Stanley lease. Nunnink did not include in his analysis the point that the $14.17 contract rate for the Stanley lease was calculated over the long-term life of the lease to the year 2002 while his calculation of the contract rate for his other comparables focused only on the rent in 1996. Nunnink also testified that Newell’s new lease provided additional utility due to its larger size. Nunnink did not address the facts that Newell was forced to lease larger space than he ever intended to use and that he had blocked off the excess space. After hearing the testimony, the district court made extensive findings of fact and concluded: “16. At the apportionment hearing on the 26th of May, 1996, Clark Scroggin, Kansas General Real Estate Appraiser Certification #G-1049 and MAI Candidate, testified as an expert witness on behalf of Mr. Newell. After an exhaustive market study, Mr. Scroggin evaluated the market value of Mr. Newell’s lease and found the lease’s uniqueness which made it valuable in the market place due to its size (300 square feet); location (151st Street and Metcalf Avenue northeást direct comer); term (until October 31, 1991); and price (starting at $330.00 a month). Rased upon these high qualities, the best comparable is Mr. Newell’s new location on Rlackbob. Taking those factors,, as well as other factors in the marketplace, Mr. Scroggiris damages in the amount of $40,600.00 were arrived as follows under traditional appraisal techniques. “17. The Court has carefully considered Mr. Nunnink’s comparables for the Newell operation. The properties cited, however, were considerably larger than 300 square feet space leased by Mr. Newell and not otherwise properly suited for a barber shop operation. Accordingly, the Court finds that the Newell lease is unique and no comparable locations were reaspnably available to Mr. Newell upon condemnation of the subject property.” The district court then ordered apportionment granting $40,600 to Newell and $134,900 to the Trust. On appeal, Jenkins argues that the district court failed to apply the proper method of valuation in determining the value of New-ell’s leasehold interest and asks this court to reverse the judgment of the district court and remand the case for a new trial. The proper method of valuation is a question of law and subject to review on appeal. Union Gas System, Inc. v. Carnahan, 245 Kan. 80, 91, 774 P.2d 962 (1989). Our review of questions of law is unlimited. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). Jenkins contends that the district court improperly used the substitute facilities method of valuation. This method is defined as the amount needed to provide an equivalent necessary replacement facility, undiminished by depreciation or functional obsolescence. Although it is a recognized measure of compensation in condemnation cases, the court has held it is applicable only to public condemnees such as churches or schools because of the unique character and use being made of the public property. See Whitewater River Watershed v. Butler Rural Electric Coop Ass’n Inc., 6 Kan. App. 2d 8, 626 P.2d 228 (1981); Urban Renewal Agency of Wichita v. Gospel Mission Church, 4 Kan. App. 2d 101, 603 P.2d 209 (1979), rev. denied 227 Kan. 928 (1980). In City of Wichita v. Unified School District No. 259, 201 Kan. 110, 439 P.2d 162 (1968), we held that school buildings and other special purpose properties are not ordinarily traded on the market and, therefore, an approach other than market data must be taken. We approved a judgment for the replacement cost of the buildings and noted that in eminent domain proceedings against a public body, depreciation may not be deducted. 201 Kan. at 112-16. Jenkins’ position is that since the district court awarded Newell an amount essentially equal to the difference between the present value of the cost of the unexpired term of the Stanley lease and the present value of the cost of the Olathe lease for the same period of time, the district court used the substitute facilities method of valuation. Jenkins maintains the proper method of valuation of a private leasehold estate in condemnation cases is not the substitute facilities method but rather the market value method by which the condemnee is awarded the market value of the unexpired term of the lease over and above the rent stipulated to be paid. Jenkins claims a close examination of the damage calculations resulting in $40,600 reveals that the district court applied a measure of compensation based upon the cost of replacing the Stanley lease with the Olathe lease. Jenkins also takes issue with the district court’s reliance on the fact that similar leases were not available to Newell in Stanley. Jenkins further claims the Scroggin appraisal made no adjustments for depreciation, age, quality, or size. Jenkins contends that, even though the testimony was uncontroverted that Newell has blocked off the additional space in Olathe, and has no plans or desire to expand his business, he has the opportunity to utilize the additional space, which results in a potential and unjustified windfall to New-ell. Jenkins argues that Newell’s “choice” to lease enhanced space should not sway this court. Jenkins would have this court accept the conclusion of the Nunnink appraisal. The Fifth Amendment to the United States Constitution provides that it is fundamental constitutional law that private property shall not be taken or damaged for public use without just compensation. See K.S.A. 26-513(a). It is also the law of Kansas that, if the entire tract of land or interest therein is taken, the measure of compensation is the value of the property or interest at the time of the taking. K.S.A. 26-513(b). In State Highway Commission v. Safeway Stores, 170 Kan. 413, Syl. ¶ 1, 226 P.2d 850 (1951), we stated: “A tenant for years under a written lease is an ‘owner’ of property within the meaning of that term as used in our condemnation statutes and is entitled to compensation if his leasehold estate is damaged by the exercise of eminent domain.” See Com’rs. of Smith Co. v. Labore, 37 Kan. 480, 486, 15 Pac. 577 (1887). In Phillips Petroleum Co. v. Bradley, 205 Kan. 242, 468 P.2d 95 (1970), we held that a condemnation award for property owned by several interests should be apportioned among those separate interests, stating: “It has long been the rule that where leased property is taken by eminent domain, it is ordinarily valued as though held in a single ownership rather than by separately valuing the interests of the lessor and lessee, and the compensation for the property taken or damaged is apportioned by the district court between the lessor and lessee according to their respective interests.” 205 Kan. at 247. 29A C.J.S., Eminent Domain § 190, p. 457 states: “The lessor is entitled to compensation for injuries to his reversion, and the lessee for injuries to his leasehold interests. The lessee is entitled to the market value of the unexpired term of the lease less the present value of the rent called for by the lease. Where the leasehold is relatively long and rental values have substantially increased since the inception of the lease term, the lessee’s share may exhaust the entire award. The lessor gets the present value of the rents plus the value of the remainder of the estate or the value of the fee less the award to the lessee.” In Board of Sedgwick County Comm’rs v. Kiser Living Trust, 250 Kan. 84, 92, 825 P.2d 130 (1992), the court stated the standard methods used in valuation of real estate in condemnation cases as “ ‘(a) the market data approach which is based upon what comparable properties had sold for; (b) the depreciated replacement cost or cost approach which is based upon what it would cost to acquire the land and to build equivalent improvements less depreciation; and (c) the income approach or capitalization of income which is based upon what the property is producing or is capable of producing in income.’ ” (Quoting Ellis v. City of Kansas City, 225 Kan. 168, Syl. ¶ 3, 589 P.2d 552 [1979].) See State Highway Commission v. Lee, 207 Kan. 284, 485 P.2d 310 (1971). In Kiser, the court also stated that the market data approach was “the most common method of valuing real property and [that it] should be used when there have been sales of comparable properties in the same locale, near the time of the taking. When the property is so unique that there is no ascertainable market and there are no sales of reasonably similar or comparable property, the other methods — depreciated replacement cost approach or the income approach — may be used.” 250 Kan. at 92. The trial court has broad discretion in determining what other sales are comparable. City of Shawnee v. Webb, 236 Kan. 504, Syl. ¶ 4, 694 P.2d 896 (1985). With respect to condemnation of leasehold estates, we have held: “A lessee is an owner of the property and is entitled to just compensation if his leasehold is damaged from the exercise of eminent domain.” Kent, 228 Kan. at 516. We have held that damages due a lessee for the taking of an entire leasehold are equal to the fair market value of the leasehold for the unexpired term of the lease. See Miles v. City of Wichita, 175 Kan. 723, Syl. ¶ 3, 267 P.2d 943 (1954). In Bales v. Railroad Co., 92 Kan. 771, 141 Pac. 1009 (1914), Bales occupied the condemned property held under the lease as a furniture store. The court stated: “In awarding compensation to a lessee for a leasehold appropriated for railway uses, the market value of the unexpired term should be allowed, taking into consideration as elements of value the situation, condition and use made, or that may be made, of the premises, and the nature and prosperity of the business carried on there if it affects the value of the lease.” 92 Kan. 771, Syl. ¶ 3. The Bales court also held that the increased rental value of the premises caused by the addition by the tenant of decking, floor space, light plant, and fixtures was an element that could be considered by the jury in determining the value of the unexpired term. 92 Kan. 771, Syl. ¶ 1. Here, the only issue before us on appeal is whether the district court used the proper method of valuation in distributing the condemnation award between Jenkins and Newell. We find that Jenkins’ contention that the district court improperly used the substitute facilities method is without merit. Rather, the district court adopted Scroggin’s valuation of Newell’s leasehold estate and not that of Nunnink. Scroggin clearly testified that he performed a market data study of existing leaseholds, including the Olathe leasehold, to determine a market level of rent and that the Olathe leasehold was the most accurate for comparison purposes. Scroggin then performed an analysis to compare the contract rent of the Stanley lease to the market rent, abstracted the difference and abstracted it to present worth based upon an 8% discount rate. Scroggin clearly used the market data approach and not the substitute facilities approach. Jenkins’ argument that Scroggin and the district court failed to make any adjustment between the two leases to reflect the larger size of the Olathe lease and the better condition of the Olathe building also fails. Scroggin testified that he had factored in a percentage adjustment for these differences, and his conclusion was that the superior aspects of construction and condition of the Ola-the property were offset by the superior nature of the Stanley location so that the net adjustment was zero. Although the district court failed to make a specific finding regarding this adjustment, the court obviously accepted Scroggin’s evaluation. Jenkins’ argument that the district court’s and Scroggin’s use of the Olathe lease as a comparable indicates that the district court relied on the substitute facilities method of valuation is also without merit. Scroggin used the Olathe lease because the rent was actually less than the rent of the Stanley leases used by Nunnink as com-parables. In addition, it made no actual difference which leases were used as comparables since all the leases used were similar in size and rent. We also reject Jenkins’ next argument that the district court improperly relied upon the lack of availability of the Nunnink comparable leases at the time of the taking for a replacement location for the barber shop in deciding to exclude them as comparables. Although the district court referred to the “availability” of the Nunnink comparables to Newell, what the district court appears to have been emphasizing was that there were no leases in the Stanley area which were equivalent to Newell’s lease irrespective of any time frame and that Newell’s lease was unique. A trial court decision which reaches the right result will be upheld, even though the court may have relied upon the wrong reason or assigned erroneous reasons for its decision. Bank of Kansas v. Davison, 253 Kan. 780, 792, 861 P.2d 806 (1993). Research has failed to reveal a case in which the tenant was forced to lease space larger than that occupied before the condemnation. However, the overriding consideration in distributing the condemnation award between a lessor and a lessee is the equitable and just compensation for “every sort of interest the citizen may possess” in the property taken. U. S. v. General Motors Corp., 323 U.S. 373, 378, 89 L. Ed. 311, 65 S. Ct. 351 (1945). The approach favored by the district court which compensates Newell for the extra rent he was forced to pay due to the taking is more equitable than Jenkins’ position which completely ignores Newell’s loss in this regard. It is apparent that the district court did not use the substitute facilities approach in determining its distribution of the condemnation award, but that it applied the market data approach. The judgment of the district court is affirmed. Lockett, J., not participating. Richard W. Wahl, Senior Judge, assigned.	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The opinion of the court was delivered by - Burch, J.: The plaintiff recovered damages for in-j uries sustained through a collision with one of the defendant’s trains at a highway crossing. The defendant appeals. The petition alleged that the highway extends along one side of a high and rocky ridge; that the railway track crosses the highway at right angles and is laid in a deep and narrow cut through the ridge which opens abruptly on the highw'ay; and that travelers on the highway can not see or hear an approaching train until they are quite up to or upon the railway track because of the configuration of the land and because of a thick growth of shrubbery upon it. The petition contained the following charges of negligence on the part of the railway company, which the court submitted to the j ury: Failure to restore the highway to its former state of usefulness by grading down the walls of the cut and removing obstructions to sight and hearing; failure to sound the whistle eighty rods from the crossing, and failure to ring the. bell as the train which struck the plaintiff approached the crossing; failure to keep a watchman at the crossing, or to provide a signal of some kind at the crossing, or to give warning of the approach of trains such as the situation demanded. The petition charged that the train was running at the reckless rate of thirty miles per hour, but the Instructions did not refer to speed or excessive speed as a ground of negligence authorizing recovery. The answer denied negligence on the part of the defendant and charged negligence on the part of the plaintiff. With a general verdict for the plaintiff, the jury returned the following special findings of fact: . “Q. 1. Did the accident occur on January 5th, 1912, at about 3:20 P. M. of said day? A. Yes. “Q. 2. Was the plaintiff’s eyesight good? A. Yes. “Q. 3. Was the plaintiff’s hearing good? A. Yes. “Q. 4. Had the plaintiff, in the neighborhood of once a week, from the time he could remember, passed by and over said crossing? • A. Yes. • “Q. 5. Had the plaintiff for the past ten years been familiar with and knew that the crossing in question was dangerous. A. Yes. “Q. 6. Was it not usual for the defendant to only operate one train each way a day over the crossing at which the accident happened ? A. Yes. “Q. 7. Was the train which collided with the plaintiff a regular train of the defendant? A. Yes. “Q. 8. Did plaintiff stop his team to look and listen for a train before driving up to or on said railway crossing? A. No. “Q. 16. Did the engineer sound the whistle at the quarter-mile post which post is near the Government Cut? A. Yes. “Q. 17. Was the fireman ringing the bell as they approached and went across the crossing' in question? A. Yes. “Q. 18. At what rate of speed was the train going at the time it collided with plaintiff’s team and sleigh ? A. About 15 miles per hour. “Q. 19. What negligence was the defendant guilty of towards said plaintiff that caused the accident? A. The vision was obscured by frost on cab windows. “Q. 20. Did the plaintiff at any time before his team collided with the train, stop and listen for an approaching train? A. No. “Q. 22. If the plaintiff had stopped his team ten or fifteen feet south of the crossing in question and looked and listened, 'would he have collided with the train? A. No. “Q. 23. How long previous to the accident had the plaintiff been familiar with the crossing where he was injured? A. About 10 years. “Q. 24. Was the day at the time of the accident very cold, being five or ten degrees below zero? A. Yes. “Q. 25. Did the plaintiff at the time of the accident, have mufflers over his ears ? A. Yes. “Q. 26. Did the plaintiff as he approached the track and before he collided with the train, remove the mufflers from his ears and listen for a train? A. No. “Q. .27. Was plaintiff’s view of the railroad track to the east from which train approached, obstructed by a high embankment or hill? A. Yes. “Q. 28. Did plaintiff know that such embankment or hill was there? A. Yes.” The defendant moved for judgment on the special findings but the motion was overruled. It is quite plain that the jury in arriving at its general verdict did not appreciate, or disregarded, the plaintiff’s duty to exercise care and vigilance commensurate with the hazard incident to the crossing. He could not see the approaching train because of obstructions which were obvious and with which he was perfectly familiar. The same obstructions prevented him from hearing the train. Besides this, he partially disabled himself from employing his sense of hearing and so did not make vigilant use of that faculty. In that situation, and knowing the crossing to be dangerous, he simply took chances and drove upon the crossing wheh a halt to look and listen ten or fifteen feet from the track would have saved him. This court has before it facts which enable it to know the situation of the plaintiff at the time of the injury as well as the jury knew it, and knowing the facts as well as the jury knew them the court concludes that reasonable minds guided by correct rules of law would reach the conclusion that the plaintiff ought to have stopped to look or listen, or both, before driving upon the track. (Railroad Co. v. Willey, 60 Kan. 819, 58 Pac. 472.) In the case just cited the syllabus reads as follows: “When a traveler on a country highway comes to a railway-crossing with which he is familiar, knowing that a train is about due at that point and liable to pass at any time, it becomes his duty as an act of ordinary prudence to look and listen for its approach; and if the sense of sight be unavailing because of obstructions to the view, and the sense of hearing unavailing because of preventing noises, it becomes his duty, as a further act of ordinary prudence, to stop in order better to enable him to look and listen before entering upon the crossing; and in such case, if by stopping he can see or hear the approaching train, but fails to'do so, his negligence in such respect should be declared as a matter of law, and not left to the determination of the jury as a question of fact.” While the circumstance that the train was about due is mentioned in stating the facts of the Willey case, it did not enlarge or diminish the duty to stop in order to make the senses of sight and hearing available. The track was a warning that a train might be approaching. (Beech v. Railway Co., 85 Kan. 90, 116 Pac. 213, and cases there collated.) “One attempting to cross a railroad-track on a public highway, who is familiar with and relies upon a rule of the company which prohibits trains from following one another within ten minutes, is guilty of contributory negligence in going upon the track without looking and listening for an approaching train; and this is true, although the train which caused the injury was a ‘wild train’ and followed the preceding one within one or two minutes.” (Bush v. Railroad Co., 62 Kan. 709, syl. ¶ 1, 64 Pac. 624.) “It will not do to say that a person in such circumstances need only look and, listen at the times when regular trains are due. It is common knowledge that trains are often run that are not upon schedule time, and that regular trains are often delayed. The plaintiff was approaching a public crossing of a great line of railway, and was thereby warned of danger; his failure to use his senses is not excused by the fact that the train was late.” (Railroad Co. v. Entsminger, 76 Kan. 746, 749, 92 Pac. 1095.) The plaintiff was likewise bound to assume that the speed of the train, if one were approaching, would be as great as the business or the necessities of the company required, and he was bound to act accordingly. (Railway Co. v. Schriver, 80 Kan. 540, 544, 103 Pac. 994.) In the Willey case and in this case natural objects cut off a view of the railway track. In the Willey case the plaintiff’s ability to hear the approaching train was impaired because of a high wind. In this case the plaintiff’s hearing was obstructed by the hill and brush which concealed the train and by the voluntary handicap of mufflers over his ears. He relied for recovery on the existence of the hill and brush, and the other obstruction was established by the proof. In the Willey case the jury found specially that if the plaintiff had stopped just before his team passed the end of the hedge which obstructed his vision and had either looked or listened he could have seen or heard the approaching train. In this case the jury found specially that if the plaintiff had stopped his team ten or fifteen feet from the crossing and had looked and listened the collision would not have occurred. The two cases, therefore, are so parallel in their essential facts and are so identical in principle that the reasoning of the court in the Willey case is conclusive here. “The pertinent facts, then, are that the plaintiff below could not see the aproaching train because of obstructions to his view, nor could he hear it because of the noise of the wind in the grove of trees. He was, however, familiar with the crossing and all its surroundings. He knew that a train was liable to pass at any time. He knew that he could neither see nor hear its approach. He could, however, have seen or heard it if he had stopped just before his team passed the end of the hedge nearest the track, which point was twenty-eight feet from the nearest rail. He knew that he could not, for the reasons stated, either see or hear an approaching train without stopping at or about the end of the hedge. Under these circumstances the legal proposition of his obligation to stop, in order to assure himself of safety, is unquestionable. The law first laid him under the obligation to look and listen. This is undisputed. The exercise of the senses of sight and hearing were unavailing, and were known by him to be unavailing. The very contingency, then, in which the law laid him under the necessity of further precaution arose.” (60 Kan. 824.) The jury by their special .findings exonerated the defendant from every charge of negligence specified either in the petition or in the instructions. The defendant had the right to know from the jury itself the fault or faults attributed to it, if it were found to be at fault. (Cole v. Railway Co., 92 Kan. 132, 139 Pac. 1177, and cases cited in the opinion; Jones v. Interurban Railway Co., 92 Kan. 809, 813, 141 Pac. 999.) The question, “What negligence was the defendant guilty of towards said plaintiff that caused the accident?” was intended to elicit a full statement of the facts constituting the defendant’s negligence. (Railway Co. v. Roth, 80 Kan. 752, 756, 104 Pac. 849.) The question was plain and simple, related to the ultimate and vital issue in the case, and a jury that could not understand it would scarcely be competent to render a general verdict pronouncing upon the rights of the parties. Not being willing to say that the defendant was negligent in failing to remove the growth of brush and shrubbéry and widen the cut, or in failing to give signals, or in failing to keep a watchman or establish a bell at the crossing, the jury said the defendant’s negligence consisted in the fact that vision was obstructed by frost on the cab windows. With the thermometer standing at from five to ten degrees below zero, frost on the cab windows was as inevitable as on the windows of our living rooms in winter time. But the plaintiff did not claim that the defendant did not keep a sufficient lookout. That issue was not raised by the pleadings or submitted to the jury by the instructions, and the result is the defendant was acquitted of all negligence charged against it. “In saying that the negligence of the defendant consisted in failing to furnish sufficient light, the jury must be deemed to say that their verdict is not based upon any other form of negligence.” (Tecza v. Sulzberger & Sons Co., 92 Kan. 97, 98, 140 Pac. 105.) The special findings being consistent with themselves and inconsistent with the general verdict, they must control (Civ. Code, § 294), and because the findings acquit the defendant of the negligence charged against it and show the plaintiff himself to have been guilty of negligence, the motion for judgment on the special findings should have been sustained. The judgment of the district court is reversed, and the cause is remanded with directions to enter judgment for the defendant on the findings of fact.	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The opinion of the court was delivered by Mason, J.: This is an action brought by persons claiming to be duly elected • directors and officers of a mutual insurance company' organized under the laws of Kansas, against other persons who are acting in that capacity, the purpose being to determine which of the two sets of claimants is legally entitled to the offices in dispute. At the annual meeting of the members of the company, held January 13, 1914, a controversy arose as a result of which the body divided into two parts, each of which thereafter undertook to elect five directors to succeed five whose terms had expired. The meeting participated in by the faction to which the plaintiffs belong also voted to declare vacant the offices of three other directors, “for refusal to do their duty,” and undertook to elect three others in their places. On January 14 two meetings were held, each claiming to he that of the board of directors, and each undertook to elect a president, vice president, secretary and treasurer. The meeting relied upon by the defendants was attended by six hold-over directors (one being the president), and the five persons whom the defendants claim had just been elected directors — four of them to succeed themselves. The meeting relied upon by the plaintiffs was attended by one hold-over director, by the five persons whom the plaintiffs claim had just been elected for full terms, and by the three persons whom the plaintiffs claim had been elected to fill the vacancies declared by the vote of the annual'meeting. A contention is made by the plaintiffs that the hold-over directors who are cooperating with the defendants are to be regarded as participating in this meeting because they were in the room where it was held and were'given an opportunity to take part. We can not accept this view. These directors were parts of the rival organization, and their physical presence can not help to give validity to the one relied upon by the plaintiffs. We also conclude that the attempted election of three directors in the place of those named in the order declaring a vacancy was a nullity. A director of a corporation can not be removed, in the absence of a specific provision covering the matter, without notice and an opportunity to be heard. (10 Cyc. 745; 2 A. & E. Encycl. of L. 314; Toledo Traction, Light & Power Co. v. Smith, 205 Fed. 643.) No effort was made to give a notice in this case. The plaintiffs, however, contend that the action of the annual meeting was not an at- _ tempted removal of three directors, but the declaration of an existing fact that the persons referred to were not directors because they had never accepted their election as such. Two of them, who had served several previous terms as directors, had failed to take the oath of office after their last election. This omission did not operate to create a vacancy. (The State, ex rel., v. Stewart, 90 Kan. 778, 135 Pac. 1182.) The three directors were absent from the state and had failed to attend some of the meetings, but upon the whole record we think it can not be said that the conduct of any one of them can be regarded as a refusal to accept the office. The record made of the action of the meeting stated that a motion was carried to declare their offices, “vacated for refusal to do their duty.” The persons whom the plaintiffs regard as having been elected president, vice president, secretary and treasurer were therefore chosen by a gathering .of not more than six directors, out of a total of fifteen. Those who are now acting were chosen by a gathering of at least six directors, including the president, attended by the secretary, and moreover were already occupants of the several offices. It results from these views that the action must fail so far as it relates to the offices named. The conflict between the claims of the two rival sets of five directors, each claiming to have been elected at the annual meeting to succeed those whose terms had expired, is more difficult of solution. The plaintiffs’ faction, which obviously sought to effect a change in the administration of the company, had the greater voting strength, according to a roll that was made up at the members’ meeting. The defendants maintain that in fact this roll was erroneous, and that the voting strength lay with their faction. This need not be determined, but we shall assume that the contention is not sustained. The defendants also suggest that a majority of all the members was necessary to do business at the annual meeting. The number of members being indefi nite and changing this rule does not apply. (10 Cyc. 329.) The antiadministration faction was therefore in a position to elect a majority of the five directors whose terms had expired. But to gain control of the board of directors much more than this was necessary. In the plaintiffs’ abstract it is said: “There were three directors, Shirk, Tabor and Troudner, that the Harman faction desired to oust of the old directors and five new ones which the Harman faction desired elected, giving such faction 9 of the 15 directors, if successful, and which included Harman, an old director.” In apparent pursuance of this purpose a motion was made (as a substitute for another motion) that the directors be elected singly. The president, W. B. Gasche, declared the motion out of order and refused to put it. The maker called for an appeal but the president refused to entertain it. Later a motion was made to declare the places of Shirk, Tabor and Troudner vacant, inasmuch as they had moved out of the state and were not performing their duties as directors. The president refused to put this motion, and refused to entertain an appeal from his ruling. An antiadministration member then made a motion, which he stated, and upon a vote declared carried, that the president be expelled from the chair, and that C. B. Harman be elected chairman pro tem. Harman then undertook to act as chairman, and there was some controversy as to the possession of the gavel. An administration member moved an adjournment until the next day. Gasche called for the affirmative vote and declared the motion carried. He says that his recollection is that he also called for the negative vote, but this is denied. Harman says that he himself called for the negative and that a majority voted that way. The Gasche adherents then withdrew, those of Harman remaining and undertaking to elect eight directors, as already stated. The Gasche faction reassembled the next day and undertook to complete the business of the meeting. There is considerable conflict in the evidence regarding the details of the proceedings, but the material matters can perhaps be decided upon the uncontroverted facts. We think the president was clearly right in refusing to put the motion to voté upon the directors singly and the motion to declare the offices of the three absent directors vacant. The statute and the by-laws of the company alike guarantee the members the right to distribute their votes among the whole number of directors to be elected, or to concentrate them upon a less number. The matter of ousting the three directors has already been discussed. The rulings of the president were not upon mere questions of parliamentary practice — of procedure. They went to the matter of legal power. The meeting could not by a mere motion remove a director. Nor could it elect directors otherwise than by the method of cumulative voting. We can not regard the failure of the president to entertain an appeal on these matters as justifying the selection of another presiding officer. On the other hand, the validity of the further action of the Gasche adherents on the next day is questionable. It is difficult to determine precisely what took place just prior to the separation. Each side was striving to maintain its position and gain control. The meeting had the power to adjourn to another day. (10 Cyc. 322.) We are not clear that there was a valid exercise of that power — at least in such a way that all the members knew or should have known what had taken place. The division of the meeting, brought about in part by differences of opinion, prevented the ascertaining and carrying out of the will of those entitled to participate in the election of directors. We think that the law justifies regarding the meeting as having been dissolved without effective action, and that the ends of justice will be thereby best promoted. We therefore decide that there was no election of directors at the annual meeting-in 1914; that all the defendants are de facto officers— the president, vice president, secretary and treasurer, and the directors who held over from a prior term, being de jure as well; and that none of them can be removed in this action. Judgment is accordingly rendered in their favor.	[ -80, -4, -8, -116, 10, 96, 50, -70, 89, -31, 39, 83, -83, -39, 68, 127, -37, 61, -45, 106, -41, -13, 23, -117, -26, -45, -37, -59, -68, 76, -10, 124, 72, 48, 10, -43, -58, -62, -57, 92, -50, 6, 40, -19, -103, -128, 56, 107, 80, 71, 85, 26, -13, 40, 24, -61, 72, 40, -5, -87, -16, -71, -114, -123, 127, 20, 19, 6, -102, -89, -56, 46, 24, 48, -88, -24, 83, -90, 22, 116, 45, -103, 8, 110, 97, -111, -79, -89, -8, -72, 62, 18, 31, -58, -74, 24, -94, 13, -74, -103, 117, 22, -125, 126, -18, 5, 28, 44, -123, -53, -74, -61, 15, -10, -104, -125, -5, -112, 48, 112, -120, 106, 93, 71, 50, 23, 79, -112 ]
The opinion of the court was delivered by Smith, J.: The appellant and his brother, Arthur Cole, were arrested upon a complaint, sworn to before one F. M. Hawley, a j ustice of the peace of the county, on October 23,1913, and upon a warrant issued thereon by such justice on the same day they were taken before him for trial. At the instance of the state the case was continued for hearing until October 31, 1913, and the defendants were required to and did enter into a recognizance for their appearance at that time. There is uncontradicted evidence in the case that a witness saw the words, “in the nighttime” inserted in both the complaint and the warrant after the charge, “did then and there unlawfully, feloniously take, steal and carry away,” etc., and before the description of the property charged to have been stolen, and that this was done on October 31, 1913, to which day the case had been continued. Evidence was produced by the state and by the defendants before the justice on the last-mentioned date, and the defendants were required to give bond in a certain amount for their appearance at the district court of the county at the next term thereof. Bonds were accordingly given and approved and the defendants allowed to go. When the case was called for hearing before the justice of the peace on October 31, the justice read to the defendants the complaint and warrant, each of which contained the words “in the nighttime,” and the defendants each refused to plead thereto. The justice thereupon entered the plea of “not guilty” for each of them. A motion to quash the complaint was also filed and overruled. The complaint and warrant when issued and served charged a misdemeanor — the stealing of five bronze turkeys. of the value of $7.50, the property of one Frank Draper. The county attorney filed an information in the district court charging the defendants jointly with stealing in the nighttime five bronze turkeys, the property of Frank Draper — a felony. The appellant was separately tried in the district court, and before the introduction of evidence filed a plea in abatement to the information, which plea set forth the change in the complaint and warrant before the justice of the peace. Objection was made by the state that the transcript furnished by the justice of the peace was on file in the district court, and was conclusive evidence of the facts therein recited. This objection was sustained. Also, evidence was offered as to the change in the complaint and warrant and for the same reason the objection thereto was sustained. In this the court erred. A justice court is an inferior court and the minutes and transcript of the proceedings therein are not conclusive evidence as are the minutes and transcript of a court of record. (In re Baum, 61 Kan. 117, 58 Pac. 958.) This error alone, however, does not j ustify a reversal of the case. The justice was guilty of a gross abuse of discretion in permitting or proceeding with a hearing upon a complaint and warrant which had been changed without the issuance of new papers after the complaint had been filed and a warrant issued thereon had been executed. No court, when its attention is' called thereto, should permit its files to be tampered with. However, the acquiescence of the defendant in the order of the justice, in binding him over to the district court, and in giving the bond required for his appearance in such court, constitutes a waiver of the alleged defects in the complaint and warrant. (The State v. Bjorkland, 34 Kan. 377, 8 Pac. 391; The State v. Longton, 35 Kan. 375, 11 Pac. 163; The State v. Moseli, 49 Kan. 142, 30 Pac. 189; Topeka v. Kersch, 70 Kan. 840, 79 Pac. 681, 80 Pac. 29.) In The State v. Miller, 87 Kan. 454, 124 Pac. 361, it was said: “No reason is suggested why the defendant might not have refused to give the recognizance and have brought proceedings in habeas corpus before the probate judge and thus have procured his discharge. Under the well-established rule as stated in the former decisions of this court, he waived all defects in the complaint by procuring his discharge upon the bond.” (p. 456.) Numerous exceptions were saved by the appellant on the trial, among others that the evidence was not sufficient to sustain a conviction, and especially that there was no evidence that the turkeys, if stolen, were stolen in the nighttime. Frank Draper, the complainant and alleged owner of the turkeys, testified to the identity of two turkeys which were at the Cole place on October 23, as his. Five witnesses of the Cole family testified they owned them. As to the time he lost his turkeys, Draper testified : “Q. You are not positive how long it was before the 22d of October you counted your turkeys, are you? A. Well, I think I counted them on the 21st. I counted them almost every day. “Q. In your opinion, there would be some days you did n’t count them. A. Very seldom. “Q. When did you first notice the loss of these turkeys? A. The five? “Q. Yes, sir. A. Monday, on the 23d, when I was going to dinner.” That the turkeys were stolen in the nighttime rests upon the evidence of Simmonds and Dustin who testified substantially the same; in substance, that on October 23, 1913, they' went to the Dustin place, past which the defendant had stated that he and his brother had driven on their return from Cedar on the night of October 22; that they measured horse tracks at different places in the road and in an alfalfa field and followed them north one and three-quarters miles and then a mile to the Cole place; there they asked for the spotted pony which was one of the team the accused had said he and his brother had driven from Cedar; that both horses were brought up from the pasture voluntarily by the accused and they measured the tracks made by each horse in dusty ground, made some allowance for the dust falling back over the track, and found them to be the same as the measurements taken at the Dustin place and at several different places where they had measured following the supposed trail; that they had no rule but measured the tracks with a stick and did not know what had become of the stick. Also, that they had measured men’s tracks at the Draper place, near his turkey pen, and measured the shoes of appellant and his brother at the Cole place; that the accused said they were the same shoes they had worn the night before; that the measurement of the shoes did not correspond with the tracks of men they had measured at the Draper place, and that Mr. Draper, who was present, said he did not think they were the shoes that made the tracks at his place. These measurements were also made with a stick and the stick was not produced. As a means of identification the footprints of horses or of men, unless there is some peculiarity about them, are very uncertain evidence. The evidence as to the comparison of the horse tracks, simply as a question of size, seems fairly to show a correspondence; but more positively the measurements of the tracks of men tend to show that there was not a correspondence in the tracks at the Draper place, where the turkeys were alleged to have been stolen, and the shoes worn by the accused on the same day at their home. There is no evidence whatever of a change of shoes, and the evidence tends as strongly to show that the tracks made at Draper’s turkey yard were not made by the accused as it tends to show that the tracks of the horses, at Dustin’s and Draper’s and along the way, were made by the horses whose feet and tracks were measured at the Cole place. In 2 Bishop’s New Criminal Procedure, 2d ed., p. 943, it is said: “Foot-prints, on a question of identity, if they correspond to those which would be made by the boots probably worn, or the horse probably ridden, are admissible, yet alone are inadequate to justify a conviction.” There was no showing that Draper or his family were at home or whether they could have discovered a theft of their turkeys during the daytime from the time he last counted his turkeys to the time he missed the five alleged to have been stolen. That the theft was committed in the nighttime is an essential ingredient of the crime of which appellant was convicted and must be established beyond a reasonable doubt. The evidence is not legally sufficient upon this essential fact, and the judgment is reversed and the case is remanded for a new trial.	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The opinion of the court was delivered by West, J.: The defendant was convicted of assaulting an officer while engaged in the service of process. She appeals and claims that the officer was acting without a warrant in the seizure of certain beer of her nephew Wilson, to whose call for help she responded; that she asked the officer for his warrant and was told that he had none and needed none. She complains solely of an instruction which seemed to refer to her as a mere stranger or as one who had no right to or possession of the property sought to be seized. The state has furnished a counter-abstract from which it appears that the officer testified that he went to the home of Wilson with a warrant authorizing a search of the house for intoxicating liquor; that he found a case of beer and carried it to the sidewalk, and started away with Wilson, who had been shown the warrant and who was going peaceably, and when in front of the defendant’s house the latter stopped Wilson, and being told that he had been arrested and the officer was going to take the beer she replied with profanity that they would not take it, and got hold of the beer and started to take it away from the policeman; that she and Wilson fought and scrambled over the beer while a great crowd collected, and another officer came to the assistance of the one who had made the arrest; that she fought, scratched and hit the officer with a brick and tore the star from his coat; that two or three other women in the crowd threw bricks at the officers, whom the defendant threatened to kill. The fact that the case is here on appeal indicates that the jury in arriving at their verdict believed the testimony of the officers and that the trial court gave it credence and approved the verdict. Assuming their evidence to be true we are unable to discover any prejudice which the defendant suffered by reason of the instruction touching the rights or lack of rights possessed by a stranger to the transaction. If she was not a stranger it was because of her brutal, malicious and excuseless interference with and assault upon the arresting officer. The statute was enacted for the very purpose of punishing those who thus make it dangerous and disagreeable for officers to do their duty, and it would be difficult to present a case more deserving of a severe penalty than the one disclosed by the record. The judgment is affirmed.	[ -79, -6, -3, -100, 43, 96, 42, -72, 66, -123, -74, 115, -87, -63, 21, 107, -7, 127, 84, 120, -34, -73, 7, 1, -2, -13, -78, -43, -77, -17, -4, 126, 77, 48, -62, -43, 102, -54, -61, -44, -118, 37, 105, 73, 64, 90, 48, 59, 118, 15, 49, -97, -29, 46, 24, -61, -23, 44, 75, 53, -64, 120, -119, -99, -49, 6, -109, 34, -100, -91, -40, 54, 24, 49, 0, -24, 115, -92, -126, 116, 79, -101, -115, 98, 99, -79, 45, 107, -88, -87, 44, 126, -75, 39, 16, 9, 10, 32, -75, -99, 102, 52, 39, -12, -5, 93, 95, 100, 5, -61, 84, -79, -113, 40, -78, -58, -61, 37, 84, 117, -59, 104, 92, 117, 115, -103, -114, -42 ]
The opinion of the court was delivered by Johnston, C. J.: In an injunction proceeding Oscar W. Brown attacked the validity of an ordinance of the city of Abilene which purports to prohibit the driving of “any engine or heavy machinery upon the paved streets of the city of Abilene,” and prescribes a fine not exceeding $50 for its violation. He also asked a recovery of damages for the loss sustained by reason of being deprived of the use of the streets. In his petition he alleged that he was conducting a machine shop in the city, which was so situated that he is unable to reach the railway station with engines or heavy machinery except by -passing over paved streets, and that unless patrons are permitted to use these streets in order to bring in and take from the shop traction engines and other heavy machinery he will be unable to carry on his business; that his machine shop will be a total loss for the purposes for which it was acquired, and that it has already resulted in damage to him to the extent of $1000. There was an allegation that since the passage of the ordinance in June, 1913, the officers of the city had forcibly prevented him from taking machinery from the shop across Third street, and that it is impossible for him to reach the depots of the railways in carrying on his business without crossing that street. A demurrer to his petition was sustained by the trial court, and the main question presented on his appeal is whether the ordinance is so unreasonable as to be invalid. Power is not expressly conferred on cities of the second class to prohibit the use of the streets for any particular kinds of travel and transportation, but under the general welfare clause it is doubtless within the power of the city to make reasonable regulations as to the use of streets and thus provide for the safety and convenience of travel and against unnecessary injury to the streets used. It is competent for the city to regulate the weight of loads that shall pass over the paved streets and to prescribe the width of tires of vehicles carrying heavy loads. It has been determined that municipalities may confine the passage of heavily loaded traffic to certain streets and exclude it from others, but the regulation must not be such as will deprive a citizen of access to his home or business house' nor from all use of the streets for any of the recognized means of travel. (Notes, 31 L. R. A., n. s., 682; 45 L. R. A., n. s., 1152; 51 L. R. A., n. s., 1203.) In Bogue v. Bennett, 156 Ind. 478, 60 N. E. 143, 83 Am. St. Rep. 212, it was held that a city ordinance prohibiting the running of traction engines or other vehicles not propelled by animal power over the streets and alleys of a city was unreasonable and therefore void. In State v. Boardman, 93 Maine, 73, 44 Atl. 118, 46 L. R. A. 750, the validity of an ordinance which provided that teams with loaded wagons should be confined to a certain part of a street was challenged. The court held that a traveler is not entitled to the whole width of a street for his accommodation but “is entitled to a reasonably safe, convenient and practicable opportunity for travel and passage.” (p. 78.) It was there decided that a regulation restricting the travel of heavily loaded vehicles to a part of the street would, in many cases, be both reasonable and salutary, but that if the part of the street open to travel for such vehicles was out of repair or in such a condition as to be impassable for loaded vehicles it would operate to deprive those who had occasion to use the street of their right to use it for the purpose of travel. It was said that: “For such a by-law then to be reasonable and valid, with .reference to such a way and in such a locality as in this case, that portion of the street which may be used by heavily loaded vehicles must be reasonably suitable for the purpose; and the by-law will be valid or invalid depending upon whether that portion of the way, to which such vehicles are restricted, is or is not , reasonably suitable for the purpose.” (p. 79.) The streets are provided for the public in general for purposes of travel and transportation, and the appellant, who is engaged in a legitimate business, is entitled to a reasonable use of the streets in taking traction engines and heavy machinery to and from his shop. Traction and other motor wagons are not illegal vehicles, and an ordinance which deprives him of the use of the streets for such vehicles in order that he and' his patrons may reach his shop is not reasonable. Undoubtedly a regulating ordinance may be framed under which appellant may use some of the streets or parts of them for the necessary traffic to and from his shop and under such restrictions as will protect the streets and prevent interference with the rights of others traveling over them. Under the allegations of the petition the ordinance operates, not as a regulation, but as an absolute prohibition of a recognized use of the public streets. A class of traffic which is legal and which ordinarily passes over highways is prohibited so far as appellant’s business is concerned, and he, is not only deprived of the use of the streets of the city in conducting a legitimate business, but the result is the destruction of the value of his property for the purposes for which it Was acquired. The ordinance is therefore unreasonable and must be held to be void. It is next contended that the equitable remedy sought by appellant is not' available to him as the invalidity of the ordinance in question could be presented as a defense in a criminal prosecution for the violation of the ordinance. Ordinarily injunction will not lie to prevent the prosecution of criminal actions, but this proceeding is not brought for that purpose and in his prayer the appellant does not ask for such relief. He asks for damages resulting to him and his business from the deprivation of the use of the streets, and also asks that the city and its officers be enjoined from interfering with the traffic to and from his business. The proceeding does challenge the validity of the ordinance because the officers who are preventing him from using the streets leading to his machine shop justify their action under the ordinance, but it does not appear that any prosecutions have been begun, and the appellant does not ask that prosecutions be enjoined. An exception is made to the rule invoked by appellee where the restraint of the criminal prosecution is only incidental to the protection of personal and property rights. (Davis & Farnum Mfg. Co. v. Los Angeles, 189 U. S. 207, 23 Sup. Ct. Rep. 498, 47 L. Ed. 778; bobbins v. Los Angeles, 195 U. S. 223, 25 Sup. Ct. Rep. 18, 49 L. Ed. 169; Railway Co. v. Conley and Avis, 67 W. Va. 129, 67 S. E. 613; Improvement Co. v. City of Bluefield, 69 W. Va. 1, 70 S. E. 772; The City of Atlanta et al. v. The Gate City Gas Light Co., 71 Ga. 106; Town of Cuba v. Mississippi Cotton Oil Company, Eagle Cotton Oil Company, Meridian Fertilizer Factory, 150 Ala. 259, 43 South. 706; City of Austin v. Cemetery Association, 87 Tex. 330, 28 S. W. 528, 47 Am. St. Rep. 114; Note, 25 L. R. A., n. s., 193.) In this action the appellant is seeking to protect his personal and property rights and to prevent the destruction of his business. The deprivation of which he complains shuts him out from carrying on his business, and he is not required to wait for a prosecution to be commenced nor to provoke an arrest in order to obtain relief from the interference with and destruction of his business. Indeed, the defenses that he might make in possible prosecutions following an unsuccessful attempt to conduct his business would not have been an adequate remedy. However, as we have seen, the principal purpose of the action is not the injunction of criminal proceedings. The decision of the district court sustaining the demurrer to appellant’s petition will be reversed, and the cause remanded for further proceedings.	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The opinion of the court was delivered by Porter, J.: On December 7, 1912, the petitioner plead guilty to two accusations of contempt of court in the violation of an injunction issued under the prohibitory law. Thereupon the district court entered judgment, as follows: . “It Is Therefore, now by the Court, here considered, ordered, adjudged and decreed that Jake Weisman be, and he is guilty of contempt of this Court as charged in the accusation filed herein on August 16th, 1912, and December 7th, 1912, and that said defendant be, and he is hereby sentenced to confinement in the County Jail of Leavenworth County, Kansas, for a term and period of thirty days.from this date on each charge of contempt.” On the 16th day of January, 1913, the sheriff committed him to the county jail. On February 4, 1913, he was paroled by the court for fifteen days, and the parole was at different times thereafter by order of the court extended, but subsequently he was returned to jail, and after having served thirty-six days was again paroled. On June 6, 1914, the district court revoked his parole and he Was again taken into custody by the sheriff and held until released on bond pending the determination of this action. But one legal question is involved as we view it, and that is whether the terms of imprisonment imposed by the court on the two charges upon which the defendant was convicted should be construed to run concurrently or consecutively. The petitioner’s contention is that the periods of time named in the sentence run concurrently, and that the terms of punishment were necessarily executed simultaneously, in the absence of an express provision that the imprisonment under one count should commence at the termination of the imprisonment under the other count. The state contends that under the sentence the petitioner must serve thirty days in jail on each plea of guilty, or sixty days in all. In The State v. Carlyle, 33 Kan. 716, 7 Pac. 623, it was said: “And the court also had the right, in sentencing the defendant under the several counts, to adjudge that the imprisonment under one count should begin at the termination of the imprisonment under another count. (Crim. Code, § 250.) ” (p. 717.) It will be observed that the sentence of the court is silent as to when the term under the conviction upon the two accusations shall begin except that the judgment limits the term to a “period of thirty days from this date on each charge.” Under the provisions of section 250 of the criminal code as construed in the Carlyle ease, supra, the court had the right to adjudge that the imprisonment under the second accusation should commence at the termination • of the imprisonment under the first accusation “ánd it was its duty to sentence the defendant separately under each count.” (p. 717.) But the judgment does not in express terms so provide. The sarnie question has frequently been before other courts, and the prevailing doctrine is that unless it clearly and expressly appears from the language of the court in pronouncing the sentence that the intention was that the terms shall run consecutively, they must be construed to run concurrently. This was the rule at the common law. (1 Bishop’s Criminal Procedure, § 1310.) In Breton, Petitioner, 93 Maine, 39, 74 Am. St. Rep. 335, it was ruled that, “In the absence of any statute, if it is not stated in either of two sentences imposed at the same time that one of them shall take effect at the expiration of the other, the two periods of time named in them will run concurrently, and the two punishments be executed simultaneously.” (Syl.) In the opinion it was said: “It is familiar practice that wherever the court imposing several sentences desires to have one begin on the expiration of another, that fact is expressly stated in the sentence; and whenever the court inadvertently fails to have the sentence recorded in that form, or from leniency intentionally omits to add such a provision, and the convict is committed in pursuance of such sentences, he is either voluntarily released by the jailer, or discharged on habeas corpus at the expiration of the longest term named in either of the sentences.” (p. 42.) In Kirkman v. M’Claughry, 152 Fed. 255, 'it was said in the opinion: “As a settled rule the sentence pronounced must clearly and definitely express the purpose and intent that the terms are to be served consecutively, or it will be held the terms run concurrently, and not cumulatively.” (p. 258.) To the same general effect see Ex parte Gafford, 25 Nev. 101, 57 Pac. 484, 88 Am. St. Rep. 568. The state’s contention is that because section 250 of the criminal code declares that the imprisonment upon the second conviction shall commence at the termination of imprisonment upon the prior conviction, the statute controls. But the statute is not self-executing. It was construed in the Carlyle case, supra, as imposing the duty upon the court in a case like this to sentence the defendant separately on each accusation, and to authorize the court to adjudge and declare that the imprisonment under one should begin at the termination of the imprisonment under the other. The statute is one thing and the judgment is another. We are obliged, to look to the language of the sentence only to determine its meaning. In this case two sentences were imposed at the same time, and the judgment does not sta-te that one sentence shall take effect at the expiration of the other; it must be held that the two periods of time named in them run concurrently and the two punishments were executed simultaneously. It is not deemed necessary to refer to the questions discussed in the briefs involving the jurisdiction and power of the district court in granting and extending paroles.' It is conceded that the petitioner has served at least thirty-six days under the thirty-day sentence iniposed by the ’ court; that the finds have been remitted and the costs paid. In oür view of the law he is entitled to his discharge, and it is so ordered.	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The opinion of the court was delivered by Porter, J.: In the district court the plaintiff recovered a judgment for injuries alleged to have been occasioned by defendant’s negligence. This is an appeal from the judgment. The defendant ~was engaged in driving piling for the foundation of a bridge in the river at Kansas City. In the performance of the work it was necessary for defendant to place its pile driver and engine upon a temporary platform twenty feet above the surface of the river. From this structure the mast of the derrick rose to a height of twenty feet. Surrounding the mast above the platform there was a circular frame eight feet in diameter called the “bull-wheel,” across which two planks were placed as a flooring, where the plaintiff, at the time he was injured, stood for the purpose of giving signals to the engineer. When the mast and boom turned the bull-wheel turned with it. The cable attached to the hammer of the pile driver ran over a pulley wheel at the top of the boom and downward, where it connected with another pulley at the bottom of the mast, thence to the hoisting engine. Usually the hammer struck from three to five blows a minute. In the operation of the pile driver the steel cable would slap or strike on the boom when the slack was taken from the weight of the hammer. The plaintiff, who had formerly been a railroad brakeman, was working with the night crew. He had been giving signals from the platform for two nights prior to his injury. The first and second nights he sat in an opening on the south side of the .bull-wheel with his feet resting on the braces below; on the night of the accident he was directed by the foreman to stand upon the two planks which were laid across the platform on the north side. He was given an ordinary lantern to signal with, and there were no other lights at the derrick. It was his duty to receive signals from the foreman at the cofferdam and transmit them to the engineer. The accident occurred about eleven o’clock, shortly after he had changed his position. He claims that in the performance of his duties he was struck by the slack of the hammer line and was knocked off the platform into the river and thereby received permanent injuries. The negligence charged is the defendant’s failure to have a guard rail on the bull-wheel; failure to have guards or appliances to prevent the rope from swaying out from the side of the boom; not warning the plaintiff of the dangers incident to the work; and failure to furnish adequate light so that he could see to perform his duties. The defendant’s contention is that the evidence and answers of the jury to the special questions preclude any recovery. It is also claimed that the case should be reversed for error in the admission of testimony and in giving and refusing certain instructions. These questions were raised by a demurrer to the evidence, a request for a peremptory instruction, motion for judgment on the special findings, and a motion for a new trial, upon all of which the court ruled against the defendant. The jury made findings to the effect that the plaintiff knew the position in which he stood, and also knew there was no railing or banister around the platform; that he knew that each time the hammer fell it would cause the rope to slacken; that while the engine was in constant operation the hammer would drop from three to five times each minute and the slack would throw the rope or cable sometimes as far as three feet; that he could have stood in a position on the platform so that the slackening of the rope would not strike him. To each of the following questions the jury answered, “No”: (11) Did the plaintiff know that it was dangerous for him to stand so close to the boom that the slack of the hammer rope would hit him? (12) Did the plaintiff know that the hammer rope was liable to hit him if he stood close to the boom? (13) Did plaintiff know that if the hammer rope did hit him he would be liable to be knocked off the platform into the river? It is insisted that the findings 11, 12 and 13 are directly contradictory to the plaintiff’s admissions; that the jury answered these questions contrary to the evidence in an effort to harmonize their verdict; that all the evidence shows that whatever danger was there was open and apparent, and therefore that as a matter of law the plaintiff must be held to have assumed the risk. It is also contended that, plaintiff having been a railroad brakeman experienced in climbing on and off moving trains in the nighttime with no other light than a signal lantern, he needed no warning of the danger, and that he can not charge the defendant with negligence in failing to furnish a railing around the bull-wheel. If these questions had all been answered in the affirmative it would not necessarily follow that plaintiff assumed the risk; nor would it establish that he was guilty of contributory negligence as a matter of law. As to assumed risk, he had the right to rely upon the presumption that the defendant, with more experience than himself, had, before sending him there to work, performed its duty and had carefully considered the existing conditions. “The matter of making the place safe to work in was not his problem. He was not required to take notice of any but the most obvious dangers. But much more than this was required of the employing company. It was under an obligation to consider carefully whether existing conditions involved any unnecessary danger— to use all reasonable care to see that the place was made safe, not only with respect to apparent risks, but also with respect to any that were latent.” (Tecza v. Sulzberger & Sons Co., 92 Kan. 97, 101, 140 Pac. 105.) Under all the circumstances we can not say. as a matter of law that the danger resulting from the failure to provide some method of preventing the hammer rope from striking the plaintiff was so obvious that he must have known and appreciated it. “The servant, to be chargeable with knowledge of a defect in the machinery with which he works, must not only know the physical fact in relation thereto, but he must also know and appreciate the danger resulting therefrom.” (King v. King, 79 Kan. 584, 587, 100 Pac. 503.) We are inclined to think, therefore, that the answers to these questions were not material. ' It is contended that the findings and evidence show that the work in which the plaintiff was engaged was construction work, and therefore the rule which requires the master to exercise ordinary care to furnish' the servant a reasonably safe place does not apply. We can not see how the fact that the pile driver stood upon a temporary structure or that defendant was engaged in construction work affects the matter. In the case of West v. Packing Co., 86 Kan. 890, 122 Pac. 1024, it was said: “The duty of a master to provide a safe place for his servant to work does not, extend to a place made dangerous by the very work being done. This exception manifestly applies in case of repairs or improvements which in their ordinary progress lead to dangers readily to be foreseen and appreciated by the workmen.” (p. 893.) Of course, where a workman is engaged in removing a flooring he ordinarily assumes the risk of falling through the opening he makes or assists in making, or where he tears up planks and leaves projecting nails he ordinarily assumes the risk of injury in stepping upon the nails or in stumbling over them. That principle, we think, has no application to the situation here. Plaintiff was sent to work on this platform and his duties obliged him to remain there. As to him, it was a place to work; and moreover, it can not be said that as the work progressed it became any more dangerous. The first time the hammer fell after he went upon the platform the slack of the rope might have knocked him into the river. If the work had been carried on in daylight, of course, there would have been less danger of his being struck. Whether reasonable diligence required the defendant to furnish light sufficient to enable plaintiff to avoid the danger, and whether it did not require defendant to provide some appliance to prevent the slack of the rope from striking the plaintiff, were questions for the jury under all the facts and circumstances in evidence. There was therefore no error in the instructions which proceeded upon the theory that, as to the plaintiff, the platform was á place provided by the defendant for him to work. And for the same reasons the court properly refused to give requested instruction number 3. Since it can not be said that the dangers of being struck by the hammer rope were as well known to him as to the defendant, or that in the limited time he had been at work there in the darkness he appreciated or was capable of knowing and measuring the danger, the case of Walker v. Scott, 67 Kan. 814, 64 Pac. 615, and kindred cases relied upon by the defendant are not controlling. In our view instruction number 11 can not be understood to limit the assumption of risk to a case where the master has adopted the usual and customary means of guarding against accidents. In this instruction, however, as well as in number 13, the court confused the defense of assumption of risk with that of contributory negligence. Numerous cases illustrating the distinction between assumption of risk and contributory negligence will be found annotated in a Note in 49 L. R. A. 33, and a further discussion of the same subject with citation of cases in a Note in 21 L. R. A., n. s., 138. See, also, Barker v. Railway Co., 88 Kan. 767, 129 Pac. 1151. In the present case the court in other instructions correctly defined contributory negligence, and the failure in instructions 11 and 13 to distinguish between the two defenses can not, in view of all the facts of the case, be regarded as prejudicial to the defendant. Other objections are raised to instruction number 13, but they are not tenable. It can not be said as a matter of law that because plaintiff was furnished with a lantern, there was sufficient light. Whether the defendant was negligent in this respect was a question for the jury. There was no error in refusing to give the requested instructions numbered 10, 11 and 12. The plaintiff testified that until a short time before the ac.cident he gave signals from the south side of the platform with his feet resting on the braces supporting the bull-wheel; that he was then ordered by the foreman to stand on the two planks on the north side; and there was evidence to support the claim that the position he was ordered to take shortly before the accident occurred was more dangerous than the place where he had been at work. We find nothing in the evidence indicating that the injuries were caused by his voluntarily choosing a dangerous method for the performance of his duties when there was a safer method or place in which he might have stood. At all events his conduct in this respect was for the jury to determine, and the instructions were properly refused. We have considered the objections to other rulings of the court refusing to give certain requested instructions. Instruction number 6 is practically covered by others given. Instruction number 7 was properly refused. It is true that plaintiff when asked by the foreman, “Can you give signals?” answered, “Yes.” From the evidence he seems to have been able to give signals. His answer did not relieve the defendant of the duties imposed upon the master. Over the defendant’s objections a witness was permitted to testify as an expert that it was practicable for such a derrick to be equipped with a contrivance to prevent the rope from flying out on either side of the boom. One method employed, he said, was a couple of 2 x 4’s, two feet long, nailed to the boom on either side, which were also used for steps to get up on the boom. He testified also that he had seen a 2x4 fastened on each side from the outer edge of the bull-wheel to the mast above the sheaves. At the request of counsel for plaintiff he made a diagram to explain what he meant, which was also admitted in evidence. There are two objections insisted upon: first, that the cross-examination showed the witness was not qualified as an expert, it appearing that he had only seen one derrick operated under conditions like the one in controversy which was equipped with such appliances; second, that it was a matter that the jury should pass upon without the aid of experts. Root v. Packing Co., 88 Kan. 413, 129 Pac. 147, is relied upon. In that case expert witnesses were permitted to testify to their opinion of what might cause an elevator to fall. The admission of the testimony was held reversible error. It is true that no statute required the adoption of a contrivance for con trolling the slack of the hammer rope. The defendant was not obliged to adopt any particular method nor bound by any custom employed by others in the operation of derricks. In actions under factory acts the question of the practicability of guarding dangerous machinery frequently becomes an important issue,-but the question whether it was practical or impractical to provide some means for preventing the swaying of the rope was not an issue in this case. It was the defendant’s duty to furnish the plaintiff a reasonably safe place to work. Whether the duty had been performed was a question of fact for the jury, but was not to be determined by evidence of what other employers might have done in similar or in different circumstances and conditions. Generally, at least, the master can not justify his conduct in'sending a workman into a dangerous place by evidence that it was impractical to make the place safe. For the same reason expert testimony that it was practical would not be competent to show that the master was derelict. But it is apparent that the admission of the testimony as to the practicability of making the place safe could not have been prejudicial. It amounted to nothing more than what the jury would naturally infer from their common observation and experience. The plaintiff was a witness and was asked if he was a married man. Over the objections of the defendant he was permitted to answer that he was. The court , overruled a motion to strike out the testimony. It is claimed that this was prejudicial error. In Railway Co. v. Hammerlund, 70 Kan. 888, 79 Pac. 152, a similar question was asked and admitted over timely objections made by the defendant, and in the opinion it was said :■ “The impropriety of this proof is not debatable. (Kansas Pacific Rly. Co. v. Pointer, 9 Kan. 620; Railroad Co. v. Eagan, 64 Kan. 421, 67 Pac. 887.)” (p. 889.) The case was reversed for the admission of this and other incompetent testimony. While the admission of this evidence could serve no useful purpose, and might in some contingencies be regarded as prejudicial error, we can not in the present case regard it as ground for a reversal. Certain evidence offered by the defendant was excluded, but as the defendant did not comply with the provisions of section 307 of the code, by presenting it to the court on the motion for a new trial, the claim of error can not be considered. The -jury allowed the plaintiff the full amount prayed for in his petition, which included an item of $300 for medical care and attention. The attending physician testified that a reasonable charge for his services was $50. There was no evidence to show that the plaintiff became liable for any additional amount under this item. The judgment will therefore be modified by reducing it $250. Burch, J., dissenting.	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The opinion of the court was delivered by Benson, J.: This is an appeal from a’ judgment restraining the defendants from using the firm name of Harryman Bros, after the dissolution of the previously existing firm of George Harryman & Bros., consisting of all the individual parties to this action, who are brothers. In the year 1864 John G. Harryman, the father of these brothers, established a broom-corn business in Baltimore, Md., which he continued until his death in the year 1893, at which time the name of Harryman had become generally known to the trade-in Baltimore and in Illinois where broom com had been bought and sold. On the death of the elder Harryman, his widow and his eldest son, George,' continued the business under the name of George Harryman & Company until the mother died, later in the same year, when George closed up the business. In the autumn of 1894 George resumed the business alone and in his own name. In the year 1896 William Rider Harryman, having attained full age, became a partner with George in the business under the firm name of George Harry-man & Bro. In the year 1903 Frank S., the next younger brother, became a partner, and the name was changed to George Harryman & Bros. That firm established a branch house at Charleston, 111., with William Rider in charge managing the Illinois business. The youngest brother, Harry B., who became of full age in-the year 1905, was then admitted into the part nership without any change in the firm name. A branch of the business was opened in Wichita in the year 1907 in the immediate charge of Frank and Harry. The business was carried on in the three cities of Baltimore, Charleston, and Wichita by the four brothers until January, 1912. The name of Harryman had then become generally known in the broom-corn trade in the United States. In a few advertisements in Illinois the firm had been called Harryman Bros., and a warehouse at Charleston bore a sign with that name, but in business with customers the firm name, George Harryman & Bros., was used from the time Harry entered the partnership until its dissolution. On January 4, 1912, the brothers entered into a written agreement providing for a dissolution, and on the 22d day of the same month a final agreement was made under which the partnership was dissolved. This agreement provided that George and Frank should take over the Baltimore business, and William and Harry the Charleston and Wichita business. No dispute has arisen except over the following clause: “It is further covenanted and agreed that said George Harryman and Frank S. Harryman shall reserve the right to trade under the name of George Harryman and Bro. and the said William Rider Harryman and Harry B. Hárryman covenant and agree that they will not use such trade name directly or indirectly, and that they will not adopt a trade name that will be deceptive, or amount to a simulation of, the said name of George Harryman and Bro.” The defendants in carrying on the business so taken over by them adopted and are using the name of Harry-man Bros. It appears that the new plaintiff firm opened a branch house in Wichita after the dissolution of the old partnership. The first difficulty was over the post-office box of George Harryman & Bros, in that city. The defendants claimed it in connection with the business they had taken over there, and a few letters addressed to the old firm, but intended for George Harryman & Bro., were received by them, but were immediately delivered to the firm for which they were intended. The method of transacting business by the old and the new firms in buying broom corn was for a representative to visit the farmer and make the purchase and put the tag on the bales. The farmer then made the shipment to the purchasing firm and drew a draft for the amount, which was paid on delivery. Sales were effected by correspondence, and when shipments were made drafts were drawn against the purchaser, with bills of lading attached. The transactions in buying and selling were generally'for cash. Credit was not given except in a very few instances. Before signing the agreement for dissolution one of the defendants wrote to George asking whether the names W. R. Harryman & Bro. or Harryman Bros, would be considered a simulation of the trade name of George Harryman & Bro. To this George answered that the trade name of George Harryman & Bro. was not sold, but reserved for future use, adding: “I do not consider the name of W. R. Harryman & Bro. an infringement on this firm name, but I do consider that the firm name of Harryman Bros, would tend to confuse matters somewhat and in order to eliminate such confusion believe that it is just as well that you adopt a name for your future business which does not conflict with the present name of George Harryman & Bro.” Soon after the dissolution each of the new firms published notices thereof. Each referred to the business it proposed to carry on. . The notice of the defendant firm was signed “Harryman Bros.” The letter heads of that firm bear the display head, “Harryman Bros., Broom Corn,” with the names of the individual members printed in the corners above. The same printing appears upon their shipping tags. In brief, they use that name generally in their business, and claim the right to do so'. Some other minor facts appear in the abstracts but are not material to this decision. The principal question is whether the use of the name Harryman Bros, is a violation of the contract of dissolution. While it is not shown that any considerable confusion has resulted so far, still if the contract has been broken, an injunction may be proper to prevent such a result. The parties had the right to make the contract as they desired, and its enforcement should not be denied unless it appears that no- injury can result from its breach, in which case an injunction might be refused in the exercise of judicial discretion. Many authorities are cited in the briefs upon the general subject of trade-marks and trade names, but here the parties having agreed to forego the use of the firm name and not to simulate it, the question is whether they have done so; in other words, whether ' the agreement has been violated. It is true that in deciding such a question regard may be had to the nature of the business formerly done and the methods pursued, but in this instance these circumstances throw but little light upon the judicial pathway. The parties evidently supposed that there was some value in the name, and that some injury would result from its use or simulation. It seems that at the beginning the defendants had misgivings on this subject, and so submitted an inquiry to their brothers, and were told that it was considered that the proposed new name of Harryman Bros, would tend to confuse, and that it would be just as well to adopt a name not in conflict with the present firm of George Harryman & Bro. It is argued by the defendants that this language is insufficient to express dissent, and that in common fairness a specific objection should have been made if there was an intention to assert that the use of the proposed name would violate the contract. On the other hand, it is argued that the language of both letters indicates a belief that confusion might result from the proposed designation, the thing the contract was designed to avoid. It is not contended that either party is estopped by these letters. They are only indications of the construction the writers put upon the contract, which should have due consideration but are not controlling. “The principle on which both the courts of law and of equity proceed, in granting relief and protection in cases of this sort, is very well understood. A man is not to sell his own goods under the pretense that they are the goods of another man; he can not be permitted to practice such a deception, nor to use the means which contribute to that end. He can not, therefore, be allowed to use names, marks, letters, or other indicia by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person.” (Perry v. Truefitt, 6 Beavan, 66, 73, cited in 2 Story’s Equity Jurisprudence, 13th ed., § 951, Note.) The difference between a trade-mark and a trade' name is emphasized in some of the authorities. The former relates chiefly to the thing sold, and the latter involves also the individuality of the maker, for protection in trade, to avoid confusion in business, and to secure the advantages of a good reputation. It is said that a trade name, therefore, has a broader scope than a trade-mark. These observations are found, in substance, in the opinion in Armington & Sims v. Palmer, 21 R. I. 109, 42 Atl. 308, 786. That opinion is authority for the proposition that in seeking an injunction in such cases it is not necessary to show damages nor fraudulent intent. There the name Armington & Sims Company was held to be so close to that of Armington & Sims Engine Company as to be misleading and injurious. Numerous cases are cited in the opinion where similar imitations are condemned. In a note following the report of the same case, in 79 Am. St. Rep. 786, it is said: “Any similarity of name likely to deceive or mislead an ordinary unsuspecting customer, and divert and secure his trade from a person who has established a trade name, is a fraud which may be restrained by induction; Weinstock v. Marks, 109 Cal. 529, 42 Pac. 142, 50 Am. St. Rep. 57. See, also, Messer v. Fadettes, 168 Mass. 140, 46 N. E. 407, 60 Am. St. Rep. 371. Property in a trade name will be protected. The use of the words ‘Mechanical Store/ is an infringement upon the trade name, ‘Mechanics’ Store’; Note to Cady v. Schultz, 19 R. I. 193, 32 Atl. 915, in 61 Am. St. Rep. 767; and an injunction will issue against the unauthorized use of another’s name in the conduct of a business, though he is not alleged to have been damaged by such use: Bagby, etc., Co. v. Rivers, 87 Md. 400, 40 Atl. 171, 67 Am. St. Rep. 357.” (p. 793.) Where the Dodge Stationery Company had built up a large business under that name, and J. S. Dodge, a stockholder in the company, sold his stock and organized another corporation which engaged in business in the same city, it was enjoined at the suit of the old corporation from using the name “J. S. Dodge Co.,” which it had adopted. (Dodge Stationery Co. v. Dodge, 145 Cal. 380, 78 Pac..879.) Another California case is illuminating. P. F. Nolan had been engaged in the retail shoe business for twenty-two years, some of the time in partnership with J. C. Nolan, a brother. This business was changed into a corporation under the name of Nolan Bros. Shoe Co. For ten years previously two other brothers had been engaged in the same city in the wholesale shoe business, but shortly before the organization of the corporation just referred to they dissolved the partnership and one of them opened a retail shoe business under the name “W. H. Nolan & Co., successors to Nolan Bros.” In an action by the corporation to enjoin W. H. Nolan from using the name “Nolan Bros.” findings were made that the plaintiff’s predecessors had established the right to use the trade name in the retail shoe business, and that the use of the name Nolan Bros, in a rival business was an interference with that right, and an injunction was sustained. (Nolan Brothers Shoe Co. v. Nolan, 131 Cal. 271, 63 Pac. 480, 53 L. R. A. 384.) Referring to the use of a family name, the court said: “It is insisted that ‘the family name of a tradesman or manufacturer can not be made a trademark so as to exclude the right to its use by another bearing the same family name.’ This contention is sound to a limited extent only. If the name is used in a manner clearly indicating an intent to mislead and deceive the public, then the use of the name will be restrained by a court of equity. The first answer to appellant’s contention in this regard is found in the fact that it is not a use of the family name ‘Nolan,’ standing alone, to which objection is made, but it is a use of the name ‘Nolan Bros.,’ and in a case like that at bar the principle of law invoked seems to have no application.” (p. 277.) Many other like decisions might be cited. While greater liberality may be allowed in the use of individual than corporate names, since ordinarily a person may not be restrained from using his own name, no deception being practiced, yet when he expressly covenants not to use a particular partnership designation although embracing individual names, no reason is perceived why the agreement should not be enforced; and if he also agrees not to simulate a particular name, the same rule should apply. In The International Silver Co. v. Rogers Corporation, 66 N. J. Eq. 119, 57 Atl. 1037, this subj’ect received great consideration, and many authorities were cited. A multitude of cases are cited in a note appended to the report of the same case in 2 Ann. Cas., 415. Martell v. St. Francis Hotel Co., 51 Wash. 375, 98 Pac. 1116, is another important case, reported also in 16 Ann. Cas., 593, with an exhaustive note attached. (See, also, Dyment v. Lewis, 144 Iowa, 509, 123 N. W. 244.) The firm of George Harryman & Bros, and the older firms which it succeeded had built up a large and lucrative trade with places of business in cities in three states, and extending into foreign lands. ■ It was understood that the name was valuable in holding and extending trade, at least the parties, as already stated, so considered it, and contracted on that assumption. An imitation calculated to induce customers to believe that the defendant firm was the one previously transacting the same business, which had reserved the old name, had a tendency to mislead in that respect and was a simulation prohibited by the agreement. The ordinary meaning of the term appears from standard definitions thus: “Simulate. To assume the mere appearance of, without the reality; to assume the signs or indications of, falsely; to counterfeit; feign; imitate.” “Simulation. Act of simulating, or assuming an appearance which is feigned, or not true; counterfeiting.” (Webster’s New International Dictionary.) Without pursuing further this interesting subject, which permits many illustrations and is discussed in many cases, it is held that the finding of the district court that the use of the name of Harryman Bros, was a violation of the agreement must be sustained. This conclusion seems to be well supported by the authorities, some of which are cited above. Another question is presented. The agreement in question contained the following: “The said George Harryman and Frank S. Harry-man covenant and agree, if they can do so on terms as satisfactory as they can obtain from others, that they will purchase such Illinois broom corn as they may require, from the said William Rider Harryman and Harry B. Harryman, and the said William Rider Harryman and Harry B. Harryman agree that if they shall act as the agent of said other parties in purchasing broom corn from the producer, they will do so for a commission of $3.50 per ton, which will apply to broom corn purchased in less than carload lots, as well as larger quantities.” The answer pleaded this provision of the agreement, and alleged: “That the plaintiffs have willfully violated said provisions of said contract in this, that they have purchased large quantities of broom corn in the State of Illinois, for use in their said business, and in making such purchases, they have, at no time, undertaken or offered to purchase the same from the defendants on any terms whatever, and that the plaintiffs have purchased large- quantities of broom corn in the State of Illinois, through agents acting for them for that purpose, paying them for making said purchase, without giving the defendants any opportunity whatever to act as agent for plaintiffs in the purchase of broom corn in the State of Illinois.” A motion was made to strike out this part of the answer and was sustained. Error is predicated upon this order. The argument of the defendants is that this action is in effect one for specific performance— to enforce a contract by injunction — and that in such cases he who seeks equity must do equity. It is said that where a party asks that one part of a contract shall be enforced against the other party he must show that he has performed other material provisions of the same contract on his part.. On the other hand, the plaintiffs argue that the contract is not executory, but has been performed by the division of the business and transfer of property, leaving nothing to be done to carry it into effect except the possible future purchase of broom corn in Illinois, and that a default, if any, in that undertaking may be readily compensated in damages. It is said that the maxim that he who seeks equity must do equity, applies only where correlative equitable rights are involved. Without determining the soundness of either position, the action of the court may be sustained for the reason that the allegations in the answer are insufficient. There áre no averments that the defendants had broom com to sell nor of any offer to sell or to purchase that commodity; nor of any offer of their services as agents to make purchases; nor any averment of their readiness to do either. Neither is it alleged that the defendants suffered, or would suffer, any loss or inj ury from any default or inaction of the plaintiffs under this clause. In general terms, it is averred that the plain tiffs violated this agreement, and the additional statement is made that they have purchased broom corn in Illinois through other agents without offering to purchase from the defendants. After examining this rather indefinite clause, we are constrained to hold that neither party can successfully charge the other with default in respect to it without alleging some offer, request or readiness to perform. No equity is shown by the averments in the defendants’ answer respecting this clause of the contract that should permit them to persist in a violation of their covenant with respect to the trade name. An inconsistency in the judgment is alleged. It restrains the defendants from using the name of Harry-man Bros, in Kansas, Oklahoma, Texas, and New Mexico, but not in Maryland and Illinois. The court expressly found that the defendants had used and were using the name in the first-named states, but made no such finding concerning Maryland and Illinois. Besides, if entitled to the injunction, the defendants can not be heard to complain that it is too restricted in operation. The judgment is affirmed. Mr. Chief Justice Johnston and Mr. Justice Porter dissent.	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The opinion of the court was delivered by Porter, J.: The questions to be determined in this case are: First, does an appeal lie to the district court from a judgment of the probate court discharging a petitioner in a habeas corpus proceeding? Second, has a public officer, who is the respondent in the habeas corpus proceeding, such an interest as will authorize him to institute an appeal? Clay Miller, the petitioner, was arrested upon view by W. W. Gordon, chief of police of Kansas City, and taken before the judge of the police court on the charge of having violated an ordinance of the city, which declares that the driving of wagons upon the streets of the city for the delivery of intoxicating liquors is a nuisance and a • misdemeanor. No written complaint was filed and no warrant for his arrest issued. The case was set for trial át a subsequent date. The petitioner at once applied for and obtained from the pro-, bate court of Wyandotte county a writ of habeas corpus, directed to the respondent as chief of police, and upon the hearing the court ordered the petitioner’s discharge. The respondent thereupon appealed the case to the district court. That court dismissed the appeal on the ground that it had no jurisdiction. This is an appeal from the judgment of the district court. Upon the question whether an appeal will lie in habeas corpus where the petitioner has been discharged there has always been more or less conflict in the decisions of the courts. Many of the authorities hold that an appeal will not lie; that the order discharging the petitioner is not a final order because the petitioner, if remanded to the custody of the officer, could apply to any other court having jurisdiction in habeas corpus until he has exhausted the whole judiciary power of the state; and further, that where he is discharged by the proceeding nothing is determined except that'he is entitled to his liberty so far as the proceedings under which he is held are concerned. Other courts have gone to the extent of holding that to permit an appeal from a judgment discharging the petitioner amounts, in effect, to a suspension of the writ of habeas corpus and a denial of. the right, and therefore violates the constitutional provisions against the suspension of- the writ. Some of the courts which have held that an appeal will not lie have rested their decision upon the nature of the writ and the purpose and objects to be obtained by the issuance of it. Chief Justice Shaw, of Massachusetts, in the case of Wyeth v. Richardson, 76 Mass. 240, used this language: “The general principles of law are opposed to the allowance of exceptions in this case. The great purpose of the writ of habeas corpus is the immediate delivery of the party deprived of personal liberty. The allowance of exceptions would be inconsistent with the object of the writ. The consequence of allowing exceptions must be, either that all further proceedings be stayed, which would be wholly inconsistent with the purpose of the writ.” (p. 241.) Substantially the same reasoning was adopted by the supreme court of North Carolina in State v. Miller, 97 N. Car. 451, 1 S. E. 776, and also in Ex parte White, 2 Cal. App. 726, 84 Pac. 242. To the same effect also is In re Clasby, 3 Utah, 183, 1 Pac. 852. In the last-cited case it was said in the opinion: “The object of the writ is that the right to a discharge may in a summary manner be at once determined. If the people have a right to an appeal when the plaintiff is by order of the court or judge discharged, then in such case the writ falls far short of the purpose for which it was intended, and for the last two centuries has been used. Suppose for a moment the appeal to be well taken, and that this court should find that the court below erred in discharging the plaintiff; can this court issue a bench-warrant for his rearrest, or direct the justice of the peace to again issue his warrant upon the same or original complaint for arrest of the person there charged with the commission of a criminal offense, for which he was arrested, imprisoned, and discharged from arrest by the district court? Or suppose, in the meantime, a grand jury have passed upon the facts involving the guilt or innocense of the plaintiff, and .have refused to find an indictment: ought the plaintiff to be again arrested by an order of this court, and compelled to defend himself against an arrest made on such an order ? “It is easy to see that such proceedings would inevitably result in inextricable confusion; and if the discharge of the applicant upon a writ of habeas corpus, before a court or judge having jurisdiction, is an order or judgment from which an appeal can be taken to this court, necessarily attended with unavoidable delay, the value of this great writ as a safeguard of personal liberty is at least greatly impaired, if it is not changed into a means of oppression.” (p. 185.) In Wisener, Sheriff, v. Burrell, 28 Okla. 546, 118 Pac. 999, the court followed the reasoning of the case just referred to, and held that an appeal does not lie from an order in habeas corpus discharging a party held for extradition for a criminal offense. See, also, authorities cited in a note to this case in 34 L. R. A., n. s., 755. Other cases in support of these propositions will be found cited in a note to the case of Bleakley v. Smart, 74 Kan. 476, 87 Pac. 76, in 11 A. & E. Ann. Cas., 129; In re Begerow, 136 Cal. 293,’68 Pac. 773; and 9 Encyc. PI. & Pr. 1072, 1085. It is the appellee’s contention that the first question has been answered in former decisions of this court which have settled the law to(be that there is no appeal from an order discharging a petitioner in habeas corpus, except in a.case where the question involves the right to the custody of minor children. Among the cases cited are Cook v. Wyatt, 60 Kan. 535, 57 Pac. 130, and Bleakley v. Smart, supra. In neither of these cases, however, was this question decided. Both recognized the distinction between an action to determine the right to the custody of children and the ordinary use of the writ of habeas corpus, but neither case went further than to state that the question for consideration here was one upon which there is a conflict of-authority. Thus in Cook v. Wyatt, supra, it was said in the opinion: “Many authorities hold that in the absence of statutory provisions the decision in a habeas corpus case is not so far final and conclusive in its character as to support a review or give an appeal.” (p. 536.) In the opinion in Bleakley v. Smart, 74 Kan. 476, 87 Pac. 76, it was said: “Great conflict of opinion exists upon the question whether a judgment in habeas corpus is appealable.” (p. 480.) But it was held that “an appeal will lie from a judgment of the district court in habeas corpus proceedings determining the rights of conflicting claimants to the custody of a child.” (Syl. ¶ 1.) However, since the adoption of the amended code the court has had the question before it again in the case of In re Petitt, 84 Kan. 637, 114 Pac. 1071, where* it was ruled in the syllabus as follows: “An appeal may be taken to the district court from a decision of the probate court in a habeas corpus proceeding.” (Syl. ¶ 3.) The court rested its decision upon the broader language of the amended code by which proceedings in error are abolished and provision made that j udgments and orders of the probate court may be reviewed on appeal. In the opinion it was said: “The probate court is a court of record and is vested with jurisdiction in cases of habeas corpus, and as to proceedings clearly within its jurisdiction it is not to be considered as an inferior court; but, even as to habeas corpus, its orders and judgments may be corrected and revised upon appeal. . . . This broadened the power theretofore granted, so that now there may be a review and retrial of the questions of fact as well as of law involved in appeals from probate courts, and section 571 of the code of 1909 points out the method by which an appeal may be taken.” (p. 641.) It may be suggested that the rule stated in the syllabus, supra, that “an appeal may be taken to the district court from a decision of the probate court in a habeas corpus proceeding,” is broader than the facts in that case warranted because the proceeding there involved the right to the custody of a child. It was the manifest intention of the court, however, in the opinion and in the syllabus to state the rule broadly as applying to habeas corpus generally, and not to limit its effect to cases involving the mere custody of children. Nowhere in the opinion will there be found any reference to the distinction between actions where that question is involved and the ordinary use of the writ of habeas corpus. We think the reasons upon which the decision in that case is rested apply with equal force to cases where the purpose of the writ is to discharge the petitioner from unlawful restraint. In passing, it may be observed that the appellee contends that there is a provision in the act relating to executors and administrators (Gen. Stat. 1909, § 3624) which in terms prohibits appeals from the probate court in cases of habeas corpus. The same point was raised in In re Petitt, supra, and it was there decided that the provision in question is not within either the titlé or the subject of the act, and is therefore ineffectual. The appellee relies also upon the case of The State v. Ray, 81 Kan. 159,. 105 Pac. 46. There a defendant charged with a felony was held for trial upon a preliminary examination before a magistrate, and bound over to. appear for trial at the district court. He instituted a habeas corpus proceeding before the district court, where there was a reexamination under the provisions of section 700 of the civil code, and he was discharged by the district court for want of probable cause. The state then attempted to appeal from that ruling to this court, and it was held that the state had no right to have a review of the order of the district court discharging the petitioner inasmuch as the proceeding was nothing more than a preliminary examination, which determined only that, upon the evidence there produced, probable cause was not shown. It was held, therefore, that the order discharging the petitioner was not a judgment or a final order, that the district court was in fact sitting as a committing magistrate. We see nothing in that decision which in any manner affects or controls the question now under consideration. Previous to the amendment of the code, it was, as we have seen, regarded as a serious question whether any appeal would lie in habeas corpus, and where an appeal was attempted to be brought from an order remanding the petitioner it was the usual practice to allow him to present an original application for a writ which was consolidated with the appeal, and the two proceedings were heard as one action, making it un necessary to decide the question of the right to appeal. In a few instances where it is sought to appeal from an order discharging the petitioner, as in Cook v. Wyatt, 60 Kan. 535, 57 Pac. 130, the appeal was dismissed because it was held that the respondent had no appealable interest. The more liberal provisions of the amended code have removed all the difficulty, as was held in In re Petitt, 84 Kan. 637, 114 Pac. 1071. Many courts have held that in the absence of an express statutory provision authorizing an appeal in habeas corpus proceedings no appeal will lie, and it was suggested by the court in Ex parte Johnson, 1 Okla. Crim. Rep. 414, 98 Pac. 461, and followed and approved by the supreme court in Wisener, Sheriff, v. Burrell, 28 Okla. 546, 118 Pac. 999, that the legislature would have made some appropriate provision had it intended to provide for appeals in habeas corpus. In our view, the force of the argument is the other way round. If the legislature had intended to prohibit appeals in habeas corpus proceedings it would have found appropriate language to express the intention in no uncertain terms. The general provisions authorizing a review of all orders and final judgments of the probate court by appeal to the district court furnish a strong argument against appellee’s contention. While it is true that the purpose and object of the writ of habeas corpus is to provide a summary proceeding' to determine the lawfulness of the personal restraint of the prisoner, it does not by any means follow that giving the state the right to appeal from an order discharging him amounts to a suspension of the writ. In original proceedings in habeas corpus it has always been the practice of this court to advance the cause and hear it at the earliest time practicable, and generally the decision is rendered within a few days following the hearing of the application. It is within the power of the legislature to provide rules for a more summary hearing of appeals in habeas corpus in the district court as well as in the supreme court. It is quite obvious that those courts which hold that appeals may be authorized by statute recognize that there is little force in the claim that an appeal amounts to a suspension of the writ in violation of constitutional provisions, because, if such is the effect of allowing an appeal, the constitutional objection could not be avoided by an enactment of the legislature. The second question for determination is whether the respondent, who is a public officer, has sufficient interest in the decision to authorize him to prosecute an appeal. In Cook v. Wyatt, supra, the respondent was the sheriff of the county, and the court took the view that he was not charged with the duty of taking appeals and therefore had no appealable interest nor any right to institute proceedings in error to review the judgment of the court discharging the petitioner. Upon a reconsideration of the question we hold that the public officer who is made the respondent in the habeas corpus proceedings because he holds the custody of the petitioner has a sufficient interest to appeal from a judgment discharging the petitioner, and the fact that he is not a law officer charged with the preparation of the papers in appeals, as are the county attorney and the attorney-general, is no sufficient reason for holding that he does not so far represent the public that he may institute an appeal. The decision in Cook v. Wyatt, 60 Kan. 535, 57 Pac. 130, holding that a sheriff has no such interest as will authorize him to appeal in such a case is therefore overruled. Some reliance is placed by the appellee upon the decision of In re Crandall, 59 Kan. 671, 54 Pac. 686, where it was ruled: “The probate court has full authority to allow writs of habeas corpus and to inquire into the legality of proceedings upon which a person is restrained of his liberty, and its order discharging' a petitioner is just as effectual and binding as one made by the higher courts. “Where a probate court discharges a petitioner because no offense was alleged for which the petitioner could be prosecuted, its order not only restores him to his liberty, but terminates the pending proceedings against him, and he can not be again arrested or held in custody unless a new prosecution is instituted against him.” (Syl. ¶¶ 3, 4.) Nothing said in that opinion, however, throws any light upon the question under consideration here. Everything there decided, respecting the authority of probate courts in habeas corpus, is still the law. The order discharging the petitioner, where the respondent does not appeal, of course, is quite as effectual and binding as the decision made by any higher court, and the order of discharge restores the petitioner to his liberty. It has been suggested that inasmuch as an appeal was attempted without a stay of the proceedings, and without any supersedeas, the petitioner’s discharge by the probate court ended the matter, and that nothing is involved here but moot questions. We can not concur in this contention. The petitioner, as appellee, is represented here by counsel, and will be bound by the decision. It will be the duty of the district court to overrule the motion to dismiss the appeal and proceed with a trial on the merits. In case the petitioner is remanded, the court in which the prosecution was commenced will have authority to issue a warrant for his arrest in the event that be found necessary. The judgment will be reversed and the cause remanded for further proceedings in accordance here-' with. West, J., dissents, on the ground that the questions raised are moot.	[ 112, -32, -3, -97, 43, -64, 34, -68, 80, -77, -9, 83, 105, -38, 0, 121, 123, 125, 117, 121, -50, -73, -58, -63, 118, -13, 27, -41, 51, -51, -28, -10, 77, 32, -86, -107, 38, -54, -43, -36, -116, 5, 9, -64, -47, 73, 32, 42, 18, 15, 113, -66, -5, 110, 24, -62, -55, 44, -37, -87, -48, -47, -115, 13, 127, 6, -93, 38, -100, -95, 80, 62, -104, 49, 1, -20, 115, -92, -124, 116, 111, -101, 45, 102, 99, 3, 125, -18, -96, -72, 15, 30, 29, -26, -112, 25, 107, -59, -106, -103, 109, 52, 34, -4, -22, 4, 93, 110, 14, -50, -76, -75, 11, 57, -102, -47, -61, 37, 32, 113, -123, -78, 92, 83, 115, 59, -50, -80 ]
The opinion of the court was delivered by Burch, J.: Petitions for a rehearing have been filed by Harder and by Holmes. In both petitions complaint is made of the refusal of this court to disturb the findings of the district court upon the facts. Not only is the evidence, offered in the district court reargued, but a mass of new evidence is presented here for the first time in an effort to show that the conclusions of the district court concerning the facts should be disapproved. As might be expected if such a practice were tolerated, the witnesses for the appellants carefully filled up the gaps and strengthened the weak places in the case made by their former testimony. Presumably, this course is taken pursuant to section 580 of the civil code, which reads as follows: “In all cases except those triable by a jury, as a matter of constitutional right, the supreme court may receive further testimony, allow amendments of pleadings or process, and adopt any procedure not inconsistent with this act which it may i deem necessary or expedient for a full and final hearing and determination of the cause.” This court can not consider the new evidence. If it had a thought of doing so it would be obliged to grant the adverse party time to produce countervailing evidence, which might possibly include impeaching evidence. The appellants would then likely desire to make a showing in rebuttal. The result would be that the court would have before it for determination a case which the district court could not identify as one which it had decided, and so this court would be plunged into an exercise of original and not appellate jurisdiction. In the case of In re Burnette, 73 Kan. 609, 85 Pac. 575, the distinction between original and appellate jurisdiction was pointed out, as well as the lack of power on the part of the legislature to confer original jurisdiction on this court. The constitution creates the court as it creates the legislature, and that instrument, which both the court and the legislature must respect and obey, expressly limited the court’s original jurisdiction to proceedings in quo warranto, mandamus, and habeas corpus, and granted to the legislature no power to confer any but appellate jurisdiction. The exceptional and extraordinary character of the court’s original jurisdiction becomes apparent when the nature of the proceedings specified in the constitution is considered. A few years before the constitution of Kansas was framed, the supreme court of Wisconsin, discussing this subject, said: “This class of writs, it would seem, appertain to and are peculiarly the instruments of the sovereign power, acting through its appropriate department; prerogatives of sovereignty, represented in England by the king, and in this country by the people in their corporate character, or in other words, the state; and from their very nature, from their peculiar character, functions and objects, to appertain to and appropriately belong to the supreme judicial tribunal of the state. . . . These writs differ essentially in their character and objects, from ordinary writs issued by the courts in the regular and usual administration of the law between parties. They go to accomplish peculiar and specific objects, carrying with them the special mandate of the sovereign power, addressed to the person, corporation or officer requiring them to do or not to do, to proceed, or to desist, to perform the duty required by law, or to abstain from the exercise of powers without lawful authority, etc. They bear no resemblance to the usual processes of courts, by which controversies between private parties are settled by the judicial tribunals of every grade.” (The Attorney General v. Blossom and others, 1 Wis. 277, 279.) A few years after the constitution of Kansas was adopted, the supreme court of Missouri, discussing the same subject, said: “It is very plain that were it not for the express exceptions contained in the constitution, this court could exercise no original jurisdiction. . . . This court was designed to be strictly appellate in its character, duties and functions, with certain marked and definite exceptions. The framers of the constitution doubtless saw that contingencies might arise when it would not only be fit but indispensably necessary that this court should interpose its process in the first instance. There may be occasions when not only the interests of the citizen, but the safety and welfare of the state, may depend upon the issuance from this tribunal of its original remedial process; and for such exigencies provision was made. Habeas corpus, mandamus, quo warranto, prohibition, etc., are high prerogative writs, emanating from this court by direct application and by the authority of the sovereign power of the state. They are only issued when applied for in a proper case, and are wholly variant from that process of summons or notice by which one party brings an adverse party into court to determine a private right or to settle a matter of ordinary litigation.” (Vail, Conteston, v. Dinning, Contestee, 44 Mo. 210, 214, 215.) These quotations are sufficient to illustrate the political and legal theory of constitutions like that of Kansas. Indeed there can be no difference of opinion that the true intention was to create an appellate court having power to expound the law, supervise the conduct of inferior tribunals, and correct errors in their proceedings, but with no original jurisdiction except in the extraordinary matters referred to. Neither can there be any difference of opinion that the legislature is powerless to add to that original jurisdiction. If the statute quoted were to be interpreted as giving this court power on appeal to determine equity cases and others not triable by jury as a matter of right, in the same way that the district court determines them, it would be unconstitutional. It must, therefore, be in terpreted merely as providing this court with adequate means for exercising its true appellate jurisdiction. The nature of the court’s function is not changed and the scope of its original jurisdiction is not enlarged, but the exercise of its appellate jurisdiction is facilitated by giving it command of aids to review supplemental to the strict record of the cause and sufficient to meet the exigencies of any case. . Sometimes the court is in need of extraneous evidence respecting some situation or fact to enable it to determine, not the propriety of the conduct of the district court, but the nature of the judgment to be directed. Sometimes a document, or public record, or other item of evidence of like character, material to a proper determination of the appeal and substantially ineontestible, is called for, or is examined if produced, and then is treated in the same way as an admission of the parties would be treated if found in the record. These instances are illustrative, and no doubt many occasions will present themselves when it will be important for. the court to avail itself of knowledge of some fact not established at the trial in order that it may make just disposition of an appeal. In the case of Caldwell v. Modern Woodmen, 90 Kan. 175, 133 Pac. 843, Jane Caldwell recovered judgment on a beneficiary certificate issued by the Modern Woodmen of America insuring the life of her husband, W. H. Caldwell. The proof of death consisted in proof of absence for a sufficient length of time and under such circumstances as to raise a presumption of death. While this court still had possession of the case on appeal, the defendant in the action not only furnished evidence showing that Caldwell was still alive but produced the man himself. The court granted a new trial as to the single issue of death, with direction that if the issue were determined favorably to the defendant judgment should be rendered accordingly. In the opinion it was said: “This court can not determine, it is true, from the new evidence the question whether Caldwell is living. If that issue is to be retried it must be retried in the district court, but in the exercise of its appellate jurisdiction this court may, and in the very unusual situation presented should, in order to prevent a failure of justice, consider the new evidence, in determining whether a new trial of that issue should be granted. This evidence, uncontradicted as it is, shows that a mistake was made in a finding of a fact essential to support the judgment. In view of the evidence presented at the trial and the whole situation it can not be held that the defendant is precluded from proving the fact that. Caldwell is living because of its failure to discover and produce the evidence at the trial. It may be conceded that when the end, of orderly judicial processes is reached, an adjudication, although based upon mistake, is final. Still a miscarriage of justice will not be tolerated so long as the court by the use of such processes can apply a remedy.” (p. 177.) The court did not cite the statute quoted above as the foundation of its power to prevent a miscarriage of justice under the peculiar and extraordinary circumstances of the Caldwell case. In the case of Ridgz v. Manker, 67 C. C. A. 596, 132 Fed. 599, it was said, citing a long list of authorities: “An appellate court may avail itself of authentic evidence outside of the record before it of matters occurring since the decree of the trial court when such course is necessary to prevent a miscarriage of justice, to avoid a useless circuity of proceeding, to preserve a jurisdiction lawfully acquired, or to protect itself from imposition or- further prosecution of litigation where the controversy between the parties has been settled, or for other reasons has ceased to exist.” (p. 598.) Whether the statute might, have been invoked in the Caldwell case or not, it can not, consistently with constitutional validity, be construed to authorize a prolongation or renewal of the trial of issues of fact in this court on appeal. The district • courts are established and are equipped for the purpose of investigating and determining issues of fact, and parties must prepare their cases for trial there. A method of obtaining a continuance is prescribed if a party can not secure his evidence in time for trial when his case is reached. When the trial occurs he may shape his evidence as he desires, but he is bound by his choice and can not in the event of defeat better his case by offering more proof or different proof in this court on appeal. In case of accident, suprise, want of fair opportunity to produce evidence, or the discovery of new evidence, a new trial may be obtained upon seasonable application to the district court, but after the tribunal created for the purpose of making final determination of issues of fact has performed that function, original investigation of such issues is closed, and it is no ground for reversal that evidence exists which would have turned the scale in favor of the defeated party if it had been uncovered in the district court. In this case Harder, by his attorney Holmes, brought on a trial of the isues of fact in August, 1912, and was defeated. The court granted an application for a rehearing, and another full trial occurred in February, 1918, when the parties extended their evidence to their own satisfaction. The appellants were then in communication with Hess and took his affidavit to be used as evidence at the second hearing. Every other witness whose testimony is offered here was a witness at that hearing, all the evidence now tendered to this court was available then, the issues now are identical with what they were before, the appellants have twice had a day in court in which to produce their proof, and the controversy over the facts is ended. It is said that since the case is presented here in substantially the same form it bore in the district court this court should make an independent estimation of the facts, giving due consideration to the action of the district court. That course has been pursued as far as possible, but situations were encountered which the district court was better able to solve than this court. The question of first importance in the case is how the insurance money was to be applied. Did Holmes and Hogueland agree that it should be applied to satisfy the excess judgment or to the redemption of the real estate? If the agreement were that the insurance money should be applied to redeem the real estate it is idle to contend that Holmes did not have the entire insurance money episode in mind when shortly after-wards he began to represent Harder’s interest in the property. The law does not permit him to deny that he performed his duty to his client by divulging the information he possessed, and imputes the knowledge of the attorney to the client precisely as it imputes the knowledge of the agent, C. F. Harder, to his principal. Having knowledge of the facts and having kept silent until after the period' of redemption had expired, Harder is estopped from claiming that the last payment, which he suffered Conway to make in the belief that it would effect redemption, did not accomplish redemption. Holmes and Hogueland are not in accord with respect to the nature of their agreement. This court has before it merely their affidavits and the rest of the proof. The district court had. before it the same affidavits and the rest of the proof, but the affidavits were those of two of its regular practitioners with whose conduct and habits of mind it was perfectly familiar. Certainly this court is not qualified to question the weight given the statements of the two attorneys by the district court. It may be noted here that earlier in the same cause Holmes filed, without taking thought, he says, an affidavit very wide of facts of which he had full personal knowledge. In support of Harder’s petition for a rehearing the rule is invoked that knowledge of an attorney will not be imputed to his client when the attorney acts fraudulently or is so interested in the transaction that he would naturally withhold the information. There is no' indication that Holmes diverted the redemption money for the purpose of personal gain to himself, and the court declines to express itself upon the matter of fraud further than it has already done. If redemption were not effected Hess would have his judgment paid in full and Harder would have the land. ' That situation did not necessarily preclude the attorney from speaking. In the original opinion an ellipsis occurs which makes the court say that the certificate of the clerk, summarizing the appearances of Holmes for Harder shown by the dockets of the district court which were introduced in evidence, was itself read in evidence. The court understood the record, which was without ambiguity. In this connection it may be stated that the court regarded previous employments of Holmes by Harder as unimportant. Indeed the employment in June, 1911, might be left out of account since the judgment is supported by proof that F. H. Harder, the undisputed agent of C. F. Harder, was fully advised, before redemption was completed, of the fact that the insurance money had come into the hands of Holmes. . Holmes still insists that the order upon him to restore to the clerk the redemption money which came into his possession was irregular for informality of procedure. The form of procedure in summary disciplinary proceedings is not controlling so long as the essentials of fair notice and opportunity to be heard are present. In this case Harder’s right to a deed depended upon what his attorney’s professional conduct had been. That was the primary issue tendered by the motion to require the sheriff to make a deed, and the attorney himself filed the motion and brought on the investigation. A trial was had in which all the facts were developed. Holmes and Hogueland gave their versions of the agreement with respect to the application of the insurance money. The money was traced, step by step, from the insurance company through Holmes to Hess. Holmes was necessarily compelled to describe and to defend his conduct, and did so by his own testimony and by other evidence which he adduced. The result was that in legal effect he stood before the court as one of its officers who had diverted from its treasury funds arising from the litigation. Then the attorney asked for another hearing, which was granted. While on the face of the record he appeared as the attorney for Harder, the substance of the issue still was what the character of his professional conduct had been. The nature of the charge against him had been fully disclosed at the first trial. It appeared in detail and in writing in the affidavits filed in the case. It was that charge which he knew he must meet at the second trial, which he had secured. He had from August of one year to February of the next year in which to prepare. To say that he did not make due preparation would be to impute to him unfaithfulness to Harder. He had command of the case, took such testimony from his former client, Hess, as he desired, and presented such other evidence as he desired, including additional affidavits of his own. At the final trial he was given full opportunity to defend in his own way and to an extent satisfactory to himself. Consequently every requirement of due process of law has been satisfied, and the court was not called upon to go through the ceremonious performance of instituting and prosecuting another proceeding, for the sake of stating the charges, giving notice, and having a hearing, before entering the disciplinary order. All the matters presented by the petitions for a rehearing have been duly considered by the court and both petitions are denied.	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The opinion of the court was delivered by Johnston, C. J.: Whether or not an' open canal, about fifty feet wide with perpendicular banks about thirteen feet high and carrying a stream of water from six to eight feet deep, operated through the corporate limits of a populous city for commercial purposes, is an attractive nuisance, is the sole question presented for decision in this case. The appellant, The Land & Power Company, operates through the corporate limits of Arkansas City a canal such as above described. During December, 1912, Charles Somerfield, a boy about three years of age, the infant son of the appellees, Clifton Somerfield and Gladys Somerfield, his wife, wandered from their home, which was about fifty feet distant from the canal, and falling into the canal was drowned. The parents thereupon brought this action against the appellant for $10,000 damages, alleging, among other things, that the appellant was negligent in failing to properly guard and protect the canal against children of tender years unable to appreciate the dangers of the canal. Appellees further alleged that it was the custom of the children and the general public to cross over the canal and to pass along its side; that children, attracted by the water and the canal, gathered, in season, on its banks to play, fish and swim; that several children had been drowned in the canal prior to the death of their son; and that appellant so operated and maintained the canal that it had become a menace to life; all because of the neglect and failure of appellant to properly guard, fence and protect the canal against the public and particularly against children of tender years. Appellant demurred to appellees’ petition, and the demurrer being overruled it appeals and contends that the trial court erred in its ruling because such a canal can not be considered an attractive nuisance within the doctrine of the “turntable” cases as announced by this court. The canal, as will be observed, has the characteristics of a natural stream and can no more be regarded as an attractive nuisance than would a river flowing through the city or a pond or lake therein. It has been held that an unprotected pool in a natural watercourse to which boys resorted to wade and swim could not be regarded as an attractive nuisance within the meaning of the “turntable” cases. (Tavis v. Kansas City, 89 Kan. 547, 132 Pac. 185.) In Harper v. City of Topeka, 92 Kan. 11, 139 Pac. 1018, it was ruled that a pond in a city park which was substantially a reproduction of a natural pond, although attractive to children, did not come within the rule of attractive nuisances. There is no greater necessity to build a fence or put a cover over the canal than there would be to fence or cover a natural stream, and there can be little distinction made between them so far as the “turntable” doctrine is concerned. There might be ground for the contention of appellees if the appellant had unnecessarily placed or permitted some attractive or dangerous structure to be placed on or over the canal that would imperil the lives of children attracted there to play upon it, as in the case of Price v. Water Co., 58 Kan. 551, 50 Pac. 450, 62 Am. St. Rep. 625. In that case there was a fenced reservoir, but the proprietor left an opening in the fence through which boys passed to his knowledge and then went out to play upon an apron that rose and fell on the water in the reservoir, and this contrivance was, in Itself, an attractive 'danger. The same contention might be made if the appellant had maintained an unprotected and attractive device such as was placed over a pond within the limits of Kansas City. (Kan sas City v. Siese, 71 Kan. 283, 80 Pac. 626.) There the pond itself was not treated as an attractive nuisance, but it was a sewer pipe placed in a sort of trough which»extended across the pond to which children were attracted and on which they played, jumping from it into the water, which constituted the allurement and brought the case within the rule. The structure was obviously dangerous as well as attractive. It was unprotected, although the officers of the city knew that children resorted there to play. In another case it was contended that a railway through a city over which children passed was an attractive nuisance because children were tempted to hop on freight trains and ride to the end of a grade and one of them was injured, but it was there held that while the “turntable” rule had been recognized and applied in this state in a number of cases the court was not disposed to extend the doctrine farther and declined to apply it to railway trains passing over an ordinary unfenced track. (Wilson v. Railway Co., 66 Kan. 183, 71 Pac. 282.) The court does not feel warranted in extending the doctrine so as to make appellant liable for failing to fence or guard a watercourse like the one in question and which, so far as the “turntable” rule is concerned, corresponds with a natural stream. The judgment of the district court will be reversed and the cause remanded with directions to sustain the demurrer of appellant and award judgment in its favor.	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