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The opinion of the court was delivered by Dawson, C. J.: This was an action to recover on an insurance policy issued by a mutual fire insurance company. Plaintiff prevailed, and defendant appealed. The issues were developed by the pleadings, which included a copy of plaintiff’s application for insurance, the bylaws, and the policy. The term was for three years from April 21, 1936. The premium thereon, $36.80, was paid. The insured property was a dwelling house and barn on an eighty-acre farm in Jackson county owned by Ora O. Reser and Elsia B. Reser, his wife. The barn was insured for $800. In the application for insurance were certain questions, some of which, together with the answers thereto, read thus: “2. How much encumbrance? To whom and when due? A. None. “5. How many fire losses have you had? If anjr, give details on back hereof. A. None.” Incorporated in the policy were the bylaws, some of which read: “Article X. This company may appoint soliciting agents, but no such agents shall have authority to bind the company by any contract. All such agents shall give bond as the board of directors may require. “Article XII. The application, bylaws and policy constitute the entire contract between the company and the insured, and no officer, agent, or representative of the company is authorized, empowered or permitted to make any verbal agreement in reference to any matter pertaining thereto.” “Article XVIII — Avoidance of Policy. This- entire policy, each and every item thereof, shall be void if the insured has concealed or misrepresented in writing or otherwise, any material fact or circumstance concerning the insurance or the subject thereof. . . . “This entire policy, each and every item thereof, unless otherwise provided by agreement endorsed thereon, or added thereto by the secretary, shall be void. ... If the hazard be increased by any means, . . . or if the property be or becomes encumbered by mortgage or other lien.” The application concluded thus: “I warrant the foregoing application to contain a full and true statement as to the condition, situation, value, occupancy and title of the property to be insured; and I warrant the answer to each of the foregoing questions to be true; and it is expressly understood and agreed that the company will not be bound by any act or agreement made to or by the agent restricting its rights or waiving its written or printed contract. I also agree to be bound by the conditions and requirements set forth in the policy and bylaws of this company. “Dated on this 21st day of April, 1936. “Agent’s signature: Walter Nelson. “Ora O. Reser, Applicant, Elsia B. Reser, Applicant.” “In witness whereof, the said company has caused these presents to be signed by its president and attested by its secretary at its office in Wellington, Kansas. (Signed) Frank T. Barlow, Secretary. [Floyd N. Anderson, President.!” On May 14, 1936, in consideration of an additional premium of $19 the policy was extended to cover household goods in the sum of $1,000, endorsed thus: “(Signed) R. L. Hainsworth, R. L. Hainsworth, Asst. Secy. “All other terms and conditions of the policy remain unchanged.” On September 3, 1936, plaintiff obtained a decree of divorce from his wife, and the trial court at the same time approved a stipulation between the litigants for a division of their real and personal property, and that the wife should have judgment for $1,000 as permanent alimony. The trial court gave judgment accordingly. In that judgment Ora O. Reser was decreed to be the sole owner of the 80-acre farm, subject to a lien for $1,000 as permanent alimony to the defendant, Elsia B. Reser, payable on or before March 1, 1938. The judgment in the divorce action specifically decreed— “That defendant have a first lien upon the real estate above described [the 80-acre farm whose buildings were insured by defendant] to secure the payment of said sum awarded as alimony.” Some time after that judgment in divorce was rendered, plaintiff called on the local agent of defendant, Walter Nelson, and told him about his divorce and that he had become the sole owner of the insured property and that his divorced wife had secured the household goods and a judgment for $1,000 against him, and stated his desire to have the insurance on the household goods for $1,000 changed to cover other property as follows: “$200.00 on barn No. 1, making total insurance of $1,000. 100.00 on hay therein. 50.00 on harness. 50.00 on implements. 100.00 on grain in bam No. 1.” and $500 on other property of no present concern. The agent Nelson assured plaintiff “that he would secure amendments to the policy in accordance with the changes in the ownership of the property.” On October 12, 193.6, plaintiff’s barn and contents, hay, harness, implements and grain, were destroyed by fire. An adjuster for defendant called on plaintiff and took his statement touching the fire loss. In it plaintiff admitted that he had suffered the loss of a dwelling in Topeka by fire about five years previously; and he also admitted that the property on which the insured barn was situated was subject to a judgment lien for $1,000 payable within two years. About two months after the fire loss, on December 11, 1936, an attorney for plaintiff addressed a letter to defendant touching its failure to adjust and pay the insurance. His letter concluded thus: “Kindly let us know if you have any reason why the loss should not be adjusted without any further delay.” On December 24, 1936, defendant sent its check to plaintiff, returning the entire premium, $55.80, with the information that the policy had been canceled. On the same day the defendant company, by its attorney, answered plaintiff’s attorneys’ letter of December 11, denying liability on two grounds, viz.: “24th December, 1936. “First: The insured misrepresented to the company he had had no other fire losses. The policy was issued on this representation. Second: It appears Mr. Reser had a divorce proceeding in Jackson county, Kansas, and that he agreed and consented a lien should be adjudged against the real estate and property covered by the policy to secure the payment of the alimony judgment given his wife. It appeared this lien was arranged and provided for by the insured and that the court confirmed and ratified the arrangements. “It appears to me this lien would have the same status as a mortgage lien, under the conditions above stated. The lien was created by the insured and was a voluntary encumbrance. This constitutes a violation of the policy and on the creation of the judgment lien, in my judgment, the insurance contract then and there became void. * “For the above reasons I do not consider the policy was at any time a valid contract, at least not after the judgment lien was created, and I am enclosing a check, payable to the insured, for the full amount of the premium paid by him for this policy.” This lawsuit followed, and from the judgment in favor of plaintiff defendant presents three questions for appellate review, viz.: “1. Was the policy rendered void by false statement in the application which was attached to the policy? “2. Was the policy rendered void by reason of a judgment rendered against the plaintiff, after the policy was issued, and before the fire, and which judg-' meat was made a specific lien on the insured property? “3. Should the plaintiff have been denied the right to recover for the loss of personal property, because of failure to make proof of loss as required by the policy?” Disposing of the third question first, it will be sufficient to say that in defendant’s attorney’s letter of December 24 no mention was made of the failure of plaintiff to make verified proof of loss within 60 days as one of its grounds for denying liability. Waived then, it was not good thereafter, either in the trial court or this court. (Svetlicic v. Farmers Alliance Ins. Co., 136 Kan. 551, 16 P. 2d 956.) Error is assigned on the want of significance given by the trial court to the false answer to the question in plaintiff’s application for insurance which sought to ascertain whether he had theretofore suffered a fire loss. The application contained a negative answer to that pertinent question. The truth was that on December 9, 1930, plaintiff had sustained a fire loss on certain Topeka city property. The bylaws which constituted part of the insurance contract in the case at bar provide that such a misrepresentation renders the policy void. Moreover, plaintiff expressly warranted the answers in his application to be true, and he agreed to be bound by the bylaws. To surmount this barrier to a recovery, plaintiff relies upon the agreed statement of facts to this effect: Walter Nelson was the agent for defendant. Nelson told plaintiff that he himself could answer the questions in the application, and handed a blank application to plaintiff, which he signed. It was further agreed that at the time of the earlier fire in December, 1930, Nelson was the agent of the insurance company which carried the risk — not, however, the defendant in this case. The general rule of law is that where one person signs and delivers to another person an instrument containing blank spaces to be filled in, he impliedly authorizes the person to whom such instrument is delivered to fill in the blanks. (Cassetta v. Baima, 106 Cal. App. 196, 288 Pac. 830; Lloyd v. American Can Co., 128 Wash. 298, 222 Pac. 876; 2 C. J. 1242 et seq.; 3 C. J. S. 976-977.) The purpose of signing an instrument is to authenticate its contents and to bind the signer. (Gentry’s Guardian v. Gentry, 219 Ky. 569; 293 S. W. 1094, Black’s Law Dictionary, 2d ed., 1088.) Signing an instrument whose details are to be filled in afterwards does not differ in principle from signing a completely written contract or other instrument without reading it. Ordinarily such a signer is bound by its terms. In Minneapolis-Moline Power Imp. Co. v. Beck, 139 Kan. 245, 249, 30 P. 2d 1085, it was said: “It is settled law everywhere that one who puts his name to a written agreement cannot escape the binding force of his signature on the mere excuse that he assumed the blank spaces would be filled out according to his intention, nor on the excuse that he did not read its contents. (Citations).” In view of this, rule of law the falsity of the answer to question No. 5 in the application must be considered as if it had been written therein before plaintiff signed it. However, a related question immediately intrudes. Nelson, the agent for defendant in the instant case, had been agent for whatever insurance company it was which carried the fire risk for plaintiff on his Topeka property when it burned in 1930. Nelson knew that the question No. 5 in plaintiff’s application required an affirmative answer with details. Nelson inserted a false answer. In the agreed facts it is stipulated that Nelson had given the false answer, not because he had forgotten the fact of plaintiff’s earlier fire loss, but because plaintiff’s Topeka fire “had been so long ago he didn’t think it made any difference and had therefore left it out.” Under these circumstances if defendant were an old-line fire insurance company, we would probably hold that the knowledge of Nelson was tantamount to notice to his principal. The law books have much to say on this subject, and the authorities they cite are by no means all on one side. (See 2 Couch on Insurance Law, sec. 525 et seq.; 2 Mechem on Agency, 2d ed., sec. 1802 et seq.) Our own cases have rather rigorously ruled against insurers under a variety of not materially dissimilar circumstances. (Continental Ins. Co. v. Pearce, 39 Kan. 396, 18 Pac. 291; Pfiester v. Insurance Co., 85 Kan. 97, 116 Pac. 245; Palin v. Insurance Co., 92 Kan. 401, 140 Pac. 886; Mercantile Co. v. Insurance Co., 101 Kan. 522, 525, 168 Pac. 323.) The rule attributing to a principal the knowledge of its agent is not applied to cases of insurance brokers who are regarded as agents of the insured rather than the insurer. (Rosedale Securities Co. v. Home Ins. Co., 120 Kan. 415, 243 Pac. 1023; Riddle v. Rankin, 146 Kan. 316, 324, 69 P. 2d 722.) On the other hand, mutual fire insurance companies which were originally founded as a matter of legislative policy to enable farmers to obtain insurance at low cost have always been regarded as favorites in Kansas law. After flourishing for a generation, whether they are now fundamentally different from other fire insurance companies may fairly be questioned; but if not, the legislature alone can change the state’s policy toward them. Their favored status has been written too deeply and too frequently to change that policy by judicial decree. (Lohr v. Farmers Alliance Ins. Co., 144 Kan 776, 778, 62 P. 2d 837.) The authority to declare the public policy of the state is vested in the legislature, not in the judiciary. (Smith v. Fuest, 125 Kan. 341, 263 Pac. 1069.) In United States v. Freight Association, 166 U. S. 290, 340, it was said: “The public policy of the government is to be found in its statutes. . . . when the lawmaking power speaks upon a particular subject, over which it has constitutional power to legislate, public policy in such a case is what the statute enacts.” Court decisions in respect to public policy are helpful only as they seek to interpret and apply the state’s public policy to particular cases. Since this defendant was a mutual insurance company, those who accept its policies of insurance are in effect members of the defendant mutual organization. (G. S. 1935, 40-1008.) The statute requires so much of its bylaws as pertains to the particular risk to be included in the insurance contract. (G. S. 1935, 40-1017.) “For all purposes of the law, the legislature has prescribed the terms and effect of mutual fire insurance policies.” (Akers v. Farmers Alliance Ins. Co., 118 Kan. 241, 245, 234 Pac. 956.) Counsel for appellee argue that the agent William Nelson was not a mere soliciting agent, but a general agent, and on that assumption it is contended that he “had general authority in connection with the issuance of the policy in the defendant company.” Since a mutual fire insurancé contract like that now before the court is comprised of three elements — the application, the bylaws, and the policy, neither more nor less — it is difficult to see how its regular insurance contract could be altered even by a general agent. Furthermore, we look in vain for anything in the insurance contract as an entirety, or in the stipulation of agreed facts, which would indicate that Nelson was a general agent. Counsel for appellee calls attention to a feature of the application relating to chimneys and stovepipes thus: “Chimneys: How many are built from the ground? - From 1st story? - “Stovepipes: How many pass through roof? - Through side of building?-If so, decline. . . . Does any pipe pass through garret or unoccupied room?-If so, decline.” Appellee argues that since the agent must ascertain these facts he is more than a soliciting agent. On the contrary, if any stovepipes had passed through the side of the building or through an unoccupied room, the agent did not have the slightest discretion. He was under imperative instructions to decline the risk. That is very far indeed from being indicative that Nelson was a general agent. It is also argued that the insurance contract nowhere shows that Nelson was forbidden to make any oral arrangement or agreement with plaintiff. Perhaps so, but the powers of an agent to act for his principal are not to be construed to include all sorts of authority except what is expressly forbidden. The correct rule of law touching the powers of an agent is that he has whatever authority is specifically or apparently conferred upon him, together with whatever additional authority is reasonably to be implied so as to enable him to accomplish the purposes of his agency effectively. (Siedhoff v. Campbell, 141 Kan. 255, 40 P. 2d 404, and citations.) On this particular assignment of error this court holds that the false answer to question 5 must be viewed as if plaintiff and Nelson had agreed between themselves that the fact of plaintiff’s fire loss should be concealed from the insurance company. In Kane v. Detroit Life Ins. Co., 204 Mich. 357, 170 N. W. 35, it was held that an insurance company is not bound by statements contained in an application for insurance, when not only the agent, but the assured, knew that they were untrue, and calculated to deceive, and such application was submitted to the insurance company as the basis of its action. In Smith v. Iowa St. L. S. Ins. Co., 195 Ia. 250, 191 N. W. 981, it was held that the knowledge of an agent of an insurance company of material, false representations on the part of an applicant for insurance, relative to the subject matter of the insurance, may not be imputed to the company when the agent was manifestly in league with the applicant and bent on defrauding the company. In accord with these Michigan and Iowa cases are Klein v. Supreme Council of Loyal Ass’n, 155 N. Y. Supp. 580, and Green v. Hanover Fire Ins. Co., (Tex. Civ. App. 1924) 264 S. W. 153. Only the last of these eases involved fire insurance, but the principle is applicable to all sorts of cases where the agent colludes with an applicant for insurance to withhold, from the insurance company any facts material to the risk which it is entitled to know before it decides to make the insurance contract. See, further, 2 Mechem on Agency, 2d ed., sec. 1826. In view of the conclusion reached on the appellant’s first assignment of error, it might be regarded as superfluous to consider the second error urged on our attention. But we have concluded to consider it. It is contended that the judgment rendered in the divorce case on September 3, 1936, subjecting plaintiff’s farm to a lien for $1,000 ipso facto avoided the policy. Such was the plain and unequivocal declaration of the bylaws. See article XVIII quoted above, which was an integral part of the insurance contract. To overcome this barrier to a recovery plaintiff directs our attention to some pertinent language in the agreed statement of facts: “That shortly after the divorce plaintiff went to the office of Mr. Nelson [agent for defendant] and informed him that he had secured a divorce from his wife, that he was now the sole owner of the property, and that she secured the household goods and a judgment for SI,000 against him. That he wanted the insurance on the household goods as disclosed by the endorsement to the policy dated May 14, 1936, changed to cover the risks and amounts shown by the endorsement of October 14, 1936, and further requested him to secure an amendment to the policy in accordance with the new status of his ownership of the property. That Nelson informed him that he would secure amendments to the policy in accordance with the changes in the ownership of the property.” It must be noted, however, that in this paragraph of the stipulated facts no mention was made of the fact that the $1,000 judgment against plaintiff was declared to be a specific lien on the farm whose buildings were insured by defendant — or, to speak more accurately, the farm whose buildings had been insured by defendant up to the date of September 3, 1936, when the judgment was rendered. Moreover, that judgment for alimony was made a specific lien on plaintiff’s farm pursuant to an agreement of parties in the divorce action. This is important because the precise language of the bylaws reads: “This entire policy, each and every item thereof, unless otherwise provided by agreement endorsed thereon, or added thereto by the secretary, shall be void. ... If the hazard be increased by any means, ... or if the property be or becomes encumbered by mortgage or other lien.” Laying aside the serious question whether Nelson had any authority to make an oral agreement to get defendant’s consent to carry the insurance on the property after it became encumbered with a judgment lien, the stipulated facts do not even say that plaintiff told Nelson that the $1,000 judgment had been decreed to be a specific lien on the farm. Moreover, any arrangement between plaintiff and the defendant insurance company that it should continue to carry the insurance, whether made through Nelson as intermediary, or as soliciting agent, or as general agent, or otherwise, would have to start with the fact that the insurance was avoided on September 3, 1936, when the judgment lien was imposed; and that only by some negotiations approved by the defendant could such reinstatement be effected. Of course, nothing of the sort was done, and what Nelson did do or agreed to do could not alter the fact that the insurance contract terminated by the specific terms of the bylaws when the judgment lien was imposed on the insured property on September 3, 1936. In Kennedy v. Farmers Alliance Ins. Co., 127 Kan. 768, 275 Pac. 214, the case and the decision are tersely stated in the second paragraph of the syllabus: “A bylaw of such a company provided that a policy should be void, unless otherwise provided by agreement endorsed thereon or added thereto by the secretary, if the interest of the insured be other than unconditional or sole ownership, or if the subject of insurance be personal property encumbered by a chattel mortgage. A policy of insurance was issued which had no such agreement endorsed thereon or added thereto, and the subject of the insurance was personal property then encumbered by a chattel mortgage and title notes. Held, that the policy was not valid.” Later cases governed by the same general rule of law are Jackson v. Republic Mutual Fire Ins. Co., 138 Kan. 571, 57 P. 2d 296; and Union Central Life Ins. Co. v. Zehr, 143 Kan. 910, 57 P. 2d 51. It must be held that plaintiff's voluntary consent that a judgment for $1,000 in the divorce action should be entered against him and that such judgment should be a lien on the premises covered by the policy of insurance issued by defendant avoided the policy as the bylaws provided. The judgment is therefore reversed and the cause remanded with instructions to enter judgment for defendant.

The opinion of the court was delivered by Hoch, J.: This was an action to recover damages from the city of Manhattan for injuries to plaintiff’s property in the flood of 1935. The plaintiff alleged that by the creation of a city dump on the west bank of the Kansas river the main current was deflected from its natural course, with resulting injury to her property on the east bank of the river. The city’s demurrer to plaintiff’s evidence was sustained, and plaintiff appeals. The questions presented are whether the plaintiff’s evidence established a cause of action against the city, and whether the action, which was begun in June, 1937, was barred by the statute of limitations. Southeast of Manhattan the Kansas river turns to the north and flows almost due north on the east side of the city. Plaintiff’s property consisted of a four-acre tract on the east bank, directly east of the city. On the west bank, directly across from plaintiff’s tract, was city property known as Battery Park. Two or three hundred feet north and downstream from plaintiff’s property was a Rock Island railroad bridge which crossed the stream in a northeast-southwest direction, and a little farther north was a highway bridge which crossed almost due east and west. There were four spans in the railroad bridge, and the railroad embankment, which was about seven feet above the normal bank of the river, extended five or six hundred feet east and west from the bridge. Sometime prior to 1917, when the plaintiff moved onto the tract in question, the city had started a dump along the river bank in Battery Park, and this dump was steadily increased in size by the addition of heavy material and debris of all sorts until it took on a permanent character and extended for several hundred feet along the river bank and out into the edge of the stream. Plaintiff lived on the tract across the stream from the dump from 1917 until 1933, when she moved off and rented the place. During the years she lived there she naturally observed such changes as were taking place in the river, and particularly noted the effect of the city dump upon the course of the river. She and others testified that in 1917 the main current flowed along the west bank, but that gradually and steadily as the dump grew larger and reached out farther into the stream the current was thrown over towards the east bank. It is this alleged deflection or diversion of the main current and channel which forms the basis of this lawsuit. The flood of June, 1935, was one of the highest ever recorded on the Kansas river in that vicinity, being comparable only with the flood of 1903. Great damage was done over a wide area. The two bridges were washed out, much of the railroad embankment was washed away and a large part of the business section of the city was under water. The river left its banks many miles above the city and at one time there was a strong current flowing in an eastward direction over the top of the city dump. The river also broke over its south and east banks and for a time at least there was a current coming from the south and running along the highway which skirted the bluff east of the plaintiff’s property. Buildings on plaintiff’s property were washed away and other damage done. It is admitted that there would have been water everywhere over the property even if there had been no city dump on the west bank, but it is contended that the principal damage was done by the current and that the current would not have flowed across the property if it had not been deflected by the dump. In the flood of 1903, before the dump existed, some houses were damaged and washed from the tract, but apparently the damage to the tract was not nearly so great as in the 1935 flood. If plaintiff had a cause of action against the city, when did it arise? She contends that the damage caused prior to 1935 was not substantial or serious enough in character to start the running of the statute of limitations. The alleged wrong which resulted in plaintiff’s injury was the diversion of the main current of the river. She testified that it was about 1927 when she noted the effect of the dump upon the main current, and that from that year on as the channel was narrowed by the dump the current was forced more and more to the east side. During periods of high water after 1927 logs and other floating material would be thrown over against and onto her property and deposited there. Other witnesses gave similar testimony as to the shifting of the main current, and the latest date which any witness gave when he noticed that the current had swung over to the east was the year 1931. One witness testified that by 1931 the current was running under the east two spans of the railroad bridge. On cross-examination the plaintiff testified that after 1927 as the current was changed to the east bank it cut away her land “a foot or so each yéar.” The threat of floods was known to the plaintiff and all others in the vicinity and the existence of the dump and whatever effect upon the river it had was recognized for a period of at least eight or ten years prior to the beginning of this action. In 1931 the plaintiff and other property owners along the river made formal complaint to city officials about the dump and its effect upon the current, and also took the matter up with the State Division of Water Conservation and Flood Control. But, plaintiff alleges, nothing was done about it. The wrong complained of being deflection of the current, it is clear from the record that the cause of action arose more than two years prior to commencement of this action. The changing of the current and the menace which the change created were apparent certainly as early as 1931, and the record does not support appellant’s contention, that there was no “substantial” damage prior to June, 1935. Appellant asks the court to interpret and apply the term “substantial” 'in a way different from what she believes was done in the case of Seglem v. Skelly Oil Co., 145 Kan. 216, 65 P. 2d 553. No dis cussion of terminology is required in view of the conclusions already stated. Plaintiff’s evidence tended to establish an actionable wrong long before the flood of 1935, both in actual physical damage to the property and in the menace which she affirmatively recognized in 1931 and prior thereto. She seeks to ■ distinguish the instant case from the case of McMullen v. Jennings, 141 Kan. 420, 41 P. 2d 753, on the ground that the structures complained of in the latter case were in the nature of “nuisance per se,” while in the instant case the city dump “was perfectly innocuous in all seasons of normal or low water” and therefore not a “nuisance per se.” In McMullen v. Jennings, plaintiff complained of the dust, the odors, the noise, the vibration caused by grain elevators, and while there was some evidence and contention that the annoyances and injuries, if any, increased as new structures were added or old ones enlarged, the court held that the basis for claim of permanent damage had existed over a period sufficient to bar the action. While the two cases may not be “on all fours” they are by no means entirely dissimilar. The plaintiff here alleged the narrowing of the channel by the creation of the dump, thereby “creating and constituting a flood menace to the injury of this said plaintiff.” She made that menace a subject of formal complaint as early as 1931. While the dump might not be a nuisance per se, its eventual effect constituted it a nuisance in the view of the plaintiff long prior to the flood of 1935. It is well settled that even though a structure may be entirely lawful when made or erected, it may become a nuisance by reason of the surrounding circumstances and the result which it produces; and that in such event its lawful origin does not justify its continuance. (46 C. J. 658, 659.) And whether the dump be treated as a “nuisance” or in its effect as a “trespass” we come out at the same place as far as the infringement of plaintiff’s rights is concerned. It must be noted that in the instant case the plaintiff sought not only damages for what might be called immediate losses, but also for permanent injury to the land. In Seglem v. Skelly Oil Co., supra, the wrong complained of was pollution of a stream by permitting the escape into it of salt water, oil and other refuse from an oil field. It was held that although in seasons of plenty of rainfall the discharge of the harmful materials did little damage, the statute of limitations began to run when the pollution began and that the invasion of the rights of the farm owner and the menace created constituted “substantial” injury to the plaintiff. In the instant case we have not only the menace long continued but the wearing away of plaintiff’s land and other direct material injury over a period of years. While it may be impossible entirely to harmonize the Kansas cases on the question of the extent of damage that must be shown to give rise to a cause of action and start the running of the statute of limitations, we find no case holding that the occurrence of actual damage, substantial in character, as a result of the wrong complained of, does not start the running of the statute. In the case of Buss v. Missouri Pac. Rld. Co., 120 Kan. 689, 244 Pac. 1059, which involved damage resulting from overflow of a natural watercourse, the trial court had sustained a demurrer to the cause of action based on damage to the land itself, and while this court held that as to the crops, the cause of action arose when the actual trespass of the overflow waters took place, it commented favorably on the sustaining of the demurrer as to permanent injury to the land, saying that the “cause of action arose when the obstruction was built.” The case of Gardenshire v. Sinclair-Prairie Oil Co., 141 Kan. 865, 44 P. 2d 280, is not inconsistent with the present holding. In that case, relating to pollution of a stream by discharge of salt water from an oil field, the court held that the cause of action did not arise until actual damage occurred, but there had been no real menace prior to the actual damage. The opinion states “these wells were some distance from plaintiff’s land and it was a problem when, if ever, the salt water would reach their property. And after passing through the intervening territory in quantities sufficient to injure the plaintiffs, there was a question of the extent of the damage that would be sustained; it might only be speculative and conjectural.” (p. 869.) In Fulmer v. Skelly Oil Co., 143 Kan. 55, 53 P. 2d 825, it was held that the cause of action for permanent damages to real estate arose when the first substantial pollution of the fresh-water stream took place and not when drought or low water increased the seriousness of the pollution. The opinion cites and discusses other supporting Kansas cases. Among the decisions of this court in support of the view that action in this case was barred may be cited Taylor v. Newman, 91 Kan. 864, 139 Pac. 369; McMullen v. Jennings, supra; Seglem v. Skelly Oil Co., supra; McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899. Appellant’s brief gives consideration solely to the question of the statute of limitations. Appellee contends that the demurrer was properly sustained for the additional reason that no cause of action was established. Perhaps appellant has not presented the full record bearing upon that question. Based on the evidence before us, the demurrer would have to be sustained independent of the statutory bar. While it is admitted that the flood of 1935 would have overflowed plaintiff’s land even if the dump had not been in existence, there is nothing to show comparative damage, nor does any evidence appear to establish the amount of the damages or even the measure of damages to be applied covering the injuries and losses alleged. The judgment is affirmed.

The opinion of the court was delivered by Dawson, C. J.: This is an original proceeding in mandamus in which the state’s relator asks this court to direct the state superintendent of public instruction to take jurisdiction of an appeal from an order of the county superintendent of Chase county attaching certain adjacent territory in Lyon county to a rural high school in Chase county. The state superintendent declined to take such jurisdiction on advice of the attorney general that the statute relied on by the state’s relator is inapplicable. To determine the legal question, a brief summary of the pertinent facts must be visualized: In the northeastern part of Chase county adjacent to Lyon county there is a rural high-school district indifferently known as the Saffordville rural high-school district and as the Toledo Township rural high-school district. Its school building is situated in the village of Saffordville in Chase county. Its eastern boundary for some distance is the Chase-Lyon county line. On February 20, 1939, certain electors of Lyon county residing in a territory of 22 sections of land in Lyon county adj acent to the Saffordville rural high-school district, such electors constituting a majority of the electors of the described territory, made written application to the rural high-school board of Saffordville to have their described territory of 22 sections in Lyon county attached to that district for high-school purposes. The school board approved the application and the county superintendent of public instruction of Chase county likewise gave her consent thereto. It appears that thereafter some public interest arose touching what appellate review might be available to persons concerned who were opposed to the attachment of this considerable amount of Lyon county territory to a Chase county rural high-school district for high-school purposes; and some attempt was made to appeal the matter to the state superintendent of public instruction. On his refusal to act, this proceeding in mandamus was instituted and set down for hearing at our regular session of court in May. Deeming it advisable to have the county superintendents of schools of Chase and Lyon counties impleaded, and likewise the boards of county commissioners of those two counties, we continued the cause until our regular sitting in June, after ordering those public officials to be brought into the case. That has now been done, and their answers are on file, in which they ask this court to say which of them, if either, has jurisdiction of the matter at any stage of the proceedings and for any purpose; but none of them takes any definite position in reference to the immediate legal question requiring decision. None of them is contentious on the incidental questions whether it is the consent of the county superintendent of Chase county or the consent of the county superintendent of Lyon county which the statute requires to effectuate the attachment of the territory described in the electors’ application, or whether the appeal given by the statute is to the board of county commissioners of Chase county or to the county commissioners of Lyon county. ■ Without a real issue joined by litigants and their counsel on one or both of those incidental questions, we must leave them undetermined, and confine our attention to the one formally presented, which is, Has the state superintendent any duty in the premises? The pertinent statute, in part, reads: “Territory outside the limits of any rural high-school district, but adjacent thereto, may be attached to such high-school district for high-school purposes, upon application being made to the rural high-school board by a majority of the electors of such adjacent territory, and upon the approval of said rural high-school board and the consent of the county superintendent of public instruction: Provided, That an appeal may be taken from the decision of the county superintendent to the board of county commissioners, if such property proposed to be attached is within one county, and to the state superintendent of public instruction if same be within two or more counties, whose respective decision in either case will be final. . . (G. S. 1935, 72-3514.) A careful reading of this statute makes it perfectly plain that it is only in cases where the property (territory) to be attached is within two or more counties that the state superintendent of public instruction has either authority or duty to be concerned. Here the territory to be attached is within one county. It necessarily follows that the writ of mandamus applied for must be denied and judgment must be entered for defendant. It is so ordered. Harvey and Thiele, JJ., concur in the result.

The opinion of the court was delivered by Wedell, J.: This is an appeal from an order of the district court overruling a motion to dismiss an appeal by one of two coadministrators of the estate of Walter T. Apple, deceased, from a finding of heirship and final order of settlement and distribution made by the probate court, and also an appeal from the judgment of the district court. While two estates are mentioned in this lawsuit, the estate with which we are primarily concerned and in which the order of heirship and distribution was made, is the estate of Walter T. Apple, deceased. Walter T. Apple died intestate July 18, 1932, and left surviving only collateral heirs. The co administrators of his estate were Spencer B. Apple, his brother, and L. L. Cardin, his brother-in-law. Spencer B. Apple was also the attorney for the estate. L. L. Cardin appealed from the decree of heirship and from the final order of distribution in his capacity as administrator. His complaint on appeal to the district court concerned the finding of the probate court that Chauncey W. (Butler) Apple, had not been legally adopted and was therefore not an heir of the deceased. His complaint likewise concerned the resulting order of distribution which directed the administrators to distribute a total sum of money then held in a special fund by L. L. Cardin, in the sum of $13,473.06, to the respective heirs in accordance with the decree of heirship. That particular fund, with the exception of two items in the respective amounts of $1,963.91 and $608.30, consisted of disbursements which had been made on orders of the probate court during the process of administration as the share of Chauncey W. (Butler) Apple, on the theory at that time that he was a brother of the deceased. The residence or whereabouts of Chauncey W. (Butler) Apple was unknown and for that reason the disbursements had been set aside to him in this special fund. The item of $1,963.91 constituted the amount which had been decreed in the sale of lands under three separate partition suits to be the share of Chauncey W. (Butler) Apple as a brother and heir of the deceased. No appeals had been perfected from any of the judgments in the partition suits at the time of the final decree of heirship and distribution in the probate court and the time- for such appeals had then expired. The item of $608.30 constituted oil royalties from lands of the deceased. The record does not disclose that the probate court had at any time directed the administrators to take possession of the real estate of the deceased and of the income therefronl on the ground it was necessary for the payment of 'decedent’s debts.' On appeal in the district court the administrator contended the probate court had no jurisdiction over these particular funds of $1,963.91 and $608.30. The deceased had a brother, William B. Apple. Chauncey E. Apple was one of the three heirs of William B. Apple, deceased. Chauncey E. Apple, on final order of settlement and distribution, contended that Chauncey W. (Butler) Apple had not been legally adopted by the parents of Walter T. Apple, deceased, and was therefore not entitled to inherit as a brother of Walter T. Apple, deceased. The probate court Sustained the contention. Harriet E, Apple was the administratrix of the estate of William B. Apple. She moved to have the appeal of L. L. Cardin, administrator, dismissed in the district court. The grounds for her motion will be ■ considered presently. The motion was overruled as to all parties except Spencer B. Apple, administrator. The district court tried the question of heirship and decided that Chauncey W. (Butler) Apple was legally adopted by the parents of the decedent and was entitled to inherit as a brother of 'the decedent. It is from that final judgment and from thfe order overruling her motion to dismiss the appeal of the administrator that Harriet E. Apple, administratrix of the estate of William B. Apple, appeals to this court. In order to avoid confusion in names, we shall hereafter refer to Chauncey W. (Butler) Apple, as Butler. Before considering the merits of the appeal we are confronted with the motion of L. L. Cardin, administrator and appellee, to dismiss the appeal to this court. The basis of the motion is that Butler, whose rights are involved in this appeal, was not notified of the appeal as required by G. S. 1935, 60-3306. The pertinent portion of that statute reads: “A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal, and who appeared and took part in the trial, or their attorneys of record; or,-if such service cannot be made within the state, service may be made by a notice, properly addressed to such persons or their attorneys of record at their places of residence, deposited in the mail, if their places of residence are known. Proof, of such service shall be made by affidavit, and in case the residence of the party and his attorney is not known, an affidavit of the appellant or his attorney may be attached to the notice filed with the clerk, stating that the residence of such party and his attorney is unknown, and that the appellant is unable to ascertain the same; and thereupon the appeal shall be deemed to be perfected.” (Italics ours.) It is conceded Butler was not served with notice of appeal. Appellee insists Butler is an “adverse party,” as defined in Peoples State Bank v. Hoisington Mercantile Ass’n, 118 Kan. 61, 234 Pac. 71; Lebanon State Bank v. Finch, 137 Kan. 114, 118, 19 Pac. 709, and similar decisions from this and other jurisdictions and 3 Am. Jur., § 465. Butler, however, did not individually or by attorney take any part in the trial. Was he in fact a party to the action in the district court and just what is in reality the question before us for review? In view of these problems we prefer to'deal first with other questions involved and shall return later to the contention the appeal should be, dismissed. Appellant contends first, L. L. Cardin could not maintain the appeal to the district court in his official capacity as administrator; second, as administrator, he complied in part, with the probate court’s order of final settlement and distribution by the following payments: the costs of administration, Spencer B. Apple’s distributive share, the co administrator’s fees in the sum of $1,000 and attorney fees to Spencer B. Apple who also represented the estate, in the sum of $750. She insists the appellee acquiesced in the decree of heirship and final order of settlement and distribution and will not now be heard to complain; third, the administrator did not perfect his appeal to the district court as required by law, either as to Spencer B. Apple, the co administrator, or as to Butler. What about the first contention? It is well settled that a person cannot appeal from a judgment or decision unless he is aggrieved thereby. (Burton and Shoemaker v. Boyd, 7 Kan. 17; Payne v. National Bank, 16 Kan. 147; McLeod v. Palmer, 96 Kan. 159, 150 Pac. 535; Elliott v. Daugherty, 111 Kan. 780, 208 Pac. 551; 2 Am. Jur., Appeal and Error, § 152.) How was the administrator, L. L. Cardin, aggrieved in his official capacity? An executor or administrator is an arm of the court and is not concerned with a decree of heirship nor ordinarily with orders of distribution. G. S. 1935, 22-904, makes it the duty of the probate court upon the hearing of final settlement to determine who are the heirs, devisees and legatees of the deceased, and G. S. 1935, 22-313, Fourth, makes it the duty of an administrator to pay any balances remaining in his hands upon the settlement of his accounts, to such persons as the court or the law shall direct. This latter statute fixes the conditions of the administrator’s bond. The heirs are the “interested parties” in an appeal from the decree of heirship and order of distribution, and the administrator cannot litigate the claims of one set of heirs against the other. The distribution of assets of the estate over which the court has jurisdiction, ordered by the court and acquiesced in by the parties in interest is binding on the administrator. (Elliott v. Daugherty, 111 Kan. 780, 208 Pac. 551.) G. S. 1935, 22-915, provides that when the account is settled in the absence of any person adversely interested, and without actual notice to him, the account may be opened on his filing exceptions to the account at any time within six months thereafter. In the instant case no heir appealed from the final order of heirship or settlement and distribution as authorized by G. S. 1935, 22-1102, and no heir has taken any exceptions thereto as permitted under G. S. 1935, 22-915. That an administrator is ordinarily not an interested party in an appeal from a decree of heirship and order of distribution is also well supported by numerous authorities other than our own. A few of them are In Re Enoch Vincent’s Estate, 84 Vt. 89, 78 Atl. 714; Peck’s Admr. v. Peck’s Admr., 91 Vt. 91, 99 Atl. 635; Simonds v. Simond’s Estate, 96 Vt. 110, 117 Atl. 103; Stilphen, Appellant, 100 Me. 146, 4 Ann. Cas. 158; Bates v. Ryberg, 40 Cal. 463; Merrifield v. Longmire, 66 Cal. 180; Goldtree v. Thompson, 83 Cal. 420, and Bryant et al. v. Thompson, 128 N. Y. 426. But was the administrator in his official capacity not an interested party insofar as the distribution of the two items of $1,963.91 and $608.30 was concerned? In view of the record before us those two funds never became any part of the estate to be administered by the probate court and manifestly that court was in no wise vested with jurisdiction over them. The final order of distribution, insofar as it pertained to those particular items, was clearly void. The order, therefore, involved a question of the administrator’s duty and a question of whether obedience thereto might not subject him to liability. Under these circumstances the administrator was an interested party and had the right of appeal. (In re Welch, 106 Cal. 427, 39 Pac. 805; In re Clark’s Estate, 79 Vt. 62, 64 Atl. 231; Agnew v. Agnew, 52 S. D. 472, 218 N. W. 633, 59 A. L. R. 1549, and 2 Am. Jur., Appeal and Error, § 156.) We think our statute, G. S. 1935, 22-1104, likewise contemplates the administrator’s right to appeal under such circumstances. Appellant, however, insists that if the administrator had any right of appeal the motion to dismiss the appeal to the district court should nevertheless have been sustained. The contention is based upon the theory that the district court could have no jurisdiction to render an effective judgment of- distribution as to the exact shares of the various heirs, unless all of such heirs were made parties to the appeal. On the appeal to this court it must be assumed Spencer B. Apple was not a party to the action in the district court. The motion to dismiss the appeal to the district court was sustained as to Spencer B. Apple; no appeal was taken from that order, and it is final. At least one heir was, therefore, not a party to the appeal. We shall, under a subsequent contention of appellee, discuss the question of whether Butler was a party to the action in the district court. We think, however, appellant’s contention that the entire appeal to the district court should have been dismissed, is unsound in view of the particular question over which the district court obtained jurisdiction. The sole question over which the latter court .obtained jurisdiction was whether the probate court’s order directing distribution of the items of $1,963.91 and $698.30 was void. That legal question was determinable by the district court when it acquired jurisdiction over the administrator, the funds in question, and any one of the heirs. Appeals were properly perfected as to at least seven of the nine heirs. While such a judgment itself could not be said to constitute a judgment against heirs who were not parties to the action, it would constitute an adjudication of the validity of the order. Under the facts in the instant case, if that order was void, as to one heir, it follows it was, of course, void as to all heirs. The motion to dismiss the entire appeal was properly overruled. In this particular case the district court should have limited its judgment to the single issue over which it had jurisdiction. This court must likewise limit itself to that single issue. We are obliged to conclude the order of distribution made by the probate court as to the two items mentioned was void, and the administrator, L. L. Cardin, was entitled to have that single question determined. In view of that limited jurisdiction of the district court and of this court on appeal, the proper distribution of the items of $1,963.91 and $608.30 cannot be directed in this particular action. Appellant finally contends the administrator complied, in part, with the final order of distribution, that such compliance constituted acquiescence therein, and that he will not now be permitted to complain concerning it. In support of the contention he cites 2 Am. Jur., Appeal and Error, § 206; 3 C. J., Appeal and Error, §§ 536, 550; Wolf v. McMahon, 26 Kan. 141; State v. Conkling, 54 Kan. 108, 37 Pac. 992; York v. Barnes, 58 Kan. 478, 49 Pac. 595; Waters v. Garvin, 67 Kan. 855, 73 Pac. 902; Winfrey v. Clapp, 86 Kan. 887, 122 Pac. 1055; Round v. Power Co., 92 Kan. 894, 142 Pac. 292; Hyland v. Hogue, 131 Kan. 512, 292 Pac. 750; Paulson v. McCormack, 133 Kan. 523, 1 P. 2d 259; Clothier v. Wallace, 137 Kan. 928, 22 P. 2d 462; 45 Am. St. Rep. 270, and note. We do not regard the authorities cited as conclusive under the facts in this particular case. In the first place the order, insofar as the two particular items mentioned are concerned, was void. In contemplation of law, no payments could have been made in obedience to that order out of money representing those particular funds. The reason is obvious. The situation was the same as though no order had been made concerning those two funds. Moreover, the coadministrator, Spencer B. Apple, was likewise the attorney for the estate, and in view of the entire record we would not well be able to say, assuming the order had been valid, that the payments were voluntarily made by the administrator, L. L. Cardin. We shall now return to the contention of appellee that the appeal to this court should be dismissed. The contention is based upon the fact that no notice of appeal to this court was served on Butler. Appellee insists that, notwithstanding Butler’s absence, notice of appeal might have been served upon him in accordance with the provisions of G. S. 1935, 60-3306, heretofore quoted. The trouble with the contention is that the statute is not applicable for the reason that Butler did not appear and take any part in the trial in the district court. Appellee contends Butler was a party to that trial. That contention is based upon the fact that an affidavit was made by the attorney for the appellee, disclosing diligence in an effort to serve notice of appeal to the district court on Butler, but that such diligence was unavailing. Appellee admits the probate code does not expressly authorize the use of such affidavit in lieu of actual notice of appeal, as does G. S. 1935, 60-3306, on appeals from the district court to this court. He contends, however, that G. S. 1935, 60-3308, makes the procedure provided by G. S. 1935, 60-3306, applicable to appeals from the probate court to the district court. G. S. 1935, 60-3308, reads: “Appeals to courts other than the supreme court shall be taken, and proceedings therein had in the same manner as is herein provided for appeals to the supreme court, except where special provision with reference to such appeals is made by statute.” (Italics ours.) The difficulty with appellee’s last contention is that the probate code contains its own special provision for proceedings on appeal. Under the provisions of G. S. 1935, 22-1102, appeals must be taken within thirty days from the date of the adverse decision. It must be taken by giving notice of appeal in open court, entered on the record, or by written notice to the opposite party, or his attorney of record. It then provides that proof of service of such notice must be made by affidavit of the party taking the appeal showing service of such notice and that such affidavit must be filed with the probate court. No notice of appeal was given in open court nor was any written notice served on Butler or his attorney. We might also say the affidavit was not filed within thirty days. In this connection it may also be well to note the pertinent provisions of G. S. 1935, 60-3823, which reads: “Until the legislature shall otherwise provide, this code shall not affect proceedings . . . under the statutes for the settlement of estates of deceased persons . . . but such proceedings may be prosecuted under the code whenever it is applicable.” It clearly appears the probate code provides its own special proceedings for appeal and the provisions of the civil code are not applicable to appeals from the probate court to the district court. It follows the motion to dismiss the appeal to this court cannot be sustained. The action is remanded with directions to the district court to dismiss the appeal from the probate court as to all issues except the single issue of the jurisdiction of the probate court to make the order of distribution pertaining to the item of $1,963.91, and the item of $608.30. As to those specific items the judgment of the district court should reverse the order of the probate court. It is so ordered.

The opinion of the court was delivered by Gernon, J.: Fireman’s Fund Insurance Company (Fireman’s) appeals the district court’s garnishment order requiring Fireman’s to pay a $600,000 judgment to South Central Kansas Health Insurance Group (South Central) on behalf of its insured, Harden & Company Insurance Services, Inc. (Harden). Fireman’s also appeals the district court’s order awarding attorney fees to South Central. South Central is a self-funded health care plan for employees of various Kansas public school districts. South Central contracted with Harden to provide third-party administrator services “pertinent to the renewal of the Plan including Reinsurance, Funding recommendations, Plan changes required by Federal Legislation, or recommended changes for cost containment, etc. on a timely basis.” Harden purchased a claims-made policy of professional liability insurance from Fireman’s for protection against any negligence claims made against Harden for the services it provided to South Central as a third-party administrator. The policy covered claims made from July 26, 1997, to July 26, 1998. In May 1998, South Central filed a petition against Harden and other defendants, claiming negligence. Harden submitted the petition to Fireman’s as a claim, but Fireman’s denied coverage based on its opinion that South Central’s petition raised only contract claims which were not covered under the policy. Fireman’s prepared a letter to Harden denying coverage on August 7,1998, but, for some unknown reason, Harden did not receive the letter until February 8, 1999. In the meantime, Harden hired attorneys in California, where it is incorporated, and in Kansas to address the South Central lawsuit. In December 1998, South Central filed an amended petition clearly stating that it was raising a negligence claim against Harden. In February 1999, Harden submitted the amended petition to Fireman’s. Fireman’s acknowledged receipt of the amended petition and agreed to reassess its coverage decision in April 1999. Harden contacted Fireman’s again in June 1999 for a response to its request for coverage for the claims in the amended petition. In July 1999, Fireman’s agreed to defend Harden subject to its reservation of rights under the policy but limited its obligation to defending the allegations in the amended petition. In July 1999, Harden submitted documentation for its legal bills showing that it had paid $50,942.06 since the amended petition was filed and claiming that Fireman’s should reimburse it for the $17,439.15 that had been paid before the amended petition was filed. Fireman’s then requested additional documentation to support the legal bills. Harden provided additional documentation as requested, but by December 1999 Fireman’s had not paid any of Harden’s legal bills. Fireman’s eventually approved $12,966.95 in fees for Harden’s Kansas attorneys and denied reimbursement for Harden’s California attorneys, claiming that California counsel was unnecessary. Fireman’s deducted the approved fees from Harden’s $15,000 deductible and refused further payments. Fireman’s has never paid any money to Harden for its attorney fees. In September 2000, Harden received a settlement demand from South Central and advised Fireman’s. When Fireman’s failed to respond to the settlement demand, Harden accepted a settlement agreement with South Central because it did not have funds to develop a defense. The settlement agreement provided that the matter would be tried to the bench and Harden would not raise a defense. In return, South Central limited the damages to $600,000 and agreed not to garnish, execute, enforce, or attempt to collect the judgment from Harden but to limit any future recovery to proceeds obtained from Fireman’s. To assist South Central in proceeding against Fireman’s, Harden agreed to assign all of its rights against Fireman’s to South Central and to cooperate in any lawsuit required by such assignment. Following a bench trial on May 30,2001, the district court found that Harden was negligent in its duties as a third-party administrator for South Central and determined that Harden’s negligence had caused a total of $1,894,324 in damages. Based on the settlement agreement, the court limited the judgment for damages to $600,000. South Central filed a garnishment against Fireman’s seeking payment for the $600,000 judgment it received against Harden. In its answer, Fireman’s raised three policy exclusions as a defense against the garnishment. South Central responded with a motion for summary judgment. At the hearing on South Central’s motion, the district judge assumed that Fireman’s policy exclusions applied, stating: “I’ll find that when, for purposes of summary judgment, garnishor or a plaintiff is in the position of having to concede that the exclusions are valid, that means that they’re clearly [sic] obviously valid from the get-go, which, frankly, I don’t believe are the facts of this case but, for purposes of this hearing, I assume that they’re the facts of this case and, therefore, there would be no duty to defend.” Notwithstanding its finding that Harden had no coverage under Fireman’s insurance policy, the district court found that Fireman’s agreed to defend Harden with a reservation of rights and con- eluded that Fireman s owed Harden a duty to defend. The district court further found that Fireman’s had egregiously breached its duty to defend Harden by failing to pay attorney fees and failing to respond. As a result, the district court ordered Fireman’s to pay $600,000 plus interest to South Central. In addition, the district court ordered Fireman’s to pay all of South Central’s attorney fees from the filing of the initial petition against Harden based on the 40 percent contingency fee contract that South Central entered into with its attorneys. Fireman’s filed separate notices of appeal for the $600,000 garnishment and the award of attorney fees. The cases were consolidated into one appeal, and the matter is before us based on our motion to transfer pursuant to K.S.A. 20-3018(c). Because this case was decided on summary judgment, we must apply those standards as we review this case. “Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Associated Wholesale Grocers, Inc. v. Americold Corp., 261 Kan. 806, 820, 934 P.2d 65 (1997); see K.S.A. 2003 Supp. 60-256(c). The trial court must resolve all facts and inferences in favor of the party against whom the ruling is sought. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. An appellate court applies the same rules. If reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002). An appellate court reviews a decision on summary judgment de novo. Associated Wholesale Grocers, Inc., 261 Kan. at 820. Fireman’s argues that the district court’s garnishment order ignores the court’s finding that there was no coverage under the policy. Without coverage, Fireman’s argues that it cannot be garnished to pay Harden’s judgment. The issue of coverage for Harden’s claim is key in the resolution of South Central’s garnishment action against Fireman’s. The district court’s garnishment order is based on its finding that Fireman’s breached its duty to defend Harden after Fireman’s issued a letter stating that it would defend Harden under a reservation of rights. However, the letter relied upon by the district court is not a contract. The contract for Harden’s coverage is found in the policy issued to Harden by Fireman’s. The policy provides in pertinent part: “B. DEFENSE AND EXPENSE OF CLAIMS ‘T. With respect to the insurance afforded by this policy, the Company shall defend any Claim against die Insured seeking Damages to which this insurance applies even if any or all of the allegations are groundless, false, or fraudulent . . . Under the policy, Fireman’s had a duty to defend Harden for any claim to which the insurance applied. If the claim fell within one of the exclusions in the policy, Fireman’s had no contractual duty to defend. In Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 684, 512 P.2d 403 (1973), this court stated: “[T]he insurer is not bound to defend the insured in actions brought wholly outside any coverage obligations assumed in the policy or when the insurer would have no liability if plaintiff secured a judgment against the insured. We adhere to this rule and hold that where there is no coverage there is no duty to defend.” The issue in Spruill was whether an insurer had a responsibility to defend its insured when the petition against the insured claimed damages from intentional acts. The Spruill court adopted the rule that the insurer has a duty to defend if, based on the pleadings and any facts brought to the insurer’s attention or reasonably discoverable during the insurer’s investigation, there is a potential for liability. 212 Kan. at 686. Because the insurer was aware of facts indicating that the injury was not caused by an intentional act, the Spruill court held that the insurer owed a duty to defend and ordered the insurer to pay the judgment against its insured. 212 Kan. at 688. However, the Spruill court specifically limited its holding based on its conclusion that there was coverage under the insurance policy, stating: “The duty to defend this action was dependent on the issue of coverage. Since we have determined there was coverage, the right to a defense was one of the benefits provided in the insurance contract.” 212 Kan. at 688. South Central argues that the duty to defend is broader than the duty to indemnify. In support of this proposition, South Central cites Steinle v. Knowles, 265 Kan. 545, 961 P.2d 1228 (1998). Although Steinle supports South Central’s proposition, further analysis is required to resolve the issue. In Steinle, the issue was whether the real estate title insurer, who had issued a loan policy to the mortgagee in a real estate transaction, had a duty to defend a quiet title action against the seller of the real estate, who was the same person as the mortgagee. The Steinle court concluded that the insurer did not owe a duty to defend because the policy was limited to protecting the insured from loss in her role as the mortgagee but did not cover the insured in her role as the seller. 265 Kan. at 555. Therefore, the Steinle court held that there was no coverage under the policy, so there was no duty to defend. 265 Kan. at 555. In Spivey v. Safeco Ins. Co., 254 Kan. 237, 865 P.2d 182 (1993), the insured filed an action against his insurer claiming that the insurer should have provided him a defense in a federal civil tort action. The issue regarding coverage turned on whether the alleged acts were intentional. The Spivey court concluded that the insured’s actions were intentional and the insured’s policy unambiguously excluded intentional conduct. 254 Kan. at 246-51. Accordingly, the Spivey court held that the insurer did not owe a duty to defend because of the exclusion in the insured’s policy. 254 Kan. at 250-51. The Spivey court stated: “The duty to defend rests primarily on the possibility that coverage exists, and the possibility of coverage must be determined by a good faith analysis of all information the insurer may know or could have reasonably ascertained. If ambiguities in coverage, including exclusionary clauses, are judicially determined against the insurer, the ultimate result controls the insurer’s duty to defend. [Citation omitted.]” 254 Kan. at 245-46. Steinle, Spivey, and Spruill stand for the proposition that insurers have a duty to defend if there is a potential for liability. They do not stand for the proposition that the duty exists after a finding that there is no coverage under the insurance policy. See Steinle, 265 Kan. at 554-55; Spivey, 254 Kan. at 246, 250-51; Spruill, 212 Kan. at 686, 688. In Williams v. Community Drive-In Theatre, Inc., 3 Kan. App. 2d 352, 355, 595 P.2d 724, rev. denied 226 Kan. 793 (1979), the Court of Appeals adopted the ultimate showing test to determine whether an insurer has a duty to defend. Under the ultimate showing test, an insurer s duty to defend is dependent on a showing that the defendant to the action is insured under the policy. The Williams court stated that “the plaintiff may not create an obligation on the part of the insurer where no obligation previously existed.” 3 Kan. App. 2d at 354. Quoting the Arizona Court of Appeals, the Williams court justified the ultimate showing test, stating: “ ‘If an insurer erroneously takes the position that notwithstanding the allegations of the complaint it has no obligation to defend, and facts subsequently establish that such duty did exist, then we are confident that the law will allow the injured party an adequate remedy for the breach by the insurer of its obligations under the policy. (See the many cases affording such a remedy cited in Annot., 50 A.L.R.2d 461 [1956]). On the other hand, if the insurer’s position is ultimately shown to be correct, then it should not be penalized by being forced to bear an expense which it did not contractually obligate itself to incur.’ ” 3 Kan. App. 2d at 355 (quoting Navajo Freight Lines, Inc. v. Liberty Mutual Ins. Co., 12 Ariz. App. 424, 431, 471 P.2d 309, rev. denied October 20, 1970). Although the Williams court applied the ultimate showing test to a determination of whether the defendant was a named insured under the policy, the same reasoning applies to the determination of whether the claim is covered by the policy. Although it was not specifically termed as the ultimate showing test, the same reasoning was used by the Spruill court when it limited its holding based on its conclusion that the claim was covered and by the Spivey and Steinle courts when they concluded that the insurer did not have a duty to defend because there was no coverage under the insurance policy. See Steinle, 265 Kan. at 555; Spivey, 254 Kan. at 250-51; Spruill, 212 Kan. at 686. Likewise, the reasoning of the ultimate showing test applies in this case. When there is no coverage under the insurance policy, there is no duty to defend. If there is no duty to defend, then Fireman’s cannot owe damages to Harden based on the breach of that duty. If Fireman’s owes no damages to Harden, then there is nothing for South Central to garnish. See K.S.A. 2003 Supp. 60- 732(c) (allowing the garnishment of “all intangible property, funds, credits or other indebtedness belonging to or owing the judgment debtor . . . which is in the possession or under the control of the garnishee”). Thus, the district court erred when it granted South Central’s motion for summary judgment and ordered Fireman’s to pay the $600,000 judgment against -Harden to South Central. Fireman’s argues that the insolvency exclusion in its policy precludes coverage for Harden’s claim as a matter of law. Fireman’s did not file a cross-motion for summary judgment, so this issue is raised for the first time on appeal. Issues not raised before the trial court cannot be raised for the first time on appeal. McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002). Accordingly, we will not address the merits of this issue. Finally, Fireman’s argues that the district court erroneously ordered it to pay South Central’s attorney fees both for the garnishment action and the underlying lawsuit between South Central and Harden. An appellate court reviews an award of attorney fees using an abuse of discretion standard. Judicial discretion is abused when no reasonable person would adopt the position taken by the district court. Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 44, 59 P.3d 1003 (2002). The district court’s award of attorney fees is based on K.S.A. 40-256, which provides: “That in all actions hereafter commenced, in which judgment is rendered against any insurance company as defined in K.S.A. 40-201, and including in addition thereto any fraternal benefit society and any reciprocal or interinsurance exchange on any policy or certificate of any type or land of insurance, if it appear from the evidence that such company, society or exchange has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action, including proceeding upon appeal, to be recovered and collected as a part of the costs: Provided, however, That when a tender is made by such insurance company, society or exchange before the commencement of the action in which judgment is rendered and the amount recovered is not in excess of such tender no such costs shall be allowed.” Because the district court found that Harden was not covered by Fireman’s policy, there is no support for an award of attorney fees. Before attorney fees can be awarded, the court must find that an insurer refused to pay the full amount of the loss “without just cause.” K.S.A. 40-256. However, when a policy of insurance does not cover a claim, an insurer has just cause for refusing to pay for the damages associated with the claim. See Spruill, 212 Kan. at 684. The district court’s conclusion that Fireman’s refused to pay the full amount of Harden’s loss without just cause is not supported by the district court’s finding that Fireman’s policy did not cover Harden’s claim. Accordingly, the district court abused its discretion when it ordered Fireman’s to pay South Central’s attorney fees. The district court’s judgment on South Central’s summaiy judgment motion and the award of attorney fees are reversed. Nuss and Beier, JJ., not participating. Chief Judge Gary W. Rulon and Larson, S.J., assigned.

The opinion was delivered by Luckert, J.: A jury convicted Sonji Daniels of aiding and abetting aggravated robbery, conspiracy to commit aggravated robbeiy, and endangering a child. In an unpublished opinion, the Court of Appeals affirmed her convictions. State v. Daniels, No. 87,790, unpublished opinion filed October 3, 2003. This court granted her petition for review. Daniels raises six issues: (1) Did Daniels’ sentences violate her right to trial by jury and to due process of law where the jury instructions defining aggravated robbery omitted the element of bodily harm?; (2) Where the juiy instructions defining aggravated robbery omitted the element of bodily harm and failed to define bodily harm, were the instructions clearly erroneous?; (3) Was Daniels’ right to a fair trial violated by the admission of involuntary statements coerced by police from her 12-year-old son?; (4) Did the district court err in denying Daniels’ motion for mistrial based upon the misconduct of a prosecution witness?; (5) Were Daniels’ convictions of aiding and abetting aggravated robbery and conspiracy to commit aggravated robbery supported by sufficient evidence?; and (6) Was Daniels’ conviction of endangering a child supported by sufficient evidence? Facts Daniels accepts the Court of Appeals’ rendition of the facts. Those facts are set out below: “On April 4, 2001, the victim walked the few blocks from his home to the Capitol Federal Savings Bank as he had done frequently in the past. Arriving at the bank, the victim deposited a portion of his paycheck and withdrew $293 in cash, which he placed in the left front pocket of his pants. Directly behind the victim in line at the bank, the defendant waited to withdraw some money from her account. “After leaving the bank, the victim, who was 78 years old and moved very slowly, turned down the alley connecting 10th and 11th Streets between Vermont and Massachusetts and headed for the post office. Before tire victim reached 10th Street, two young African-American males entered the alley from 10th Street, approached the victim, and punched the victim in the chest, knocking him down and causing him to hit his head on a drain pipe. The two men then pinned the victim to the ground while one of them reached into the victim’s front left pocket and pulled out the cash the victim had just withdrawn from the bank. Afterwards, the African-American males ran towards 10th Street. “The victim picked himself up and walked over to a doorway where Salwa Iskandrani witnessed the attack on the victim. She and her son Mohammed helped the victim into the restaurant owned by Mohammed and provided the victim with a wet towel to wipe the blood flow from a cut in the victim’s head. The victim remained in the restaurant until the police arrived. Ms. Iskandrani later identified the attackers as African-American males who were both dressed in red-colored shirts and long sweat pants. The victim provided a similar description. “About 3:30 p.m., Diana Kitsmiller exited her place of employment at the corner of 10th Street and Massachusetts to put money in a parking meter. Kitsmiller had parked next to the alley across from D & D Tire Shop. As Kitsmiller was putting money in the meter, she was startled as two African-American men nearly bumped into her as they ran out of the alley onto 10th Street. “Kitsmiller continued to watch the men until she lost sight of them shortly after they crossed Massachusetts Street. Kitsmiller then investigated the alley with a fellow employee and discovered that the victim had been robbed. She provided a statement to the investigating officers. “As Officer Craig Shanks ended his shift and left the law enforcement center at approximately 3:20 p.m., on April 4, 2001, he noticed a blue, 4-door Chevrolet bearing an Illinois license tag, which the officer associated with Dewayne Moss due to a prior traffic stop of the vehicle. The vehicle was parked in the 1000 block of New Hampshire Street on the west side of the street, facing south, but, approximately 2 hours earlier that day, Officer Shanks had seen the same vehicle parked on the east side of the 1100 block of Rhode Island, facing north. “As he observed the vehicle, he saw Moss and another man running across New Hampshire Street. The officer identified Moss from a distinctive scar running down the left side of his neck. While the officer did not recognize the otherperson, he noted that both men wore similar clothing. Later, hearing reports of the robbery over the police radio, Officer Shanks informed dispatch of his observations. “When dispatch broadcast Officer Shanks’ report, Officer Leo Souders traveled down Rhode Island Street from 9th Street and observed a dark blue Chevrolet Malibu with an Illinois license. Noting that the tags had expired in March of1999, Officer Souders made a traffic stop of the vehicle and approached the driver, who was an African-American woman. The vehicle contained only one passenger, an African-American juvenile male. “Officer Souders identified the driver of the vehicle as the defendant. He requested permission to search the vehicle and the defendant’s purse, and the defendant consented. After the officer had completed his search, the defendant requested permission to leave to pick up her children from school. “Officer Souders and Officer Verbanic followed the defendant to her apartment and requested permission to search the premises. The defendant again consented, but the search provided no evidence of the robbery. “In the course of investigating the robbery, the police identified and interviewed an employee of D & D Tire Shop, who had witnessed two African-American males emerging from a blue Chevy Malibu and entering the alley at approximately 3:30 p.m. on April 4, 2001. The witness stated that one of the men was approximately 6 feet and wore jeans and a red and white shirt; the other was approximately 5 inches shorter than the first and wore cut-off jean shorts and a dark shirt. “Because D.D., the son of the defendant, was in the car when the defendant was stopped on April 4th for having expired license tags, the police decided to interview him as a possible witness to the robbery. Detective Lance Flachsbarth and Officer Ryan Sayler first questioned D.D. in the principal’s office at D.D.’s school on April 13,2001. During this interview, D.D. asserted that only his mother and he had been in the vehicle on April 4th and that they had not transported Moss anywhere. “According to Detective Flachsbarth, however, D.D.’s statements became fraught with contradictions after the detective began exploring D.D.’s initial responses. Consequently, the detective decided to conduct a second interview that same day after picking up D.D. and two of his siblings at the Boys and Girls Club. “At the second interview, D.D. stated that in the early afternoon of April 4th, his mother and he had visited the law enforcement center. According to D.D., after completing their business, the defendant and D.D. were met by Moss and D.D.’s older brother, Dante. The defendant, the 2 children, and Moss all rode in the car to the bank. D.D. told the detective that his mother, the defendant, then entered the bank. When the defendant returned, she spoke to Moss and Dante outside the car. The defendant then drove around the comer, and Moss and Dante exited the vehicle and walked down the alley. “After the interview, Detective Flachsbarth requested D.D. to show the police the route that the defendant took from the bank to the place where Moss and Dante exited the vehicle in front of the D & D Tire Shop.” Slip op. at 2-7. State v. Daniels, No. 87,790, unpublished opinion filed October 3, 2003. A jury convicted Daniels of aiding and abetting aggravated robbery, conspiracy to commit aggravated robbery, and endangering a child. Daniels received a controlling sentence of 66 months’ imprisonment. Where the Jury Instructions Defining Aggravated Robbery Omitted the Element of. Bodily Harm and Failed to Define Bodily Harm, Were the Instructions Clearly ErroneousP Daniels’ first and second arguments are based upon the trial court’s failure to properly instruct the jury on the elements of the underlying crime of aggravated robbery. The jury instruction omitted the element of bodily harm which distinguishes a simple robbery from an aggravated robbery. Robbery is defined as “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. 21-3426. Aggravated robbery is defined as a robbery “committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” K.S.A. 21-3427. Neither party objected to the jury instruction as given. It appears that the omission of the bodily harm element was inadvertent as the State argued in closing that the abrasion to the back of the victim’s head constituted the bodily harm element of aggravated robbery. On appeal, Daniels argues that the omission of the bodily harm element violated her right to jury trial and due process and that, because of the omission, the jury instructions were clearly erroneous. Considering the issues in the reverse order submitted by the parties, we first discuss whether the omission of the bodily harm element render the jury instructions clearly erroneous. This issue, which incorporates the clearly erroneous standard, states our standard of review since Daniels did not object to the instructions as given and did not request that the instructions define bodily harm. K.S.A. 2003 Supp. 22-3414(3). “Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred. [Citations omitted.]” State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003). The Court of Appeals applied State v. Bryant, 22 Kan. App. 2d 732, 734-35, 922 P.2d 1118, rev. denied 260 Kan. 996 (1996), which held that the definition of bodily harm used in aggravated kidnapping cases is also applicable to aggravated robbery cases. In the context of aggravated kidnapping, bodily harm includes any act of physical violence even though no permanent injury results. Trivial or insignificant bruises or impressions resulting from the act itself are not considered to be bodily harm, but unnecessary acts of violence, including those occurring after the initial abduction of the victim, do constitute bodily harm. Bryant, 22 Kan. App. 2d at 734-35 (citing State v. Sanders, 225 Kan. 156, 587 P.2d 906 [1978]). Based upon the above definition, the Court of Appeals in this case concluded that the jury could have found that the victim’s head injury, which occurred when the robbers intentionally struck the victim, causing him to fall and hit his head on a drain pipe, constituted bodily harm. The court also found that the force used was excessive in light of what was necessary to accomplish the robbery. Slip op. at 10-11. In support of its conclusion, the Court of Appeals cited State v. Redford, 242 Kan. 658, 671, 750 P.2d 1013 (1988). Slip op. at 11. The jury instructions in Redford defined rape as nonconsensual sexual intercourse but omitted the element that the victim was overcome by force or fear. The Redford court noted there was no evidence of nonconsensual intercourse in any circumstance other than fear, and that Redford’s defense was to present a completely different version of events and to deny nonconsensual intercourse. In essence, the jury could choose to believe either the victim or Redford. Under these facts, the Redford court found the erroneous jury instruction to be harmless because the jury’s verdict would have been no different had the jury been properly instructed. 242 Kan. at 671-72. In her brief, Daniels essentially argues that a jury instruction which omits an essential element of the crime must always be clearly erroneous. That is clearly not the case. In addition to Redford, the following cases have found the omission of an element of the crime in a jury instruction to be harmless error: State v. Duke, 256 Kan. 703, 712-14, 887 P.2d 110 (1994) (omission of element of aggravated arson that fire damaged property in which another person has an interest was harmless error because “missing element in the instruction would not have altered the outcome of the trial”); and State v. Peltier, 249 Kan. 415, 423-28, 819 P.2d 628 (1991), cert. denied 505 U.S. 1207 (1992) (error in instructing the jury that, as a matter of law, indecent liberties with a child constituted the bodily harm necessary to establish element of aggravated kidnapping was harmless beyond a reasonable doubt). In addition, the United States Supreme Court has also ruled that the failure to submit an element of the crime to the jury was not structural error and was, therefore, subject to harmless error review. Neder v. United States, 527 U.S. 1, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999). Neder was convicted of filing false federal income tax returns, mail fraud, wire fraud, and bank fraud. The trial court determined that materiality was not a question for the jury and found that the evidence established the element of materiality with regard to the tax and bank fraud charges. The court also omitted the element of materiality from the instructions on mail fraud and wire fraud. The Eleventh Circuit affirmed, holding that the trial court erred in failing to submit the materiality element of the tax offense to the jury under United States v. Gaudin, 515 U.S. 506, 132 L. Ed. 2d 444, 115 S. Ct. 2310 (1995), but that the error was harmless. The Eleventh Circuit also ruled that the trial court did not err in failing to submit materiality to the juiy on the remaining charges because materiality was not an element of mail fraud, wire fraud, or bank fraud. The United States Supreme Court affirmed the first portion of the Eleventh Circuit’s ruling. Citing Gaudin, the Court concluded that refusing to instruct on the element of materiality on the fraud charges was erroneous. 527 U.S. at 4. This court recently relied upon Gaudin in holding that a trial court erred in instructing the jury that, as a matter of law, an element of the crime had been established by the evidence. State v. Brice, 276 Kan. 758, 80 P.3d 1113 (2003). The Brice court described the Gaudin decision as follows: “Gaudin, 515 U.S. 507, is a unanimous decision of the United States Supreme Court, holding that it was unconstitutional for the trial judge to refuse to submit to the jury the question of materiality of defendant’s statements in a prosecution for making false statements on Federal Housing Administration (FHA)/Department of Housing and Urban Development (HUD) loan documents. Gaudin was charged with knowingly inflating the appraised value of the mortgaged property and misrepresenting which party was to pay closing costs. The government called several FHA/HUD program administrators as witnesses to explain why the information Gaudin allegedly falsified was important. The trial judge instructed the jury that one of the elements the government was required to prove in order to convict Gaudin was that the alleged false statements were material to the activities and decisions of HUD. ‘But, the court further instructed, “[t]he issue of materiality ... is not submitted to you for your decision but rather is a matter for the decision of the court. You are instructed that the statements charged in the indictment are material statements.” ’ 515 U.S. at 508. “The Ninth Circuit Court of Appeals reversed Gaudin’s convictions, holding that ‘taking the question of materiality from the jury denied respondent a right guaranteed by’ the Due Process Clause of the Fifth Amendment and the Sixth Amendment right of criminal defendants to a trial by an impartial jury. 515 U.S. at 509. On certiorari, the government argued that the principle of requiring the jury to decide all the elements of a criminal offense was inapplicable because the question of materiality was a question of law. The Supreme Court rejected the argument on the grounds that materiality is a mixed question of law and fact and that mixed questions historically have been determined by juries in reaching criminal verdicts. 515 U.S. at 512-15. The Supreme Court stated: ‘The Fiftih Amendment to the United States Constitution guarantees that no one will be deprived of liberty without “due process of law”; and the Sixth, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” We have held that these provisions require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, 277-278[, 124 L. Ed. 2d 182, 113 S. Ct. 2078] (1993).’ 515 U.S. at 509-10. In affirming the judgment of the Ninth Circuit Court of Appeals, the Supreme Court concluded: ‘The Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged. The trial judge’s refusal to allow the jury to pass on the “materiality” of Gaudin’s false statements infringed that right.’ 515 U.S. at 522-23.” Brice, 276 Kan. at 766-67. In Brice, the defendant was convicted of aggravated battery based upon his shooting the victim in the leg. The trial court instructed the jury that “great bodily harm” as an element of aggravated battery means a “through and through bullet wound.” The Brice court held that the instruction “invades the province of the jury as factfinder and violated Brice’s Fifth and Sixth Amendment rights to have the jury determine his guilt or innocence.” 276 Kan. at 772. The Brice court reversed and remanded for a new trial without engaging in a harmless error analysis. Nor did the Gaudin court analyze whether the error in that case could be harmless. As noted by Chief Justice Rehnquist in his concurring opinion, the government had not argued that the error was harmless or “not plain,” 515 U.S. at 526, thus the Court had “no occasion to review the Court of Appeals’ conclusion that the constitutional error here ‘cannot be harmless.’ [Citation omitted.]” However, in Neder, immediately after noting that Gaudin established that it was error not to include the element of materiality in the instructions relating to the fraud charges, the Court stated: “We hold that the harmless-error analysis of Chapman v. California, 386 U.S. 18, [17 L. Ed. 2d 705, 87 S. Ct. 824] (1967), applies to this error.” Neder, 527 U.S. at 4. The Court considered whether a jury instruction that omits an element of the offense falls within that category of fundamental constitutional errors which are so intrinsically harmful as to require automatic reversal. The Court noted that it had found structural error requiring automatic reversal in only a few limited cases such as cases involving the complete denial of counsel, a biased trial judge, racial discrimination in grand jury selection, denial of self-representation at trial, denial of a public trial, and a defective reasonable doubt instruction. 527 U.S. at 8. The Neder Court found that an erroneous jury instruction which omits an element of the offense “differs markedly” from the types of constitutional violations listed above. 527 U.S. at 8. Whereas structural errors render a trial fundamentally unfair, “an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” 527 U.S. at 9. In support, the Court cited Johnson v. United States, 520 U.S. 461, 137 L. Ed. 2d 718, 117 S. Ct. 1544 (1997), a perjury case where the element of the materiality of the false statement was decided by the trial judge rather than the jury. Because Johnson failed to object at trial, the Court had reviewed her claim under the “plain error” standard, finding that the error did not require reversal based upon the overwhelming and “essentially uncontroverted” evidence supporting materiality. 520 U.S. at 470. According to the Neder Court, its opinion in Johnson cut “against the argument that the omission of an element will always render a trial unfair.” 527 U.S. at 9. The Court noted that improperly omitting an element of the offense is analogous to improperly instructing a juiy on an element and improperly instructing the juiy that an element is conclusively presumed because all three types of errors preclude the juiy from making a finding on the actual element of the offense. In deciding that the erroneous omission of an element from a jury instruction was subject to a harmless error analysis, the Court rejected the more restrictive approach suggested by Neder that such errors be deemed harmless only in certain rare circumstances. Instead, the Court applied the constitutional harmless error test set out in Chapman. 527 U.S. at 15. The Court found that the error was harmless because the evidence supporting materiality was so overwhelming that Neder had never argued that his false statements about his income were immaterial. The Court stated: “In this situation, where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless. We think it beyond cavil here that the error ‘did not contribute to the verdict obtained.’ ” 527 U.S. at 17 (quoting Chapman). With regard to the reviewing court’s inquiry, the Court explained that a reviewing court “asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element, if the answer to that question is no,’ holding the error harmless does not ‘reflec[t] a denigration of the constitutional rights involved.’ [Citation omitted.]” 527 U.S. at 19. As to the second portion of the Eleventh Circuit’s ruling, the Neder Court ruled that materiality was an element of mail fraud, bank fraud, and wire fraud and remanded the case to the Eleventh Circuit for a determination of whether the trial court’s failure to instruct on the element of materiality as to these offenses was harmless error. 527 U.S. at 25. Thus, we must determine if the omission of the element of bodily harm was harmless error or not. Under the Neder test, “where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the juiy verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” 527 U.S. at 17. Stated another way, the reviewing court “asks whether the record contains evidence that could rationally lead to a contraiy finding with respect to the omitted element.” 527 U.S. at 19. If the answer to that question is “no,” the error may be held harmless. Under the facts of this case, the element of bodily harm was not contested and was supported by overwhelming evidence. The ev idence established that the robbers hit the victim in the chest, causing him to fall and cut his head on a drain pipe. The record on appeal includes a photograph showing the victim’s injuiy. Although there was little evidence regarding the injuiy, there was testimony about the flow of blood and the assistance provided by bystanders to stop the bleeding. Furthermore, we agree with the State and with the Court of Appeals that it was unnecessarily violent to push a 78-year-old man to the ground in order to accomplish a robbery. As we stated in State v. Young, 277 Kan. 588, 594, 87 P.3d 308, 314 (2004), the omission of the element of bodily harm from the jury instruction on aggravated battery was “literally but not legally ‘clearly erroneous.’ ” We are convinced beyond a reasonable doubt that the jury’s verdict would have been the same even if it had been correctly instructed, thus we hold that the error was harmless. We also reject Daniels’ argument that, had the juiy been properly instructed as to the definition of bodily harm, it could easily have found that the victim’s injuiy was merely trivial or insignificant. As discussed above, the evidence of bodily harm was essentially uncontested and, as a result, overwhelming. We find that the trial court did not err in fading to instruct the jury on the definition of bodily harm. See State v. Royal, 234 Kan. 218, 222, 670 P.2d 1337 (1983). Did Daniels’ Sentences Violate her Right to Trial by Jury and to Due Process of Law Where the Jury Instructions Defining Aggravated Robbery Omitted the Element of Bodily Harm? Daniels also argues that the error requires automatic reversal because the omitted element of bodily harm is what distinguishes severity levels of robbery. See State v. Crawford, 247 Kan. 223, 795 P.2d 401 (1990) (jury instruction on aggravated burglary which erroneously omitted the essential element that a human being was inside the house was clearly erroneous because jury could find not more than simple burglary). Daniels cites Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), for the premise that any fact which increases tire penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. As noted by the Court of Appeals, Apprendi held that using a judge’s factual determination to enhance a defendant’s sentence invaded the province of the jury to decide whether a defendant was guilty beyond a reasonable doubt. The Court of Appeals concluded that Apprendi did not apply in this case because the trial court did not make any factual determinations which increased Daniels’ sentence beyond statutorily authorized limits and did not impose an upward departure sentence. Slip op. at 9. We agree with the Court of Appeals on this point. This court has discussed Apprendi in ruling on the validity of upward durational departure sentences (State v. Gould, 271 Kan. 394, 23 P.3d 801 [2001]), upward dispositional departure sentences (State v. Carr, 274 Kan. 442, 53 P.3d 843 [2002]), the hard 40 and hard 50 sentencing schemes (State v. Conley, 270 Kan. 18, 11 P.3d 1147 [2000]; and State v. Douglas, 274 Kan. 96, 49 P.3d 446 [2002]), and the procedure for authorizing adult prosecutions (State v. Jones, 273 Kan. 756, 47 P.3d 783 [2002]). However, this court has never applied Apprendi in a case involving erroneous jury instructions. Daniels does not cite any authority to support her theory. Furthermore, an examination of decisions of the United States Supreme Court leads us to conclude that even if an Apprendi-type error did occur, Daniels’ argument fails because the alleged error was not structural. Thus, reversal is not automatic, and the analysis of Neder and Johnson still apply. Since Apprendi, the United States Supreme Court has unanimously reiterated “that the trial court’s failure to instruct a jury on all of the statutoiy elements of an offense is subject to harmless-error analysis. E.g., Neder v. United States, 527 U.S. 1, 19, [144 L. Ed. 2d 35, 119 S. Ct. 1827] (1999).” Mitchell v. Esparza, 540 U.S. _, 157 L. Ed. 2d 263, 269, 124 S. Ct. 7, 11 (2003). The Mitchell Court did not discuss Apprendi in relation to this issue. In United States v. Cotton, 535 U.S. 625, 152 L. Ed. 2d 860, 122 S. Ct. 1781 (2002), the Court did find Apprendi error in the omission from a federal indictment of a fact that enhanced the statutory maximum sentence. However, as in Neder, the Court relied upon Johnson and concluded the error was not structural. 535 U.S. at 632. Consequently, the Cotton Court applied a plain error analysis, one aspect of which requires determination of whether the error “affects substantial rights” which usually means that the error “ ‘must have affected the outcome of the district court proceedings.’ ” 535 U.S. at 632 (quoting United States v. Olano, 507 U.S. 725, 734, 123 L. Ed. 2d 508, 113 S. Ct. 1770 [1993]). The Cotton Court compared the failure to include an element in the indictment to the situation in Johnson in which the district court failed to submit an element of the false statement offense, materiality, to the petit juiy. The Johnson court noted that the evidence of materiality was “overwhelming” and “essentially uncontrov-erted.” 520 U.S. at 470. The Cotton court applied the same test and determined that the evidence regarding the omitted element of the indictment, the quantity of drugs, was “overwhelming” and “essentially uncontroverted” and concluded that “[s]urely the grand jury” would have found the quantity of drugs sufficient to meet the enhancement criteria. 535 U.S. at 633. Thus, even if there was Apprendi-type error, which we decline to decide, our analysis would still be that the evidence of bodily harm was essentially uncontroverted. Accordingly, we reject Daniels’ arguments that the omission of the bodily harm element requires reversal. Was Daniels’ Right to a Fair Trial Violated By the Admission of Involuntary Statements Coerced by Police from her 12-year-old son? Next, Daniels argues that her right to a fair trial was violated by the trial court’s admission of involuntary statements coerced by police from her 12-year-old son, D.D. Daniels did not object to the admission of D.D.’s statements at trial. A criminal defendant is deprived of due process when his or her conviction is based, in whole or in part, upon the coerced statement of a witness. State v. Shumway, 30 Kan. App. 2d 836, 840-41, 50 P.3d 89, rev. denied 274 Kan. 1117 (2002). To determine whether a witness’ statements are voluntary, the court looks at the totality of the circumstances and considers the same factors used to weigh the voluntariness of a defendant’s confession. 30 Kan. App. 2d at 841-42. A criminal defendant has the right to object to the introduction of any confession or admission on grounds of voluntariness, and when a defendant so objects, the prosecution then has the burden of proving the confession is voluntary and admissible. State v. Miles, 233 Kan. 286, 295, 662 P.2d 1227 (1983). However, a trial court has no duty to hold a hearing on the voluntariness of a confession absent some type of objection or motion by the defendant. State v. Bornholdt, 261 Kan. 644, 653, 932 P.2d 964 (1997). Despite Daniels’ failure to object to the admission of D.D.’s statements at trial, the Court of Appeals chose to address the argument because “failure of this court to consider this issue might result in a denial of the defendant’s fundamental due process rights. [Citation omitted.]” Slip op. at 12. We disagree. As noted in Bornholdt, where a defendant fails to object to the introduction of a confession, this court has no obligation to become a finder of fact and make a determination of voluntariness where no record on the issue exists. 261 Kan. at 653. Had the trial court been given the opportunity to rule on the voluntariness of D.D.’s statements, it could have made factual findings and weighed the credibility of the witnesses. That would have given the appellate courts a starting point from which to review the issue. Instead, the Court of Appeals had to make its own factual findings from a cold record. We decline to follow the approach taken by the Court of Appeals and instead hold that Daniels has failed to preserve this issue for appeal. Did the District Court Err in Denying Daniels’ Motion for Mistrial Based Upon the Misconduct of a Prosecution Witness P Daniels argues that the trial court erred in denying her motion for a mistrial. A trial court’s decision on a motion for mistrial is reviewed under an abuse of discretion standard. Before an appellate court will find an abuse of discretion, the defendant has the burden of showing substantial prejudice. State v. Manning, 270 Kan. 674, 696, 19 P.3d 84 (2001). Daniels contends that Detective Brown made erroneous and irrelevant comments which prejudiced Daniels and denied her of her right to a fair trial. According to Daniels, there were three separate occasions when defense counsel had to object to false or irrelevant testimony by Detective Brown. Daniels requested a mistrial after the third such incident, and the Court of Appeals considered only that incident. The first incident to which Daniels refers occurred when Detective Brown, who had interviewed Daniels, testified about what Daniels told him she and D.D. had been doing on the day of the robbery. Brown testified that Daniels said that she and D.D. had been at the law enforcement center “just long enough." At this point, defense counsel interjected and asked to approach the bench. Defense counsel was apparently concerned that Brown was going to reveal that Daniels and D.D. had been at the law enforcement center in connection with a diversion agreement involving D.D. The court took a 5-minute recess so that Brown could be instructed not to reveal that information, and in his subsequent testimony, Brown made no mention of the diversion agreement. The second incident occurred when defense counsel was cross-examining Brown about his reasons for believing that Daniels had masterminded the robbery. Among other reasons, Brown stated that Daniels “was the only one driving after the bank stop and was identified as the one who did drive up to the alley and let them out.” Defense counsel then exchanged words with the prosecutor about whether there had been any evidence introduced that anyone had identified Daniels as the driver of the vehicle. Defense counsel stated, “We have an officer that said no one was in the vehicle. We have an officer who clearly stopped her and searched the vehicle, and we have an individual at D & D Tire before the robbery was committed that said he couldn’t tell who was driving.” The trial court agreed, stating, “I think that is true,” and the cross-examination proceeded. The third incident which prompted defense counsel to ask for a mistrial requires a bit more background information. The Court of Appeals summarized the facts as follows: “At the beginning of trial, the State filed a late motion to endorse Dante Daniels as a witness. The district court denied the endorsement as prejudicial to the defense. Later in the trial, the State produced evidence suggesting that Dante had been involved in the robbery along with Moss. “The State examined Detective Brown about his interrogation of the defendant, and the detective explained that the defendant became forcefully unruly when she was told that Dante had been brought to the station for questioning. The detective testified that the defendant shouted to Dante that he should not tell the police anything. “Therefore, during the cross-examination of Detective Brown, defense counsel questioned the officer about possibly innocent explanations for the defendant’s behavior during her interrogation. One of the questions concerned the police investigation of one of the defendant’s sons, Dante, who was suspected of committing the robbery. The purpose of this questioning was to suggest to the jury that the defendant was righteously indignant because she had been cooperative with the police investigation but that the detectives refused to believe her and had even begun to harass her family by interrogating them, unnecessarily. "In response, the detective replied: ‘At the time we told [the defendant], we said we suspected or had a feeling that Dante was involved, but she told us he was in school. To be honest with you, at that time, we didn’t know who the second person was. We didn’t know who the small black child or the person running with Moss was until we-other interviews firmed that up.’ "After this statement, defense counsel moved for a mistrial. The district court found that the detective’s statements could be cured by a limiting instruction and refused to grant the defense motion for mistrial.” Slip op. at 16-17. The Court of Appeals found that the detective’s statements, “while improper, were a natural attempt to rebut the clear implication of die defense questions.” Slip op. at 17. Furthermore, the court noted that the jury had already heard about D.D.’s statements that his mother had dropped off both Dante and Moss in the alley. Thus, the Court of Appeals found it unlikely that the detective’s improper comment about Dante’s involvement had affected the jury’s verdict. Because a reasonable person could agree that the detective’s statement did not require a mistrial, the Court of Appeals found no abuse of discretion. Slip op. at 18. Daniels now complains that the Court of Appeals did not consider the two other incidents involving Detective Brown. However, neither of those incidents reveal any prejudice to Daniels. In the first incident, Detective Brown never mentioned D.D.’s diversion agreement, and, in the second incident, the trial court clarified that Daniels had not been identified as the driver of the car which dropped off Moss and Dante. As to the third incident, Daniels has failed to establish that the trial court abused its discretion in refusing to grant a mistrial. The Court of Appeals’ analysis of the issue was correct. Were Daniels’ Convictions of Aiding and Abetting Aggravated Robbery and Conspiracy to Commit Aggravated Robbery Supported by Sufficient Evidence? Next, Daniels argues that there was insufficient evidence to support her convictions of aiding and abetting aggravated robbery and conspiracy to commit aggravated robbeiy. “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003). First, Daniels contends that the abrasion to the victim’s head was not sufficiently serious to constitute the bodily harm element of aggravated robbery. Second, Daniels contends there was insufficient evidence to prove that Dewayne Moss committed the underlying aggravated robbery; therefore, there was also insufficient evidence to prove that she aided and abetted and conspired with him to commit the robbeiy. Specifically, Daniels notes that Moss has a noticeable growth on the left side of his face which one would expect an eyewitness to mention. None of the eyewitnesses mentioned seeing this growth. With regard to this argument, the Court of Appeals recapped the evidence as follows: “In support of the ‘bodily harm’ element, the record demonstrated that the victim had been pushed to the ground and had hit his head, causing an abrasion. As previously discussed, whether the injury was more significant than ‘trivial bruises or impressions’ incidental to the force necessary to accomplish the robbeiy is a jury determination. See State v. Peltier, 249 Kan. 415, 422-23, 819 P.2d 628 (1991). Had the jury been properly instructed, the record could easily bear out a determination that the victim had suffered bodily injury in the attack. “Similarly, although none of the eyewitnesses to the crime specifically identified Moss or Dante, each described two black males wearing similar clothing, one being approximately 5 or 6 inches shorter than the other. At roughly the same time of day, an employee of the D & D Tire Shop witnessed a blue, 4-door Chevrolet Malibu pull up to the alley in which the robbery occurred and noticed that two individuals, with descriptions similar to later descriptions of the perpetrators of the robbery, exited the vehicle and headed in the direction of the alley. “Also at the approximate time of the robbery, Kitsmiller witnessed two African-American males running out of the alley where the robbery occurred; they continued past her, east on 10th Street, before she lost sight of them. Shortly thereafter, Officer Craig Shanks positively identified Moss running with another African-American who was dressed similarly to Moss. The two individuals ran across New Hampshire near or on 10th Street. “The defendant owns a blue, 4-door Chevrolet Malibu, and she was videotaped at the bank standing directly behind the victim of the robbery moments before the crime occurred. The individuals who committed the robbeiy seemingly knew which pocket the victim had put his money because they immediately reached into that pocket and retrieved the cash without searching his other pockets for additional items of value. “From this circumstantial evidence, a reasonable jury could have found beyond a reasonable doubt that the defendant had witnessed the victim’s banktransaction, had told Moss and Dante about the transaction and which pocket the victim had placed the money and had driven them around the comer to the alley down which the victim was walking, so that the men could rob the victim. “In addition, the jury may have adopted Detective Flachsbarth’s and Officer Sayler’s versions of D.D.’s testimony in which he informed them of the defendant’s, Moss’, and Dante’s involvement in the crime and ultimately showed the officers where the defendant left the other two men outside the alley. “Consequently, the record contains sufficient evidence to lead a reasonable person to conclude that Moss and Dante had committed the robbery against the victim at the instigation of, and with the assistance of, the defendant.” Slip op. at 19-21. Daniels has failed to demonstrate that the Court of Appeals’ conclusion was erroneous. The record contains sufficient evidence to support her convictions of aiding and abetting and conspiracy to commit aggravated robbery. Was Daniels' Conviction of Endangering a Child Supported by Sufficient EvidenceP . Finally, Daniels argues that there was insufficient evidence to support her conviction of endangering a child. Daniels was charged in a single count with endangering both D.D. and Dante in violation of K.S.A. 21-3608. The jury was instructed that in order to find Daniels guilty, it must find “[t]hat the defendant intentionally and unreasonably caused or permitted Dante and [D.D.] to be placed in a situation in which there was a reasonable probability that Dante and [D.D.’s] life, body or health would be injured or endangered.” The Court of Appeals agreed that the evidence was insufficient to establish that Daniels endangered D.D. because D.D. stayed in the car and there was no evidence that he was a party to the discussion about the robbery or that he witnessed it. The Court of Appeals understandably reached a different conclusion as to whether Daniels endangered Dante, since Daniels asked Dante to participate in the robbery. Slip op. at 24. The Court of Appeals also stated that any multiple acts problem arising out of the charging of a single count of child endangerment which included factual allegations as to both Dante and D.D. was resolved because the jury was given a unanimity instruction. Finally, the Court of Appeals stated that any error was harmless because, if the juiy believed that Daniels endangered D.D., it must also have believed that Daniels endangered Dante. Slip op. at 25. In her petition for review, Daniels argues this was not a multiple acts case; therefore, the fact that the jury was given a unanimity instruction was irrelevant. Daniels argues that because the evidence was insufficient to establish that she endangered D.D., her conviction must be vacated. In a multiple acts case, several acts are alleged and any one of them could constitute the crime charged. In such a case, the jury must be unanimous as to which act constitutes the crime. To ensure jury unanimity, either the jurors must be instructed that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt or the State must be required to elect the particular act upon which it will rely. State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994). The problem in this case is most aptly described as duplicity: “A complaint which charges two separate and distinct offenses in a single count is duplicitous. Duplicity is the joinder of two or more separate and distinct offenses in the same count, not the charging of a single offense involving a multiplicity of ways and means of action. Duplicitous charging is bad practice because it confuses the defendant as to how he or she must prepare a defense, and it confuses the jury.” State v. Anthony, 257 Kan. 1003, Syl. ¶ 9, 898 P.2d 1109 (1995). In this case, Daniels was alleged to have committed a single criminal act, the planning of an aggravated robbery, which endangered both D.D. and Dante. Because there were two different victims involved, the State could have charged Daniels with two separate counts of child endangerment. The remedy for duplicity is not dismissal of the count, but rather to require the State to elect upon which act it will rely. State v. Hammond, 4 Kan. App. 2d 643, 646-47, 609 P.2d 1171, rev. denied 228 Kan. 807 (1980) (citing 1 Wright, Federal Practice and Procedure: Criminal § 145 [1969]). As this court explained in State v. Campbell, 217 Kan. 756, 778, 539 P.2d 329 (1975), “[t]he vice of duplicity is that the jury is unable to convict of one offense and acquit of another offense where both are contained in the same count.” Clearly, that was the potential problem in this case. The jury could not convict Daniels of endangering one child but acquit her of endangering the other because both offenses were contained in the same count. If the jury instruction had charged Daniels with endangering D.D. or Dante, then it would be impossible to determine which charge the jury had agreed upon. However, as instructed, we have the required assurance of jury unanimity. The jury was instructed that it must find that Daniels endangered both Dante and D.D. Since a jury is generally presumed to have followed the instructions given by the trial court (State v. Fulton, 269 Kan. 835, 842, 9 P.3d 18 [2000]), we conclude that the jury found Daniels guilty of endangering both D.D. and Dante. We do not agree with the Court of Appeals’ conclusion that the evidence was insufficient to support Daniels’ conviction of endangering D.D. K.S.A. 21-3608 defines the crime of endangering a child as “intentionally and unreasonably causing or permitting a child under the age of 18 years to be placed in a situation in which the child’s life, body or health may be injured or endangered.” In State v. Sharp, 28 Kan. App. 2d 128, 135, 13 P.3d 29 (2000), the Court of Appeals concluded that there must be a reasonable probability that the harm will result or the child will be placed in imminent peril. The pattern instruction, PIK Crim. 3d 58.10, which was followed in this case, was modified to reflect this standard. When the evidence is viewed in the light most favorable to the prosecution, a reasonable factfinder could reach the conclusion that both children were endangered. Daniels planned the participation of one minor in the crime and the other, D.D., was in the car during the commission of numerous acts which were the basis of the charges that Daniels aided and abetted and conspired to commit the crime of aggravated robbery, a crime defined by our legislature as “inherently dangerous” (see K.S.A. 2003 Supp. 21-3436), including transporting the assailants to the alleyway where the aggravated robbery occurred. Affirmed.

The opinion of the court was delivered by McFarland, C.J.: This is an appeal challenging the district court’s authority under the Kansas Child Support Guidelines (Guidelines) to impute estimated child care expenses when imputing income to a custodial parent. In a published opinion by Judge Greene, a unanimous panel affirmed. In re Marriage of Paul, 32 Kan. App. 2d 1023, 93 P.3d 734 (2004). We granted appellant’s petition for review. While the Guidelines do not expressly provide for the imputation of reasonable child care costs, such imputation may be considered where circumstances warrant. The Guidelines do not specifically cover every possible situation, and a reasonable resolution of issues arising from a situation not covered, such as this case, is appropriate. We have reviewed the briefs, arguments, and record in this case, and we conclude the Court of Appeals was correct. We, therefore, adopt the opinion of the Court of Appeals and affirm both the Court of Appeals and the district court. Nuss and Gernon, JJ., not participating. Allen, S.J. and Larson, S.J., assigned.

The opinion of the court was delivered by Nuss, J.: Theodore V. Horn, II, was convicted by a juiy of first-degree premeditated murder for the death of his biological grandmother, Tina Weaver. Based upon the district court’s finding that the crime was heinous, atrocious, and cruel, he was given a hard 50 life sentence. Our jurisdiction is under K.S.A. 22-3601(b)(l), a maximum sentence of life imprisonment imposed. The issues on appeal and this court’s accompanying holdings are as follows: 1. Did the district court err by denying defendant’s motion to suppress all evidence? No. 2. Did the district court err by denying defendant’s motion in limine to exclude evidence of a pornographic magazine and allegations relating to sexual assault? No. 3. Did the district court err by refusing to instruct the jury on voluntary manslaughter as a lesser included offense? No. 4. Is Kansas’ hard 50 life sentence, K.S.A. 2003 Supp. 21-4635 et seq., without a jury finding beyond a reasonable doubt that aggravating circumstances occurred, a violation of the Sixth and Fourteenth Amendments to the United States Constitution? No. Accordingly, we affirm. FACTS Theodore V. Horn, II, had been an alcoholic for years. When his girlfriend lacked him out of her residence because he had resumed his drinking, he moved in with his grandmother, Tina Weaver, in May 2002. Weaver had raised Horn, and he called her “Mom.” She disapproved of his drinking and had called the police when he had previously been drinking or had been drunk at her house. She had once obtained a protection from abuse order against him, though it had expired in June 2000. On Friday, May 17, 2002 —• within a week or two of Horn’s moving in with Weaver — Krystal Kern, who lived across the street, left for work around noon. She saw Weaver standing inside Weaver’s house staring out through the screen door. Kern waved, but Weaver did not acknowledge her, which was unusual because Weaver would always wave, tell her good morning, and wish her a nice day. Kem then heard a man’s loud, angry voice coming from inside the house, but did not see Weaver react in any way. Kern never saw her again. Another neighbor, Greg Fisher, last saw Weaver on May 17 between 5 and 5:30 p.m. when she stuck her head outside her door. The next morning, May 18, he stopped at Weaver’s to drop off a bag of fruit and vegetables. He rang the bell, but received no answer, so he left the bag on the doorknob. That afternoon at 2:15 he received a call from his daughter advising him that another neighbor, Betty Roux, was requesting his assistance in checking on Weaver’s welfare. When he later approached Weaver’s door, he noticed the bag of fruit and vegetables still hanging outside. He received no response to the buzzer, and when he attempted to open the door, a safety chain only allowed it to open several inches. He detected a commotion in the dark living room and Horn called out to say they had overslept but everything was ok. As Fisher walked away, Roux advised that she had already called 911 to come and check on Weaver. Officer Gregory Johnson of the Wichita police was dispatched that day to 422 North Custer for a check-welfare call. He had been told that he was going to check the welfare of an 89-year-old female whom the neighbors said they had not seen in a couple of days. Officer Michelle Woodrow arrived at the same time, i.e., approximately 3 p.m. Emergency medical services personnel and ambulances also arrived. The officers spoke to Roux and Roux’s daughter. Roux told them that she had not seen Weaver for a couple of days and that she was concerned because she was used to Weaver being at her front door collecting mail. Roux was concerned because the mail was still in Weaver s mail slot, which was unusual. According to Roux, Weaver knew exactly when the mail was supposed to arrive, and if it was a few minutes late, she would call her neighbors. Roux told Officer Johnson that she had knocked on Weaver’s door but Horn refused to open it. Horn told Roux that Weaver was okay, but Roux thought his response was unusual so she called 911. After the conversation with Roux and her daughter in Roux’s front yard, Officer Johnson and Officer Woodrow walked next door to 422 North Custer. Johnson confirmed the mail was still in the slot next to the door. He opened the screen door and knocked on the inner door. Johnson heard a male voice from inside ask who it was, and Johnson identified himself as a police officer. For 4-5 minutes, Johnson continued knocking and calling for Horn by name. Officer Woodrow checked to see if the door was locked and pushed the door open. The door opened 3 to 4 inches, but a security chain prevented it from opening further. Through the opening they were able to see what appeared to be the shape of a body nearby under a blanket. When Horn eventually came to the door, he told the officers he and Weaver were asleep and he was naked. Johnson observed Horn was naked and directed him to get dressed because of the presence of a female officer. He also told Horn to open the door so they could check on his mother. At that point Horn stated, “She’s dead. I killed her.” He was again directed to put on pants and open the door, to which he stated several times, “This is murder. I killed my mom. I love my mom.” After he put on his pants and unchained the door, he was placed in handcuffs. Three additional times he repeated, “This is murder. I lulled my mom. I love my mom.” Horn was later taken to a hospital in an ambulance because he had passed out in the patrol car. At the hospital, Lieutenant Kenneth Landwehr observed a blood smear on Horn’s right forearm and removed the blood smear with a set of swabs. He observed Horn’s hands and detected no sign of injury. Landwehr also took a swab of Horn’s penis before medical personnel cleaned it. Mark Alexander was on duty as a detention deputy at the Sedgwick County jail at 7 p.m. when Horn was brought in. According to Alexander, Horn was screaming, saying that Weaver had been “bitching” at him and he got mad and twisted her neck and took a saw and started cutting her head off. Horn told the officers that she had been dead since Thursday, May 16. Police found Weaver’s body in the living room covered with a green blanket. They observed a massive trauma to her head and a massive amount of pooling of blood underneath it. A wooden carpenter’s level, broken and blood-spotted, was nearby. They also observed she was partially decapitated and a carpenter’s handsaw was underneath her body. The saw contained hair and blood, consistent with a pattern of blood drops near Weaver’s head. In front of the couch and 3 feet from Weaver’s feet was a pornographic magazine entitled “Live Young Girls” folded in half lengthwise. The magazine contained Horn’s semen and one of his fingerprints. The forensic pathologist who investigated the cause of Weaver’s death testified that based on the receding of rigor mortis in the body, she had probably been dead since 10:15 p.m. on Friday, May 17. He concluded she had died from multiple blunt and sharp force injuries. The neck injuries were consistent with the handsaw and reflected five separate starting points, with one major cut entirely through the vertebrae and ending at the trachea. The pathologist concluded that the major cut alone took between 30 minutes and 2 hours to inflict and that Weaver was still alive when the sawing occurred. Weaver’s body was partially clad, with her upper garments pushed over a shoulder and her slacks pulled down to the midpoint on her buttocks. Her genital area also contained small lacerations and abrasions, but no seminal fluid was found on swabs taken from her or her clothing. Horn’s DNA was not found on Weaver’s fingernails, her clothing, or the bloodstains on the tools used to kill her. Weaver’s DNA was not found on Horn’s jeans, his penile swab, or his forearm swab. At trial, Horn testified that on Friday, May 17, he had called his employer around 5 a.m. to see if he would be working that day. The employer had no work for him, so he began to drink. He remembered waking up after passing out on the couch and Weaver griping at him. He got up and ate something in the kitchen. Horn remembered the program Wheel of Fortune was on the television, which typically begins at 6:30 p.m. He returned to the couch and passed out again. It was dark when he woke up again and he learned he had urinated on himself. He got up, but did not remember what he did before he fell asleep again. Horn testified that he first saw Weaver’s body when he retrieved the newspaper. He started crying, got drunk again, and put a spread over her. He had no recollection of killing her. ANALYSIS Issue 1: Did the district court err by denying defendant’s motion to suppress all evidenceP Horn filed a motion to suppress all the evidence found at the Weaver house, arguing that the officers’ opening of the door and looking inside was the beginning of a search and seizure which violated his rights under the Fourth Amendment to the United States Constitution. His motion included his statements to the police, citing Wong Sun v. United States, 371 U.S. 471, 485, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963) (verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest is no less the fruit of official illegality than the more common tangible fruits of the unwarranted intrusion). After a hearing at which only Officer Johnson testified, the district court denied the motion. On appeal, Horn renews the arguments made to the district court; if he is successful, the remaining issues are moot. Our standard of review is well known: “ “When reviewing a motion to suppress evidence, an appellate court reviews the factual underpinnings of a district court’s decision “ ‘by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. An appellate court does not reweigh the evidence. The ultimate determination of the suppression of the evidence is a legal question requiring independent appellate review.’ ” [Citations omitted.]’ ” State v. Mendez, 275 Kan. 412, 416, 66 P.3d 811 (2003) The district court made the following statement when denying Horn’s motion to suppress: “All right. Based on — I have reviewed, in fact, the motions that have been filed here. And after considering the evidence presented and the arguments of counsel, it’s obvious to this Court that exigent circumstances, in fact, existed in this situation given the officer — information and knowledge the officers had prior to opening the door. Opening the door was appropriate under those circumstances and necessary. “After opening the door, it was patently obvious that exigent circumstances existed by any measure and further entry was appropriate and necessary. “Now, as to the penile swabs and evidence collected there, there was an emergency situation existing. The question as to whether or not Detective Landwehr could have directed health care providers to provide — to not provide treatment they had already deemed to be appropriate and necessary to a later unspecified time to await a warrant, I don’t think that option was available. I believe that it would have been inappropriate if not impossible to put off such procedures once medical personnel had made that determination absent the use of threat or force by the police against the health care providers. “And, therefore, the motions and all requests by the defense at the time are overruled.” We begin by determining whether a search occurred. The district court apparently concluded that one had. A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. Maryland v. Macon, 472 U.S. 463, 469, 86 L. Ed. 2d 370, 105 S. Ct. 2778 (1985). One’s reasonable expectation of privacy in the home is entitled to unique sensitivity. State v. Platten, 225 Kan. 764, 769, 594 P.2d 201 (1979). The viewing by police into an area where an individual has a subjective expectation of privacy that society accepts as reasonable constitutes a search. State v. Morris, 27 Kan. App. 2d 155, 158, 999 P.2d 283, rev. denied 269 Kan. 938 (2000). Accordingly, the officers’ opening the door and looking into the house where Horn was living was a warrantless search. See Mitchell v. State, 294 Ark. 264, 269, 742 S.W.2d 895 (1988) (even though door was unlocked and officer slightly opened door to peek inside; warrantless entry into home clearly violated Fourth Amendment’s prohibition of unreasonable searches). We acknowledge that unreasonable searches and seizures are constitutionally prohibited and, unless a search falls within one of a few exceptions, a warrantless search is per se unreasonable. Mendez, 275 Kan. at 420-21. We further acknowledge that the exclusionary rule prohibits the admission of the “fruits” of illegally seized evidence, i.e., any information, object, or testimony uncovered or obtained, directly or indirectly, as a result of the illegally seized evidence or any leads obtained therefrom. 275 Kan. at 421. While a warrantless search was performed in the instant case, the State argues that the search was valid under the emergency doctrine, one of several exceptions to the search warrant requirement recognized in Kansas. See Mendez, 275 Kan. at 421. As the United States Supreme Court described the doctrine in Mincey v. Arizona, 437 U.S. 385, 392, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978): “We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid . . . ‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’ [Citation omitted.]” Our Court of Appeals echoed Mincey in State v. Jones, 24 Kan. App. 2d 405, 409-10, 947 P.2d 1030 (1997): “The emergency doctrine reflects a recognition that the police perform a community caretaking function which goes beyond fighting crime. [Citation omitted.] Under this function, the community looks to the police to render aid and assistance to protect fives and property on an emergency basis regardless of whether a crime is involved.” In Mendez, 275 Kan. at 425, this court approved the use in Jones of a three-part test from People v. Mitchell, 39 N.Y.2d 173, 177-78, 383 N.Y.S.2d 246, 347 N.E.2d 607 (1976), for analyzing the applicability of the emergency doctrine: “(1) The police must have reasonable grounds to believe that [1] there is an emergency at hand and [2] an immediate need for their assistance for the protection of life or property; “ ‘(2) The search must not be primarily motivated by intent to arrest and seize evidence. “ ‘(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.” ’ ” All three elements must be met to satisfy the emergency doctrine. See Mendez, 275 Kan. at 428. However, Horn disputes only the first element. The burden of establishing this element is on the State. See State v. Anderson, 259 Kan. 16, Syl. ¶ 1, 910 P.2d 180 (1996) (on a motion to suppress evidence, State bears the burden of proving the lawfulness of the search and seizure). , As the Jones court further observed: “It is important to keep in mind that reasonable grounds under the emergency doctrine differs from the probable cause required under the more familiar crime-related exigent circumstances exception.” 24 Kan. App. 2d at 414. It quoted from State v. Fisher, 141 Ariz. 227, 240-41, 686 P.2d 750, cert. denied 469 U.S. 1066 (1984), regarding this crucial difference: “ ‘The exigent circumstances exception is triggered when the police, with probable cause but no warrant, enter a dwelling in the reasonable belief that the delay necessary to obtain a warrant threatens the destruction of evidence, [citations omitted], or when they have a reasonable belief that a crime is in progress or has just been committed in a dwelling and the delay attendant to obtaining a warrant endangers the safety or life of a person therein. [Citations omitted.] .... “ ‘Conversely, the emergency aid doctrine is triggered when the police enter a dwelling in the reasonable, good-faith belief that there is someone within in need of immediate aid or assistance. In cases in which this doctrine applies there is no probable cause which would justify issuance of a search warrant, . . . and the police are not entering to arrest, search, or gather evidence.’ ” (Emphasis added.) 24 Kan. App. 2d at 414. As the Jones court stated, ultimately the question of whether the officer had a “reasonable, good faith belief that there is someone within in need of immediate aid or assistance” is based upon what the officer understood at the time — not necessarily whether such immediate aid or assistance was needed. 24 Kan. App. 2d at 408. We agree that an objective standard as to the reasonableness of the officer s belief must be applied, i.e., whether there is evidence which would lead a prudent and reasonable officer to see a need to act. See Jones, 24 Kan. App. 2d at 416 (the officers’ actions are judged on the basis of the facts facing them at moment of their decision and are evaluated objectively). We also acknowledge that as this standard is applied to the circumstances then confronting the officer, it also includes the need for a prompt assessment of sometimes ambiguous information concerning potentially serious consequences. Stated a different way: “The question is whether ‘the officers would have been derelict in their duty had they acted otherwise.’ ” See 3 La Fave, Search and Seizure, § 6.6(a) pp. 391-92 (3d ed. 1996). In the instant case, Horn predictably claims that the police did not have reasonable grounds to believe that an emergency existed. He further argues that the district judge failed to make any specific findings of fact and then found that exigent circumstances, not an emergency, existed. The State responds that the district court’s use of the term “exigent” was simply a mixing with the term “emergency,” that does not invalidate the court’s conclusion that a war-rantless search exception existed. The district court based its finding of an exception on the information the officers had prior to opening the door, but as evidenced by its statements set forth previously in this opinion, it did not specify what that information was. It also did not articulate clearly the specific legal doctrine relied upon in upholding the search. We agree with the State that the district court’s use of the terms “exigent” and “emergency” when referring to the actions at the Weaver home and at the hospital, respectively, does not invalidate the court’s conclusion that an exception existed. Moreover, the emergency doctrine may be used to uphold the search, even if not relied upon by the court. See State v. Bryant, 272 Kan. 1204, 1209, 38 P.3d 661 (2002) (appellate court may uphold decision of trial court on grounds alternate to those relied on at the trial level). We hold that the district court’s findings, while by no means copious, are supported by substantial competent evidence as provided by Officer Johnson’s testimony at the suppression hearing. The information known to him before Officer Woodrow partially pushed open the door occurred in the following chronological order. Dispatch sent Officer Johnson to a residence at 422 N. Custer “to check the welfare of an elderly woman.” Checking on the welfare of the elderly is part of his regular job duties and he does it on a regular basis. He arrived at approximately 3 p.m., the same time as Officer Woodrow. He and Woodrow contacted the neighbor, Mrs. Betty Roux, and Roux’s adult daughter at 420 N. Custer in their front yard. Betty Roux told him that she had called 911 because she was concerned for her neighbor, Tina Weaver, whom she had not seen in a couple of days. Roux told Johnson that Weaver lived at 422 N. Custer, that Weaver was 89 years old, and that not seeing Weaver was unusual. She explained she “[u]sually would see her at the door either collecting mail or coming out the door for one reason or another.” Roux expressed concern for Weaver’s health and welfare because Weaver was elderly. Roux explained that earlier in the day she had gone to Weaver’s door and knocked. Ted, Weaver’s son, yelled through the door and said they were ok. Roux knew Ted because he had previously lived with Weaver off and on and had just recently returned from somewhere. She told Johnson that Ted would not open the door, which concerned her because it was very unusual. In the past, he had always opened the door and let her talk to Weaver. Officer Johnson then approached the Weaver house with Officer Woodrow. He confirmed one of Roux’s statements by observing the mail was still in Weaver’s slot. He could not see in the windows so he knocked on the door. He heard a male voice from inside ask “Who is it”? Johnson replied, “It’s the police.” Johnson continued to knock on the door and yell through the door for “Ted” to come to the door, calling him by name. Johnson testified that after 4-5 minutes: “When we still didn’t hear anything, we didn’t hear any movement or anything in the house and we knew somebody was in there, we were concerned, of course, for the elderly lady that lived there so we decided to see if the door was unlocked, maybe we could actually see if Ted was in the front room so we could talk to him and check on what I thought was his mom at the time.” (Emphasis added.) Officer Woodrow then reached down, turned the door knob, and pushed the door open. Having found substantial competent evidence to support the district court’s findings regarding the information the officers had prior to opening the door, we next consider step two in our analysis of the suppression issue, a de novo review of the ultimate legal conclusion drawn from those factual findings. The district court concluded the search was valid, albeit under a somewhat different basis than a pure emergency. We acknowledge that ultimately search and seizure cases are all fact sensitive and determinative. Mendez, 275 Kan. at 429. We hold, however, that this case’s findings of fact support the trial court’s legal conclusion that the search was valid. We base our holding in large part upon Jones. There, a Topeka police officer was dispatched to an apartment complex on a “check the welfare of a subject” call where he met with the parents of Tony Flamez, who were concerned about their son. 24 Kan. App. 2d at 406. They had made plans to have dinner with him 3 days before, but he had not shown up and they had not seen him since. They had called his apartment several times and left answering machine messages, but he had never answered or returned the calls. The parents said this was unusual behavior for him and that he had made a recent acquaintance of whom he was afraid. Several police officers, together with the parents and an apartment employee, went to Tony’s apartment. After knocking on the door, calling for Tony, and receiving no response, the police asked the employee to open the door with the manager’s key, which he did. Inside the police discovered a man, a woman, and drugs. The Court of Appeals upheld the search and seizure under the emergency doctrine. Tony was later located in another apartment. Similarly, in the instant case, before the police opened the Weaver door, they possessed information that an 89-year-old woman had broken from her distinct, almost rigid, routine and had not been seen for several days. Additionally, they knew Horn had broken from his practice and had refused to open the door to allow neighbor Roux to see his grandmother that day. We acknowledge that the Jones facts are slightly different because there the resident completely failed to respond to the officers’ knocking on the door and calling his name, while here Horn did respond orally to the knock, but then silently stalled for 4-5 minutes upon learning it was the police. Despite this difference, in the instant case the police were justified in opening the door to yell for Weaver or for Horn, or to look for Weaver. Horn’s question, followed by his lengthy silence and refusal to come to the door, certainly did nothing to alleviate the officers’ concerns about Weaver as expressed by Roüx and as confirmed by their observations. If anything, their concerns became greater. In short, based upon what the officers knew at the time, they had a reasonable, good faith belief that there was an emergency at hand and an immediate need for their assistance for the protection of life. As stated by the court in Jones: “[P]olice are often forced to make judgment calls under circumstances where it is better to err on the side of safety. The fact that Tony was not discovered in need of help in his apartment is of no relevance. [Citation omitted.] The officers’ actions are judged on the basis of the facts facing them at the moment of their decision and are evaluated objectively with due consideration for the stress of the moment and the pressure to make important decisions based on often ambiguous facts. It would indeed be tragic if Tony had lain injured or dying, or had been under restraint in the apartment, and the police had refused to take seriously the concerns of a mother and father who knew their son’s habits and disposition.” 24 Kan. App. 2d at 416. Stated another way, “[t]he question is whether the ‘officers would have been derelict in their duly had they acted otherwise.’ ” We conclude that under the facts of the instant case, they would have been. Once it is established that the opening of the door and the officers’ looking inside are permissible, they may seize any evidence that is in plain view during the course of their legitimate emergency activities. Mincey v. Arizona, 437 U.S. at 392-93; see State v. Gocken, 71 Wash. App. 267, 279, 857 P.2d 1074 (1993) (once officers lawfully inside residence performing health and safety check, their discovery of evidence falls within the plain view exception to the warrant requirement). Consequently, the officers’ finding of Weaver’s body and the evidence surrounding it in plain view in the living room, plus Horn’s repeated inculpatory statements, are admissible against him. Issue 2: Did the district court err hy denying defendant’s motion in limine to exclude evidence of a pornographic magazine and allegations of sexual assault P In addition to filing a motion to suppress all evidence, Horn also filed a motion in limine to exclude, among other things, the “Live Young Girls” magazine that was found near Weaver’s feet. The district court denied the motion, finding the magazine was relevant to show motive for the crime. It acknowledged that motive was not an element of the crime, but nevertheless “the jury is going to be wondering why the defendant did these actions to his mother if in fact he did.” After citing K.S.A. 60-445, the court also found the evidence’s probative value was not outweighed by its prejudicial effect. Horn renews his lower court argument that the magazine was erroneously admitted because it was irrelevant and, together with the allegations of sexual assault, highly prejudicial. The State responds that the magazine and allegations of sexual assault were relevant to provide motive for the murder and were not overly prejudicial. We first observe that a motion in limine to exclude evidence should be granted if the trial court finds two factors present: (1) The material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer of evidence or statements made during trial concerning the material will tend to prejudice the jury. State v. Galloway, 268 Kan. 682, 690, 1 P.3d 844 (2000). We next observe that except as otherwise provided by statute, all relevant evidence is admissible. K.S.A. 60-407(f). Relevant evidence is defined as “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). Additionally, when considering evidence of the attending circumstances at the time an accused is arrested, including articles of property which are found in his or her possession, the general rule is that they are relevant and admissible “where the circumstances logically tend to connect the accused with the crime charged.” State v. Sexton, 256 Kan. 344, 353, 886 P.2d 811 (1994). Similarly, “ ‘[w]hen 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.’ ” 256 Kan. at 353 (quoting State v. Ji, 251 Kan. 3, 15, 832 P.2d 1176 [1992]). Here, the pornographic magazine was found 3 feet from Weaver’s body. Horn’s fingerprint and semen were on the magazine. Some evidence suggested a sexual assault on Weaver, e.g., her shirt was up over her shoulder and her pants were down to the middle of her buttocks. Moreover, the autopsy revealed small lacerations and abrasions on her genital area. While no seminal fluid was found on Weaver or her clothing and Weaver’s DNA was not present in the penile swab taken from Horn, these absences do not disprove that a sexual assault occurred; they simply constitute evidence supporting Horn’s defense. Consequently, we find the magazine, as evidence supporting the State’s theory of sexual assault as a motive for the murder, was relevant and properly submitted to the juiy for weighing with the other evidence. See State v. Sexton, 256 Kan. at 352-53. Horn next argues that even if the magazine were relevant, the magazine and the allegations of sexual assault were so prejudicial they should not have been admitted. He argues that the title of the magazine, suggesting that the subjects are minors, combined with inference of incest, would greatly prejudice the jury against him. Where the probative value is substantially outweighed by the risk of unfair prejudice, even relevant evidence may be excluded by the judge. State v. Meeks, 277 Kan. 609, 618, 88 P.3d 789 (2004); see also State v. Kingsley, 252 Kan. 761, 770, 851 P.2d 370 (1993) (noting that despite the wording of K.S.A. 60-445, the element of surprise does not get factored into the equation). Our standard of review of otherwise relevant evidence which arguably should have been excluded after this particular weighing is abuse of discretion. Meeks, 277 Kan. at 618. Discretion is abused only when no reasonable person would take the view adopted by the trial court; the burden of proof is on the party alleging the discretion is abused. Meeks, 277 Kan. at 618. Here, other evidence was introduced which established that someone had beaten an 89-year-old woman by repeatedly hitting her over the head with a carpenter s level until it broke and then had attempted to cut off her head with a handsaw — for at least 30 minutes — while she was still alive. In light of the admission of this and similarly disturbing evidence, Horn fails to meet his burden of demonstrating that the court’s admission of the pornographic magazine, after weighing the probative value against the prejudicial effect, was an abuse of discretion. Specifically, we cannot say that no reasonable person would take the view adopted by the trial court. See Meeks, 277 Kan. at 618. Issue 3: Did the district court err by refusing to instruct the jury on voluntary manslaughter as a lesser included offense? Horn was charged with first-degree premeditated murder. The jury was instructed on this charge and on second-degree murder. Horn argues that the jury should also have been instructed on voluntary manslaughter as a lesser included offense, and that the district court erred in refusing his request. A trial court must instruct the jury as to lesser included crimes “[i]n cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (2) of K.S.A. 21-3107 and amendments thereto.” K.S.A. 2003 Supp. 22-3414(3). It is well settled that voluntary manslaughter, like second-degree murder, is a lesser included offense of first-degree murder. State v. McClanahan, 254 Kan. 104, 109, 865 P.2d 1021 (1993). “The evidence of a lesser included offense need not be strong or extensive as long as it presents circumstances from which the lesser offense might reasonably be inferred.” State v. Guebara, 236 Kan. 791, 795, 696 P.2d 381 (1985). “Such an instruction must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant.” State v. Follin, 263 Kan. 28, 33, 947 P.2d 8 (1997). “However, the duty to so instruct arises only where there is evidence supporting the lesser crime. State v. Shannon, 258 Kan. 425, 427, 905 P.2d 649 (1995).” State v. Spry, 266 Kan. 523, 528, 973 P.2d 783 (1999). On review, this court views the evidence in the light most favorable to the defendant. State v. McClanahan, 254 Kan. at 109. K.S.A. 21-3403 sets forth the elements of voluntary manslaughter: “Voluntary manslaughter is the intentional killing of a human being committed: “(a) Upon a sudden quarrel or in the heat of passion; or “(b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211,21-3212 or 21-3213 and amendments thereto. “Voluntary manslaughter is a severity level 3, person felony.” Some basic principles on this issue were set forth by this court in State v. Guebara, 236 Kan. at 796-97: “(1) Voluntary manslaughter is the intentional killing in the heat of passion as a result of severe provocation. . . . “(2) ‘Heat of passion’ means any intense or vehement emotional excitement of the land prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror. Such emotional state of mind must be of such a degree as would cause an ordinary man to act on impulse without reflection. [Citations omitted.] “(3) In order to reduce a homicide from murder to voluntary manslaughter, there must be provocation, and such provocation must be recognized by the law as adequate. A provocation is adequate if it is calculated to deprive a reasonable man of self-control and to cause him to act out of passion rather than reason. 2 Wharton’s Criminal Law § 155. In order for a defendant to be entitled to a reduced charge because he acted in the heat of passion, his emotional state of mind must exist at the time of the act and it must have arisen from circumstances constituting sufficient provocation. [Citations omitted.] “(4) The test of the sufficiency of the provocation is objective, not subjective. The provocation, whether it be ‘sudden quarrel’ or some other form of provocation, must be sufficient to cause an ordinary man to lose control of his actions and his reason. [Citations omitted.] In applying the objective standard for measuring the sufficiency of the provocation, the standard precludes consideration of the innate peculiarities of the individual defendant. The fact that his intelligence is not high and his passion is easily aroused will not be considered in this connection. State v. Jackson, 226 Kan. [302,] 307 [, 597 P.2d 255 (1979), cert. denied 445 U.S. 952 (1980)]. “(5) Mere words or gestures, however insulting, do not constitute adequate provocation, but insulting words when accompanied by other conduct, such as assault, may be considered. 2 Wharton’s Criminal Law § 156. In State v. Buffington, 71 Kan. 804, 81 Pac. 465 (1905), it was held that the trial court properly instructed the jury that no words, however abusive and insulting, will justify an assault or will justify a sufficient provocation to reduce to manslaughter what otherwise would be murder. See also State v. Hardisty, 121 Kan. 576, 249 Pac. 617 (1926).” With these standards in mind, we must determine whether there was sufficient evidence of an adequate provocation to instruct on voluntary manslaughter. Horn argues sufficient evidence is present based upon two sources: (1) the testimony of Krystal Kern and (2) testimony that Weaver had previously complained about Horn’s drinking. The State points to a possible third source: the testimony of Deputy Alexander. We agree that all should be considered when we review “the evidence in the light' most favorable to the defendant.” State v. McClanahan, 254 Kan. at 109. Krystal Kern testified that as she left for work around noon on Friday, May 17, she saw Weaver standing inside Weaver’s house staring through the screen door and waved to Weaver, but Weaver did not acknowledge her. Kern then heard a man’s loud, angry voice coming from Weaver’s house, but did not see Weaver react in any way. Horn couples Kern’s testimony with his testimony regarding the “discordant relationship” he had had with Weaver concerning his drinking to conclude he may have been provoked on the day of her death. However, Horn’s argument that Kern’s observation evidences provocation is virtually eliminated by the testimony of Greg Fisher, who saw Weaver with her head out of the front door approximately 5 hours later. “With the passing of time after provocation, passion cools and gives way to reason and mastery over one’s passion. An act of violence separated from the provocation by sufficient cooling time is the product of malice and cold calculation rather than heat of passion.” State v. Follin, 263 Kan. at 38; see State v. Spry, 266 Kan. at 528-29. Moreover, mere words or gestures, however in- suiting, do not constitute adequate provocation. State v. Guebara, 236 Kan. at 797. Additionally, beyond the Kern testimony, Horn points to no evidence even suggesting that the discordant relationship somehow resulted in a provocation which caused her death. His major problem is that he simply has no recollection of killing Weaver. Furthermore, any suggestion that the killing was in the heat of passion is virtually eliminated by the coroner’s testimony indicating that after someone struck Weaver repeatedly with the carpenter’s level, someone then methodically began to saw her head off — while she was alive —• for at least 30 minutes. Finally, while the State raises the possibility of Deputy Alexander’s testimony as providing the basis for Horn’s provocation, we agree with the State that it is insufficient. According to Alexander, Horn was screaming that Weaver was “bitching” at him, he got mad and twisted her neck, then took a saw and started cutting her head off. Mere words or gestures by Weaver, however insulting, do not constitute adequate provocation. See State v. Guebara, 236 Kan. at 797. Horn’s vague evidence simply does not meet the provocation threshold — that which is calculated to deprive a reasonable man of self-control and to cause him to act out of passion rather than reason — to warrant the voluntary manslaughter instruction. Finally, we observe that even if the instruction should have been given, the error does not warrant reversal. Since the instruction had been requested, denied, and objection made, our standard is as follows: “ “When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could npt reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous.’ ” State v. Peterson, 273 Kan. 217, 221, 42 P.3d 137 (2002) (quoting State v. Mitchell, 269 Kan. 349, 355, 7 P.3d 1135 [2000]) In this case, the jury was instructed on both first-degree premeditated murder and second-degree murder, a lesser included offense. Instruction No. 5 provided: “If you do not agree that the defendant is guilty of murder in the first degree, you should then consider the lesser included offense of murder in the second degree. "To establish this charge, each of the following claims must be proved: “1. That the defendant intentionally killed Tina A. Weaver; and “2. That this act occurred on or about the 17th day of May, 2002, to the 18th day of May, 2002, in Sedgwick County, Kansas.” (Emphasis added.) The jury is presumed to follow the instructions. State v. Kunellis, 276 Kan. 461, 484, 78 P.3d 776 (2003). Here, the jury convicted Horn of first-degree premeditated murder, and did not descend to the lesser included charge of second-degree murder. As the district court pointed out at sentencing about the failure to give the juiy instructions on yet another lesser included charge: “In order to reach voluntary manslaughter, according to the instructions, the jury would have at least had to have reached second-degree murder, which they didn’t in this case. So, really, the issue is moot because even if the Court had given voluntary manslaughter, the jury in this case apparently would have never reached it.” While we disagree that the issue became moot, neither did it constitute reversible error. See State v. Metcalf, 203 Kan. 63, 67, 452 P.2d 842 (1969) (“rule has been well established that when a defendant has been charged with and convicted of murder in the first degree, the correctness of instructions relating to manslaughter becomes immaterial”). Accord, State v. Spencer, 186 Kan. 298, 303-04, 349 P.2d 920 (1960); Ross v. State, 482 A.2d 727, 736 (Del. 1984) (substantial body of law in other jurisdictions that a finding of guilt to a greater offense renders harmless any error in instructions on lesser included offenses). The case of Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991), is directly on point. There, the defendant argued that it was reversible error for the trial court to decline to instruct on the lesser included offense of manslaughter, when it had instructed on first- and second-degree murder. As the Arkansas Supreme Court held: “When a lesser included offense has been the subject of an instruction, and the jury convicts of the greater offense, error resulting from failure to give an instruction on another still lesser included offense is cured. [Citations omitted.] This is commonly referred to as ‘the skip rule.’ ” 306 Ark. at 620. Issue 4: Is Kansas’ hard 50 life sentence, without a jury finding beyond a reasonable doubt that aggravating circumstances occurred, a violation of the Sixth and Fourteenth Amendments to the United States ConstitutionP This issue was not raised below, but the district court addressed it at sentencing, citing State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001), as authority that the State’s procedure is constitutional. Since that time, Horn’s identical argument has been expressly rejected by this court in State v. Washington, 275 Kan. 644, 680, 68 P.3d 134 (2003), and State v. Boldridge, 274 Kan. 795, 812, 57 P.3d 8 (2002), cert. denied 155 L. Ed. 2d 494 (2003). Horn’s argument therefore has no merit. Affirmed.

The opinion of the court was delivered by McFarland, C.J.: The narrow single issue in this case is whether a defendant in a criminal case whose probation has been revoked by a district magistrate judge may appeal the revocation to the district court under authority of K.S.A. 2003 Supp. 22-3609a. FACTS The relevant facts and procedural history are not in dispute and may be summarized as follows. Legero pled guilty in separate cases to disorderly conduct and attempted criminal damage to property, both misdemeanors. On September 20, 2001, a district magistrate judge sentenced Legero to 30 days in jail for each count, to run concurrently. Legero was granted 12 months’ probation. On May 9, 2002, Legero was before the magistrate for a probation revocation hearing. Legero stipulated to the allegation that he had been arrested and charged with driving under the influence of alcohol. The magistrate revoked Legero’s probation and ordered Legero to serve his jail sentence. Legero filed a notice of appeal to the district court pursuant to K.S.A. 2003 Supp. 22-3609a. The notice appealed the magistrate’s revocation of Legero’s probation and imposition of sentence. The district court dismissed the appeal, finding that it lacked subject matter jurisdiction to review a magistrate’s order revoking probation. Legero appealed the district court’s dismissal to the Court of Appeals. In a two to one decision, the Court of Appeals reversed the district court, concluding K.S.A. 2003 Supp. 22-3609a confers appellate jurisdiction in the district court. State v. Legero, 31 Kan. App. 2d 897, 75 P.3d 273 (2003). We granted the State’s petition for review. ISSUE PRESENTED K.S.A. 2003 Supp. 22-3609a(l) provides in part: “A defendant shall have the right to appeal from any judgment of a district magistrate judge.” (Emphasis added.) Legero contends that a revocation of probation order issued by a district magistrate is included in the term “any judgment.” The State contends the term “any judgment” as used in the statute is defined as a pronouncement of guilt and the determination of punishment. The parties agree that the resolution of this appeal depends upon the construction of the term “any judgment” as used in K.S.A. 2003 Supp. 22-3609a(l). SCOPE OF REVIEW Interpretation of a statute is a question of law permitting unlimited review. State v. Engles, 270 Kan. 530, 532, 17 P.3d 355 (2001). ANALYSIS The right to appeal is entirely statutory and is not contained in either fire United States or Kansas Constitutions. Subject to certain exceptions, Kansas courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by Wasson v. United Dominion Industries, 266 Kan. 1012, 1018-19, 974 P.2d 578 (1999). No exception to the rule is claimed herein. The precise question of whether K.S.A. 2003 Supp. 22-3609a affords a defendant an appeal from a district magistrate’s revocation of his or her probation is a question of first impression. However, there are three cases involving somewhat different factual situations which warrant discussion herein. In State v. Lashley, 233 Kan. 620, 664 P.2d 1358 (1983), the defendant sought to appeal from a magistrate’s order binding him over for arraignment. The district court ruled that the order was not appealable under 22-3609a. We affirmed the district court, stating: “The order binding the defendant over for arraignment was not a ‘judgment’ from which a defendant has a right to an appeal. Judgments that can be appealed under K.S.A. 1982 Supp. 22-3609a are convictions in traffic or misdemeanor cases and those convictions rendered pursuant to K.S.A. 1982 Supp. 22-2909(c).” (Emphasis added.) 233 Kan. at 624. In City of Wichita v. Patterson, 22 Kan. App. 2d 557, 919 P.2d 1047, rev. denied 260 Kan. 992 (1996), the defendant, over a 3-year period, pled guilty to several offenses in municipal court. On each occasion, the Wichita municipal court imposed a fine and a sentence, but placed the defendant on probation. In 1994, the municipal court revoked defendant’s probation. Under K.S.A. 22-3609, defendant tried to appeal the probation revocation to the district court, which then dismissed the appeal for lack of jurisdiction. Defendant then appealed the district court’s order dismissing his appeal to the Court of Appeals. The precise issue in Patterson was whether 22-3609(1) authorized an appeal to the district court of an order entered in municipal court revoking defendant’s probation. The Patterson court held: “K.S.A. 22-3609(1) is clear and unambiguous. It provides that one may only appeal from ‘any judgment of a municipal court which adjudges the defendant guilty of a violation of the ordinances of any municipality of Kansas.’ This is the only right of appeal from the judgment of a municipal court provided by the legislature. Defendant seeks to appeal from an order revoking his probation. He is not appealing from an order adjudging him guilty of violating an ordinance, and under the clear and unambiguous language of the statute, his appeal is not permitted. “. . . K.S.A. 22-3610(a) states in part: ‘When a case is appealed to the district court, such court shall hear and determine the cause on the original complaint.’ Interpreting this statute together with 22-3609 clearly indicates a legislative intent that appeals from municipal court will be limited to original adjudications of guilt and that post-trial decisions will not be appealable.” 22 Kan. App. 2d at 558-59. In State v. Remlinger, 266 Kan. 103, 968 P.2d 671 (1998), the defendant filed a notice of appeal under 22-3609a after he had been convicted of two misdemeanors but prior to sentencing. In district court, Remlinger claimed a violation of his speedy trial right when the de novo trial in district court was not commenced in a timely manner. The district court agreed and then dismissed his case. The State appealed therefrom, arguing that because Remlin-ger had appealed prior to sentencing by the magistrate judge, the district court never acquired jurisdiction in the case and so could not dismiss it on grounds of speedy trial violation. Remlinger countered that the district court had jurisdiction to dismiss because 22-3609a permitted an appeal of “any judgment,” and a finding of guilt by a magistrate judge is a judgment. 266 Kan. at 105. We rejected Remlinger’s argument by noting that “Kansas courts have repeatedly defined a criminal ‘judgment’ as a pronouncement of guilt and the determination of the punishment.” (Emphasis added.) 266 Kan. at 106. We also expressly held that the difference in the wording relative to appealable judgments contained in 22-3609 (applicable to municipal court appeals) and 22-3609a amounted to “a distinction without a difference,” as far as what judgments are appealable. 266 Kan. at 107. Lashley, Remlinger, and Patterson support the conclusion that K.S.A. 2003 Supp. 22-3609a does not authorize an appeal to the district court of a magistrate judge’s order revoking a defendant’s probation. However, the most compelling reason for concluding that a district magistrate’s order of probation revocation is not appealable is the language of K.S.A. 2003 Supp. 22-3609a, itself, read in its entirety. An appellate court must consider all of the provisions of a statute in pari materia rather than in isolation, and these provisions must be reconciled, if possible, to make them consistent and harmonious. As a general rule, statutes should be interpreted to avoid unreasonable results. The fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs. State v. Manbeck, 277 Kan. 224, 227, 83 P.3d 190 (2004). In its totality, K.S.A. 2003 Supp. 22-3609a provides: “(1) A defendant shall have the right to appeal from any judgment of a district magistrate judge. The chief judge shall be responsible for assigning a district judge for any such appeal. The appeal shall stay all further proceedings upon the judgment appealed from. “(2) An appeal to a district judge shall be taken by filing a notice of appeal with the clerk of the court. No appeal shall be taken more than 10 days after the date of the judgment appealed from. “(3) The clerk of the district court shall deliver the complaint, warrant and any appearance bond to the district judge to whom such appeal is assigned. The case shall be tried de novo before the assigned district judge. “(4) No advance payment of a docket fee shall be required when the appeal is taken. “(5) All appeals taken by a defendant from a district magistrate judge in misdemeanor cases shall be tried by the court unless a jury trial is requested in writing by the defendant. All appeals taken by a defendant from a district magistrate judge in traffic infraction and cigarette or tobacco infraction cases shall be to the court. “(6) Notwithstanding the other provisions of this section, appeal from a conviction rendered pursuant to subsection (c) of K.S.A. 22-2909 and amendments thereto shall be conducted only on the record of the stipulation of facts relating to the complaint.” We note that the reference to subsection (c) of K.S.A. 22-2909 pertains to criminal proceedings following a failed diversion agreement. The appeal 22-3609a affords a defendant from a judgment does not operate as a review of the propriety of any judicial determination. Rather, the case is transferred to the district court where it will be tried de novo and guilt or innocence determined anew in the district court. On appeal, the case becomes a district court case as if filed there originally. The proceedings in the magistrate court have no bearing on the case as it comes before the district court. Unless the appeal is dismissed, the proceedings held in the magistrate court leave no footprint. This procedure set forth in K.S.A. 2003 Supp. 22-3609a is virtually identical to the appeal afforded to a defendant who has been convicted in municipal court. The applicable statute is K.S.A;2003 Supp. 22-3609, which provides in part: “(1) The defendant shall have the right to appeal to the district court of the county from any judgment of a municipal court which adjudges the defendant guilty of a violation of the ordinances of any municipality of Kansas.” The difference in the wording of K.S.A. 2003 Supp. 22-3609, “from any judgment of a municipal court which adjudges the defendant guilty of a violation of the ordinances of any municipality of Kansas,” and the “any judgment” language of 22-3609a applicable herein was held to be a distinction without a difference in State v. Remlinger, 266 Kan. at 107. The procedures set forth in both statutes are virtual mirror images of each other. There is no appellate review of any prior order or judgment. For all practical purposes, the prosecution starts over. Also significant is K.S.A. 22-3610(a), which is applicable to appeals by a defendant from magistrate or municipal court conviction and provides: “When a case is appealed to the district court, such court shall hear and determine the cause on the original complaint, unless the complaint shall be found defective, in which case the court may order a new complaint to be filed and the case shall proceed as if the original complaint had not been set aside. The case shall be tried de novo in the district court.” (Emphasis added.) These procedures are in sharp contrast to appeals by the State from district magistrate actions. K.S.A. 2003 Supp. 22-3602(b) and (d) provide: “(b) Appeals to the court of appeals 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 or B felony or for crimes committed on or after July 1,1993, in any case involving an off-grid crime. “(d) Appeals to a district judge may be taken by the prosecution from cases before a district magistrate judge as a matter of right in the cases enumerated in subsection (b) and from orders enumerated in K.S.A. 22-3603 and amendments thereto.” K.S.A. 22-3603 affords the State an interlocutory appeal from an order quashing a warrant, suppressing evidence, or suppressing a confession or admission. Thus, a State appeal does not result in the case being transferred to the district court for trial de novo. Rather, the appeal results in judicial review of the propriety of a particular action or actions of the magistrate judges and is concluded by af-firmance or reversal of the magistrate judge. To construe the term “any judgment” in K.S.A. 2003 Supp. 22-3609a to include a revocation of probation order would have unreasonable and unintended results. Consider the following: (1) A defendant has 10 days to appeal from his or her conviction and sentence in the magistrate court; (2) if so appealed, the case would be tried de novo on the original complaint where guilt or innocence of the original charge will be determined; (3) if defendant does not appeal his or her conviction and is placed on probation which he or she successfully completes, then the conviction is final; (4) if, however, defendant is placed on probation in the magistrate court and fails to satisfy the terms thereof, resulting in the probation being revoked, then defendant has 10 days to appeal from the revocation; (5) upon such appeal, however, the propriety of the revocation order is not on judicial review. Rather, the earlier conviction, sentence, and revocation are swept away and guilt or innocence on the original complaint is retried de novo. This cannot be the legislative intent. We hold that K.S.A. 2003 Supp. 22-3609a does not authorize an appeal to the district court by a defendant from an order of a district magistrate judge revoking the defendant’s probation. To hold otherwise would be wholly inconsistent with the mandatory trial de novo procedure on the original complaint. The judgment of the Court of Appeals is reversed. The judgment of the district court is affirmed. Beier, J., not participating. Brazil, S.J., assigned.

The opinion of the court was delivered by Beier, J.: This dispute over the wills of the parents in a blended family requires us to decide whether the district court erred in (1) admitting a scrivener attorney’s testimony about a contemporaneous oral agreement between the parents; (2) holding that the wills were contractual, rendering a later will executed by the surviving parent ineffective; and (3) imposing a constructive trust on the estate property or proceeds. Plaintiffs Elizabeth Garrett, Calvin Humble, Dale Humble, and Patricia Humble are the children of John Humble. In 1967, their father married Sarah Puffinbarger, who had two daughters, defendants Deloris Read and Dorothy Brookhauser, and one son, Gary Lee Puffinbarger, from her previous marriage. Gary eventually predeceased his mother, leaving Sarah three of her grandchildren, third-party plaintiffs Christie Cambers, Gregory Puffinbarger, and Melanie Crumby. In 1984, lawyer Timothy Fielder prepared nearly identical wills for Sarah and John. Each will first directed that any funeral expenses and debts be paid from the estate. Each will also provided that one of Sarah’s daughters would receive a grandfather clock. The remaining estate was bequeathed to the surviving spouse “absolutely.” If one spouse predeceased the other, or if the spouses died at the same time, each will provided that the rest of the estate was to be divided into sevenths. One-seventh would be distributed to each of the six surviving children of the two spouses. The remaining one-seventh would be split evenly among Gary’s children. John died in October 1984, and his entire estate passed to Sarah. In 1993, Sarah met with Fielder and executed a new will, revoking her 1984 will. The 1993 will retained the grandfather clock provision, but it changed the disposition of the rest of Sarah’s estate, directing that it be divided into only two equal shares, one for each of her daughters. John’s four children and Gary’s three children were disinherited. Sarah died in October 2001. John’s children filed this lawsuit, seeking a constructive trust on four-sevenths of the estate property. They alleged the 1993 will was invalid because the 1984 wills had been contractual. Gary’s children intervened as third-party plaintiffs, also arguing that die 1984 wills were contractual and that Sarah could not violate her agreement with John by denying them their one-seventh share. Plaintiffs and third-party plaintiffs both relied on the 1984 wills’ reciprocal provisions as evidence of the contract between Sarah and John. Plaintiffs also relied on Fielder’s deposition testimony. Fielder testified that an agreement existed between Sarah and John at the time they executed their 1984 wills. He had explained joint and mutual wills to them and suggested including contractual language in the documents. Although they agreed they wanted contractual wills, they wanted the surviving spouse to be able to liquidate estate assets and spend all of the proceeds, if necessary. They also believed that an equal distribution among their seven children or their offspring would best reflect the assets each had brought into the marriage; they wanted the surviving parent to be prevented from changing the shares designated for the deceased parent’s children; yet they wanted the surviving parent to be able to alter the shares of that parent’s own children. Fielder said this was the intention behind the use of the word “absolutely” in the wills. Fielder also testified that, before Sarah executed her 1993 will, he informed her that she and John had entered into an agreement. Sarah told him she had taken care of John’s children outside of the will by means of joint property and investments. Fielder prepared the 1993 will in reliance on this statement. Defendants and third-party plaintiffs filed motions in limine. Defendants contended Fielder’s testimony should be barred as pa-rol evidence contradicting the wills. Third-party plaintiffs argued Fielder’s testimony was admissible only to prove the agreement to leave the estate to the children and grandchildren in sevenths; they asserted any further testimony from Fielder was inadmissible parol evidence. The district court denied the motions in limine, relying on In re Estate of Chronister, 203 Kan. 366, 454 P.2d 438 (1969), and In re Estate of Tompkins, 195 Kan. 467, 407 P.2d 545 (1965). Thus all of Fielder’s testimony was admitted into evidence. All parties filed motions for summary judgment. The district court found the evidence of an agreement between Sarah and John was uncontroverted. As a result, Sarah’s 1993 will could not alter the 1984 wills’ designation of shares for John’s children but could alter the shares designated for her own children. Thus the district court granted plaintiffs’ motion for summary judgment, denied defendants’ motion for summary judgment, and denied third-party plaintiffs’ motion for summary judgment. The district court imposed a constructive trust in favor of plaintiffs in an amount equal to four-sevenths of the worth of Sarah’s estate that had passed to the defendants. Defendants and third-party plaintiffs appealed to the Court of Appeals, and this court transferred the case pursuant to K.S.A. 20-3018(c). Standard of Review Our standard of review on appeal from summary judgment is well settled: “Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002). All three groups of parties filed dispositive motions in the district court. There were no genuine issues of material fact, which made this case amenable to consideration for summary judgment. We therefore turn to discussion of the controlling legal issues. Admission of Attorney Scriveners Testimony Generally, “[a]ll relevant evidence is admissible. K.S.A. 60-407(f). Relevant evidence is defined as ‘evidence having any tendency in reason to prove any material fact.’ K.S.A. 60-401(b).” State v. Dreiling, 274 Kan. 518, 549, 54 P.3d 475 (2002). There can be no serious question in this case regarding the relevance of the scrivener’s testimony. Beyond relevance, the admission of evidence lies within the sound discretion of the trial court. An appellate court’s standard of review regarding a trial court’s admission of evidence is abuse of discretion. See Wendt v. University of Kansas Med. Center, 274 Kan. 966, 975, 59 P.3d 325 (2002). An abuse of discretion must be shown by the party attacking the evidentiary ruling and “exists only when no reasonable person would take the view adopted by the district court.” Jenkins v. T.S.I. Holdings, Inc., 268 Kan. 623, 633-34, 1 P.3d 891 (2000). Defendants argued that the 1984 wills were unambiguous and that Fielder’s testimony therefore was barred by the parol evidence rule. In fact, our previous cases do not establish ambiguity as the analytical touchstone defendants want to make it. This court has held: “Extrinsic evidence is admissible in connection with the instruments themselves to show that separate wills, which are mutual and reciprocal in their bequests and devises, were executed in pursuance of an agreement between the testators, notwithstanding the absence of recitals in the wills designating or referring to such agreement. Such evidence may consist of writings, acts and declarations of the parties, testimony of other persons, and evidence of all the surrounding facts and circumstances.” Eikmeier v. Eikmeier, 174 Kan. 71, Syl. ¶ 1, 254 P.2d 236 (1953). This court has also stated that “the rule that parol evidence is never admissible to change or vary the terms and provisions of an unambiguous will does not render inadmissible extrinsic evidence that a will was executed pursuant to an agreement.” In re Estate of Tompkins, 195 Kan. at 474 (citing Eikmeier, 174 Kan. 71, Syl. ¶ 2). “The admission of such evidence may result in proving the will to have been non-contractual as well as contractual. [Citations omitted.]” Tompkins, 195 Kan. at 474. In Eikmeier, 174 Kan. at 72-73, Fred and Mary D. Eikmeier “concurrently executed separate wills.” Maiy D.’s will left a life estate in her property to Fred; and, at his death, the estate was to pass to their three children. Fred’s will left Mary D. a life estate in a quarter section of land; and, at her death, that land was to pass to their son Lee, with the remainder given to their three children. Neither will mentioned the other, and neither contained contractual language. Mary died shortly after the wills were executed, and Fred married Mary A. On his wedding day, he executed a deed conveying the quarter section of land to Mary A. at his death. Lee brought suit to have the wills between Fred and Maiy D. declared contractual. Testimony by the attorney who prepared Fred’s and Maiy D.’s wills was introduced. Fred and Maiy A. objected to the testimony. The court held that the attorney’s parol evidence could be introduced — not to contradict the written instrument but to prove the existence of the contract between Fred and Maiy D. 174 Kan. at 76-81. There was no necessity that the language of the wills be characterized as ambiguous before the parol evidence was admitted. In Tompkins, Charles and Louisa Tompkins executed a joint and mutual will leaving property first to the surviving spouse, then to their niece, cousins, and friends. Louisa died, and the niece and Charles changed some property to joint tenancy in their names. The other beneficiaries objected. This court relied on Eikmeier and upheld the admission of the scrivener s testimony regarding the existence of an agreement between Charles and Louisa. 195 Kan. at 474. We determined that the language of the will and the parol evidence supported the existence of a contract. 195 Kan. at 471-72, 474. Again, no ambiguity in the language of the will was necessary before the parol evidence was considered. Many other Kansas cases also support the approach taken by the district court here. See, e.g., In re Estate of Stratmann, 248 Kan. 197, 207, 806 P.2d 459 (1991) (where wills contain no contractual language, court must “search extrinsic evidence for guidance”); In re Estate of Wade, 202 Kan. 380, 387, 449 P.2d 488 (1969) (proof of existence of agreement between testators may be developed through extrinsic evidence); In re Estate of Zahradnik, 6 Kan. App. 2d 84, 91-93, 626 P.2d 1211 (1981) (error for district court not to allow extrinsic evidence to establish existence of contract, even though will contained no contractual language, where distributions of property identical and wills use plural pronouns). It was not an abuse of discretion for the district court to allow Fielder’s testimony. The language of the wills supported the existence of a mutual understanding between Sarah and John to leave the bulk of their estate to the surviving parent for full use during that person’s lifetime, then to the six children and one set of grandchildren evenly. Testimony regarding such an agreement was not barred by the parol evidence rule. See Eikmeier, 174 Kan. 71, Syl. ¶ 1; Tompkins, 195 Kan. at 474. Plaintiffs were not required to demonstrate first that the language of the wills was ambiguous in order to admit testimony regarding the oral agreement. Third-party plaintiffs nevertheless continue to argue that Fielder’s testimony was admissible only to the extent that it proved the existence of an agreement regarding distribution of seven equal shares. They claim Fielder’s testimony about the further agreement that the surviving parent would have a right to alter the shares of his or her own children should have been inadmissible. We disagree. Fielder’s further testimony about this topic explained more than the choice of the word “absolutely.” The testimony did not alter or amend the language of the wills; it further demonstrated the existence of the basic agreement to divide the bulk of the estate into sevenths; and it demonstrated the existence of a sensible limitation on that agreement, reserving to the surviving parent the right to alter the distributions to his or her own children. It was not an abuse of discretion to allow Fielder’s testimony regarding this additional facet of the oral agreement between John and Sarah. Contractual Wills 'Whether a will is contractual in character involves a question of fact, the determination of which must be established by competent evidence.” In re Estate of Chronister, 203 Kan. 366, Syl. ¶ 1. “The firmly established rule ... for the construction of wills, to which all other rules are subordinate, is that the intention of the testator as garnered from all parts of the will is to be given effect, and that doubtful or inaccurate expressions in the will shall not override the obvious intention of the testator. In construing a will the court must put itself as nearly as possible in the situation of the testator when he made the will and from a consideration of the situation and from the language used in every part of the will, determine as best it can the purpose of the testator and the intentions he endeavored to convey by the language used. [Citation omitted.]" In re Estate of Tompkins, 195 Kan. at 471. The district court accurately described the evidence regarding whether the 1984 wills were contractual as uncontroverted. The only evidence consisted of the language of the wills and Fielder’s testimony. Defendants contend that the 1984 wills were not contractual because no plural pronouns, contractual terms, or mention of consideration appear in their language. This court has stated that use of plural pronouns and contractual terms supports the presumption that wills are contractual, but this is not the end of the inquiry. This court has also held that separate wills without mention of an agreement between the testators, may be contractual wills if that interpretation is supported by the evidence. See Chronister, 203 Kan. at 371-72. In Chronister, 203 Kan. at 367, Herbert and Mabel Cbronister executed a joint will leaving their estate to the surviving spouse “for his or her own personal use and benefit forever” and then to the nieces and nephews of Herbert. After Herbert died, Mabel changed her will to leave a large portion of the estate to her sister and her sister s children, with the remainder to Herbert’s nieces and nephews. This court reviewed previous cases, finding that in some cases wills had contractual language contained therein, but in other cases “wills have been construed as contractual on the basis of specific provisions or terms, one of the common denominators usually being a provision for the disposition of property after the death of the survivor.” 203 Kan. at 369. We decided the joint and mutual will of Herbert and Mabel was contractual in spite of the language stating the estate passed to the survivor forever and said: “[Provisions of like nature [in wills] have commonly been said to evidence, in the case of joint wills, an understanding between the joint testators by which they intended to bind themselves.” 203 Kan. at 373. We held that identical disposition of property, the use of plural pronouns, the mutual exclusion of heirs, and a “full and explicit provision ... for disposition of the testators’ remaining property after the death of the survivor” in the joint will were indicative of the agreement between them. 203 Kan. at 373. In Tompkins, the will left the property to the surviving spouse with a right of disposal. Although die appellants claimed that meant the survivor had an unlimited right to dispose of the property, this court held the language did not authorize the survivor to breach the agreement between testators. See 195 Kan. at 472-73. In In re Estate of Wade, 202 Kan. 380, 389-90, 449 P.2d 488 (1969), a joint and mutual will contained no contractual language, but this court held that extrinsic evidence proved the existence of an agreement between testators Erman and Wilma Wade. The scrivener testified that Erman and Wilma negotiated the distribution of their property, reached an agreement, and documented that agreement in their will. This court held: “In the Wade will there is no language stating it to be contractual, nor does the language used supply with clarity the evidence of an underlying obligation. . . . [Uncontroverted evidence showed] Erman and Wilma bargained until they reached a definite agreement as to the disposition of their property, and they expressed such disposition in the identical portions agreed upon in their joint and mutual will.” 202 Kan. at 390. In an opinion affirmed and adopted by this court, the Court of Appeals set out factors that could be considered to determine whether a will is contractual. See Bell v. Brittain, 19 Kan. App. 2d 1073, 880 P.2d 289 (1994), aff'd 257 Kan. 407, 893 P.2d 251 (1995). The Court of Appeals stated: “The fact that a will does not contain a reference to a contract is not conclusive in determining whether a will is contractual. The intent of the testators to be bound by a joint and mutual will need not be expressly recited, but may be determined circumstantially by language and other expressions used in the will. Language indicating a contractual will includes: (1) a provision in the will for the distribution of property on the death of the survivor; (2) a carefully drawn provision for the disposition of any share in case of a lapsed residuary bequest; (3) the use of plural pronouns; (4) joinder and consent language; (5) the identical distribution of property upon the death of the survivor; (6) joint revocation of former wills; and (7) consideration, such as mutual promises.” 19 Kan. App. 2d 1073, Syl. ¶ 5. The Bell panel found that a mutual will meeting some of the stated provisions was contractual. 19 Kan. App. 2d at 1077-80. Under the Bell facts, the will provided for a distribution at the death of tire survivor, used plural pronouns, used language that “appear[ed] to qualify as joinder and consent language[,]” had identical distributions, and evidenced consideration. The will did not provide for a lapsed bequest; nor did it revoke all former wills. 19 Kan. App. 2d at 1078-79. The panel also noted that the family of a predeceased son had been expressly disinherited. 19 Kan. App. 2d at 1079. Based on these factors, the panel held that the will, on its face, evidenced an agreement between the testators “that the parties intended the will to be joint, mutual, and contractual.” 19 Kan. App. 2d at 1079-80. As a result, the panel upheld the district court’s grant of summary judgment. 19 Kan. App. 2d at 1079-80. The uncontroverted facts here lead to the same conclusion. The 1984 wills were nearly identical, leaving the entire estate to the surviving parent and then to the children and one set of grandchildren, evenly divided. Both of the 1984 wills left a grandfather clock to one of Sarah’s daughters, and the wills provided for the family of Sarah’s predeceased son, evidencing a “full and explicit provision for the disposition” of the estate at the death of the surviving spouse. See In re Estate of Chronister, 203 Kan. 366, 373, 454 P.2d 438 (1969). Further, Fielder testified that Sarah and John communicated their wishes to be bound by their agreement with each other to leave a portion of the estate’s assets to one another’s children. They also wanted the freedom to change the distributions to their own children. Under the circumstances, it is apparent that John and Sarah wanted the surviving spouse to ensure that the children of the deceased parent were included if the estate was not consumed during the surviving parent’s lifetime. The uncontroverted evidence establishes that the 1984 wills were contractual and that Sarah retained the right to disinherit any of her children and grandchildren. Summary judgment in favor of plaintiffs was appropriate. Denial of summary judgment in favor of defendants and third-party plaintiffs also was appropriate. Constructive Trust as Remedy This court has stated: “A single instrument may be both a will contractual in nature, and a contract testamentary in nature; as a will it is revocable but as a contract it is enforceable; and although a contractual will revoked by execution of a second will, cannot be probated, it may nonetheless be enforced as a contract against the estate of the testator breaching it.” Reznik v. McKee, Trustee, 216 Kan. 659, Syl. ¶ 2, 534 P.2d 243 (1975). Sarah’s revoked 1984 will was no longer in effect at the time of Sarah’s death in 2001. However, because it was contractual, her estate remained subject to its terms. Because the 1984 will could not be probated, plaintiffs were correct to seek imposition of a constructive trust as their remedy. “A constructive trust arises wherever the circumstances under which property was acquired make it inequitable that it should be retained by the person who holds the legal title.” Logan v. Logan, 23 Kan. App. 2d 920, Syl. ¶ 6, 937 P.2d 967, rev. denied 262 Kan. 961 (1997). To prove a constructive trust, there must be a showing of one of the two types of fraud: actual or constructive. 23 Kan. App. 2d 920, Syl. ¶ 7. Actual fraud is not at issue in this case. “Constructive fraud is a breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty or purpose or intent to deceive is necessary.” 23 Kan. App. 2d 920, Syl. ¶ 7. Two additional elements also must be proved: “[T]here must be a confidential relationship [, and] the confidence reposed must be betrayed or a duty imposed by the relationship must be breached.” 23 Kan. App. 2d 920, Syl. ¶ 8. In Heck v. Archer, 23 Kan. App. 2d 57, 927 P.2d 495 (1996), the Court of Appeals was asked to determine whether summary judgment in favor of defendant Deborah Archer was appropriate. The plaintiff, Ralph Heck, argued that there was sufficient evidence to support the imposition of a constructive trust against Archer. Heck claimed that his father, who died intestate, intended all of his property to be divided evenly among his four children, including plaintiff and defendant. However, Archer had been named as the sole beneficiary on all of their father s accounts. The panel concluded that summary judgment for defendant on the issue of a constructive trust was inappropriate. 23 Kan. App. 2d at 68. For “purposes of imposing a constructive trust, a confidential relationship can be based on an agreement between the owner of property and another who will distribute the owner s property in a specified manner upon the owner s death.” 23 Kan. App. 2d at 67. The panel noted that the record reflected the father s wish to pass his estate to his four children. “Whether this [was] sufficient evidence to establish that [defendant] led [the father] to establish or maintain her as the beneficiary on the . . . accounts with the representation that she would distribute those accounts in a specified manner is a genuine issue of material fact.” 23 Kan. App. 2d at 68. In this case, the district court found that there was an agreement between John and Sarah regarding distribution of their property after the death of the survivor. The relationship between spouses qualifies as a confidential relationship. In addition, this confidential relationship was based on John’s trust in Sarah to distribute four-sevenths of the estate to his children. See Heck, 23 Kan. App. 2d at 67. The agreement imposed a duty upon Sarah, and she breached this duty by executing the 1993 will and disinheriting plaintiffs. The district court properly imposed a constructive trust. Affirmed.

Per Curiam.: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Glenn F. Anderson, II, an attorney licensed to practice law in the state of Kansas. The hearing panel concluded that Anderson violated Kansas Rules of Professional Conduct (KRPC) 1.1 (2003 Kan. Ct. R. An-not. 324) (competence), KRPC 1.3 (2003 Kan. Ct. R. Annot. 336) (diligence), KRPC 1.4 (2003 Kan. Ct. R. Annot. 349) (communication), KRPC 1.15 (2003 Kan. Ct. R. Annot. 395) (safekeeping property), KRPC 1.16 (2003 Kan. Ct. R. Annot. 407) (declining or terminating representation), KRPC 4.1 (2003 Kan. Ct. R. Annot. 440) (truthfulness in statements to others), KRPC 5.3 (2003 Kan. Ct. R. Annot. 446) (responsibilities regarding nonlawyer assistants), KRPC 5.5 (2003 Kan. Ct. R. Annot. 449) (unauthorized practice of law), KRPC 8.1 (2003 Kan. Ct. R. Annot. 459) (bar admission and disciplinary matters), KRPC 8.4 (2003 Kan. Ct. R. Annot. 464) (misconduct), and Supreme Court Rule 207 (2003 Kan. Ct. R. Annot. 250) (duties of the bar), and Supreme Court Rule 211(b) (2003 Kan. Ct. R. Annot. 264) (service of respondent’s answer to complaint). The Disciplinary Administrator’s office recommended disbarment to the hearing panel, and the hearing panel concurred in that recommendation. Anderson failed to file exceptions to the hearing panel’s findings, and this matter was set for a hearing before this court on September 2, 2004. Because Anderson did not file any exceptions within 20 days, the hearing panel’s report is deemed to be admitted pursuant to Supreme Court Rule 212(c) and (d) (2003 Kan. Ct. R. Annot. 270). Although Anderson did not file a brief to contest the hearing panel’s findings of fact and conclusions of law, he filed a Plea for Leniency and Proposed Plan of Probation (Plea) on August 20,2004. The Disciplinaiy Administrator’s office filed an objection to Anderson’s Plea, claiming that it was submitted out of time as a de facto brief. The Disciplinaiy Administrator’s office noted that Anderson’s Plea had not been properly served on the Disciplinary Administrator’s office. On August 26, 2004, Anderson filed a response to the Disciplinary Administrator’s objection, claiming that his Plea does not contest or challenge the hearing panel’s conclusions but demonstrates “exceptional circumstances and persuasive mitigating factors” for granting his request for probation. FACTS Because the complaints against Anderson are numerous, we will summarize the facts. Anderson was admitted to the practice of law in April 2002. This disciplinary proceeding against Anderson results from 17 complaints. Several of these complaints stem from Anderson’s relationship with Cortland Berry, a disbarred attorney. After Berry’s law license was suspended, Berry and Anderson worked out a system in which Berry would meet with the clients and prepare the pleadings, and Anderson would sign the pleadings and make appearances in court. Many of the complaints involve Anderson’s failure to perform the work as promised, to appear in court as scheduled, and to maintain communication with his clients after the clients paid retainers for Anderson’s services. In addition, Anderson failed to utilize a trust account and deposited his clients’ retainers and filing fees directly into his personal account. One of the complaints involved Anderson’s attempt to assist a prison inmate in unlawfully circumventing the prison regulations for the withdrawal of the inmate’s funds. An inmate is limited to withdrawing $30 per month without special approval from administrators at the Hutchinson Correctional Facility. Anderson billed Gayle Sanford, an inmate at the Hutchinson Correctional Facility, $350 for preparing a power of attorney document. However, before presenting the bill to the Hutchinson Correctional Facility for payment from Sanford’s inmate account, Anderson modified the amount of the bill to $2,550 and added the notation “Civil case review and filing, $2200.” A friend of Sanford’s testified that she was supposed to receive $2,200 and Anderson was supposed to receive the remainder of the payment from Sanford’s account. Another complaint was filed by two federal district court judges regarding Anderson’s failure to file timely motions in a federal employment discrimination case. Anderson entered his appearance for the plaintiffs after Cortland Berry withdrew. Two months later, the federal district court granted summary judgment in one of the cases and partial summary judgment in the other case. Anderson’s clients asked him to file a motion for reconsideration, and Anderson agreed to file the motion when he returned from his vacation. When the clients discovered that the motions would be untimely if they were not filed until after Anderson returned from his vacation, they filed the motions pro se. The federal district court struck the motions because they were filed without Anderson’s signature, but later allowed Anderson to amend the motions to include his signature. Thereafter, the clients terminated Anderson’s representation. During the investigation of these complaints, this court issued a subpoena duces tecum requiring Anderson to appear for a deposition and bring all of his files associated with the complaints. Anderson did not appear for his deposition and failed to notify the investigators from the Disciplinary Administrator’s office that he would not be there. However, he left some files at the site of the deposition. The files were incomplete, and Anderson indicated that he had either lost some of the files or he had not created files for some matters. The investigator conducting the deposition eventually contacted Anderson on his cell phone and learned that Anderson was in the district court on other matters and would not appear for his own deposition in accordance with this court’s order. Anderson did not advise the district court that he had been subpoenaed by this court for a deposition regarding his disciplinary proceedings. On September 8, 2003, the Disciplinary Administrator s office filed a motion with this court requesting an order for Anderson to show cause why his license to practice should not be temporarily suspended pursuant to Supreme Court Rule 203(b) (2003 Kan. Ct. R. Annot. 226). This motion was based on letters from the Ethics and Grievance Committee of the Wichita Bar Association, which sought temporary suspension of Anderson’s license to “protect members of the public in Sedgwick County from being further harmed by the continuing unprofessional conduct of [Anderson].” This court issued the Show Cause Order as requested but declined to temporarily suspend Anderson’s license prior to a formal hearing on the complaints. After continuing the matter until March 2004, 1 month after Anderson’s formal hearing, this court issued an order temporarily suspending Anderson’s license to practice law. In accordance with the Disciplinary Administrator’s recommendation, the hearing panel unanimously recommends disbarment based on its finding of the following aggravating and mitigating factors: Dishonest or Selfish Motive; A Pattern of Misconduct; Multiple Offenses; Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Dis-ciplinaiy Process; Submission of False Evidence, False Statements, or Other Deceptive Practices During the Disciplinary Process; Refusal to Acknowledge Wrongful Nature of Conduct; Vulnerability of Victim; Indifference to Making Restitution; Absence of Prior Disciplinary Record; Inexperience in the Practice of Law. We are not bound by the Disciplinary Administrator’s recommendation. Supreme Court Rule 212(f) (2003 Kan. Ct. R. Annot. 270). Likewise, we are not bound to follow the recommendations of the hearing panel. Although the report of the disciplinary board is advisory only, it will be given the same dignity as a special verdict by a jury or the findings of a trial court and will be adopted where amply sustained by the evidence, where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony. In re Hill, 259 Kan. 877, 882-83, 915 P.2d 49 (1996). Anderson argues that he should receive probation. However, probation is only granted in limited situations when three requirements have been met. First, the attorney must develop a workable, substantial, and detailed plan of probation before the hearing. Next, there must be unique circumstances or the respondent must demonstrate an exceptional case with persuasive mitigating factors. Finally, the plan of probation must serve the best interests of both the legal profession and the citizens of Kansas. In re Conwell, 275 Kan. 902, 911, 69 P.3d 589 (2003). Anderson argues that he meets the conditions for probation because his misconduct arose from unique circumstances and demonstrates an exceptional case with persuasive mitigating factors. He relies primarily on his lack of legal experience, inadequate business administration and management skills, and depression caused by his overwhelming disciplinary problems. The hearing panel concluded that probation is not warranted because Anderson’s plan is unworkable, insubstantial, undetailed, unsupported by unique circumstances, without basis as an exceptional case with persuasive mitigating factors, and insufficient to best serve the interests of the legal profession and the citizens of Kansas. Unique circumstances are those which indicate that the attorney’s misconduct-resulted from a one-time response to adversity and that it is highly unlikely the attorney would repeat the mistake. In re Scimeca, 265 Kan. 742, 758, 962 P.2d 1080 (1998). We have previously found unique circumstances when the misconduct occurred while the respondent was under severe emotional distress caused by his father’s terminal illness. In re Jantz, 243 Kan. 770, 774, 763 P.2d 626 (1988) There are no facts to support Anderson’s claim that these complaints arose out of unique circumstances or that this case is exceptional and supported by persuasive mitigating factors. Anderson was on notice of the issues regarding his professional conduct as early as October 2002, merely 6 months after he had received his license to practice law. Honorable Robert E. Nugent, Chief Bankruptcy Judge for the United States District Court in Kansas, personally counseled Anderson regarding his bankruptcy practice and his association with Cortland Berry in both October 2002 and April 2003. Anderson ignored Judge Nugent’s advice. Likewise, two of the disciplinary investigators advised Anderson to establish a trust account for all prepayments and retainers, but Anderson failed to heed this advice and continued to directly deposit client funds into his personal account. One of the investigators stated that Anderson “initially appears as a young man who is quite affable who might simply be off to a bad start. The initial desire is to try and work with him to correct the problems. The reality seems to be that many people have tried to work with him to correct his problems, and he has no interest in correcting them.” Although Anderson claims to recognize the error in his ways, his recognition is untimely. Anderson had opportunities to improve his professional performance as early as the fall of 2002, but he chose to ignore the advice he was given. Anderson’s untimely recognition of his errors does not constitute a unique circumstance or lead us to conclude this is an exceptional case with persuasive mitigating factors. Furthermore, Anderson’s claim that he was suffering from depression is not supported by the record. Anderson attached a letter from a counselor to support his claim. However, this letter indicates that Anderson did not seek counseling until July 9, 2004, several months after his license was temporarily suspended. It does not support a conclusion that Anderson was suffering from depression during the time period when the complaints occurred. Because Anderson has failed to establish that his misconduct resulted from unique circumstances or that this is an exceptional case with persuasive mitigating factors, we find no reason to grant his request for probation. Rather, we accept the hearing panel’s factual findings because they are supported by evidence in the record, and we adopt the recommendations from the hearing panel and the Disciplinary Administrator. It Is Therefore Ordered that Glenn F. Anderson, II, be and he is hereby disbarred from the practice of law in the state of Kansas, that his privilege to practice law in the state of Kansas is hereby revoked, and that the Clerk of the Appellate Courts of Kansas strike the name of Glenn F. Anderson, II, from the role of attorneys licensed in the state of Kansas. It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to Glenn F. Anderson, II, and that Glenn F. Anderson, II, forthwith shall comply with Supreme Court Rule 218 (2003 Kan. Ct. R. Annot. 286).

The opinion of the court was delivered by O’Connor, J.: This is an action for personal injuries arising out of an automobile collision that occurred December 7, 1965, approximately three miles south of Herington on U. S. Highway 77. The defendant filed a motion for summary judgment, claiming the undisputed facts established he acted in a sudden emergency and, therefore, was not negligent as a matter of law. The district court sustained the motion, and plaintiff has duly perfected his appeal. Plaintiff urges the trial court erred in granting summary judgment because (1) pretrial discovery had not been completed, and (2) there were genuine issues of material facts which remained unresolved. The events concerning the accident are gathered from the pleadings and depositions which were before the trial court when it made its ruling. About 3 p. m. on the day in question the plaintiff, Robert H. Lawrence, was northbound on U. S. 77, driving his 1965 Cadillac from Wichita to Junction City, his place of residence. At the same time the defendant, Richard Deemy, an eighteen-year-old youth, was southbound on the same highway, driving his 1954 Ford from his home in Wilsey to Wichita, where he attended school. Richard’s mother was a passenger in the front seat with him. Lawrence was traveling at a speed of about forty miles per hour; Richard at approximately sixty. The two vehicles approached an area on the highway described as “sort of a valley between two hills.” As Lawrence “topped” the hill he saw a man afoot in the southbound (Richard’s) lane of traffic. The man was picking up items later determined to have blown from the top of an automobile belonging to a Lt. Kruse, who with his family had passed southward through the area shortly before. Lawrence saw the on-coming Deemy car, and recognizing the danger the man was in, slowed his vehicle and started honking his horn to get the man’s attention, but the man continued to pick up the items and ignored Lawrence. When Richard’s automobile came up over “the rise in the road” from the north, Mrs. Deemy also saw the man in the middle of the road, walking from the east to the west side of the highway, and shouted to her son to miss him. Richard applied his brakes, swerved to the left across the center line and into the northbound traffic lane in order to go between the man and a station wagon parked on the east side of the highway. Richard missed the man and the station wagon but sideswiped the Lawrence vehicle in the northbound lane of traffic. Meanwhile, upon noticing his belongings had blown off the top of his car, Lt. Kruse returned to the location where the accident occurred. He saw the Lawrence and Deemy cars and the man standing in the southbound lane picking up something from the road which he put in the back of the parked station wagon. The man got into the station wagon and left prior to the arrival of a state highway patrolman. With the help of Lt. Kruse, who had had experience in accident investigation as a military policeman, the state patrolman proceeded to make an investigation and subsequently prepared a diagram of the accident scene. The diagram revealed that the Deemy vehicle left 179 feet of skid marks. When this action was commenced in June 1966, defendant was served with summons at the home of his parents, where he was visiting while on leave from the military service. Subsequently he was sent to Vietnam. Upon defendant’s application a stay order of further proceedings was granted pursuant to the Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 U. S. C. A., App. § 501, et seq.); however, the order provided that either plaintiff or defendant could take such depositions as they desired, pending the dissolution of the stay order. Thereafter, despositions were taken of the plaintiff, defendant’s mother, and Lt. Kruse and his wife. Although defendant had neither answered nor been deposed, his attorney filed a motion for summary judgment on January 3, 1968. When the motion was argued plaintiff vigorously objected to the hearing of the motion because he had been unable to take the deposition of the defendant. The court, nevertheless, proceeded with the hearing, took the matter under advisement, and on April 1, 1969, sustainéd defendant’s motion for summary judgment. Before we consider the merits of the appeal a brief review of our law relating to summary judgments is in order. Generally before a summary 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 sum mary 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.” A natural result of this requirement is that in negligence cases summary judgment is seldom proper. (Knowles v. Klase, supra; Secrist v. Turley, supra.) A short answer to disposition of this case could be that under the circumstances defendant’s motion for summary judgment was improvidently granted because plaintiff had been unable to take defendant’s deposition. While the stage of the proceedings does not necessarily determine the propriety of summary judgment being rendered (Goforth v. Franklin Life Ins. Co., 202 Kan. 413, 449 P. 2d 477), ordinarily it should not be granted when pretrial discovery remains incomplete (Brick v. City of Wichita, supra). Our decision in Timmermeyer v. Brack, 196 Kan. 481, 412 P. 2d 984, dealt with a somewhat analogous situation to the one here. There, in a tort action, the court at pretrial conference had before it only the plaintiff’s deposition. The deposition of the defendant had been taken but not transcribed. In holding summary judgment was improper, we stated: “Summary judgment should not be entered if there remains a genuine issue of a material fact, nor where the opposing party is proceeding with due diligence with his pretrial discovery but has not had an opportunity to complete it.” (Syl. ¶ 1.) (Emphasis added.) In the instant case, after considering the record before the trial court at the time the motion for summary judgment was granted, we are further convinced there were genuine issues of material facts pertaining to the question of defendant’s negligence. Throughout the case defendant relied on the doctrine of sudden emergency, contending that under the undisputed facts he was faced with an emergency and, therefore, must be absolved of negligence as a matter of law. We believe defendant misconceived the theory and concept of the doctrine as it has evolved in our jurisprudence. The doctrine of sudden emergency as related to the law of negligence was well stated in Trinity Universal Ins. Co. v. Farmers Co-operative Exchange of Morland, 171 Kan. 501, 504, 233 P. 2d 468, quoting from 1 Blashfleld Cyclopedia of Automobile Law and Practice, § 668: “ ‘When one is confronted with a sudden peril requiring instinctive action, he is not, in determining his course of action, held to the exercise of the same degree of care as when he has time for reflection, and, in the event that an automobilist suddenly meets with an emergency which naturally would overpower the judgment of a reasonably prudent and careful driver, so that momentarily he is thereby rendered incapable of deliberate and intelligent action, and as a result injures a third person, he is not negligent, provided he has used due care to avoid meeting such an emergency and, after it arises, he exercises such care as a reasonably prudent and capable driver would use under the unusual circumstances, which is usually for the jury.’ ” (Also, see, Jobst v. Butler Well Servicing, Inc., 190 Kan. 86, 372 P. 2d 55.) The doctrine of sudden emergency cannot be regarded as something apart from and unrelated to the fundamental rule that everyone is under a duty to exercise ordinary care under the circumstances to avoid injury to others. A claim of emergency is but a denial of negligence. Application of the doctrine is really application of the test for negligence couched in language tailored to a peculiar situation. The fact that a person is confronted with a sudden emergency not caused by his own tortious conduct which requires rapid decision is merely a factor in determining the reasonable character of his choice of action and whether his conduct constituted negligence. (Restatement of Torts § 296.) Thus, if one confronted with a sudden emergency conducts himself as a reasonably careful person would when confronted by a like emergency, he is not liable for the injury. The arising of the emergency does not relieve one from the obligation of exercising ordinary care. By the same token, a person cannot invoke the emergency rule if he brought the emergency upon himself by his own fault or did not use ordinary care to avoid it. Inherent in the trial court’s ruling in the instant case is a determination that as a matter of law defendant was confronted with an emergency not of his own making, and after the emergency arose his conduct was such as not to have constituted negligence. From the record before the trial court we are of the opinion that these matters were questions of fact which were for the jury to decide. In other words, the evidence presented factual issues upon which reasonable minds might differ as to whether defendant was negligent either before or after being confronted with any emergency. There was testimony defendant was familiar with this particular portion of the highway and had traveled it dozens of times; that this was the only bad place in the road for some distance; and that the area was marked with caution signs and a no-passing zone. The evidence disclosed defendant’s vehicle was traveling at approximately sixty miles per hour and left skid marks of 1-79 feet. Lt. Kruse testified a driver going south on the highway would have to be “almost to the top or apex of the hill before he could see down the southern slope of the hill,” and that the pedestrian in the roadway was about 200 to 250 feet south of the apex of the hill. Other testimony indicates that defendant’s mother may have seen the man before the defendant saw him. The issues of whether defendant was maintaining a proper lookout and whether he was traveling at a reasonably safe speed under all the circumstances bore directly on the question of whether defendant brought any emergency upon himself by his own tortious actions. Further, we find testimony from Lt. Kruse that defendant could have driven his vehicle to the right of the man in the highway instead of taking the course which resulted in his colliding with plaintiff’s automobile. Hence, even if defendant used due care to avoid any emergency, an issue was raised as to whether or not he exercised the care of a reasonably careful person, when confronted by a like emergency, in selecting the alternative courses of action available to him at the time. In holding there were unresolved issues of material facts, we in no way suggest what the ultimate outcome of this case may be. What we hold is that when plaintiff is given the benefit of all inferences which may reasonably be drawn from the evidentiary material before the trial court, the defendant’s motion for summary judgment was erroneously sustained. The judgment is reversed with directions to overrule the motion for summary judgment.

The opinion of the court was delivered by Fromme, J.: The present appeal grows out of an action brought by a farm tenant, Math Kohn, to obtain an accounting and other relief from his landlord, Helen Rabb. The trial court found there was $409.77 due the tenant on the accounting and denied further relief. Roth parties have appealed. The controversy arose from a written farm lease entered into by these parties covering 1600 acres of land and a line of farm machinery owned by the landlord. The land was suitable for wheat, barley, milo and other dry land crops. The farm lease commenced on March 1,1961, ran for one year and continued for such successive terms of one year each as could be agreed upon by the parties. The tenant agreed to furnish all labor to plant, cultivate and harvest the crops on the farm and devote full time to the farming activities. The landlord agreed to advance all operating expenses of the farming operation. Labor was not deemed an operating expense. The landlord was to keep and maintain records covering the farming activities. One-third of crops was reserved to the landlord as rental for the land. The operating expenses were to be deducted from the remaining two-thirds of crops, to reimburse the landlord for expenses paid. The balance was to be divided equally between the landlord and tenant as their profits from the lease. The tenant agreed to obtain permission from the landlord before making major repairs to the machinery. The lease provided for an annual reconciliation of accounts on the operation on or before November 15 of each year. The tenant cultivated, planted and harvested the spring crops in 1961. In the fall of 1961 he planted land to wheat. The wheat was harvested in 1962. He cultivated land in preparation for seeding wheat in the fall of 1962. On September 7, 1962, tire parties met in tire home of the landlord for the purpose of reconciling and settling the annual account on the farming operation. Items of income and expense had been listed in advance by the landlord on an account sheet. This account sheet was introduced at the trial as Exhibit E. After all items appearing on the sheet had been considered certain corrections or adjustments were made and the tenant received checks for $743.71, $268.00 and $66.00. The account covered the period from March 1, 1961, to September 7, 1962. The tenant was dis appointed and dissatisfied with his share of profits. There was disagreement over the government farm payments. The tenant testified the landlord told him to take the figures home, figure them over and if they weren’t satisfactory she would make them satisfactory. They parted and the tenant cashed the checks. Thereafter the tenant called the landlord and told her he was not going to continue to work the lease. He did no more farm work. He did not plant wheat on the ground cultivated in 1962. The tenant made two separate claims in the action which followed. The first claim was for an accounting. The second claim was for recovery of money for his time and services in getting the machinery and land ready to plant crop in the fall of 1962 for harvest in 1963. The second claim was based upon a theory of restitution for the unjust enrichment received by the landlord from the 1963 wheat crop. The claim for accounting was tried to the court and a judgment for $409.77 was rendered in the tenant’s favor. A summary judgment was entered on the second claim in favor of the landlord for the reason that no claim was stated upon which relief might be granted. The court held the services for which the claim was made were required under the written lease which limited payment to a share of the crops. Both parties appeal from the judgment entered on the accounting claim. The tenant appeals from the summary judgment in favor of defendant entered on the second claim. We will first examine the points advanced by the tenant. During the trial on the accounting the tenant testified there was wheat and barley left in farm bins when he quit. He insists this grain was not taken into consideration in the accounting and that he should be entitled to $672.27, the value of his one-third share of the grain. Exhibit E, which was the account listing the crop income and expenses for the period covered, is not reproduced in the record. There is nothing in the memorandum opinion of the court which indicates it did not consider the grain on hand as income. The tenant testified that any grain on the farm that was to be fed to cattle was first taken to town, weighed and accounted for to the landlord. Item V of the written lease provided: “Lessee further agrees he will deliver to elevators, bins or other terminal points as may be designated by the lessor all grain crops harvested from said real estate, and that all of said grain crops will be delivered, sold, stored, or otherwise handled in the sole name of lessor.” We have examined the tenant’s motion for new trial and his motion for amendment and additional findings and find no contention that grain stored in bins was omitted in the accounting. Under the state of the record presented to this court we are unable to determine whether this grain was overlooked or included by the trial court. It may have been included in Exhibit E which is not made a part of the record. On appellate review error in the court below is never presumed. The burden is cast upon the appellant to affirmatively establish that error has been committed. (See Hatcher’s Kansas Digest, Revised Edition, Appeal and Error, § 408.) Questions relating to a review of evidence cannot be answered on appeal when it is apparent pertinent evidence before the trial court is omitted from the record on appeal. (Jocich v. Greyhound Cab Co., 188 Kan. 268, 362 P. 2d 27.) On the next point the tenant claims expenses incurred in overhauling and rebuilding machinery were wrongfully included in farm operating expenses. He contends such expenses were the responsibilty of the defendant-landlord. Included in these were truck tires placed on one of the three trucks which were used in the farming operation. Some of the larger items complained of were parts and labor totalling $68.80 paid to Moritz Implement Company and a repair or overhaul job for $150.97 paid to Meis Hardware and Implement Company. The lease provides: “VI. Lessor agrees to furnish and pay for all of the operating expense of said farming operation, including both the real estate and machinery used thereon, which shall include, but not be limited to, all fertilizer, machinery, repairs, seed, gas, oil, grease and all other goods and supplies required in the farming operation of such real estate. “VII. And, lessee agrees the lessor shall keep and maintain all records regarding said farming activities; that he will furnish and deliver to her, at least once each month, all bills, receipts, statements, and other evidence required to reflect in detail all income and expense of such farming operation. “XIII. And, lessee agrees that if any major repairs are required on any machinery, either his or that belonging to the lessor, he will first confer with lessor in regard to such and will proceed only with her agreement before the same may be considered as part of the expense of the farming operation.” The tenant arranged for the repairs to machinery and there is nothing in the evidence or in the lease which supports the tenant’s contention that expenses of overhauling and rebuilding of machinery were to be separately paid for by the landlord. Paragraph xm of the lease provides for special treatment of “major repairs”. They were to be agreed upon in advance and considered a part of the expense of the farming operation. Major repairs are commonly understood to be expenses of overhauling machinery. The trial court after hearing the evidence made a specific finding “that such expenditures are not capital expenditures and are properly charged as items of expense”. This finding is supported by the evidence and cannot be overturned on appeal. The tenant contends expense of repairs and grass seed was incurred in 1962 in connection with government programs and in preparing ground for the 1963 crop. He argues these items should not have been included in the accounting or charged against crop income for 1961 and 1962. The grass seed was used to comply with requirements under certain government programs. The trial court held payments earned under government programs should be considered as crop income. It would necessarily follow that any expense incurred in connection therewith should be considered as farm operating expense. Government program payments earned in 1961 of $1229.53 were considered by the trial court in arriving at judgment for the tenant in the sum of $409.77. In addition the tenant testified he received his share of government farm payments earned for 1962 in the sum of $1112.70. Liability for the expense of preparing ground for crops which cannot be harvested during the term of a lease is a matter generally agreed upon by the parties. It was apparent when this lease was signed that it would be terminated each successive March 1 unless renewed. It was also apparent that the tenant was obligated by the lease to cultivate the land in a proper manner. Both parties contemplated raising wheat on the land. The wheat was to be planted in the fall and harvested the following year. No provision was made in the lease for labor or operating expenses other than those we have mentioned. The parties knew or should have known there would be a time in the future when the lease would not be renewed. No provision was made to cover this foreseeable event. Under this lease the farm operating expenses incurred prior to the accounting date were to be deducted from crop income irrespective of the crop year in which the expenses were incurred. In Williams v. Safeway Stores, Inc., 198 Kan. 331, 424 P. 2d 541, we stated at page 344: “The intention of the parties and the meaning of a contract are to be deduced from the instrument when its terms are plain and unambiguous; when the language is clear and unequivocal the meaning must be determined by its contents alone. Words cannot be read into a contract which import an intent wholly unexpressed when it was drawn and executed. The court may not make an agreement for the parties which they did not make themselves.” (See also Wood v. Hatcher, 199 Kan. 238, 428 P. 2d 799, and Mays v. Middle Iowa Realty Corp., 202 Kan. 712, 452 P. 2d 279.) Generally a tenant renting on a crop-share basis is not entitled to a crop sown but not maturing before the expiration of his lease. (Bank v. Jesch, 99 Kan. 797, 163 Pac. 150.) It has been held a tenant is not entitled to recover money expended by him in preparing the land for planting a crop he could not hope to harvest because it would not mature until after his lease expired. (Woodmancy v. Brady, 176 Kan. 522, 271 P. 2d 288.) In Fox v. Flick, 166 Kan. 533, 203 P. 2d 186, it was stated at page 540; “The decision [referring to Bank v. Jesch, supra,] is a clear statement of the rule that even if a tenant is under the duty, by the terms of his lease, to sow a crop which does not mature until after his lease expires, he is not by that fact alone entitled to harvest the crop. There must be some agreement, express or implied, to the effect that he may harvest the crop. . . .” Under certain circumstances when the crop is planted by a tenant an agreement to harvest may be implied from the conduct of the parties. Acquiescence by the landlord may give rise to equitable estoppel and entitle the tenant to the waygoing crop. (Bank v. Jesch, supra.) Such was not the case here. In Rogers v. Ostmeyer, 180 Kan. 265, 302 P. 2d 999, it was held a tenant who voluntarily moved from the farm and terminated his lease with the assent of the landlord was not entitled to return and harvest a crop of alfalfa. In Weltmer v. Mathis, 186 Kan. 327, 349 P. 2d 877, it was said; “. . . It is true that plaintiffs had given notice that they would not occupy the farm for the next year, and so would not receive benefit from the crops raised thereon, but the contract was still in force under which they had entered, and it would seem they had agreed to perform such work without extra pay. Therefore, we do not believe that it has been made to appear that the court erred in denying plaintiffs extra compensation for this work.” (p. 332.) The trial court found the omission of the 1961 government payments from the accounting was in good faith. The mere failure of one party to comply with the terms of a con tract is not grounds for rescission. The remedy is an action for an accounting. Failure of consideration is not ground for rescission of a contract unless so great as to amount to fraud. (Baron v. Lyman, 136 Kan. 842, 18 P. 2d 137.) In the case of In re Estate of Johnson, 202 Kan. 684, 452 P. 2d 286, the rale was stated thus: “To warrant rescission of a contract because of a breach of its terms, the breach must be material and the failure to perform so substantial as to defeat the object of the parties in making the agreement; a breach which goes to only a part of the consideration, which is incidental and subordinate to the main purpose of the contract, does not warrant a rescission.” (Syl. ¶ 3.) The failure of a landlord to include certain farm payments as income in an accounting is not so material as to defeat the object of the parties in making the agreement. Such a breach goes only to a part of the consideration, which is incidental and subordinate to the main purpose of the contract, and does not warrant a rescission. The tenant’s final contention is directed toward entry of the summary judgment in favor of defendant on the tenant’s claim for restitution based upon unjust enrichment. Restitution because of unjust enrichment may arise in equity upon rescission of a contract for fraud or similar cause. (Holloway v. Water Co., 100 Kan. 414, 167 Pac. 265.) Under the tenant’s second claim he seeks to x-ecover both expenses and labor incurred while carrying out a part of the written lease. These expenses and labor were furnished in preparing the ground for the 1963 crop which he did not plant or harvest. As previously pointed out his decision to abandon the lease was voluntary and without justification. Cases previously cited herein establish he cannot recover under these circumstances. (Bank v. Jesch, supra; Woodmancy v. Brady, supra; Weltmer v. Mathis, supra.) One further case deserves mention on this point. In Fritts v. Quinton, 118 Kan. 111, 233 Pac. 1036, the plaintiff after part performance of a contract to raise pigs abandoned the contract and sued to recover compensation for his services upon quantum meruit. It was held compensation for both parties was to come from a successful prosecution of the business. Both were to be paid a share of the proceeds from the sales of pigs raised. This being the agreement, there was no legal foundation for the plaintiff’s claim based on quantum, meruit. The contract itself governed and limited his rights to a share of the pigs raised during his period of service. When a tenant under a lease is paid for his services from a share of the crops raised on the land, and after cultivating certain land in preparation to seeding he abandons the lease, he cannot recover for expenses and labor in preparing the ground for a crop he did not plant or harvest. Plaintiffs claim for restitution showed on its face these services and expenses were under a written lease. There was no provision in the lease for payment of such services except from crops raised. The services were rendered in connection with a crop he neither planted nor harvested. The claim failed to state facts sufficient to constitute a claim for relief and summary judgment in favor of defendant was proper. The final matter to be considered arises on the cross-appeal by the landlord. She seeks to set aside the judgment for $409.77 on the accounting claim. In support of this cross-appeal she claims the receipt and cashing of the checks tendered on September 7, 1962, constitute an accord and satisfaction. The nature of an accord and satisfaction is explained in Harrison v. Henderson, 67 Kan. 194, 72 Pac. 875 as follows: “An accord and satisfaction is the adjustment of a disagreement as to what is due from one party to another and the payment of the agreed amount.” (Syl. ¶ 1) “The mere payment by a debtor of a amount denominated a ‘balance’ upon an account rendered and its retention by the creditor do not constitute an accord and satisfaction.” (Syl. ¶ 2) “To constitute such payment an accord and satisfaction, it must be offered as full satisfaction of a claim, and accompanied by such declarations, or under such circumstances, as would amount to a condition that, if accepted by the creditor, it would be in full satisfaction of the debt.” (Syl. ¶ 3) (See also Barton v. Welker, 185 Kan. 294, 298, 341 P. 2d 1037.) In Barnes v. Mid-Continent Casualty Co., 192 Kan. 401, 388 P. 2d 642, it was held: “To constitute an ‘accord and satisfaction,’ the agreement that a smaller sum shall be accepted in discharge of a larger one originally claimed must have been entered into by the parties understanding and with unity of purpose.” (Syl. ¶ 1) (See also Manning v. Woods, 187 Kan. 418, 357 P. 2d 757 and Mitchell v. Certified Finance, Inc., 183 Kan. 787, 332 P. 2d 516.) In order for a payment to finalize an accord and satisfaction it must be offered as full satisfaction of a claim, and be accompanied by such declarations, or under such circumstances as would amount to a condition that, if accepted, it would be in full satisfaction of the claim. In our present case the checks were issued in an accounting between the parties after corrections and additional payments to the tenant. This tenant had previously received payments from the crops and the government. After the accounting figures were examined on September 7, 1962, the landlord gave the checks to the tenant. There was undisputed testimony by the tenant that the landlord told him to take the figures home, figure them over and if the checks were not satisfactory she would make them satisfactory. Under these circumstances the checks were not offered as full satisfaction of a disputed amount and they would not finalize an accord and satisfaction when cashed. The trial court correctly found the essential elements necessary to constitute an accord and satisfaction were lacking. We agree with the trial court. The judgment is affirmed.

The opinion of the court was delivered by Fromme, J.: Two separate claims were consolidated and tried to a jury in the district court. Judgments were entered against the defendant on separate verdicts and the defendant appeals. The claims arose from a collision between a switch engine and a gasoline transport truck in the Fairfax industrial district of Kansas City, Kansas. James E. Williams (the driver of the gasoline transport truck) recovered judgment for personal injuries against the Union Pacific Railroad Company, a corporation, (the railroad) in the sum of $9,975. Farmland Industries, Inc., (the owner of the truck) recovered judgment for damages to the truck in the sum of $2,392.80. The railroad-appellant has limited its points relied upon to tihree. It contends, (1) There is no substantial evidence of negligence by the railroad, (2) The evidence conclusively shows the driver of the transport was guilty of negligence which was the direct cause of the injuries and damage, and (3) The trial court admitted irrelevant and prejudicial testimony over objection. The collision was between a 230,000 pound switch engine and a gasoline transport tractor-trailer in the dark early morning horns of October 12,1966. The city streets are intersected in this industrial district by various railroad tracks which serve many industrial plants in the area. Loading and unloading operations are carried on by the railroad in what is referred to as a “yard operation”, as distinguished from a higher speed “road operation”. The collision occurred where the railroad tracks cross Stanley Road approximately 300 feet east of the intersection of Stanley Road and Seventh street. This is about a block and a half west of the Kansas port of entry located at 440 Stanley Road. The switch engine was being operated by a crew of four men. It had left the Phipps building, which is southeast of this street crossing and was destined for the Buick, Oldsmobile and Pontiac plant which is in a northwesterly direction. Before reaching the crossing the tracks curve and pass near the east side of the Industrial Lumber Company building. The view of traffic to the west is obstructed at this point by the lumber company building and by a pile of lumber stacked to the north of the building. There were no official traffic control signs on Stanley Road at this crossing. There was no railroad crossing sign to alert traffic from the west to the presence of the tracks. The locomotive engineer testified at the trial that he started the switch engine at the Phipps building and applied air to go four or five miles per hour. He started the bell and gave the crossing warnings. He could see clearly a hundred yards but as he rounded the curve he lost sight of the crossing. From his position at the controls he was unable to see the street to the left or to the west and had to rely on crew members for a look out. He received an emergency stop signal from a crewman when the engine was thirty-seven feet from the crossing. He engaged the emergency brake. He saw a flash of the transport truck ahead of his engine prior to the collision. He reported his speed at the time of the collision as four miles per hour. One member of the crew, a switchman, was seated in the cab of the switch engine and saw nothing. The engine foreman was standing outside and on the left front deck plate of the switch engine. He saw the truck approaching from the west when the switch engine was fifty feet from the crossing. It was not his duty to flag traffic but from his position on the front of the engine he attempted to signal the truck with his lantern. When the engine was ten or fifteen feet from the crossing he jumped from the engine and ran toward the Industrial Lumber Company building. The fourth member of the crew, the “pin-puller”, was riding outside and on the right front comer of the engine. It was his duty to flag crossings, work switches, and keep in touch with the engineer by lantern signals so the engineer could properly control the engine. He saw the truck turn onto Stanley Road some 300 feet west of the crossing. He gave no sign to the engineer of the approach of the truck until he determined the truck was not going to stop. When the switch engine was forty feet from the street he gave an emergency stop signal to the engineer and then jumped and ran to the southeast away from the engine. The driver of the transport truck testified at the trial that at 4:30 that morning he went to the truck terminal in Kansas City to pick up his orders. He was ordered to pick up a load of gasoline at Williams Brothers Pipeline in the Fairfax industrial area and transport it to Trenton, Missouri. He was proceeding to the pipeline loading dock and had turned onto Stanley Road at Seventh Street, traveling east toward the loading zone. The weather was clear, the street was dry and it was dark in that area. There were no street lights. He had traveled this route about every two weeks and had never seen a switch engine operating in the area. He had the truck lights on. The headlights were on dim. He did not see the switch engine. He saw no warning lights and heard no bell or sound from the switch engine. He slowed to ten miles per hour, and proceeded to cross the tracks. When he was practically across the double tracks he felt an impact. He heard a crash and his head went through the windshield. A detective working for the city investigated the accident shortly after it occurred. When he arrived he could not determine whether any light was burning on the switch engine. There were no street lights in the area. There were no traffic control devices used at this crossing. He determined the two vehicles came together about three or four feet north of the south side of Stanley Road. The front coupler on the switch engine came in contact with the right rear dual wheels of the transport. There was also a dent in the tank a few feet ahead of the damaged rear wheels. The truck had been shoved north from the eastbound to the westbound lane of traffic on Stanley Road. He was informed by the engineer that the maximum rate of speed for the switch engine under the operating rules of the railroad was ten miles per hour. It was traveling about four miles per hour. The speed limit on Stanley Road at this point was thirty miles per hour. The truck driver estimated his speed as he crossed the tracks at ten miles per hour. There was conflicting testimony as to the distance required to stop a switch engine traveling at a walking speed of from four to five miles per hour. The testimony as to stopping distances varied from less than ten feet to as many as fifty-four feet. The “pin-puller” testified he flashed the emergency stop signal to the engineer when the switch engine was forty feet from the crossing. The engineer testified he saw this signal when the engine was approximately thirty-seven feet from the crossing and he immediately applied the brakes. The switch engine traveled forty feet before hitting the truck. There was testimony from an inspector at the port of entry that switch engines operating over this crossing at night, did not use lights or sound any warning whistle or bell, and the railroad did not use a flagman at the crossing. He had worked at the port of entry for five years. Two police officers who patrolled this area four or five times every evening had observed the switch engines in operation over this crossing at various times. They testified the engines were operated without fights and no crew member got off to flag that particular crossing except during the daytime when traffic was heavy. None of these 'witnesses were present when the accident occurred on October 12, 1966. The appellant railroad first contends there was no evidence that it was guilty of negligence which was a direct and proximate cause of the accident. The railroad argues that under the case law in Kansas railroad trains have the right of way at railroad crossings and because of the character and momentum of such trains they cannot be expected to stop and give precedence to an approaching traveler. The cases cited by appellant in support of this rule arise from crossing accidents involving high speed trains operating in what may be called a road operation as distinguished from a switching operation in the yards. (See Vance v. Union Pac. Rld. Co., 133 Kan. 11, 298 Pac. 764; Ross v. Chicago, R. I. & P. Rly. Co., 165 Kan. 279, 194 P. 2d 491; Horton v. Atchison, T. & S. F. Rly. Co., 161 Kan. 403, 168 P. 2d 928.) The rationale of those cases when applied to road operations of a railroad appears reasonable and just but we do not believe such a rule of precedence should preclude recovery against the railroad when it is operating a switch engine in a yard operation under the facts of this case. Other cases relied on by the railroad relate to accidents where trains were occupying railroad crossings. (See Jones v. Atchison, T. & S. F. Rly. Co., 129 Kan. 314, 282 Pac. 593, and Grisamore, Administratrix v. Atchison T. & S. F. Rly. Co., 195 Kan. 16, 403 P. 2d 93.) These cases preclude recovery against the railroad under the rule that a driver must keep his vehicle under control so as to be able to stop within the range of his vision. When the driver fails to see a train which is occupying the crossing and runs into it, the contributory negligence of the driver precludes recovery regardless of negligence on the part of the railroad. Applicable rules for determining questions relating to the negligence of a railroad and the contributory negligence of a driver of a vehicle at a city street crossing were discussed in Grisamore, Ad ministratrix v. Atchison, T. & S. F. Rly. Co., supra. In Grisamore it was stated: “. . . The duty of a railroad to a motorist approaching a crossing is directly affected by the care required of the motorist. If the motorist would have been able to see the hazard had he looked and been able to avoid the collision had his automobile been in proper condition and under proper control, the railroad has no obligation which could result in its negligence.” (p. 19) “Although railroads are not insurers of the safety of persons approaching their tracks for the purpose of crossing, they must exercise due care for the safety of travelers at public crossings. This anticipates the exercise of ordinary care depending on the situation and surroundings at the crossing. Unusual dangerous conditions prevailing at the crossing may require the railroad to anticipate that the mere presence of the train standing thereon will not adequately warn users of the highway. Such special conditions may create an unusual hazard making additional warnings necessary.” (p. 20) After reviewing many of the railroad crossing cases the court in Grisamore went on to say: “It would appear from the foregoing cases that where a crossing is unusually hazardous the question of whether a driver of a motor vehicle is guilty of contributory negligence is a question of fact if the rays from the headlights are absorbed by the color of a standing railroad car; if there is a blending of the train with the street or general background; if the vision of the motorist approaching the crossing is affected by street lights near the crossing or on opposite side of crossing, or where the railroad car was on a grade so that the light beams projected under and past standing cars.” . (pp. 22, 23) The court concluded in Grisamore that a plaintiff in a street crossing accident must establish that the surrounding conditions rendered the crossing more than ordinarily dangerous if recovery was to- be had; and, whether the crossing was more than ordinarily dangerous is generally a question of fact which plaintiff must establish by his evidence. Unusually dangerous conditions prevailing at a crossing in an industrial area of a city may require a railroad company engaged in switching operations to anticipate that the mere presence of a switch engine as it approaches the crossing will not adequately warn motorists using the street, and the unusual hazard may make additional warnings and precautions by the railroad company necessary. In considering the sufficiency of the evidence on appeal only the evidence favorable to the prevailing party below is to be con sidered. (See 1 Hatcher's Kansas Digest [Rev. Ed.] Appeal and Error § 496.) What were the conditions in this case which would render the crossing more than ordinarily dangerous? The crossing was located in an industrial area. It crossed a city street which had no warning signs or traffic control and where the speed limit was thirty miles per hour. There were no street lights in the area. The switch engine was proceeding at a walking speed and not readily discernible to a motorist on a dark night. The motorist was approaching these tracks on Stanley Road from the west with the truck headlights on dim. He looked and nothing was apparent to him in the road ahead to warn of the slow approach of the switch engine from the south. The presence of the engine was obscured from the driver’s vision by darkness, by a building and a pile of lumber in close proximity to the crossing and by a sign to the right of the roadway advertising the Industrial Lumber Company. In addition the switch engine was slowly moving against a backdrop of the Phipps building which had a spot light shining from the roof. Under the circumstances attending, the crossing was more than ordinarily dangerous. What evidence was there that the railroad failed to take adequate precautions for the safety of motorists using this crossing? No member of the crew on the switch engine got off to flag the crossing. They saw the truck approaching from a distance of over 300 feet. The switch engine could have been brought to a stop within less than ten feet if proper procedures had been used by the crew. The engineer was notified by the “pin-puller” to make an emergency stop when the engine was forty feet from the street. The switch engine continued on without slacking its speed until it hit the rear dual wheels of the truck. The engine traveled approximaterly forty-five feet before hitting the truck and its momentum carried it another six feet after impact. We have no difficulty in finding a basis in the evidence for the jury’s holding that defendant was guilty of negligence which was a direct cause of the collision. Appellant contends the plaintiff was guilty of contributory negligence as a matter of law for failing to stop, look and listen before attempting to cross the railroad tracks. What has been previously said concerning the dangerous nature of this crossing and the attending circumstances disposes of all features of this argument ex cept one. Appellant insists it was error for the trial court to include the provisions of K. S. A. 8-566 in the instructions given to the jury, and it argues that the failure of the truck driver to stop his truck before crossing the tracks was negligence as a matter of law. K. S. A. 8-566 (a) provides that a driver of a motor vehicle designed and used to carry flammable liquids shall stop, look and listen and not proceed until he can safely do so, except as provided under (b) and (c) of this section. It is provided in (b) that no stop need be made where a police officer or a railroad signal controls such crossing, and it is stated in (c) “This section shall not apply at street railway grade crossings within a business or residence district.” Error in including the statute in the instructions cannot be considered by this court for two reasons. First, the appellant did not include the court’s instructions in the record. It has long been the rule that error cannot be predicated upon the giving of a particular instruction when the instructions are not included in the record on appeal. (See 1 Hatcher’s Kansas Digest [Rev. Ed.], Appeal and Error § 235.) Secondly, we note the appellant made no objection to the instruction when the same was given by the trial court. Since the instruction quoted the full text of a statute which is admittedly germane to the issues of the case and since it was unobjected to by the appellant, appellant cannot be heard to complain on appeal. (See 1 Hatcher’s Kansas Digest [Rev. Ed.], Appeal and Error § 344.) Yet another reason appears why it was not error for the trial court to refuse to direct verdicts in favor of the defendant on the issue of the contributory negligence of plaintiffs. Assuming, but not deciding, that the statute requires a gasoline transport driver to stop, look and listen before crossing each unmarked railroad track which serves the Fairfax industrial district of Kansas City, Kansas, contributory negligence does not automatically result from a failure to stop unless it is shown to be the direct and proximate cause of the accident. (Newman v. Case, 196 Kan. 689, Syl. ¶ 4, 413 P. 2d 1013.) Every negligence action is dependent on its own facts. (Drake v. Moore, 184 Kan. 309, 336 P. 2d 807.) The question of direct or proximate cause would still remain a decision for the jury. (In re Estate of Lloyd, 178 Kan. 572, 290 P. 2d 817.) The district court did not err in refusing to direct verdicts in favor of the defendant. One final point is raised by defendant. It concerns the’ admission of testimony by three witnesses familiar with the crossing who testified the switch engine was customarily operated without using a flagman in the street, without lights and without warning signals as it crossed this street. Evidence of habit or custom is relevant to an issue of behavior on a specified occasion, but is admissible on that issue only as tending to prove that the behavior on such occasion conformed to the habit or custom. (K. S. A. 60-449) Evidence of specific instances of behavior is admissible to prove habit or custom if the evidence is of a sufficient number of such instances to warrant a finding of such habit or custom.. (K. S. A. 60-450) Any relevant evidence having a tendency in reason to prove any material fact is admissible unless expressly excluded from evidence by the codified rules. (See K. S. A. 60-401, et seq.) Admissibility of evidence is largely within the discretion of the trial judge subject to the exclusionary rules. No exclusionary rule has been called to our attention which would limit the wording of the above statutes. (K. S. A. 60-449 and 60-450) One of the witnesses who testified had worked at the port of entry within a block and a half of the crossing for several years and had observed the operation of the switch engine in this area on numerous occasions each night. The other two witnesses were police officers who patrolled this area five or six times each night. All three of these witnesses had observed the operation of the switch engine over this crossing on previous occasions. It must be assumed the trial court determined the testimony showed a sufficient number of such instances to warrant a finding of habit or custom. No request was made under K. S. A. 60-406 to restrict the evidence to the issues for which it was authorized under K. S. A. 60-449 and 60-450. The evidence was properly admitted. In addition the appellant objects to this evidence because it was not shown that the same four members of the crew were in control of the engine on the- previous occasions testified to by these three witnesses. The habit or custom is one which concerns the operation of switch engines by the Union Pacific Railroad Company. The railroad controls its switching operations by operating rules. It would contribute little to die determination of the custom of the railroad to require the names of the individuals who generally operated the engines. The testimony was to the effect that the engines were uniformly observed in operation without lights, bell, whistle or flagman. It was the custom of the railroad and not of certain individual employees which was relevant to the issue. We have examined the record on appeal and have considered each point raised. What has been said in the foregoing opinion disposes of all points on appeal. The judgments are affirmed.

The opinion of the court was delivered by Fontron, J.: The plaintiffs Herbert D. Bruce and Carol Bruce, his wife, bring this action to recover damages to a couch which was .entrusted to A&A Duraclean Service to be cleaned. The action was tried to the court which rendered judgment against the defendants E. C. Smith asd Isaac Magdaleno. The defendant Smith, alone, has appealed. Basically it is Mr. Smith’s contention, as it has been throughout the entire proceedings, that A&A Duraclean Service was owned and operated by Mr. Magdaleno when the couch was cleaned; that he, Smith, then had no connection whatever with the business; and that he is not personally liable for any damage occasioned to the sofa. In support of this argument Mr. Smith points to a stipulation filed of record that on June 15, 1965, Smith sold A&A Duraclean Service to Isaac Magdaleno. The execution of this stipulation, however, does not control the disposition of this lawsuit. Accordingly, we must take a look at the plaintiffs’ evidence. Sometime in July, 1965, Mr. and Mrs. Bruce decided to have a couch and other furniture cleaned and stored pending a change of residence. The couch was upholstered in a Gref material, or fabric, which Mrs. Bruce knew had to be cleaned with a solvent base solution. After calling several cleaning establishments Mrs. Bruce, on July 16, 1965, called A&A Duraclean Service. The woman who answered the telephone told Mrs. Bruce that Mr. Smith, whom she identified as owner and manager of the business, could answer her questions. A man was then called to the phone who identified himself as Mr. Smith. In the ensuing conversation Mr. Smith satisfied Mrs. Bruce that he was familiar with Gref fabric and with the cleaning process required to clean it properly. Relying on Smith’s statements, Mrs. Bruce called him a few days later and arranged to have the couch picked up, and on July 26 Mr. Magdaleno and a Mr. Colbert, a shop employee, came and got the sofa. It was returned to the Bruce home on September 2 in a damaged condition, the color in one cushion and both arm boots having bled and faded. The next morning Mrs. Bruce called A&A Duraclean Service twice and asked for Mr. Smith but was advised that Smith was not there. That same afternoon Mr. Colbert delivered a rug to the Bruce home and for the first time Mrs. Bruce was told that Magdaleno was running A&A Duraclean Service. A day or so later, Mrs. Bruce called Mr. Magdaleno who said he would ask Mr. Smith to look at the furniture, and on September 10, Smith went to the Bruce home and suggested the damaged items be sent to National Dura clean Service in Illinois. This suggestion was followed but the damage was never remedied, the sofa being returned to the Bruces without any change in its condition. The trial court did not make findings of fact or conclusions of law in entering judgment against the defendants Smith and Magdaleno. Accordingly, the plaintiffs maintain that the general finding, which is implicit in the judgment, determines in their favor every material controverted issue of fact, and plaintiffs proceed to invoke the ancient and venerable rule that where there is any evidence to support a general finding, the judgment based thereon will not be disturbed on appellate review. Appellants correctly cite the law in this regard. In Wycoff v. Board of County Commissioners, 191 Kan. 658, 383 P. 2d 520, this court has said: “. . . It is well settled that where a case is tried by the court and a general finding made in favor of the defendant and no special findings are requested or made, the general finding includes every material fact necessary to sustain the judgment based upon such finding, and where there is some evidence to support the general finding and judgment, it will not be disturbed. (Biltgen v. Biltgen, 121 Kan. 716, 250 Pac. 265; Sledd v. Munsell, 149 Kan. 110, 86 P. 2d 567; Dryden v. Rogers, 181 Kan. 154, 157, 309 P. 2d 409; Huebert v. Sappio, 186 Kan. 740, 742, 352 P. 2d 939.)” (p. 672.) We believe the testimony of Mrs. Bruce, which the trial court obviously considered credible, was sufficient of itself to support the judgment. In brief summary, her evidence was that the lady answering the telephone at A & A Duraclean Service identified Mr. Smith as being owner and manager of the cleaning shop; that Mr. Smith came to the phone and satisfied her that he knew his business and that her couch could be cleaned by the Duraclean process and she relied on his statements; that arrangements were later made with Smith to have the couch picked up; that the couch was returned in damaged condition; that Mrs. Bruce called A & A Duraclean Service and asked for Mr. Smith who was gone at the time but who came out a few days later and made a suggestion which the Bruces followed—but alas, to no avail! According to Mrs. Bruce, she was not aware that Mr. Smith did not own A & A Duraclean Service until after the damaged couch was returned. Smith’s sale of the business to Magdaleno was made known to Mrs. Bruce only after she had discovered the damage. From the evidence we believe the conclusion is justified that Mrs. Bruce dealt with Mr. Smith on the basis of his proprietorship of A & A Duraclean Service, and that her belief in such respect was reasonably induced by Mr. Smith’s own conduct and conversations during the course of his dealings with her. Mr. Smith, it is true, categorically denied that he ever conversed with Mrs. Bruce by telephone. This conflict in the evidence was for the trial court to determine, not this court. We are constrained to comment, however, that the testimony given by Mrs. Bruce is .not entirely lacking in support by attending circumstances. As we view this somewhat unusual case, when Mr. Smith failed to disclose to Mrs. Bruce that he was not the proprietor of the A & A Duraclean Service shop, but nevertheless assumed to act in its behalf, his status, so far as Mrs. Bruce was concerned, became at least analogous, if not tantamount, to that of an agent who has failed to disclose that he was acting on behalf of another or third party. The doctrine of undisclosed principal is well imbedded in the body of American Jurisprudence. In Restatement, Agency Second, § 322, p. 72, the rule is expressed as follows: “An agent purporting to act upon his own account, but in fact making a contract on account of an undisclosed principal, is a party to the contract.” The liability of one who, while occupying the status of an agent, fails to disclose the fact of his agency or the identity of his principal to a third party who deals with him as a principal, and relies on him as such, is discussed in 3 C. J. S., Agency, § 216, p. 123, in these words: ‘If his agency and the identity of his principal are unknown, an agent, to avoid personal liability on a contract to be entered into on behalf of his principal, has the duty to disclose both the fact that he is acting in a representative capacity and the identity of his principal, for the party dealt with is not required to discover or to make inquiries to discover such facts. . . .” To similar effect, see discussion found in 3 Am. Jur. 2d, Agency, § 307, pp. 665, 666. The rule is closely related to the doctrine of equitable estoppel which is designed to promote honesty and fair dealing between persons engaging in business and commercial transactions. We believe that equitable principles must not be denied fair and proper consideration under circumstances such as those which confront us in this case. In 28 Am. Jur. 2d, Estoppel and Waiver, § 67, p. 693, the author of the text recites: “One who holds himself out as the owner of property may later be estopped to deny his ownership.” While it is true the record discloses no affirmative statements of ownership made by Mr. Smith to Mrs. Bruce, silence itself may give rise to an estoppel where, under the existing circumstances, there should have been a disclosure. Where a duty to speak exists, silence is tantamount to dissimulation. (28 Am. Jur. 2d, Estoppel and Waiver, § 53, pp. 665, 666.) We believe this rule fits the facts of this case. We conclude that judgment was properly entered against the defendant E. C. Smith. The propriety of the judgment against Isaac Magdaleno is not before us, since he has not appealed. The judgment of the court below is affirmed.

The opinion of the court was delivered by Fatzer, J.: This appeal is from an order overruling the appellant’s motion (K. S. A. 60-1507) to set aside a sentence imposed for conviction of escaping from jail. Having been convicted of two prior felonies, the appellant was sentenced to life imprisonment under the Habitual Criminal Act. (K. S. A. 21-107a.) The judgment and sentence were affirmed by this court in State v. Eaton, 199 Kan. 610, 433 P. 2d 347. The points raised by the appellant in this appeal were fully considered and decided by this court in the former appeal (State v. Eaton, supra), and the reader is referred to that opinion which is incorporated herein by reference. Any further discussion of those points would add nothing to the body of the law of this state, and it is sufficient to say the district court did not err in denying the appellant’s motion to set aside the sentence imposed March 11, 1966, after granting him a full evidentiary hearing. The judgment is affirmed.

The opinion o£ the court was delivered by Fontron, J.: This is a workmens compensation case. The trial court entered an award in favor of the claimant, Darrel Kissick, and he has taken an appeal. The facts are not in dispute. Those which are germane to the sole point in issue are as follows: On February 13,1969, the respondents, Salina Manufacturing Company, Inc. and its insurance carrier, Bituminous Casualty Corporation appealed to the Saline County District Court from an award of the Director of Workmen’s Compensation which granted the claimant temporary total disability for a hernia and permanent partial disability for a back injury. Payment of compensation, as required by law pending appeal, was not made and on March 14, claimant served a written demand on his employer pursuant to the provisions of K. S. A. 44-512a. In compliance with this demand the respondents brought compensation up-to-date as of March 24, and no complaint is made of any deficiency existing prior to that date. On June 6, 1969, claimant’s attorney advised respondents’ counsel by telephone that payments were again not being made and that he was filing a motion to dismiss the respondents’ appeal. Counsel for respondents replied that if compensation was not current he was sure it was an oversight and not intentional. On the same date, June 6, 1969, a draft was forwarded to claimant’s lawyer covering compensation then due, and payments of compensation have been made regularly ever since that time. On June 9, 1969, the claimant, without making any demand under K. S. A. 44-512a, filed a motion to dismiss the appeal. On September 8, 1969, the district court, in overruling claimant’s motion to dismiss the appeal, found that payments of compensation required by K. S. A. 1969 Supp. 44-556 were current on the date of hearing and that failure of respondents to make payments between March 24, 1969, and June 6, 1969, “was inadvertent and unintentional as no oral or written demand for compensation was made upon them.” At the same time the district court entered an award for temporary total disability based on the hernia injury but found that claimant’s back injury did not arise out of or in the course of his employment with the Salina Manufacturing Company, Inc. The sole issue presented on appeal is whether the trial court erred in overruling claimant’s motion to dismiss the appeal taken by respondents from the director’s award. In contending that his motion to dismiss the appeal was proper, and should have been sustained, the claimant relies on the provisions of K. S. A. 1969 Supp. 44-556 in conjunction with language found in three of our recent opinions. So far as material to the question now before us, K. S. A. 1969 Supp. 44-556 provides in substance that any party may appeal from the director’s decisions, rulings and awards to district court within 20 days after the same have been made and filed, that no compensation shall be due or payable until expiration of such 20-day period, and that past due compensation shall not be payable if within such period notice of appeal has been filed; provided, however, that perfection of the appeal shall not stay payment of compensation due for the period of ten weeks next preceding the director’s decision and for the period between the director’s decision and the decision of the district court on appeal. A reading of the entire statute will disclose no provisions for imposing penalties or sanctions upon the employer’s failure to pay the compensation mentioned in the proviso, nor any method prescribed for enforcing its collection. However, this court has held that where payments of compensation called for in K. S. A. 1969 Supp. 44-556 are not paid pending an appeal from the director’s award, the workman may invoke the provisions of K. S. A. 44-512a by making demand for compensation then due and payable, and that such demand, if not met, will accelerate the entire amount of compensation awarded by the director and recovery thereof may be had by suit as for a debt. (Teague v. George, 188 Kan. 809, 365 P. 2d 1087; Casebeer v. Alliance Mutual Casualty Co., 203 Kan. 425, 454 P. 2d 511.) In Scammahorn v. Gibraltar Savings & Loan Assn., 195 Kan. 220, 224, 404 P. 2d 165, this court observed: “. . . However, the legislature also intended that if such an employer perfected an appeal to the district court, he was not relieved of payment of compensation due for the ten-week period next preceding the director’s decision and of additional payments in accordance with the terms of the award until the district court rendered its decision on the appeal. If an employer failed to make payment of compensation after his appeal was perfected, the legislature further intended that a statutory demand under 44-512a could be served.” We turn now to the cases on which the claimant places reliance to support his position in this appeal. In Krueger v. Hoch, 202 Kan. 319, 447 P. 2d 823, the following language was used in connection with the provisions of K. S. A. 1967 (now 1969) Supp. 44-556: “By the plain language of the statute the right of appeal to the supreme court is qualified by the requirement that compensation payable be not stayed. In other words, continuance of payments is a prerequisite of the right to appeal as well as a requirement pending appeal. . . .” (p. 321.) Shortly after Krueger was decided, the case of Casebeer v. Alliance Mutual Casualty Co., supra, made its appearance before this court. That case involved an action brought by a workman to recover a lump sum judgment under K. S. A. 44-512a. In the course of our opinion we quoted the foregoing language from Krueger, and on pages 434, 435, added this paragraph: “As indicated, this court was kept completely in the dark concerning Alliance’s willful disregard of 44-556 pending its appeal [in the original compensation action], and of proceedings in the plaintiff’s 44-512a action in the court below. Had we been so advised, this court would have dismissed the appeal, and its decision on the merits under the circumstances which attend may not be construed to operate to Alliance’s advantage, or to the plaintiff’s disadvantage, since it was obtained by Alliance in violation of law.” Our latest expression on the subject is found in Griffith v. State Highway Commission of Kansas, 203 Kan. 672, 456 P. 2d 21, wherein we quoted copiously from the Casebeer case, including its adoption of the language found in Krueger which has already been set out. The gist of the claimant’s argument, which he endeavors to sustain by referring to the statute (44-556) and the foregoing cases, is simply this: that payment of the compensation required by the statute is a prerequisite to maintenance of an appeal and that once a payment becomes in default an employer no longer has the right to maintain and have his appeal heard. Hence, so the claimant asserts, respondents’ appeal should have been dismissed, even though at the time the motion to dismiss was overruled no delinquency actually existed. In response to the claimant’s contention, the respondents maintain that the language quoted from Krueger, Casebeer and Griffith was simply dicta and not germane to the issues determined therein; that the Workmen’s Compensation Act is complete within itself and contains' no provision authorizing dismissal of an appeal; and that the legislature has provided a means for enforcement of payment pending appeal through the procedures provided by K. S. A. 44-512a. We find considerable merit in the arguments advanced by the respondents. They are, we must concede, quite correct in pointing out that the language quoted from the three cases just cited was dicta and was not essential to the decision reached in any one of them. The facts in Krueger v. Hoch, supra, were these: On a prior appeal to this court a compensation award entered by the district court of Shawnee County had been reversed. The opinion of reversal was handed down June 10, 1967. A motion for rehearing was filed, which was not overruled until August 31, time having been extended to file the motion. In the meantime, and on June 26, demand for compensation was made under 44-512a. When the demand was not met, suit was filed to recover a lump sum judgment. The sole point in issue in the 512a action was whether compensation became due and payable between the time the decision was handed down and the date on which rehearing was denied. This court held that compensation did not fall due after the opinion was filed, and that claimant could not invoke the provisions of 44-512a for the reason that no compensation was due on the date demand was made. No issue was raised as to whether a failure to pay compensation coming due during the appeal would be cause for dismissing the appeal. The issue involved in Casebeer v. Alliance Mutual Casualty Co., supra, was whether the employer’s failure to pay compensation for the ten-week period next preceding the director’s award, and for the period after the director’s decision and prior to the district court’s decision, would entitle the claimant to invoke the provisions of 44-512a. This issue was resolved in the workman’s favor, but again no issue was raised as to the dismissal of an appeal for nonpayment of compensation, and our remarks in that respect were purely gratuitous. A similar situation obtained in Griffith v. State Highway Commission of Kansas, supra. There, the commission had appealed from the director’s award but failed to pay the compensation required by 44-556. A written demand for payment was made which apparently lost its way among the papers on somebody’s desk. As a result, payment of compensation was not made pursuant to the demand and action was commenced under 44-512a to recover the entire amount of the director’s award. The issue raised in the case was not whether the workman might have moved to dismiss the employer’s appeal from the director’s award, but whether he could prosecute his action for the full amount of the award even though that award had later been reduced by the district court. We answered that question in the affirmative. Our observations with respect to the dismissal of appeals were purely extraneous. This court has been both consistent and persistent in holding that the Workmen’s Compensation Act is complete within itself, prescribing its own procedures, which are not to be supplemented by rules borrowed from the Code of Civil Procedure. (Fleming v. National Cash Register Co., 188 Kan. 571, 363 P. 2d 432; Magers v. Martin Marietta Corporation, 193 Kan. 137, 392 P. 2d 148; Krueger v. Hoch, supra.) In Tompkins v. Rinner Construction Co., 196 Kan. 244, 409 P. 2d 1001, we said: “The workmen’s compensation act establishes a procedure of its own covering every phase of the right to compensation and of the procedure for obtaining and enforcing it, which procedure is complete and exclusive in itself. (Anchor Casualty Co. v. Wise, 172 Kan. 539, 241 P. 2d 484, Teague v. George, 188 Kan. 809, 812, 365 P. 2d 1087).” (p. 247.) In Krueger v. Hoch, supra, we held this rule applicable with specific relation to K. S. A. 1967 (now 1969) Supp. 44-556, and said: “We have repeatedly held in a long line of decisions that the act establishes a procedure of its own covering every-phase of the right to compensation and of the procedure for obtaining and enforcing it, which procedure is complete and exclusive in itself. . . . “The right to appeal and procedures in connection therewith in workmen’s compensation proceedings are fully set out in K. S. A. 1967 Supp. 44-556. The statute provides complete and exclusive procedures pertaining to appeals. . . .” (p. 321.) Significantly, the appeal statute, K. S. A. 1969 Supp. 44-556, makes no provision for the dismissal of an employers appeal upon his failure, pending appeal, to make the payments specified therein. Neither has our attention been directed to any such provision elsewhere in the Workmen’s Compensation Act and we are scarcely in a position at this time to interpolate additional procedures into the Act. Moreover, we have recently said that failure on the part of an employer to pay the compensation due during an appeal was not jurisdictional to the perfection of the appeal itself. In Scammahorn v. Gibraltar Savings & Loan Assn., 197 Kan. 410, 416 P. 2d 771, the claimant filed a 44-512a demand against the respondent for compensation due and unpaid pending an appeal from the director’s award. When the demand was not met, the claimant did not file suit for a lump sum judgment pursuant to 44-512a but, instead, moved to dismiss the employer’s appeal. The district court overruled the motion to dismiss the employer’s appeal, proceeded to consider the appeal on its merits and affirmed the director’s award. The employer then appealed to this court. In his argument to this court the workman, although he had not cross-appealed, contended the district court had lacked jurisdiction in the first instance to entertain the employer’s appeal, in that the appeal from the director’s award had not been properly perfected because compensation, as required by 44-556, had not been paid. In rejecting this argument, we said: “We hold, therefore, that all that is required of a party perfecting an appeal to the district court is the filing of his written notice of appeal with the director within the time prescribed. Furthermore, compliance with the 1961 amendments to the statute [K. S. A. 1969 Supp. 44-556] is not a jurisdictional requirement to the perfection of an appeal by an employer. . . .” (p. 413.) Applying to this case the rationale of Scammahorn, we are constrained to say that payment of the compensation required by K. S. A. 1969 Supp. 44-556 to be paid pending appeal from the director’s award is not a jurisdictional prerequisite to the maintenance of such appeal. Conversely, the failure to make such payments will not constitute a valid ground for dismissing the appeal. Our conclusion does not leave a claimant without remedy should his employer fail or refuse to pay compensation due pending the appeal. The statute, K. S. A. 1969 Supp. 44-556, clearly directs that an appeal from the director’s award shall not stay payment of compensation due for the ten-week period next preceding the director’s decision and during pendency of the appeal. If compensation is not paid when due, the workman has been provided with a handy and effective tool to force compliance, namely, the procedure outlined in K. S. A. 44-512a. Use of this statute, in our opinion, is the means by which the legislature intended all compensation due and payable should be enforced, including that which is due pending appeal. In Griffith v. State Highway Commission of Kansas, supra, this view finds expression in syllabus 2: “K. S. A. 44-512a is the declared public policy of the state that compensation awards shall be promptly paid, and is the means selected by the Legislature to insure their enforcement, and applies to all awards or judgments without the slightest qualification.” Claimant suggests, somewhat obliquely, that the cost of serving written demand under 44-512a would be burdensome. His argument is not particularly impressive, if for no other reason than that it conveniently overlooks that part of the statute which provides that notice may be served personally. The decision we have reached in this case requires our disapproval of conflicting language in Krueger v. Hoch, supra, Casebeer v. Alliance Mutual Casualty Co., supra, and Griffith v. State Highway Commission of Kansas, supra. No error appears on the part of the court below and its judgment is affirmed.

The opinion of the court was delivered by Fatzer, J.: This appeal arises out of an order of the district court of Douglas County, denying the City of Eudora s motion to vacate a judgment as to the defendant city, one of the 156 named defendants in a proceeding to quiet title to a tract of land and a block platted in the original townsite of Eudora and designated as “Market” or Public Square. On October 23,1951, Mary Copp commenced the quiet title action against the City of Eudora and the other named defendants, and her petition alleged she owned the metes and bounds area described therein, “together with vacated streets, alleys, and tract of ground known as the ‘Market’, in Douglas County, Kansas”; that she and her predecessors in title have been in actual, open, notorious, continuous, exclusive and adverse possession of the real estate described under claim of ownership for more than fifteen years prior to the filing of her petition, and that she and her predecessors in title have exercised all the rights of ownership thereto and have paid taxes on said property as the owners thereof. The prayer was that her title to the real estate described be forever quieted against any claim of the defendants, and that all persons claiming under them be forever barred and enjoined from setting up or asserting any right, title, equity, or interest thereto. Personal service of summons was duly had on the City of Eudora by serving Allen Westerhouse, Mayor, in the manner provided by law. Due and legal service of summons by publication was had upon the remainder of the defendants, which was approved by the district court. On December 8, 1951, the City of Eudora and all the remaining defendants having failed to appear or plead within the time allowed and being wholly in default, the district court rendered judgment in favor of Mary Copp, and specifically found “that actual Service of Summons has been made upon the defendant, the City of Eudora,” and “that all the allegations and averments contained in Plaintiff’s petition are true.” In rendering judgment, the district court found Mary Copp was the owner in fee simple of the real estate described in her petition “together with vacated streets, alleys, and tract of ground known as the ‘Market’, in Douglas County,” and title thereto was quieted in the plaintiff. Thereafter, and on December 19, 1951, Mary Copp conveyed her interest in the property to Louis C. French and Edith A. French who have continuously been in possession thereof. As hereafter indicated, the area in question and that described in the plaintiff’s petition was a portion of the original townsite of the City of Eudora south of 12th Street, which the appellees claim was vacated by Ch. 261, Secs. 61 and 67, Laws of 1889. The proceeding giving rise to this appeal was commenced on June 29, 1967, when the City of Eudora filed a motion to vacate the judgment quieting Mary Copp’s title insofar as the area or block designated as “Market” was concerned. The motion alleged the judgment quieting the plaintiff’s title was absolutely void as to the City of Eudora since the statute of limitations is inapplicable to a sovereign city and the court was without jurisdiction to render a judgment against said city; that “Market” was laid out and platted as a part of the original townsite of the City of Eudora on February 8, 1859; that the fee title to said land has always been and then was in the county of Douglas, subject to regulation and control of the city, and that neither Douglas County nor its Board of County Commissioners was made party defendant in said action. The motion further alleged that none of the members of the governing body were aware of the pendency of the plaintiff’s action nor was the City of Eudora named in the publication notice giving the citizens of said city any notice of the action attempting to transfer title to public land, and if a single citizen had a question concerning the matter at the time of the rendition of the judgment, it could not have been rendered against the defendant city. On April 3, 1968, the district court, having heard the contention of the parties, filed its memorandum opinion and rendered judgment in favor of Louis C. French and Edith A. French, successors in title of Mary Copp, who appeared and defended against the city’s motion. Since the pertinent facts are fully stated and the issues thoroughly analyzed and discussed in the district court’s memorandum opinion, it is quoted in full: “The motion of defendant City of Eudora, to vacate the judgment entered in the above captioned case as to said City was submitted after oral arguments which were presented on February 21, 1968. The motion has been under advisement for ruling. “The facts are as stipulated in the pre-trial order filed on January 16, 1968, which facts are in substance as follows: “1. The City of Eudora was incorporated February 8, 1859 and is a city of the third class in Douglas County, Kansas. A plat of the original townsite of Eudora was filed sometime in 1859, the original of which was destroyed by fire on August 21, 1863. A copy of this plat was filed in the office of the Register of Deeds about September 12, 1870 after the original had been destroyed and this copy was received in evidence by agreement at the time of oral argument as being the most authentic plat of the original townsite of Eudora now in existence. (In the lower left corner, the plat just mentioned had been marked as an exhibit in Case No. 9214, Hartig v. City of Eudora, and to those interested in the early history of Eudora the findings of fact made by the Hon. C. A. Smart in said case are of interest in connection with the vacation of streets and alleys near the Kansas River. These findings are in Journal W, beginning at page 189. Judge Smart’s conclusion that the streets and alleys in question had been lawfully vacated by the Board of County Commissioners as authorized by Ch. 190, Laws of 1877, was affirmed on appeal in Eudora v. Hartig, 68 Kan. 742.) “2. Ch. 261, Laws of 1889 provides in part as follows: ‘Sec 61. That all the streets and alleys in the town of Eudora, Douglas County, lying south of Twelfth Street, except C, E and Nineteenth streets, are hereby vacated.’ ‘Sec. 67. That all streets, alleys and public grounds of whatever kind within the boundaries of that portion of the hereinbefore designated town-sites declared vacated by this act be and the same are hereby vacated, and shall revert to and become the property of the owners of the adjacent lots to the center of each of such streets, alleys and other public grounds.’ ‘‘3. A Zerox copy of that portion of the Plat of Eudora which reflects the area in question has been made, is attached hereto, is made a part hereof, and shall hereinafter be referred to as the plat. “4. The heavy lines drawn on the south side of 12th Street, the east and west sides of C and E Streets, and the north and south sides of 19th Street indicate the areas of Eudora which were vacated by Ch. 261, Laws of 1889. “5. At the time the above captioned lawsuit was filed, Mary Copp, owned the metes and bounds area shown in heavy outline on the plat to the north of E Street, included within which is an area designated as ‘market’. In her suit to quiet title to said metes and bounds description against over 150 defendants, Mary Copp as plaintiff, described the streets and alleys and area designated as ‘market’ as having been vacated and joined the City of Eudora as a defendant. The City of Eudora was duly served with summons in the manner provided by law and failed to appear or plead within the time allowed and remained wholly in default at the time plaintiff took judgment quieting her title on December 8,1951. “6. All of the property referred to in Finding No. 5, including the vacated streets and alleys and the area designated as ‘market’, has been on the tax rolls of Douglas County, Kansas, since 1926 since which date the taxes thereon have been paid by Mary Copp and her successors in title. “7. On June 29, 1967 the defendant, City of Eudora, filed a motion to vacate the judgment quieting plaintiff’s title insofar as the area designated as ‘market’ is concerned on the ground that such judgment was and is void as to said, City as to said area for the reason that plaintiff could not acquire title to an area dedicated for public use by adverse possession, and if plaintiff could do so, the judgment is ineffective since title to such area is in the County subject to control and use by the City and the County was not made a defendant. “8. After plaintiff secured her quiet title judgment and on December 19, 1951, she conveyed her interest in the property in question to Lewis C. French and Edith A. French, who appear and defend against the City’s motion, their contention being: (1) The area designated as ‘market’ was vacated by Sec. 67 of Ch. 261, Laws of 1889; (2) that since the Court had jurisdiction of the parties and the subject of the action in the quiet title suit the judgment entered therein is res judicata; and (3) even assuming the judgment is void as to the City, the Court should not set such judgment aside for to do so would produce an inequitable result. “From the facts it is concluded that: “(1) It was the intention of the legislature by enacting Ch. 261, Sec. 67, Laws of 1889 to vacate all public ground situated between or surrounded by streets and alleys which had been vacated by other sections of the statute. “(2) That the area designated on the plat as ‘market’ is completely surrounded by streets and alleys which were vacated by Ch. 261, Sec. 61, Laws of 1889 and was therefore vacated by Ch. 261, Sec. 67, Laws of 1889. There can be no question about the constitutionality of Ch. 261, Laws of 1889 or of the fact that by such statute all streets and alleys south of 12th except C, E and 19th Streets were vacated. (See: City of Eudora v. Darling, 54 Kan. 654) “(3) Needless to say, at the time plaintiff, Mary Copp field the instant suit and obtained judgment quieting her title to all vacated streets, alleys and the metes and bounds description shown on the plat, the City of Eudora had no interest therein nor did Douglas County. (City of Eudora v. Darling, supra) Furthermore the City of Eudora had effectively barred itself from any further claim by failing to answer or defend against plaintiff’s action after having been duly summoned as a defendant therein. (See: 38 Am. Jur. 430, Sec. 728) The judgment in this case is not void as against defendant City of Eudora. “The Clerk is hereby directed to enter the following judgment: The motion of defendant City of Eudora for vacation of the judgment in this case as to said defendant is overruled at the costs of said defendant.” The district court’s memorandum opinion refers to the plat of the City of Eudora which reflects the area in question. We have attached to this opinion as Appendix A a reproduction of the plat to assist the reader. In this appeal the City of Eudora makes two principal contentions. They are (1) that the district court erred in making conclusions of law Nos. 1, 2 and 3, based upon its findings of fact, and (2) that any judgment quieting title to property platted and dedicated to public use by the trustees of the original townsite of the municipality based on adverse possession is void, and should be vacated and set aside as to the municipality. With respect to the first contention, the city argues that it is apparent from the language used in Sec. 61 of Ch. 261, Laws of 1889, there was no intention to vacate anything except streets and alleys of a particular section of the city, and certain exceptions are made to that declaration, namely, “C, E and 19th Streets,” and that the act did not vacate the public ground designated on the plat as “Market,” or public square. We are of the opinion the district court did not err in its conclusion that the tract of land in question was vacated by the Legislature throrigh its enactment of Ch. 261, Laws of 1889. The intention of the Legislature to do so is clearly evident from the title of the Act and the language of Secs. 61 and 67, which read: “An act to vacate portions of certain town-sites in the State of Kansas therein named.” (Emphasis supplied.) “Sec. 61. That all the streets and alleys in the town of Eudora, Douglas County, lying south of Twelfth street, except C, E and Nineteenth streets, are hereby vacated.” (Emphasis supplied.) “Sec. 67. That all streets, alleys and public grounds of whatever hind within the boundaries of that portion of the hereinbefore designated town-sites declared vacated by this act be and the same are hereby vacated, and shall revert to and become the property of the owners of the adjacent lots to the center of each of such streets, alleys and other public grounds.” (Emphasis supplied.) That existing townsites may be vacated by the Legislature either expressly or by clear implication is beyond argument. (City of Eudora v. Darling, 54 Kan. 654, 39 Pac. 184; Bull v. Kelley, 83 Kan. 597, 112 Pac. 133; Beaty v. Shinkle, 91 Kan. 102, 136 Pac. 928; 87 C. J. S., Towns, § 17, p. 14; 52 Am. Jur., Towns and Townships, § 45, p. 496.) In the Darling case it was held that Ch. 261, Laws of 1889 was constitutional and that under the provisions of Sec. 61 of the Act, the streets and alleys in the town of Eudora lying south of 12th Street, except C, E and 19th Streets, were vacated. As the issues were there presented, it was unnecessary to consider whether that portion of the townsite of Eudora and “public grounds of whatever kind” within the area designated, were vacated. In the Shinkle case it was held that the Act of 1889 was a vacation act, and that its purpose was to vacate portions of certain platted townsites named therein. As indicated in Appendix A, the area in question was platted and consisted of some 62 blocks south of 12th Street, and streets and alleys, and one block in size designated as “Market” or public square. Hence, it follows that the Act of 1889, if not expressly, at least by clear implication, vacated the blocks within the boundaries of the streets and alleys designated in Sec. 61, and that Sec. 67 vacated “public grounds of whatever kind” therein located. Reading both sections of the Act together, the result accomplished by the statute was the same as if it had read “all the streets and alleys in the town of Eudora lying south of 12th Street, except C, E and 19th Streets, and all public grounds of whatever kind within the boundaries of such streets, are hereby vacated.” With respect to the appellant’s second contention, the City of Eudora was named as a party defendant and was properly served with summons in the action commenced by Mary Copp to quiet title to the real estate in question. The sheriff’s return shows personal service upon the mayor of the City of Eudora. G. S. 1949, 60-2517, which prescribed the manner of service on cities at the time of the commencement of the action, provided: “All and every process and notice whatever, affecting any city, shall be served upon the mayor, or, in his absence, upon the cleric of such city.” K. S. A. 60-304 (d) of our present Code of Civil Procedure contains a similar provision for service upon the mayor of a city. As indicated, tire City of Eudora was properly served with notice of the action to quiet title to the “Market”, and of the plaintiff’s allegation that the “Market” had been vacated. For one reason or another, it chose not to answer or appear in any manner in connection with that lawsuit. That a municipality is subject to the doctrine of res judicata is set forth in 38 Am. Jur., Municipalities, § 728, pp. 430 and 431, which reads: “The usual mies as to the conclusiveness of judgments have been applied in the case of judgments in favor of or against municipalities. A judgment against a municipal corporation in a matter of general interest to all its citizens is binding on the latter, although they are not parties to the suit. Every taxpayer is a real, although not a nominal, party to such judgment, and cannot re-litigate any of the questions which were litigated in the original action against the municipality, or its legal representatives, and, if the municipality fails to avail itself of legal defenses, the people are concluded by the judgment. If such failure comes from negligence or corruption, the taxpayer has a remedy on both the criminal and civil dockets of the courts, and if from incompetency, the taxpayer’s remedy is the ballot box. Such judgments must be conclusive unless impeached for fraud or mistake. Also, a judgment against a municipality is binding upon ... its people when the question was concerning property which the municipality claimed to hold in trust under a dedication thereof to public me. Even when the judgment is rendered by default, it is still conclusive, in the absence of fraud, since otherwise a plaintiff might be deprived of an effective remedy by the refmal of the municipality or its officers to appear and answer. . . .” (Emphasis supplied.) See, City of Council Grove v. Kansas Electric Power Co., 137 Kan. 109, 113, 19 P. 2d 460. See, also, Coffey, Administrator v. Gilbert, 204 Kan. 305, 461 P. 2d 747, as to when a judgment entered becomes res judicata. The district court had jurisdiction of the parties to the action and of the subject matter and the power to make a determination on the issue whether the “Market” had been vacated by the Act of 1889. No evidence was introduced to indicate the judgment rendered on December 8, 1951, was obtained through fraud or mistake. Hence, the district court did not err in concluding the City of Eudora had effectively barred itself from any further claim to the “Market” by failing to answer or defend against the quiet title action after having been duly summoned as a defendant therein. The power to hear and determine the allegations of that petition cannot be denied, and the district court had jurisdiction to render a judgment upon the issues before it. Where, as here, a court has jurisdiction of the parties to the action and of the subject matter, and renders a judgment within its competency, even if erroneous, that judgment is final and conclusive unless corrected or modified on appeal or by such other method as may be prescribed by statute and it may not be collaterally attacked otherwise. (In re Estate of Johnson, 180 Kan. 740, 746, 308 P. 2d 100.) The appellant refers to the concept that ordinarily title to public land held by a municipality cannot be lost by adverse possession and to cases holding that rights of a municipality are not lost by estoppel or by the unauthorized acts of its representatives or officers, and it contends the judgment entered on the petition of Mary Copp of December 8, 1951, was void as to the appellant. The point is not well taken. The default judgment against the City of Eudora was based on the vacation of the “Market” and of reversion of title to the owner of the adjacent lots as provided in Sec. 67, and the district court’s conclusion the judgment involved in this appeal was not a void judgment as to the appellant, was correct. The appellant also contends its motion to vacate the judgment of December 8, 1951, should have been sustained for the reason that Douglas County was not a party to the lawsuit, and we are referred to Douglas County v. City of Lawrence, 102 Kan. 656, 171 Pac. 610, and to State, ex rel., v. City of Manhattan, 115 Kan. 794, 225 Pac. 85. The contention lacks merit. The judgment obtained by Mary Copp of December 8, 1951, quieted her title to all vacated streets, alleys and the metes and bounds description as shown on the plat which included the block designated “Market.” Following the publication of Ch. 261, Laws of 1889, on March 13, 1889, neither the City of Eudora nor the County of Douglas had any interest therein. (City of Eudora v. Darling, supra.) There is no dispute about the facts of this case. The only questions involved are questions of law. We are of the opinion the judgment of the district court overruling the City of Eudora’s motion to vacate the judgment rendered December 8, 1951, should be affirmed for the reasons heretofore set forth. It is so ordered. Appendix A

The opinion of the court was delivered by O’Connor, J.: This is an interlocutory appeal (K. S. A. 60-2102 [b]) in a condemnation action instituted February 15, 1968, by the City of Manhattan to acquire five entire tracts of real estate for off-street parking purposes. The tracts condemned were improved properties occupied by tenants under leases with the respective landowners. The City appealed from the appraisers’ award for each of the tracts. On four of the tracts appeals were also taken from the awards by either the landowners (lessors) or one or more of the lessees. The appeals, though separately docketed, were ordered consolidated for a pretrial conference which was held June 21, 1968. The pretrial order reflects, among other things, that upon the subsequent trial of any appeal the court would instruct the jury that the measure of compensation to the landowners and lessees would be in accordance with instructions previously given the court-appointed appraisers. The district judge found that as to all the pending cases the propriety of his instructions involved controlling questions of law on which there was substantial ground for difference of opinion and that an immediate appeal from the pretrial order would materially advance the ultimate determination of the litigation. Upon the City’s application under Rule 5 of this court (201 Kan. xvi), permission was granted to appeal from the district court’s order. The first “controlling question of law” presented for consideration is stated as follows: “Is the reasonable cost of the removal by the lessee from the leased premises of his goods, wares, merchandise and other personalty for a reasonable distance, a proper element of damage to the lessee for which said lessee may receive compensation under the Eminent Domain Procedure Act of Kansas?” The lower court’s instruction was to the effect a lessee was entitled to the reasonable cost of removing personalty in addition to the fair and reasonable market value of his leasehold estate. The appellant (condemnor) contends that a lessee’s cost of removing his merchandise and other personal property from the condemned premises is not to be considered for any purpose in an eminent domain proceeding. The appellees (lessees) concede the district court’s instruction goes too far by permitting recovery of removal cost as an independent item of damage, but urge that such cost is a proper factor for consideration in determining the market value of the leasehold. Appellees direct our attention to Bales v. Railroad Co., 92 Kan. 771, 141 Pac. 1009, where the jury was instructed the cost of removal of goods and fixtures could be considered in determining the value of the unexpired portion of the lease. Whether or not the instruction was proper, however, was not decided, and the case is not authority to support appellees’ position. Our research reveals the precise point has never been passed on by this court. The great weight of authority is that an owner or lessee of real property taken or damaged in eminent domain is not entitled to recover as a part of just compensation the cost of removing his personal property from the premises. (State v. Chun, 91 Ariz. 317, 372 P. 2d 324; Ballantyne Co. v. City of Omaha, 173 Neb. 229, 113 N. W. 2d 486; Williams v. Highway Commission, 252 N. C. 141, 113 S. E. 2d 263; Housing Authority v. Kosydor, 17 Ill. 2d 602, 162 N. E. 2d 357; 27 Am. Jur. 2d, Eminent Domain § 354; 29A C. J. S., Eminent Domain § 164; Annos. 94 L. Ed. 826, 34 A. L. R. 1523, 90 A. L. R. 165, 156 A. L. R. 397, 3 A. L. R. 2d 312; 4 Nichols on Eminent Domain, [3d Ed.] § 14.2471 [2].) Nichols, in discussing the prevailing rule, states: “In general, the lessee’s cost of removing his personal property from the land condemned is not an element meriting consideration in ascertaining his compensation whether such item is considered as a separate, substantive element of damages or whether it is considered insofar as its effect upon the market value of the leasehold is concerned. It has been said that the ‘just compensation’ to which a lessee is entitled is measured by the market value of his leasehold. He is not entitled to more than that because his expenses are increased in consequence of moving his business to another place. . . . Inconvenience and expense incident to vacating the premises upon the expiration of the right to retain them are not proper subjects of consideration in determining the just compensation to be paid by the party acquiring the right to possess and use them. . . .” (pp. 667-670.) The principles underlying the rule are well expressed in Williams v. Highway Commission, supra, wherein it was stated: “The rationale of the decisions for not allowing the damages are: one, the tenant eventually would have to move anyhow, and this is one of the circumstances attached to placing property on leased premises; second, it is not a taking of property within the language of the constitution, in that the expense of moving and injury to the property in moving is neither a taking or damaging of the property; three, a verdict would be based on conjecture; . . .” (p. 145.) Under federal condemnation proceedings, where there is an entire taking of the property, whether it represents the interest in a leasehold or fee, the cost of removal or relocation is not included in valuing what is taken. In other words, the guarantee of just compensation under the Fifth Amendment to the United States Constitution does not provide for allowance for consequential losses. (United States v. Westinghouse Co., 339 U. S. 261, 94 L. Ed. 816, 70 S. Ct. 644; United States v. Petty Motor Co., 327 U. S. 372, 90 L. Ed. 729, 66 S. Ct. 596; U. S. v. General Motors Corp., 323 U. S. 373, 89 L. Ed. 311, 65 S. Ct. 357, 156 A. L. R. 390.) Constitutional limitations likewise prohibit a state from taking private property for public use without the payment of just compensation. (U. S. Constitution, Amendment 14; Kansas Constitution, Art. 12, § 4.) The authorities previously cited sustain the view expressed by the majority of state courts that in the absence of a statute or agreement to the contrary, removal costs of merchandise or other personal property from a leasehold or fee in land, where there has been a taking of the whole interest, cannot be considered as an element of damage since such loss is neither a taking nor damaging of property under constitutional or statutory provisions similar to the language of K. S. A. 26-513 (a): “Private property shall not be taken or damaged for public use without just compensation.” (See, particularly, Ballantyne Co. v. City of Omaha, supra.) In this state a tenant under a lease is an “owner” of property within the meaning of that term as used in our condemnation statutes (Eisenring v. Kansas Turnpike Authority, 183 Kan. 774, 332 P. 2d 539, and cases cited), and his leasehold may not be taken or damaged for public use without the payment of just compensation (K. S. A. 26-513 [a]). Under the majority rule, which we think is sound, where there is an entire taking of the leasehold estate, cost of removing personalty is not a part of just compensation to which a lessee is entitled unless made so by statute. In ascertaining the amount of compensation and damages to which an “owner” is entitled under our Eminent Domain Procedure Act, the legislature enumerated certain factors which shall be given consideration if shown to exist, not as separate items of damage but only insofar as they affect the total compensation and damages recoverable. (K. S. A. 26-513 [d].) Cost for removal of personal property is not among those factors listed. Notwithstanding, the matter was not overlooked. Examination of the legislative history leading up to the enactment of K. S. A. 26-513 (d) discloses the original draft of the proposed changes in the statute was prepared by the advisory committee of the judicial council and contained as one of the enumerated factors: “12. Cost of removal of landowner’s personal property to another site, if the cost of such removal is established.” (Kansas Judicial Council Bulletin, April, 1962 Ed., p. 35.) The legislative council considered the committee’s draft and submitted a proposed bill to the 1963 Legislature containing item 12 as quoted above. (15th Biennial Report and Recommendations of the Kansas Legislative Council, December 10, 1962, pp. 51 through 63.) The Senate Judiciary Committee, however, in introducing Senate Bill 184, deleted the item. The bill, with several amendments not pertinent here, was finally enacted into law in the form now appearing as K. S. A. 26-513 (d). The historical background, legislative proceedings, and changes made in a proposed law during the course of its enactment may properly be considered by this court in determining legislative intent. (Urban Renewal Agency v. Decker, 197 Kan. 157, 415 P. 2d 373.) The rejection by the legislature of a specific provision contained in a proposed enactment is persuasive to the conclusion that the act should not be so construed as in effect to include that provision, at least where there is no basis for the assumption that the words omitted were surplusage. (Gilbertson v. McLean et al., 216 Ore. 629, 341 P. 2d 139; Builders Land Co. v. Martens, 255 Iowa 231, 122 N. W. 2d 189.) The legislative council was directed in 1961 to make a study of the advisability of codifying the laws of eminent domain and to make a report and recommendations to the 1963 Legislature. The council is comprised of members from both houses of the legislature. As part of its function, the council disseminates advance information on legislative matters to all members of the legislature. Consequently, the legislators were fully aware of the proposed bill containing item 12, particularly in view of the footnote calling attention to the fact the purpose of the new section was to eliminate any doubt as to elements of damage. (Biennial Report, supra, p. 62.) The rejection of item 12 by the Senate Judiciary Committee, and finally by the entire legislature, leaves no doubt that the lawmakers did not intend the cost of removing personalty should be considered as a factor in determining the amount of compensation and damages to which an owner was entitled, whether he be the owner of the fee or leasehold estate. In answer to the “controlling question of law,” we hold that the cost of removal by the lessee from the leased premises of his goods, wares, merchandise, and other personalty for a reasonable distance is not a proper element of damage for which the lessee may be compensated under the Eminent Domain Procedure Act. Two other questions have been submitted for consideration, but in light of the posture in which this case comes to us, we have concluded, as to them, permission to take an interlocutory appeal was improvidently granted. The district court’s pretrial order is erroneous insofar as it relates to the point discussed in this opinion. The order is reversed and the lower court is directed to proceed in accordance with the view herein expressed.

The opinion of the court was delivered by O’Connor, J.: This was an injunction action directed against the violation of a restrictive covenant prohibiting trailer houses in an addition known as South Broadway Gardens, in Sedgwick county. In 1952 the E.C.M. Corporation was the owner of Blocks 3, 4 and 5 in the said fifty-seven-lot addition. As the corporation conveyed the lots to various owners, it placed restrictions of substantially the same nature in each of the deeds. Those pertinent to this action, and found in the deed of conveyance to defendant’s predecessor in title, are as follows: “(1) Said lots shall be improved, used and occupied for residential purposes only, and no residence shall be built thereon having less than 500 sq. ft. “(3) No structure shall be erected oil any lot until the design, location and set-back thereof shall have been approved in writing by E.C.M. Corporation, Inc. and it shall conform and be in harmony with similar structures in the tract. “(4) No used, secondhand or previously constructed house or building of any kind shall be moved or placed as a whole or in sections upon said lot or lots. “(6) No trailer house, secondhand cars, nor junk yard of any kind shall be permitted. “(7) No noxious or offensive trade shall be carried on upon any lot, nor shall anything be done thereon which may be or become an annoyance or a nuisance to the neighborhood. “(8) The restrictions shall run with the land and shall be binding on the undersigned and all persons claiming under them until the 10th day of April, 1972, at which time said covenants and restrictions shall terminate.” The plaintiffs, Gail and Sabrina Hecht, purchased Lot 18, Block 4, their present residence, from E.C.M. Corporation in February 1953. The defendant, Don R. Stephens, is the owner of Lot 14, Block 4, and resides in California. The E.C.M. Corporation was dissolved January 14, 1965. In December 1966, the Hechts had a conversation with Mrs. Adam Thompson (Stephens’ sister) and her mother, and were informed by Mrs. Thompson that a mobile home was to be moved onto defendant’s lot. Mr. Hecht advised Mrs. Thompson that such a home would violate the property restrictions, and that if she carried out her plans he would seek an injunction to prevent her from doing so. The Thompsons purchased a mobile home at a cost of $4,100, and on April 2,1967, moved it onto defendant’s property. The home was placed upon a steel foundation which was laid in cement beneath the ground. The wheels were removed and wrought iron steps and railing were constructed at the entrance. The home was equipped with running water, electricity and sewer. Mr. and Mrs. Thompson erected a porch on the mobile home at a cost of $150. In addition, they expended time and money in clearing the land, removing trees, and doing some landscaping, which included the planting of grass, flowers and shrubs and the installation of a rock garden, fish pond and wishing well. The Hechts commenced this action approximately seven weeks after the mobile home was placed on defendant’s lot. By their amended petition the Hechts sought to enjoin Stephens and all persons claiming through him from keeping a mobile home on the property, and further requested a mandatory injunction requiring defendant to remove the home. After issues were joined the matter was tried to the district court, which entered judgment in favor of the defendant, pursuant to the following mixed findings of fact and conclusions of law: “Third: That no effective notice or demand to cease and desist was given by Plaintiffs to Defendant prior to commencement of this action on May 23, 1967, and until substantial time and money were expended in improvement of Lot 14. “Fourth: That said violations within the area have been so general and substantial as to indicate a purpose and intention of the residents of said area to abandon the general building plan or scheme. “Fifth: That Plaintiffs have acquiesced in the numerous violations within the area and have abandoned the effect and enforcement of said restrictive covenants. “Sixth: That said restrictive covenants are invalid and unenforceable.” Plaintiffs have appealed, and attack the judgment on several grounds. At the outset we note that if any one of the foregoing conclusions is sustainable, the trial court’s judgment must he affirmed. Therefore, we need only to direct our attention to the “fourth” conclusion of law insofar as it bears upon changes in the character and conditions of the neighborhood. Restrictive covenants have long been recognized in this state. These restrictions, or servitudes, are based on the equitable principle of notice. A servitude is imposed by equity on the restricted property for the benefit of property retained by the grantor, or those who take from him with notice. Thus, a person who takes land with notice of restrictions upon it will not in equity and good conscience be permitted to act in violation thereof. (Reeves v. Morris, 155 Kan. 231, 124 P. 2d 488; N. P. Dodge Corp. v. Colderwood, 151 Kan. 978, 101 P. 2d 883; Clark v. Vaughan, 131 Kan. 438, 292 Pac. 783.) The jurisdiction of equity to enforce covenants restricting the use of property is not absolute. The right to enforce the restrictions may be lost by laches, waiver, or by acquiescence in the violation of the provisions of such restrictions. (N. P. Dodge Corp. v. Calderwood, supra.) Additionally, where the restriction is made with reference to the continuance of existing general conditions of the property and its surroundings, and there has occurred such a change in the character of the neighborhood as to defeat the purpose of the restrictions and to render their enforcement inequitable and burdensome, a court of equity will refuse to enforce them and will leave the complainant to whatever remedy he may have at law. (Clark v. Vaughan, supra.) Whether injunctive relief will be granted to restrain the violation of restrictions is a matter within the sound discretion of the trial court to be determined in the light of all the facts and circumstances. Absent manifest abuse of that discretion, the appellate court will not interfere. (Duncan v. Academy of the Sisters of the Sacred Heart [Mo.], 350 S. W. 2d 814.) The lower court specifically found there had been numerous violations of the restrictive covenants—used, secondhand or previously constructed houses and buildings had been moved to and placed upon lots in the three-block area; property had been used for business purposes; and other trailer houses and secondhand cars were located within the restricted area. From this the court concluded the violations had been so general and substantial as to indicate a purpose and intention of the residents of the area to abandon the general building plan or scheme. Highly summarized, the evidence in support of the trial court’s findings discloses that there were four prefabricated houses constructed in the three-block area. Since no contention to the contrary is raised, we assume the plaintiffs concede these houses were placed on the property in violation of the restrictions. There was evidence that there were at least four businesses being conducted in the restricted area. The precise nature thereof is not shown. There was also evidence of numerous "secondhand cars” in the neighborhood. Mr. Hecht testified that this was one of the re strictions—“no used cars”—that he particularly was looking for when they decided to buy their property in South Broadway Gardens in 1953. There was further evidence of one other trailer home located in the three-block area, and in addition, there were other mobile homes located on the street directly adjacent to the east edge of the addition. Two blocks west of South Broadway Gardens was a trailer court, and in between were “quite a few” mobile homes. While the court, in determining whether there has been such a change of conditions as to warrant refusal to enforce a restriction, must give greater weight to those changes occurring within a restricted area, it is not necessarily precluded from considering the changes also occurring nearby and outside the area (see, Clark v. Vaughan, supra; 20 Am. Jur. 2d, Covenants, Conditions, Etc. § 284), especially if enforcement of the particular restriction would be inequitable and without appreciable benefit to property in the restricted area (Thodos v. Shirk, 248 Iowa 172, 79 N. W. 2d 733). As previously indicated, South Broadway Gardens consists of fifty-seven lots. There was testimony by five property owners in the restricted area to the effect they did not feel the mobile home in question adversely affected the enjoyment and use of their properties, and all expressed a desire that it remain. Several of them, including a neighbor of the Thompsons, described the mobile home as being an asset to the area. There was also testimony they no longer considered the restrictions of any value. The parties stipulated that the testimony of forty-one other witnesses would be the same. Other than the plaintiffs, there were no owners or residents who testified in support of the covenant against a trailer house being located in the area. The extent of change in a neighborhood which will justify refusal to enforce restrictive covenants has not given rise to any hard- and-fast rule. Each case must rest on the equities of the situation as it is presented. A basic principle woven as a thread throughout all the decisions is that to warrant refusal of equitable relief, the change in conditions must be so great or radical as to neutralize the benefits of the restriction and destroy its purpose. (Metropolitan Investment Company v. Sine, 14 Utah 2d 36, 376 P. 2d 940; Wallace v. St. Clair, 147 W. Va. 377, 127 S. E. 2d 742; 20 Am. Jur. 2d, Covenants, Conditions, Etc. § 282; 26 C. J. S., Deeds § 171c; Anno. 4 A. L. R. 2d 1111; 7 Thompson on Real Property [1962 Replacement] § 3174.) As expressed in Thodos v. Shirk, supra: “. . . [T]here must be a change in the character of the surrounding neighborhood sufficient to make it impossible any longer to secure in a substantial degree the benefits sought to be realized through the performance of the building restriction. . . .” (pp. 186-187.) The same principle was recognized and applied by this court in Clark v. Vaughan, supra. There, injunctive relief was denied to the plaintiff who, for herself and others similarly situated, sought to enforce a restrictive covenant entered into by them and the parents of defendant whereby they agreed not to sell, devise, convey, lease or sublease property owned by them at anytime within fifteen years to person or persons of the African race, blood or descent. The constitutionality of the provision was not challenged. Nevertheless, the trial court’s decision was upheld on the basis that such a change in the character of the neighborhood had occurred so as to defeat the purpose of the restriction. Hence, the conclusion that the enforcement of the contract against the defendants and their property would be burdensome and inequitable was justified. Whether injunctive relief against violation of a restriction will be granted or withheld because of a change in the character of the neighborhood depends upon a number of factors, among which are the purpose for which the restriction was imposed, the location of the changed condition in relation to the restricted area, the type of change that has taken place, and to some extent, the unexpired term of the restriction. Cases in which these factors, as well as others, are mentioned may be found in the annotation in 4 A. L. R. 2d 1111 and 1 A. L. R. 2d Later Case Service, p. 437. One of the most obvious purposes of the restrictions here was to insure that South Broadway Gardens be improved and occupied for residential purposes, with structures in conformity to and in harmony with the general building plan of the area. There had been substantial changes in the character and nature of the addition since 1953, as evidenced by the findings of the trial court in respect to the numerous violations of the restrictive covenants. In addition, there was evidence of a number of mobile homes in the surrounding neighborhood. Inasmuch as equitable relief is being sought, the benefit of the restriction against trailer houses, as related to plaintiffs’ property, must be considered in light of the over-all changes that had taken place in the area. There is no doubt that the numerous changes seriously affected the purpose and object for which the restrictions were originally imposed. In view of the many violations and the substantial changes occurring throughout the neighborhood, we are inclined to accept the view expressed by the majority of the property owners in the addition—that the restriction against trailer houses, with which we are only concerned, was no longer of substantial value, and that the mobile home in question did not have a deleterious effect on the area. That is to say, changes in the neighborhood had been so substantial as to neutralize the benefits of the restriction as originally envisioned to the point of defeating its purpose. At the same time, although the mobile home violated a specific restriction, its location on defendant’s lot by no means destroyed the residential character of the addition. We are favored in the record by pictures of the home and other houses and structures in the area which undoubtedly weighed heavily in the trial court’s decision. The manner in which the mobile home was placed on the property with its semipermanent foundation, the landscaping, and general improvement of the lot have already been described. In relation to other houses in the neighborhood, its attractiveness cannot be disputed. As described by neighbors, it was an asset to the area. In essence, this appears to be a case where the owners of one lot in an entire addition are pitted against the other owners and insist upon strict observance of a restriction against house trailers despite changes in the neighborhood which have substantially impaired the value of the restriction as it pertains to plaintiffs’ property. The granting of injunctive relief to enforce a restrictive covenant is discretionary, and does not follow as a matter of right. Under all the circumstances, we are of the opinion enforcement of the restriction, which by its terms expires in 1972, would be inequitable and of no substantial benefit to plaintiffs. The trial court did not abuse its discretion in denying an injunction, and the judgment is affirmed.

The opinion of the court was delivered by Fontbon, J.: This appeal is concerned with two lawsuits: one is a claim by Mamie L. Dahn against the estate of her deceased husband, Louis P. Dahn; the other is an action filed in district court by W. W. Trailer Sales, Inc. against Mamie Dahn seeking to recover a deficiency remaining due after public sale of a mobile home purchased under a conditional sales contract. In the latter action Mamie filed a cross petition against the trailer company and a third party petition against the Fourth National Bank of Wichita, seeking damages allegedly resulting from a breach of contract. Mamie has appealed from the judgment entered in each action and the two appeals have been consolidated in this court. The facts are somewhat complicated. In the year 1959, Louis P. Dahn and his then wife, Iva, executed a joint and mutual will, contractual in nature. After Iva passed away, Louis married Mamie, the present appellant. On March 19, 1965, Louis and Mamie purchased a Skyline Mobile Home from W. W. Trailer Sales, Inc., on a conditional sale installment contract calling for monthly payments and containing the usual small print provisions. Louis died May 6, 1965, leaving Mamie in possession of the trailer house (or mobile home in more polite parlance) with a time balance of $7,951.56 remaining due thereon. By this time the sales contract had been assigned to the Fourth National Bank of Wichita, with recourse. Mrs. Dahn found herself unable to meet the monthly payments and after some correspondence in which she advised the bank she was unable to meet the payments and would have to give up the trailer, the bank had the trailer picked up in McPherson, Kansas. Subsequently the bank turned the trailer house to W. W. Trailer Sales, Inc. which then paid the bank in full pursuant to its obligation under the recourse assignment. On May 30, 1966, the trailer home was sold at public sale, after due notice of sale had been given. After the allowance of all credits a deficiency of $1,551.42 remained. With this barebone recital of facts we proceed to the nub of these two lawsuits. On November 24, 1965, Mamie filed a petition in her late husband’s estate, asking that she be adjudged owner of the trailer home, that the estate be required to pay any lien or encumbrance against it, that the bank be enjoined from disposing of the same until all rights were determined and for such other relief as might be equitable. On January 24, 1966, the bank filed a claim against the Louis Dahn estate for $7,727.47 asking that it be allowed to sell the trailer and apply the proceeds to payment of its claim. Neither claim against the estate was heard until June 13, 1966, at which time the trailer home had been sold. The probate court, after a full hearing, ruled that W. W. Trailer Sales, Inc. be made a party to the probate proceedings, approved the sale of the mobile home and determined that Mamie had no homestead rights therein. At this time also the court directed the bank to file an amended claim reducing the amount thereof to reflect credit of the sale proceeds and, in addition, directed the executor to sell the estate assets and hold the proceeds pending further order. Mrs. Dahn thereupon appealed to district court. Some time after the trailer was sold, and we are uncertain of the exact time, since dates of filing are not set out in the record as required by Rule 6 (q), W. W. Trailer Sales, Inc. commenced proceedings in district court against Mrs. Dahn to recover the $1,551.42 deficiency. To that action Mamie responded by denying liability and by filing a cross petition against the trailer company and a third party petition against the bank, in both of which she alleged in substance as follows: that in the latter part of 1965 she and the Fourth National Bank orally agreed the bank would take possession of the trailer house and hold it until it should be determined what amount would be due the bank after recovery was had from the Louis Dahn estate; that she (Mamie) delivered the trailer in accordance with such agreement and the bank thereafter filed a claim against the estate; that thereafter, pursuant to some scheme between them, the bank turned the trailer to W. W. Trailer Sales, Inc. which in ton sold the trailer, thus depriving her of her property. Judgment was asked against both the bank and the trailer company for the value of the trailer, for loss of its use and for punitive damages. On November 10, 1967, a pretrial conference was held in district court covering both cases, and at this time W. W. Trailer Sales, Inc. was given judgment against Mamie L. Dahn for $1,551.42, this amount being the deficiency existing after the trailer was sold. At the same time, Mamie’s cross petition against the trailer company and her third party petition against the bank were both dismissed. As to the probate appeal, the trial court found: (1) That the amount due on the bank’s claim had been paid by the trailer company and the bank’s claim against the estate had thus been extinguished; (2) that Mrs. Dahn had a homestead right in the mobile home which was limited by and subject to the interest of the bank and trailer company; (3) that the bank and trailer company had exercised their- right to repossess and sell the mobile home, leaving a deficiency of $1,551.42. Judgment was thereupon entered dismissing the bank’s claim against the estate (the trailer company never having filed one) and allowing Mamie a claim against the estate in the sum of $775.71, this being one-half the judgment recovered against her by the trailer company. As we have previously indicated, Mrs. Dahn has appealed from both judgments. Mrs. Dahn phrases her first point as follows: “The debt upon which W. W. Trailer Sales, Inc. brought suit is the primary debt and obligation of Louis P. Dahn, deceased.” Since both Louis and Mamie signed the conditional sales contract there can be little doubt that botii were equally obligated by its terms; the debt was a primary obligation of each of them. W. W. Trailer Sales, Inc. could look either to Louis or to Mamie, or to both of them for payment of the principal obligation, or for the payment of any deficiency remaining due thereon should the trailer be repossessed and sold. (K. S. A. 16-104; Whittenhall v. Korber, 12 Kan. 618; Kirkpatrick v. Gray, 43 Kan. 434, 23 Pac. 633.) However we gather from Mamie’s brief that her actual contention goes somewhat further, and is as follows: the law gives her a homestead interest in the house trailer; since the joint will of Louis P. and Iva Dahn provided that the debts of each be paid, the balance due on the trailer, which was a debt of Louis, should have been paid from his estate; the trailer indebtedness was not paid from the estate; ergo, she is entitled to be paid out of estate property a sum equal to the unpaid balance due on the trailer. It is quite true that the probate homestead exemption spelled out in K. S. A. 59-401 includes a house trailer. Accordingly, it is our opinion that Mamie did possess a homestead interest in the mobile home since it was occupied as a home by the parties at the time Louis died. This homestead interest, however, could be impressed only upon the equitable interest in the trailer which Louis and Mamie had under the conditional sale contract. In other words, the homestead interest was subject to the terms of the purchase contract. In Stafford v. Woods, 144 Ill. 203, 33 N. E. 539, a very similar situation was considered by the Illinois court where it was said: “But it seems too plain for argument that the estate of homestead can in no case be more extensive than the interest to which it attaches and of which it forms a part. If the householder has an estate in fee, the estate of homestead may likewise be a fee, but if the householder has only an estate for life or for years, the estate of homestead will expire at his death, or at the expiration of the term for years. In this case the interest held by Stafford at the time he assigned his contract was not the fee, but merely an equitable interest which was liable to be terminated and defeated by his non-perform anee of the contract of purchase, and it is manifest that anything which would have the legal effect of terminating the right of possession under the contract, would at the same time and for a like reason, terminate the estate of homestead.” (p. 210.) In Ferris v. Jensen, 16 N.D. 462, 114 N.W. 372, a husband and wife sought to enforce a homestead right in land purchased on contract by the husband who later, and without his wife’s consent, assigned the contract to a third party, who thereafter had made all the payments thereon and had received the deed. In speaking of the wife’s claim of a homestead interest in the land, the North Dakota court stated: ". . . The existence of such homestead right was entirely dependant [sic] upon her husband’s equitable title under said contract. Like a stream it could rise no higher than its source. The homestead right ceased with the extinguishment of her husband’s equitable estate in the land, and such equitable estate was extinguished by abandonment of the contract, . . .” (pp. 467, 468.) See, also, Montgomery v. Wise, 179 Okla. 247, 62 P. 2d 647; and Watt v. Watt, 400 Ill. 35, 78 N. E. 2d 224. K. S. A. 59-401, specifically recites that the homestead interest provided for therein shall not be exempt from the “payment of obligations contracted for the purchase thereof.” From the terms of the conditional sale contract involved in this appeal it is entirely clear that the balance shown to be due on the mobile home represented the remainder of the purchase price thereof. Under the provisions of K. S. A. 59-1303 a secured creditor of a decedent debtor has two options: he may file a demand against the estate of his deceased debtor and have the same allowed in full, provided he surrenders his security; or, if he has exhausted the security, he may make claim for any remaining balance found due. (In re Estate of Harris, 159 Kan. 431, 155 P. 2d 425; In re Estate of Klein, 166 Kan. 334, 201 P. 2d 633.) In the case now before us, the bank, which as holder of the paper occupied the status of a creditor, chose to take possession of the trailer, as by contract it was entitled to do upon default of payment. After the trailer house had been repossessed by the bank it was turned over to W. W. Trailer Sales, Inc., the contract having been endorsed with recourse, and was sold by the latter after due notice of public sale had been given. The sale proceeds were considerably less than the balance due on the purchase price of the trailer home. No complaint has been registered concerning the regularity of the sale proceedings or the adequacy of the sale bid. We think there can be little doubt that the sale of the mobile home in accordance with the provisions of the conditional sale contract was wholly within the purview of K. S. A. 59-1303 permitting claimant to exhaust his security, and that the sale terminated whatever homestead rights Mamie may have had in the trailer itself. What, if any, claim Mamie might have had as to any surplus remaining after sale is not before us, since no surplus remained. Nor does the failure of the trailer company to file a claim against the estate for the deficiency tend to invalidate the sale or relieve Mamie from liability on her obligation under the conditional sale contract. In Richardson v. Painter, 80 Kan. 574, 102 Pac. 1099, this court held that the fact one of two judgment debtors dies and the judgment has not been revived or kept alive against his estate does not extinguish the liability of the other. The same principle is applicable here. Moreover, we entertain the view that Mrs. Dahn is in no position to press her demand that the executor of the Dahn estate be required to pay her, from estate property, the balance due on the trailer at Mr. Dahn’s death. It is obvious from the record that Mamie was several payments in arrears when the bank took possession of the trailer. On November 20, 1965, she wrote a letter to the bank in which she said: “I received your registered letter. I cannot pay the back payments of $447.96. I can’t make the $111.99 a month payments. I regret to say I will have to give up the trailer. I would appreciate a reply. Sincerely, Mrs. Dahn.” Six days later, on November 26, Mrs. Dahn sent a second letter to the bank which reads as follows: “Dear Sir: When I called the other day. Well I guess you can come and get the trailer Monday or Tuesday. I will be moved out by then, I hope. Yours truly, Mrs. Mamie Dahn, P. O. Box 643, McPherson, Kansas.” On December 14, 1965, the vacated trailer was picked up at McPherson. As of that date an additional monthly payment had accrued and had not been paid. It is our opinion that Mrs. Dahn’s failure to make the payments which became due on the trailer, and which she knew were due under the terms of the conditional sale contract that she herself had signed, coupled with her surrender of the trailer home to the bank, must be said to constitute an abandonment on her part. The sitúa tion bears considerable analogy to that which the Oklahoma court had under consideration in Montgomery v. Wise, 179 Okla. 247, 62 P. 2d 647. In the Oklahoma case, Mr. Montgomery and his wife established a home for their family on premises being purchased by Montgomery under a contract calling for monthly payments. Subsequently Montgomery assigned the contract to third parties who thereafter made the monthly payments as they became due. Mrs. Montgomery did not join in the assignment. In an action brought by the Montgomerys to set aside the assignment and to quiet title it was contended that the husband’s assignment without his wife’s joinder was a void alienation under the Oklahoma homestead law. The court however decided otherwise, holding that the husband had abandoned his equitable interest in the real estate by virtue of his assignment of the contract, and that his wife had abandoned her homestead interest in the premises by failing to make or tender the payments as they fell due, although she was fully aware that payments were called for by the contract and were being made by others. On page 251 of the opinion the court concluded: “. . . Such is the situation presented in the case at bar where Mrs. Montgomery, being aware in February that the husband had abandoned his contract, which she knew by its terms called for monthly payments, failed to make or tender such payments as they fell due. The abandonment of the contract by both husband and wife was complete. Its abandonment extinguished the plaintiffs’ estate, and the homestead interest fell with the same.” We do not consider the cases cited by Mrs. Dahn in connection with her claim against the estate as being in point. In re Estate of Cline, 170 Kan. 496, 227 P. 2d 157, involves the interpretation of a will with respect to the exoneration of specifically devised real estate from an existing indebtedness standing against it. In his will the testator had devised certain real estate to each of his three children. The land devised to one of his daughters, Anna, was mortgaged, while that devised to the other two children was not encumbered. All other property, except the home and its furnishings, was devised equally among the children. It developed there was insufficient real estate to pay the decedent’s general debts, let alone the mortgage against Anna’s land. On application by Anna to have the land devised to her exonerated from the mortgage, the court said that considering the will as a whole, including a provision that all debts be first paid, the fair intendment was that all debts, including the mortgage debt, should first be paid from the estate and that Anna should take the land devised to her free from the encumbrance. The court acknowledged that a direction by a testator that his debts be paid had in some instances been held merely perfunctory, but went on to say the direction could not be ignored under the particular facts of that case. We think that Cline bears little, if any, analogy to the facts which are before us here. The case of Frick Co. v. Ketels, 42 Kan. 527, 22 Pac. 580, simply declares the rule that where a mortgage encompasses land in which there is a homestead interest, as well as other land, resort must first be had to the land not subject to homestead rights before the homestead itself can be taken to satisfy the mortgage indebtedness. This principle is well recognized in Kansas, but it has no application to the facts of the present case. It is unnecessary for us to determine whether the trial court properly allowed Mamie a claim of $775.71 against the Dahn estate. Although the executor of the estate appealed from this allowance, he did not brief this issue and on oral argument, his counsel advised the court that this point was being abandoned. The second section of Mrs. Dahn s argument is directed toward the trial court’s dismissal, at pretrial hearing, of her cross claim against the trailer company and her third party petition against the bank. These two pleadings were filed in response to the action instituted by W. W. Trader Sales, Inc. to recover the deficiency due on the trailer. In both pleadings Mamie alleged an agreement on the part of the bank to hold the trailer house until after her (Mamie’s) claim against the Louis Dahn estate was determined, and that this agreement had been breached by the bank and the trailer company conspiring in concert. As was pointed out by this court in Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P. 2d 1019, which is cited by Mrs. Dahn, no judgment should be granted in any case so long as there remains a dispute as to a material fact, and this is so even though the trial court may reasonably entertain the belief that one of the parties cannot prevail upon a trial. This principle has been announced and applied in several of our decisions. (See Brick v. City of Wichita, 195 Kan. 206, 211, 403 P. 2d 964; Paul v. Topeka Township Sewage District, 199 Kan. 394, 430 P. 2d 228.) We have no intention now of abrogating or eroding the rule. We believe however the trial court did no violence to this concept when it summarily dismissed Mrs. Dahn s cross, and third party, petitions. In announcing its decision the court observed that it failed to see how there was any consideration for the alleged agreement, even though it be assumed that such an agreement was reached via a telephone conversation between Mamie and a now deceased bank official. The trial court’s position appears to us as quite correct. Under the provisions of the conditional sale contract which Mamie and her husband both signed, the bank, as holder of the paper, was entitled to the possession of the trailer house upon default in payment. In delivering the trailer to the bank, or in permitting the bank to take possession thereof, Mamie did no more than she had agreed to do under the very terms of her own contract. When the bank obtained possession of the trailer house from Mamie it was already entitled to possession thereof by virtue of the conditional sale contract. It is an elementary principle of law that to be enforceable a contract must be based on valuable consideration. It is also the prevailing view in this country that the performance or promise of performance of an act which the promisor is already bound to do does not constitute consideration so long as the original promise is still in effect. (17 Am. Jur. 2d, Contracts, § 122, p. 468; 17 C. J. S., Contracts, § 110, p. 827.) This rule has long been recognized in Kansas. In Cron v. Zimmerman, 160 Kan. 78, 159 P. 2d 400, this court phrased the rule in these words: “The rule is that an agreement to do or the doing of that which a person is already bound to do does not constitute a sufficient consideration for a new promise. (Pemberton v. Hoosier, 1 Kan. 108, 115, 116; Schuler v. Myton, 48 Kan. 282, 29 Pac. 163; Miles v. Hamilton, 106 Kan. 804, 806, 189 Pac. 926, 19 A. L. R. 276; Heaton v. Myers, 115 Kan. 75, 222 Pac. 66; Jackson v. Hall, 139 Kan. 832, 834, 32 P. 2d 1055; Western Silo Company v. Johnson, 203 Ky. 704, 262 S. W. 1093; 12 Am. Jur., Contracts, § 407, p. 985, 10 C. J. S., Bills and Notes, § 146.)” (p. 80.) The only consideration which has been suggested by Mrs. Dahn is that she peacefully, and voluntarily, gave up the trailer house. But this she was obligated by contract to do in any event, should she default in making her payments. Hence, we are constrained to hold, that in the eyes of the law, the bank received no consideration for its alleged agreement to hold the trailer. The trial court did not err in entering summary judgment against Mrs. Dahn on her cross petition against the bank or on her third party petition against the trailer company. The judgment of the court below is affirmed.

The opinion of the court was delivered by Hatcher, C.: This controversy steins from an appeal to the district court from the appraisers’ award in a highway condemnation proceeding. Although several tracts were involved, we are interested in only two parcels designated as tract 6(1) and tracts 14 (a) and (b). A more detailed legal description would only tend to confuse. As the two tracts involve different facts and different questions of law they will be treated separately. Considering first tract 6 (1), the State Highway Commission took by condemnation a temporary easement for removal of borrow material on 12.91 acres in conjunction with State Highway K-69 in Sedgwick County. The tract was adjacent to but not on the highway right-of-way. The easement was to expire three years after the acceptance of the highway construction. It was anticipated that soil would be taken from ten acres of the tract to a depth of 10.8 feet, approximating 177,423 cubic yards. The soil to be taken did not differ materially from the other soil that was being used for agricultural purposes. At a pretrial conference before the district court it was stipulated that the highest and best use of the land was agricultural and the court ruled that the compensation and measure of damages should be based on the difference in the market value of the entire unit immediately prior to the taking and the market value of the remainder immediately after the taking. Prior to the introduction of evidence before the jury the trial court stated: “. . . I’m going to hold the separate value of the land taken insofar as the value of cubic yards or cubic foot or a general replacement value of that land is not a proper measure of damages to be considered. The only value to be considered is the fair market value of the land before and after the taking.” The landowners being dissatisfied with the jury’s allowance have appealed to this court. Their contention is stated as follows: “The trial court erroneously refused to hold that the condemnation of Tract 6(1) was a taking and removal of gravel, stone, sand or other material under K. S. A. 68-413 (a) (2) or of a borrow pit with right to sever and remove materials for use on a public improvement pursuant to K. S. A. 68-413 (a) (3) and that the correct measure of compensation was the fair market value of the gravel, stone, sand or other material or of the borrow pit; but, rather, held as a matter of law that the taking was of a temporary easement irrespective of the severance and removal of road building materials and the measure of compensation was the fair market value of the real property before and after the taking.” Simply stated the question is—what is the measure of compensation where land is taken under a temporary easement for the purpose of removing soil to raise a highway? The appellants suggest: “The first question presented by this appeal is whether the taking of Tract 6 (1) was the taking of an interest in land under K. S. A. 68-413 (a) (1) or was the taking of road construction materials or a borrow pit under K. S. A. 68-413 (a) (2) or (3). . . The statute (K. S. A. 68-413) provides in part: “(a) Subject to the limitations and conditions prescribed by subsection (b) of this section, the state highway commission, in the name of the state, may acquire title or an easement by purchase, dedication, or an easement by the exercise of the right of eminent domain: (1) To any lands or interests or rights therein; (2) to water, gravel, stone, sand or other material; (3) to spoil banks or to borrow pits necessary for the construction, reconstruction, improvement, maintenance or drainage of the state highway system; or (4) to rights of way giving access to spoil banks or borrow pits or any bed, pit, quarry or other place where gravel, stone, water or other material required in the construction, reconstruction, improvement, maintenance or drainage of the state highways may be located. . . . “(b) (1) The exercise of the right of eminent domain as herein authorized shall be in accordance with the provisions of sections 1 to 16 [26-501 to 26-516], inclusive, of this act. . . .” (Emphasis supplied.) We construe K. S. A. 68-413 (a) to be simply a designation of the various interests which the State Highway Commission may acquire by purchase, dedication or eminent domain. It does not designate the procedure for exercising the right of eminent domain. K. S. A. 68-413 (b) definitely states that the exercise of the right of eminent domain as authorized by K. S. A. 68-413 shall be in accordance with the provisions of K. S. A. 26-501 et seq. We must, therefore, look to those provisions for procedure and factors to be used in arriving at just compensation, regardless of the interest or the nature of the easement taken. The measure of damages is provided in K. S. A. 26-513 which we quote in part: “(c) Partial taking. If only a part of a tract of land or interest is taken, the compensation and measure of damages are the difference between the value of the entire property or interest immediately before the taking, and the value of that portion of the tract or interest remaining immediately after the taking. “(d) Factors to be considered. In ascertaining the amount of compensation and damages as above defined, the following factors, without restriction because of enumeration, shall be given consideration if shown to exist but they are not to be considered as separate items of damages, but are to be considered only as they affect the total compensation and damages under the provisions of subsections (b) and (c) of this section:” There follows a list of some 13 factors which, in the interest of space, we do not quote. It will be noted, however, that such factors are not to be considered as separate items of damages but are to be considered only as they affect the total compensation and damages. We find no provision in the statute where compensation for taking a temporary easement for a borrow pit or any other interest in land is to be differently determined. The goal to be reached in all compensation cases is just compensation. It is also important that the measure be somewhat uniform in order that the parties, their attorneys and the courts know on what basis to proceed. Where only a part of a tract is taken the difference before and after the taking has generally been found to produce the most just and uniform method of calculating compensation. Where the most advantageous use to which land is reasonably adaptable is for agriculture purposes, any stripping of the subsoil is going to destroy the land for such purpose. If the soil is taken to a depth of 10.8 feet, a landowner might receive more compensation on a price per cubic yard basis than on the difference in value before and after the taking. However, if the soil is taken to a depth of only 3 feet, the land might be completely destroyed for agricultural purposes, yet the landowner would receive small compensation on a price per cubic yard basis and he would desire compensation on the value of the entire tract before and after the taking. Ordinarily there is no market for ordinary dirt. If there were, the value per cubic yard would be very speculative. However, if there is a market for ordinary dirt this factor might well be considered by an expert and presented to the jury as one of the factors in arriving at compensation. Nothing precluded the landowners’ witnesses in this case from so testifying. This court has not had occasion to pass on the specific question now before us. The decisions from other states without a statute similar to that in Kansas cannot be of too much assistance. It may be noted at least one state appears to measure the compensation for soil taken under eminent domain as the market value of the soil taken. (Board of County Com'rs of Dona Ana Co. v. Vargas, 76 N. M. 369, 415 P. 2d 57.) However, such measure has met with disapproval by most courts. In Reiter v. State Highway Commission, 177 Kan. 683, 281 P. 2d 1080, this court had under consideration the measure of value where land was condemned for right of way purposes under which lay sand and gravel deposits. In paragraphs 2 and 3 of the syllabus it was held: “In condemnation proceedings, sand and gravel in the land are considered part of the realty and are not to be valued separate from the value of the land as a whole. “In a highway condemnation proceeding in the district court, admission of evidence concerning value of sand deposits in the land taken, separate and apart from value of land, was error.” At page 687 of the opinion it was stated: “The rule is well stated in Orgel, Valuation Under Eminent Domain, p. 541, § 164, that the measure of compensation in quarry cases, as in other eminent domain cases, is the market value of the land, but that the stone deposits may be considered as bearing on the market value of the land. Accordingly, it is proper to admit evidence that the land contains valuable mineral deposits, such as sand in the instant case, but the award may not be reached by separately evaluating the land and the deposits. “In 1 Nichols, Eminent Domain (2d ed.) p. 692, § 226, it is stated: “ “When a tract of land taken by eminent domain contains ore, stone, coal, sand, gravel, peat, loam, oil or gas or other valuable deposits, which constitute part of the realty, or is covered with growing crops, or with trees capable of being converted into lumber, the existence of these features can be taken into consideration in determining the compensation so far as they affect the market value of the land; but the market value of the land as land remains the test, and there can be no recovery for any of the foregoing elements, valued separately as merchandise as items additional to the value of the land.’ (Italics supplied.) “As stated in 18 Am. Jur. 878, § 242, when the land taken has valuable deposits of minerals, or contains sand, gravel, peat, or other materials of value, or is covered with growing crops, or trees capable of being converted into lumber, these circumstances may be considered so far as they affect the market value of the land; but part of the realty cannot be separately valued for its materials, as an item additional to the value of the land for the purpose of sale. “In 29 C. J. S. 1043, § 174, it is stated where the land taken contains minerals, the measure of compensation is the market value of the land with the minerals in it, and the value of the minerals cannot be shown separately. “The general rule is well stated in United States v. Indian Creek Marble Co., 40 Fed. Supp. 811, 822: “ ‘Fixing just compensation for land taken by multiplying the number of cubic feet or yards or tom by a given price per unit has met with almost uniform disapproval of the courts. . . ." We are forced to conclude that the rule as above stated governs where ordinary sod is to be taken from a borrow pit condemned under a temporary easement. The second contention raised by appellants pertains to a parcel of land designated as tracts 14 {a) and (h). This land had been taken in 1950 by the city of Wichita by condemnation proceedings describing the interest taken as— “The right-of-way, easement and exclusive occupancy and possession forever of, through, over and upon the following tracts of land, and each of them, in Sedgwick County, Kansas, for the purpose of construction and maintenance (through, over and upon the same) of works for the prevention, control or mitigation of flood or flood hazards upon or along the Arkansas River or the tributaries thereof, including (without limitation of the generality of the foregoing language) the digging and construction of channels for the passage or control of water, the construction of levees and control structures, and the right of subjacent support, to wit:” In the condemnation proceedings the State Highway Commission condemned “a permanent easement for controlled access highway right-of-way and removal of borrow materials.” The city of Wichita and the appellants were named as defendants having an interest in the tract. The tract was included in the landowners appeal. There was no appeal by the city. Before evidence was submitted the State Highway Commission moved for summaiy judgment dismissing the appeal as to tract 14 (a) and (b) on the grounds that the acreage having previously been condemned for flood control purposes, the landowners had no appealable or triable interest in the tract. The trial court ruled: “. . . Motion for summary judgment is sustained as to 14 (a) and 14 (b) . The landowner, Zelia Hyde Moore and Vincent E. Moore have no interest in that particular legally described real property which can be the subject of this action.” The landowners contend it was error to sustain the motion for summary judgment because they owned the reversionary interest subject only to flood control purposes and the issue of just compensation for the taking of such interest was a factual question. The State Highway Commission states its position as follows: “However, appellants neglect any consideration of the central issue in a condemnation appeal, which is the issue of just compensation. Assuming, arguendo, that appellant owned some sort of reversionary interest in Tracts 14 (a) and 14 (b), does that interest, without more, entitle them to compensation? To be entitled to compensation, appellants must show they lost an interest of marketable value became of the highway condemnation.” (Emphasis supplied.) We are inclined to agree with the last two sentences of the above statement. However, the statement tends to support the landowners contention. Before they could recover they must show they lost an interest of marketable value and what that value was. The sustaining of the motion for summary judgment denied them that opportunity. It would serve no useful purpose to place in our reports another treatise on the use of summary judgments. It will suffice to say that this court has repeatedly held that before a motion for summary judgment may be sustained, it must be shown conclusively that there was no genuine issue of any material fact. See Schneider v. Washington National Ins. Co., 200 Kan. 380, 437 P. 2d 798, and cases cited therein. The landowners may not be able to show an interest with a marketable value as to tracts 14 (a) and (b) but the law gives them the right to try. The judgment is affirmed as to tract 6 (1) and the judgment granting summary judgment and dismissing the appeal as to tracts 14 (a) and (b) is reversed. APPROVED BY THE COURT.

The opinion of the court was delivered by Hatcher, C.: This is an appeal from a conviction on numerous felony charges. The facts may be briefly narrated. In the first part of August, 1967, the appellant, William Bowman, met with George Mott and Ronald Braswell in a park in Denver, Colorado. They discussed making some quick, fast money and decided to come to Wichita, Kansas, in George Mott’s automobile. After arriving in Wichita, Braswell found two local people, Ricky Ringo and William Brunette, to assist them. They all took up residence at the Tower Motel on Tuesday, August 15,1967. On Friday, August 18, 1967, after having looked over the town, Braswell went to the W. W. Grinder Co. on the pretense of inquiring about a job, but in actuality he was looking the building over for burglar alarms and easy access. At approximately 8:30 p. m. of the same day, Mott, Bowman and Braswell left the Tower Motel and drove to the W. W. Grinder Company. Bowman and Braswell broke into the building and stole several checks, a check protector and a notary seal while Mott waited in the car. They returned to the motel and the five of them began making out checks. The next morning Mott and Bowman took Brunette to a grocery store to cash one of the checks. The clerk became suspicious and called the police who apprehended Brunette at the store. Brunette gave a description of Mott’s car which had left him abandoned and Mott and Bowman were apprehended a few minutes later. Ringo and Braswell were also apprehended. They were all taken to the police station and interviewed individually. Ringo, Brunette, and Braswell admitted their participation, but' Mott and Bowman remained silent. Bowman was charged with and found guilty of second degree burglary, larceny, second degree forgery and attempted uttering. He was sentenced under the Habitual Criminal Act. The defendant has appealed. Although the appeal is challenged because there was a few days delay in filing, we feel it is for the best interest of all parties that the constitutional questions be determined at the earliest opportunity and, therefore, pass the procedural question. The appellant contends that his constitutional rights were violated by admitting in evidence the testimony of a police officer to the effect that the appellant remained silent while being confronted with the incriminating statements of an alleged accomplice. The facts surrounding this alleged error are not in dispute. At the time of his arrest, the appellant informed the arresting police officers “that he wasn’t talking without an attorney.” However, after the appellant and his alleged accomplices were taken to the police station, a police detective brought all five of them together and questioned them in an attempt to establish a sequence of events. The detective was permitted to testify that at this custodial inquisition the appellant made no comment when confronted with the incriminating statements of one of the alleged accomplices. The alleged accomplice testified for the state when the case came to trial. We are forced to conclude that the admission of the detective’s testimony was error. Under the above facts a statement made by the appellant would not have been admissible. (State v. Lekas, 201 Kan. 579, 442 P. 2d 11.) If a statement of the appellant could not have been used against him, how could the fact that he refused to make a statement or denial without the advice of an attorney be used against him? In State v. Dearman, 198 Kan. 44, 422 P. 2d 573, we stated at page 46 of the opinion: “Thus, when the appellant was placed under arrest by the officers in this case and said he wanted to see a lawyer, he was exercising a federal constitu tional right. At this juncture he also had the constitutional right to remain silent. “. . . A similar case was before the United States Court of Appeals, First Circuit, in Fagundes v. United States, 340 F. 2d 673 (1965). There the court said: ". . . Thus when Fagundes said when he was arrested and handcuffed that he wanted to see a lawyer he was exercising a federal constitutional right. And certainly at that juncture he had the constitutional right to keep silent. . . . His assertion of one constitutional right, his right to counsel, and his reliance upon another constitutional right, his right to remain silent when charged with crime, we think cannot be used against him substantively as an admission of guilt, for to do so would be to render the constitutional rights mere empty formalities devoid of practical substance. . . .’ (p. 677.) “We think the foregoing decision is persuasive and hold that evidence disclosing that one charged with crime has asserted his constitutional right to counsel, and his constitutional right to remain silent, cannot be used against him substantively as an admission of guilt.” The federal decisions are to the effect that the prosecution may-not use at a trial the fact that an individual stood mute, or claimed his privilege against self-incrimination, in the face of an accusation made at police custodial interrogation. (Miranda v. Arizona, 384, U. S. 436, 16 L. ed 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974.) When appellant stated that he was not talking without an attorney, the state could not by police custodial interrogation of appellant and his alleged accomplices compel him to talk or use his silence against him. (Escobedo v. Illinois, 378 U. S. 478, 12 L. ed 2d 977, 84 S. Ct. 1758.) We are forced to conclude that when an accused refuses to talk without the advice of an attorney the investigating officers cannot, by forcing him to listen to statements of an alleged accomplice, use his failure to deny incriminating statements as evidence of his guilt. The appellant also challenges the use of a previous conviction as evidence on the ground that there was no showing that he was provided with counsel. The record is not clear on this issue. The appellant’s challenge should forewarn the prosecution if evidence of the previous conviction is to be presented at the hearing on the new trial. The judgment is reversed and the case remanded with instructions to grant a new trial. APPROVED BY THE COURT.

The opinion of the court was delivered by O’Connor, J.: Under the provisions of K. S. A. 7-111, et seq., the State Board of Law Examiners instituted this disbarment proceeding September 14, 1967, against Fred W. Phelps, a practicing attorney in Topeka. The original accusation of disbarment contained seven counts of alleged professional misconduct. Phelps answered, and issues were joined. Thereupon, this court appointed the Honorable George K. Melvin as its commissioner, who proceeded to hear evidence and to render his report. The commissioner generally concluded that the board had failed to sustain the burden of proving the allegations of any of the seven counts. The board then filed its exceptions to that portion of the commissioner’s report pertaining to Counts I, III, IV and V and renewed its request for disbarment of Phelps as originally prayed for in the accusation. Phelps, on the other hand, has filed a motion to accept the commissioner’s report, and for his discharge. Notwithstanding the commissioner’s findings and conclusions, it now becomes our duty to examine the record pertaining to the four counts to which exception has been taken, and after doing so, determine for ourselves the judgment to be rendered. (In re Stice, 184 Kan. 589, 339 P. 2d 29.) At the outset we should make clear that disposition of this case is being made under applicable law and rules existing prior to the enactment of chapter 303 by the 1968 session of the legislature and the promulgation of Rules 201 through 211 by this court (effective May 21, 1968). In a proceeding of this character the burden of proof is greater than in an ordinary civil action, and to sustain the burden requires clear and satisfactory proof of facts warranting disciplinary action. (In re Ratner, 194 Kan. 362, 399 P. 2d 865.) The findings and report of the commissioner are advisory only and not binding on this court (In re Cox, 164 Kan. 160, 188 P. 2d 652); nevertheless, his findings are persuasive (In re Ratner, supra). Under the statute (K. S. A. 7-111) an attorney may be disbarred or suspended for the grounds enumerated, which include willful violation of his oath or of any duty imposed upon him as an attorney at law. The bases for revocation or suspension of an attorney’s license to practice, however, are not restricted to those of the statute. Serious infractions of the Canons of Professional Ethics adopted by the American Bar Association are also grounds for invoking disciplinary measures against offending lawyers. We have said that this court has inherent authority to discipline members of the bar of this state whenever their conduct substantially fails to conform to the ethical standards prescribed for the legal profession, or whenever their activities become otherwise inimical to the just and orderly administration of law. (In re Ratner, supra, and cases cited therein.) Count I of the accusation pertains to Phelps’ activities in October-December 1966, while serving as court-appointed counsel for one Samuel R. Kanive, who was then confined in the Shawnee county jail on a criminal charge. The allegation is that in his fiduciary capacity as Kanive’s attorney Phelps received from Mrs. Mary Bowman (Kanive’s former wife) the sum of $200 to be used solely for the purpose of paying the premium on an appearance bond so that Kanive could be released from jail pending trial; and that instead of purchasing the bond, Phelps retained the money so entrusted to him. In support of the charge, testimony was given by Mrs. Bowman, her mother and Norris Peterson (a bondsman). Following Kanive’s incarceration, he requested Mrs. Bowman to get $200 for a bond premium and contact Phelps, his attorney. In compliance with the request Mrs. Bowman talked to Phelps, who agreed to secure Kanive’s release upon Mrs. Bowman’s obtaining the money and bringing it to him. Since she was without funds, her mother raised the money and paid the $200 to Phelps’ wife, who gave her a receipt for the same. Several days later Mrs. Bowman talked to Phelps and asked him to secure a divorce for her from her then husband, Frank Bowman. Phelps agreed, provided he receive an additional $48, he having been paid two dollars in cash by Mrs. Bowman and her mother. The $48 was furnished by Mrs. Bowman’s mother and paid to Phelps’ wife. At the time Phelps entered the case a petition for divorce was already on file. On December 1, 1966, Mrs. Bowman was granted a default divorce from Bowman in Shawnee county district court. Upon inquiry by the judge, Phelps replied his fee has been paid. The journal entry prepared by Phelps recites that Mrs. Bowman “has paid her attorney’s fees in full in amount of $250.” There was testimony by the bondsman that Mrs. Bowman told him she had raised the money for Kanive’s bond and had given it to Phelps. The bondsman, after several attempts, was unable to get in touch with Phelps by telephone; however, he did see him on one occasion at the courthouse, where Phelps told the bondsman he would be in touch with him. The bondsman heard nothing further except from Mrs. Bowman, who was quite upset because her former husband was not out of jail. After the divorce Mrs. Bowman attempted to reach Phelps by telephone on numerous occasions regarding Kanive’s release, but was always informed Phelps was not in. Phelps did not use any of the money to purchase a recognizance for Kanive. In fact, Kanive remained in jail and was eventually convicted of a felony and sent to the Kansas Reception and Diagnostic Center. Although neither Mrs. Bowman nor her mother ever gave Phelps permission to apply the $200 to the divorce fee, neither did they demand that he return the money earmarked for Kanive’s bond. Both testified it was satisfactory with them if the money was applied by Phelps on the divorce fee. Phelps testified the $250 paid him was for the divorce fee, and specifically denied he was ever given any money to secure a bond for Kanive. According to Phelps, Mrs. Bowman was interested in getting a divorce so she could remarry Kanive, and since Phelps was also a minister, he told her he would perform the marriage ceremony free of charge in the county jail after the statutory waiting period. After hearing the evidence on Count I, the commissioner found there was no necessity to resolve the conflict in the testimony, for the reason both Mrs. Bowman and her mother expressed satisfac tion with the money being applied to the divorce fee. The commissioner concluded nothing unethical on Phelps’ part had been shown. The commissioner’s refusal to resolve the factual dispute was based on what we believe to be an erroneous premise. When an attorney has engaged in unethical acts or conduct detrimental to the best interests of the profession, it is no defense in a disciplinary proceeding that his client or others directly affected have not complained or have acquiesced in such conduct. (See, In re Thompson, 30 Ill. 2d 560, 198 N. E. 2d 337; Memphis & Shelby County Bar Assn. v. Sanderson, 52 Tenn. App. 684, 378 S. W. 2d 173.) Neither does the principle of ratification have any application to immunize the attorney from disciplinary action in an appropriate case. (See, People v. Hillyer, 88 Colo. 428, 297 Pac. 1004.) Were the rule otherwise, any attorney could, with impunity, conduct himself in complete disregard of the ethical standards of the legal profession so long as his client was ultimately satisfied. A client’s consent cannot shelter the attorney from unprofessional conduct. The courts owe a duty to themselves, to the public, and to the profession to see that the conduct of lawyers is maintained at the highest professional level which the temerity and improvidence of clients themselves cannot supersede. Thus, as to Count I, we are compelled to examine and weigh the evidence adduced by both sides, uninfluenced by the commissioner’s ultimate conclusion. After examining the testimony presented, we are convinced the overwhelming weight of the evidence establishes that Phelps obtained from Mrs. Bowman, through her mother, the sum of $200 to be used solely for purchase of a bond to secure the release of Kanive, that Phelps failed to do so and, instead, applied the sum on his fee for representing Mrs. Bowman in her divorce action, without either her permission or that of her mother. Phelps’ conduct with respect to his client Kanive failed, in our opinion, to measure up to the standards required of a lawyer practicing before the courts of this state, and cannot be countenanced. As a part of his professional duty, an attorney appointed as counsel for an indigent prisoner should always exert his best efforts in behalf of his client. (Canon 4 of the Canons of Professional Ethics, 198 Kan. XVII.) In fact, the appointed lawyer’s duty to an indigent client is basically the same as that owed to any client. In all cases the attorney must act with the utmost honesty, good faith, fairness, integrity and fidelity, irrespective of his client’s ability to pay. Phelps’ failure to apply funds entrusted to him for the express purpose of obtaining Kanive’s release from jail constituted a breach of the confidence and trust necessarily existing in every attorney-client relationship. By receiving the money, Phelps had in his hands the means of obtaining Kanive’s release, pending trial. Instead, he appropriated the money to his own use and benefit by applying it upon a fee for services rendered to another. This conduct was directly opposed to his client’s best interests and welfare, in violation of Canon 4. Moreover, we believe Phelps acted contrary to the spirit, if not the letter, of Canon 11, which provides in substance, that money of a client or collected for a client, or other trust property coming into a lawyer’s possession, should not under any circumstances be commingled with his own or be used by him. The money, although entrusted to Phelps to be used for the benefit of his client, was applied by him to an entirely different purpose, without permission of his client or those furnishing the funds. Furthermore, we view Phelps’ conduct not only as a violation of his duty to his client, but also a breach of the trust and confidence reposed in him by Mrs. Bowman and her mother. The circumstances disclosed by the evidence indicate that by using the $200 as he did, Phelps was insuring full payment of the divorce fee from Mrs. Bowman, whose financial ability to pay was highly questionable. As to the three remaining counts, the board makes plain it does not seek to overturn specific findings of fact which are sustained by the evidence, or which are not against the clear weight of the evidence, or which resolve sharp conflicts in the testimony; but, rather, the board takes vigorous exception to several of the commissioner’s legal conclusions. We believe there is merit to the board’s position. Turning to Count III of the accusation, we find the allegation being made that Phelps, prior to the time of his admission to the bar (February 12, 1964), prepared a written instrument dated June 1, 1960, purporting to transfer the interest of Raymond M. Davis and his sister in certain real estate to their mother, Edith Davis; that thereafter Raymond Davis filed a voluntary petition in bankruptcy; that Phelps appeared in the bankruptcy proceeding on his own behalf as a creditor of Davis and attempted to have the same real estate included in the bankrupt’s estate by asserting the written agreement which he had prepared in 1960 was ineffective. The evidence at the disbarment proceeding disclosed that Phelps, while engaged in his then occupation as a minister, prepared without charge the agreement as alleged at the request of Edith Davis, one of his parishioners. At that time Raymond Davis was living in New Mexico. The agreement contained signature lines for seven persons. It was signed by Edith Davis, notarized by Phelps, and then mailed by him to Raymond with a request that Raymond and his wife execute the document. Despite repeated requests by Phelps, the document was never returned. On September 8, 1964, Phelps was awarded a money judgment against Raymond Davis in the city court of Topeka upon a promissory note for money loaned to Davis by Phelps, and damages resulting from default on a car rental agreement. After failing to compromise the matter, Davis filed his bankruptcy petition on or about September 25, 1964. The earlier agreement came to light at the first meeting of creditors when Phelps appeared as a judgment creditor and questioned the document on the basis it had not been duly executed by Davis and his wife, and therefore, the real estate described therein should be included in the bankrupt’s estate. In his report to the referee the trustee requested authorization to abandon any alleged interest of Davis in the property. The referee found that the agreement was prepared by Phelps as Davis’ attorney, that Davis and his wife had, in fact, executed the agreement, and that “the bankrupt, Raymond Davis, in good faith and under the advice of his then counsel, Fred W. Phelps, believed said instrument to be a valid and effective transfer of whatever interest he may have had at the time he executed the same, in and to the real estate in question and his rights under the contract of purchase,” and granted the trustee’s request. Phelps testified in this disbarment proceeding that at no time had he ever acted as an attorney for Davis, nor had he advised him that the agreement was an effective and valid transfer of his interest. From this evidence the commissioner found there was no impropriety in Phelps appearing as a judgment creditor in the bankruptcy court, and that in order to protect his judgment, he had the right to inquire of Davis concerning the background of the agreement to determine whether or not it had been duly executed and was of full force and effect. Hence, the commissioner concluded no unethical conduct had been shown. By the terms of the agreement Edith Davis agreed to fully assume all responsibility as buyer under a real estate purchase contract dated August 29, 195S, between Alvin L. and Mary L. Miller (sellers) and Raymond Davis and his sister, Stella M. Davis (buyers). The agreement further provided that Raymond and his sister were releasing to their mother any claim or interest they had in the real property. The record discloses that after the agreement was drawn Edith Davis occupied the premises and made all contract payments on the purchase price. The only evidence offered in support of the accusation was documentary in form, which included the bankruptcy proceeding referred to above. Despite Phelps’ denial he advised Davis or acted as Davis’ attorney, or that he testified to that effect in the bankruptcy hearing, the referee’s findings would indicate otherwise. Said findings were affirmed by the federal district judge on Phelps’ petition for review. The board makes no complaint about Phelps unlawfully practicing law by preparing the agreement of June 1, 1960, prior to his admission to the bar of this state. Disciplinary action is urged as a result of Phelps’ subsequent conduct after becoming a member of the bar. Although the record indicates Phelps’ attack on the effectiveness of the agreement in the bankruptcy proceeding as a judgment creditor was apparently on the ground it was not executed by all necessary parties, his conduct in doing so tends to cast a shadow of reproach on the integrity and trust required of the legal profession generally. After all, this was the same instrument which the referee found Phelps prepared as Davis’ attorney and advised Davis as to its efficacy. Even if credence is given to Phelps’ contention that he neither advised Davis nor acted as his attorney, Phelps’ role as counselor-advisor to Edith Davis remains undisputed. Under either version Phelps was acting, initially at least, in the trusted capacity of advisor, or confidant, to Raymond (or Edith) when the agreement was prepared, although at the time he was not admitted to practice as an attorney. His subsequent appearance as a judgment creditor in the bankruptcy proceeding was not as an attorney, but as an individual for his own personal benefit and possible gain. But during the interim he became licensed to practice and, thus, rendered himself subject to the code of conduct required of a member of the legal profession. As an attorney he was required to refrain from any act by which he stood to benefit personally from a transaction involving a former “client,” even though initiated prior to his admission. If, as Phelps urges, he was acting in the first instance for and on behalf of Edith Davis, his later attack in the bankruptcy proceeding on the effectiveness of the agreement was in complete derogation of her best interests and constituted an act of disloyalty to her. Edith had been making payments on the property in accordance with the provisions of the agreement, and if the agreement was not effective, as Phelps alleged in the bankruptcy proceeding, she stood to lose the money she had paid. An attorney should not attempt to nullify his own work by taking action in a matter for his personal benefit or gain which undermines the confidence and trust earlier reposed in him by a client. (Canon 11.) Yet, in this case the record shows that Phelps’ activity in the bankruptcy proceeding was aimed directly at abrogating the very result sought to be attained through the agreement—all for Phelps’ personal gain. Phelps’ conduct goes beyond the pale of circumspection, and we believe can be viewed only as bringing reproach and dishonor to the legal profession. With respect to Count IV, the allegations are that on March 30, 1965, Phelps was employed by Mrs. Virginia Acheson to represent her in a divorce action in Shawnee county; that Phelps required Mrs. Acheson to sign a written agreement and pay him a $2500 fee for his services; that she paid him $1000 before discharging him on May 3, 1965; that the following day Phelps filed an attorney’s lien in the divorce case for the $1500 balance due under the agreement; that the court subsequently disallowed the lien; that without sending a written statement or demand, Phelps filed an action in the district court of Shawnee county for $1500, although the court, in adjudicating the attorney’s lien, found his services to Mrs. Acheson were not worth more than the $1000 he had already received. A further allegation is that shortly after being employed, Phelps advised Mrs. Acheson to deplete her assets for the purpose of securing a larger allowance for temporary support, and that thereafter he withdrew a motion for temporary support without consulting his client. As to the latter allegation, the commissioner found from the evidence that after Phelps had filed a motion for temporary support he learned Mrs. Acheson had control of approximately $3000 and, therefore, did not present the motion. In regard to the attorney’s lien, the evidence disclosed that on November 29, 1965, the Honorable William R. Carpenter found the services rendered by Phelps were worth no more than $1000, which had already been paid, but further found that Phelps, at the time his services were terminated, “stood ready to render full performance under said agreement.” Phelps then filed a separate action against Mrs. Acheson on the written agreement for the remaining $1500, which was determined adversely to Phelps by the district court’s sustaining a motion for summary judgment in favor of Mrs. Acheson. The commissioner concluded, “The only matter which might warrant criticism was the filing of the $1500 suit after the findings made in the divorce case” on the lien, and this “may be classed as harassment.” He further suggested Phelps’ actions might be subject to “reprimand or censure” and judgment should be rendered as this court deems proper. The district court, in adjudicating the amount of recovery under the attorney’s lien, relied on Shouse v. Consolidated Flour Mills Co., 132 Kan. 108, 294 Pac. 657, wherein it is stated: “. . . where the contract of employment is for a stipulated fee but their [the attorneys’] services are dispensed with before the conclusion of the litigation or other professional work for which they were engaged, the client is bound to pay what the services performed are reasonably worth.” (Syl. ¶ 3.) The court not only determined the reasonable value of Phelps’ services were in the amount of $1000, but also found the total value of the property involved in the divorce action was $26,000 to $30,000, and the agreed fee of $2500 was unreasonable under the circumstances as they existed at the time the contract of employment was entered into. Phelps, instead of appealing from the decision of the district court, filed an indepedent lawsuit against Mrs. Acheson in the same court on the same contract for the same amount. We agree with the commissioner’s conclusion that this constituted harassment. Phelps now seeks to placate the course followed by saying that defending a separate action would be less expensive to Mrs. Acheson than had he forced her to come to this court on an appeal. Such argument bears little weight when in the same breath Phelps admits in his brief the separate action was determined adversely to him in the district court and he has now appealed that decision to the supreme court. We make no attempt to prejudge the merits of that appeal on the question of res judicata or collateral estoppel; neither are we compelled to determine whether there was good and sufficient cause for Mrs. Acheson to discharge Phelps as her attorney and terminate their relationship. Certainly a client, when dissatisfied with the services of an attorney, may discharge him, and under the view expressed in Shouse v. Consolidated Flour Mills Co., supra, is liable for the reasonable value of services rendered to the date of dicharge. (Also, see, 7 Am. Jur. 2d, Attorneys at Law § 255; 7 C. J. S., Attorney and Client §§ 109, 168 and 169.) An additional circumstance not to be overlooked is the specific finding of the district court that the fee contracted of $2500 was unreasonable. While ordinarily the fixing of fees for professional services is a matter of agreement between the attorney and his client, and courts will not interfere, nevertheless, courts will not enforce the contract of employment where the fee charged is unreasonable under the facts and circumstances presented. (Grayson v. Pyles, 184 Kan. 116, 334 P. 2d 341.) We believe that under all the circumstances Phelps’ entire course of conduct with respect to his fee in the Acheson matter demonstrates a lack of professional self-restraint in matters of compensation. The filing of the separate action against Mrs. Acheson, after an adverse decision in the attorney’s lien proceeding, can only be interpreted as an oppressive act designed to unjustly harass his former client. Lawsuits concerning attorney’s fees are discouraged by Canon 14, which provides: “Controversies with clients concerning compensation are to be avoided by the lawyer so far as shall be compatible -with his self-respect and with his right to receive reasonable recompense for his services; and lawsuits with clients should be resorted to only to prevent injustice, imposition or fraud.” Lastly, in Count V of the accusation the allegations are made that in March 1964 Phelps was retained by John E. Jacobson on a contingency basis to represent him in case No. 93686 in the district court of Shawnee county in which Jacobson was suing Ford Motor Company, Mosby-Mack Motor Company and Noller Motors; that Phelps agreed to do all things necessary to represent Jacobson’s interests, and Jacobson agreed to pay Phelps 50 percent of any recovery for his services; that subsequently, when Jacobson refused to settle his claim with Ford Motor Company, as Phelps had advised him to do, Phelps refused to perform additional work on the case pursuant to his contract of employment and, instead, demanded that Jacobson reimburse him for his further services without regard to any recovery against the company. Only a brief summary of the voluminous testimony and record on this count will be attempted. The parties stipulated the attorney-client agreement between Phelps and Jacobson was oral. The commissioner found that under the terms of the employment agreement Phelps was retained on a contingent fee basis and Jacobson agreed to pay him 50 percent of any recovery as a fee for his services. Pursuant to the agreement Phelps performed legal services for and on behalf of Jacobson. When Phelps undertook the representation of Jacobson he filed a written notice of his employment, along with an attached affidavit executed by Jacobson, which stated Phelps was empowered with full authority to “prosecute, negotiate, settle, and in any and all ways handle the litigation.” Phelps secured a settlement of $10,000 in the case from defendants Mosby-Mack and Noller Motors, out of which he received $5,000 under the terms of the contingent fee agreement. Thereafter, he obtained an offer of settlement in the amount of $15,000 from Ford Motor Company, the remaining defendant, but Jacobson refused the offer. As a result of Jacobson’s refusal, Phelps informed Jacobson if he insisted on going to trial, he would have to pay Phelps a $1500 fee in advance, which would be deducted from the one-half due Phelps in the event Jacobson prevailed. Phelps also demanded an advance of $1000 toward expenses for trial. Jacobson countered with a letter revoking any power or authority Phelps had to settle the case, stating his version of their contingent fee contract, refused to pay the $1500 and $1000 requested, insisted Phelps go forward with the trial, and demanded an accounting for $5800 expense money previous!)' advanced to Phelps. At this point an impasse was reached in the attorney-client relationship, and Jacobson immediately sought assistance from the grievance committee of the Topeka Bar Association. The commissioner found from the disputed evidence that Jacobson in fact wanted Phelps to use the $5000 received by him as a contingent fee in the Mosby-Mack-Noller Motors settlement for further litigation expenses in the case. Jacobson retained another law firm to represent him in his dispute with Phelps, and his new attorneys prepared a written agreement of compromise and release settling all disputes between Jacobson, his wife, and Phelps, which agreement was duly executed by the parties. Thereafter, the lawsuit against Ford Motor Company was tried, Jacobson being represented by his new attorneys, and a verdict rendered for the company. The judgment pursuant to said verdict was subsequently upheld on appeal to this court. (See, Jacobson v. Ford Motor Co., 199 Kan. 64, 427 P. 2d 621.) The commissioner concluded that Phelps’ conduct as legal representative of Jacobson was entirely proper under all the circumstances. We have considerable difficulty in determining from the record just what the employment contract between Jacobson and Phelps provided with respect to litigation expenses. Apparently the parties had operated on the assumption such expenses were to be paid by Jacobson. The board’s principal complaint deals with Phelps’ failure to account to his client for expense money advanced in the case. This, however, was accomplished as a part of the compromise agreement entered into after Jacobson obtained new counsel. Although Phelps’ refusal to complete the contingent fee contract without extra “guaranteed” compensation can scarcely be justified on a legal basis, such refusal, in our opinion, does not warrant the charge of professional misconduct. Breach of the contract may have affected Phelps’ right to full compensation for services performed had Jacobson recovered, and even rendered him liable for damages. (See, Moore v. Fellner, 50 Cal. 2d 330, 325 P. 2d 857.) On the other hand, because of the weakness of Jacobson’s case against Ford Motor Company, Phelps’ advice to accept the settlement offer of $15,000 demonstrates an element of good faith on his part and eliminates the unethical connotation sought to be inferred by the accusation. Under all the circumstances, the conclusion of the commissioner as to Count V is adopted. Phelps, like all lawyers when admitted to practice before this court, agreed to be bound by the attorney’s oath, which reads as follows: “You do solemnly swear that you will support and bear true allegiance to the constitution of the United States and the constitution of the State of Kansas; that you will neither delay nor deny any man his right through malice, for lucre, or from any unworthy desire; that you will not knowingly foster or promote, or give your assent to any fraudulent, groundless or unjust suit; that you will neither do, nor consent to the doing of any falsehood in court; and that you will discharge your duties as an attorney and counselor of the supreme court and all inferior courts of the state of Kansas with fidelity both to the court and to your cause, and to the best of your knowledge and ability. So help you God.” (Rule No. 222, 197 Kan. lxxxiii [now Rule No. 210 (h), 201 Kan. liv].) The general principles set forth in the oath should serve as a constant reminder to the members of the bar of the grave responsibilities cast upon them in the practice of their profession. These principles form the basis for the ethical standards spelled out by the Canons of Professional Ethics to which reference has already been made. For the reasons stated in our earlier discussion pertaining to Counts I, III and IV, we have concluded that Phelps has, by his conduct, shown that he does not have the proper concept of the obligations devolving upon an attorney requiring him to deal fairly and honorably with his clients, and enjoining him to demean himself in such manner as not to bring embarrassment to nor discredit upon his profession. The evidence, when considered in its entirety, warrants imposition of disciplinary action by this court, and the commissioner erred in his conclusions to the contrary. Accordingly, Phelps is suspended from the practice of law for a period of two years from the date of this opinion. rr is so ORDERED.

ORDER OF CENSURE Whereas, In a proceeding conducted by the State Board of Law Examiners to inquire into complaints of alleged professional misconduct by Wesley M. Smith, and, Whereas, Following a full hearing as to such complaints the State Board of Law Examiners found that said Wesley M. Smith was guilty of violating Canon No. 11 and was guilty—to some extent—of violating Canon Nos. 8 and 12, of the Canons of Professional Ethics (198 Kan. xvii), and, Whereas, The State Board of Law Examiners has made a written recommendation to this court that said Wesley M. Smith be disciplined by “Public Censure” as provided by Rule No. 205 (m) (2), (201 Kan. xlviii), and, Whereas, The said Wesley M. Smith, pursuant to subdivision (n) of Rule No. 205, above, has in writing elected to accept such recommended discipline and to pay the costs of the proceeding, and, Whereas, Upon consideration of the record and being fully advised in the premises, the court accepts the recommendation of the State Board of Law Examiners and the acceptance thereof. It is, therefore by the court Considered, Ordered and Adjudged that the said Wesley M. Smith be, and he is hereby Censured by this court and that he pay the costs of the proceeding. It is further ordered that this Order of Censure be published in the official Kansas Reports. By order of the court,

The opinion of the court was delivered by Nuss, J.: Anthony C. Groves appeals his convictions for aggravated robbery and aggravated batteiy. He contends: (1) The convictions are multiplicitous because the same act of violence provides the basis for each conviction; (2) the district court erred in failing to give the juiy a multiple counts instruction as recommended in PIK Crim. 3d 68.07; and (3) the district court erred in denying Groves’ pretrial motion to suppress evidence. The Court of Appeals unanimously held that the convictions for aggravated robbery and aggravated battery are multiplicitous. Consequently, it reversed the aggravated battery conviction and ordered that charge to be dismissed. It affirmed Groves’ conviction for aggravated robbery, however, as well as the denial of the motion to suppress. 31 Kan. App. 2d 635. We granted petitions for review filed by both Groves and the State. We affirm the Court of Appeals. Specifically, the aggravated battery conviction is reversed and that charge is ordered to be dismissed; Groves’ conviction for aggravated robbery is affirmed. FACTS The underlying facts are not in material dispute. On April 28, 2001, someone grabbed Terri Lott’s purse from her in the Junction City Wal-Mart parking lot. She was thrown to the ground during the struggle for her purse, suffering a fractured sacrum. Her assailant ran and jumped into a taupe or gold Thunderbird that was sporting a tom black car bra and was being driven by a woman. Officer Nick Walker knew that Anthony Groves owned such a car, and he was not aware of any similar vehicles in Junction City. He and other officers went to 1017 North Jefferson Street, residence of Kimberly Davis, where they found Groves’ car and, after obtaining Davis’ permission to search, found Groves hiding in the cellar. Police seized Groves’ car without a warrant or his consent and towed it to a secure garage. They later obtained a search warrant and inside the car found a bank deposit slip from the Fort Riley National Bank with Lott’s name on it; Lott later identified it as having been in her purse. At trial, the issue was whether Groves committed the crime. He was identified by one eyewitness to the crime as the assailant. Others identified his vehicle as the one seen leaving the parking lot and his clothing as the articles worn by the assailant. The jury determined Groves to be the assailant and convicted him of aggravated robbery and aggravated battery. The court sentenced him to 61 months on the aggravated robbery count and 41 months on the aggravated battery count, with the sentences to be served concurrently. ANALYSIS Multiplicity Groves argues the convictions are multiplicitous because they arise out of the same act of violence. Notwithstanding Groves’ failure to raise this issue before the district court, the Court of Appeals considered the issue on appeal under the authority of State v. Taylor, 25 Kan. App. 2d 407, 409-10, 965 P.2d 834, rev. denied 266 Kan. 1115 (1998). This was appropriate. See State v. Dubish, 234 Kan. 708, 718, 675 P.2d 877 (1984) (multiplicity may be raised for first time on appeal in order to serve the ends of justice and prevent a denial of the fundamental right to a fair trial). Whether convictions are multiplicitous is a question of law subject to unlimited review. State v. Schuette, 273 Kan. 593, 600, 44 P.3d 459 (2002). As the Court of Appeals stated: “ ‘Multiplicity is the charging of a single offense in several counts of a complaint or information. The reason multiplicity must be considered is that it creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and section 10 of the Kansas Constitution Bill of Rights.’ State v. Robbins, 272 Kan. 158, 171, 32 P.3d 171 (2001).” 31 Kan. App. 2d at 636. The Court of Appeals then described in detail why it agreed with Groves’ argument on multiplicity: “There is impressive case precedent supporting Groves’ claim of multiplicitous convictions. In State v. Warren, 252 Kan. 169, 843 P.2d 224 (1992), the Kansas Supreme Court analyzed Warren’s convictions for aiding and abetting aggravated robbery and aiding and abetting aggravated battery after Warren suggested to two women that they should commit robbery in order to obtain drug money and for providing transportation to the women who knocked an elderly woman down and stole her purse. The court reversed the aiding and abetting aggravated battery conviction after it determined convictions for aggravated robbery and aggravated battery were multiplicitous when tire same act of violence provided the basis for each conviction. 252 Kan. at 182. ‘Warren was followed by State v. Vontress, 266 Kan. 248, 970 P.2d 42 (1998), in which the Kansas Supreme Court again analyzed a multiplicily argument relating to convictions for aggravated robbery and aggravated battery. The court determined a single act of violence, the shooting of one of the victims, was used to prove both crimes and resulted in a multiplicitous conviction: ‘The State fails to acknowledge that the sole allegation of bodily harm in its complaint and the judge’s instructions to the jury was Spires’ gunshot wounds. To prove the bodily harm element of aggravated robbery, the State was required to prove one fact: Vontress shot Spires — the same fact necessary for proof of the great bodily harm element of aggravated battery. Under the information and instructions in this case, the aggravated battery count required proof of the fact which was also required to prove the aggravated robbery charge. Therefore, the convictions are multiplicitous, and punishment for both crimes is a violation of double jeopardy. The aggravated battery conviction is reversed.’ 266 Kan. at 257. “This court is duty bound to follow Kansas Supreme Court precedent unless there is a clear indication that the court is departing from its previous holding. Mueller v. State, 28 Kan. App. 2d 760, 763, 24 P.3d 149, rev. denied 271 Kan. 1037 (2001), cert. denied 535 U.S. 997 (2002). “We acknowledge since Warren and Vontress were decided, K.S.A. 21-3107 has been amended to remove former K.S.A. 21-3107(2)(d). See L. 1998, ch. 185, § 1. The significance of that amendment was considered in State v. Garcia, 272 Kan. 140,32 P.3d 188 (2001). In Garcia, the Supreme Court followed its decisions in Warren and Vontress when it held the appellant’s conviction for aggravated kidnapping was multiplicitous with either the rape or aggravated criminal sodomy convictions because ‘the bodily harm needed to prove aggravated kidnapping was the same bodily harm supplied by one of the rape convictions or the aggravated criminal sodomy conviction.’ 272 Kan. at 147. Although the court followed Warren and Vontress, it pointed out a change in the multiplicity analysis as a result of the revision of K.S.A. 21-3107: ‘It should be noted that in 1998, the Kansas Legislature amended K.S.A. 21-3107 to essentially remove the former K.S.A. 21-3107(2)(d). See L. 1998, ch. 185, § 1. In its place, the legislature inserted a new version, K.S.A. 2000 Supp. 21-3107(2)(b), which provides that an included crime is one where “all of the elements of the lesser crime are identical to some of the elements of the crime charged.” This will necessarily change the multiplicity analysis for cases which occur under the new statute and signifies a return to the identity of the elements standard that this court used prior to the enactment of K.S.A. 21-3107. Such a change, while allowing convictions for crimes which would have been multiplici-tous under the statute at issue here, does not violate constitutional prohibitions against double jeopardy as it does not subject defendants to punishments greater than those intended by the legislature. [Citation omitted.]’ 272 Kan. at 147. ‘We do not believe the dicta in Garcia signifies a retreat by the Kansas Supreme Court from its holdings in Warren and Vontress. Both of those cases were analyzed under a single act of violence paradigm unaffected by a lesser included analysis under K.S.A. 21-3107, before or after the 1998 amendment. We conclude the dicta in Garcia is not persuasive authority the Supreme Court will retreat from its holdings in Warren and Vontress. Accordingly, we hold Groves’ conviction for aggravated battery must be set aside and the charge dismissed.” 31 Kan. App. 2d at 636-38. The Court of Appeals is correct in its belief and holding that under the particular facts and offenses of this case, the single act of violence paradigm concerning multiplicity is unaffected by the lesser included analysis under K.S.A. 21-3107 before or after the 1998 amendment. A short review is warranted, particularly since multiplicity “has been a highly confusing subject in Kansas law and our prior cases have not always been clear.” State v. Garcia, 272 Kan. 140, 142, 32 P.3d 188 (2001). As this court stated in State v. Winters, 276 Kan. 34, 42, 72 P.3d 564 (2003): “The prohibition against multi-plicitous charges arises from constitutional double jeopardy provisions and K.S.A. 2002 Supp. 21-3107(2). That statute provides: ‘Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both.’” Before 1969, Kansas followed die common-law test for multiplicity. Schuette, 273 Kan. at 600-01. Under that test, if each offense requires proof of a fact not required in proving the other, the offenses do not merge and are not multiplicitous. Schuette, 273 Kan. at 601 (citing Games, 229 Kan. 368, 373, 624 P.2d 448 [1981]). Offenses also do not merge if they are committed separately and severally at different times and at different places, i.e., even if each offense does not require proof of a separate fact. Schuette, 273 Kan. at 601 (citing Garnes, 229 Kan. at 373). After the passage of K.S.A. 21-3107 in 1969, however, the analysis of multiplicity began to change, particularly with this court’s decision in State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988). See Garcia, 272 Kan. at 144. The new, second layer of analysis was removed by the legislature in 1998. Schuette described the significance of the second layer and its removal at 273 Kan. at 600-01: “K.S.A. 21-3107(2)(d) defined an included offense as ‘a crime necessarily proved if the crime charged were proved’ and stated that a defendant could not be convicted of both tire crime charged and the included offense. This statute was amended in 1998, and subsection (2)(d) was eliminated. L. 1998, ch. 185, § 1. It was replaced with language defining an included crime as ‘a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.’ See K.S.A. 2001 Supp. 21-3107(2)(b). The present statutory language in essence mirrors the common-law elements test, thereby leaving it as the only remaining test for multiplicity. See also State v. Saiz, 269 Kan. 657, 662-63, 7 P.3d 1214 (2000) (for crimes committed after effective date of 1998 amendment of K.S.A. 21-3107, second prong of State v. Fike, 243 Kan. 365, 757 P.2d 724 [1988,] disregarded).” Justice Larson, who authored the Schuette opinion for a unanimous Supreme Court in 2002, also served as a senior judge on the Court of Appeals panel in the instant case expressly approving the single act of violence paradigm. Kansas has recognized some form of the “single act of violence” paradigm for years. See State v. Racey, 225 Kan. 404, 408, 590 P.2d 1064 (1979) (conduct was one continuing unbroken act of force, so Racey could not be convicted of both aggravated assault and kidnapping); see also State v. Bishop, 240 Kan. 647, 653-54, 732 P.2d 765 (1987) (offenses multiplicitous if “one continuing unbroken act of force”). In State v. Garnes, 229 Kan. 368, 373-74, 624 P.2d 448 (1981), cited with approval in Garcia as setting forth the multiplicity test — “if each offense charged requires proof of a fact not required in proving the other, then offenses do not merge” — this court made no real application of this particular legal test to the facts. Rather, the court simply concluded that the offenses merged because the action supporting the aggravated batteiy — the stabbing — was also one of the actions supporting the attempted murder. In other words, the court apparently applied the single act of violence test. Six years later in State v. Cathey, 241 Kan. 715, 719-20, 741 P.2d 738 (1987), this court explained Games and why its holding required a determination of multiplicity for defendant Cathey: “The State argues that, though there was only one victim, there were two separate acts of violence — a beating and a shooting — and the person who inflicts such injuries can be charged with aggravated batteiy and attempted murder. We disagree. Where there is only one victim and two acts of violence — a beating and a shooting — occurring at approximately the same time and place, the person who inflicts such injuries cannot be charged with boih aggravated battery and attempted murder. To hold otherwise would be inconsistent with our reasoning in Games that when a series of violent acts occurs simultaneously, it is multipli-citous to charge both aggravated battery and attempted first-degree murder.” Games was in turn relied upon by this court in Warren, which the Court of Appeals in the instant case found persuasive. Under our case’s particular facts, the single act of violence test applies and controls, especially since the pushing down and purse robbing did not just occur at “approximately the same time and place,” but apparently they were both virtually contained in one physical motion. Accordingly, under the authority of Warren — whose facts were quite similar — and Vontress, the conviction for aggravated battery must be set aside and the charge dismissed. Since we agree the Court of Appeals correctly determined multiplicity existed, we also agree Groves’ argument that the district court erred in failing to give a multiple counts instruction is moot. Car search Groves’ final argument is that the district court erred in denying his motion to suppress the evidence obtained after his car was seized. The Court of Appeals held: “His argument is not persuasive. The ‘[p]olice may legally impound a vehicle if authorized by statute or if there are reasonable grounds for impoundment.’ State v. Canaan, 265 Kan. 835, 843, 964 P.2d 681 (1998). Here, Groves’ car was used as the getaway car for a purse snatching. His car had evidentiary significance regarding identification and a potential location for the purse taken from Terri Lott. Reasonable grounds for impoundment certainly encompass a car that has been used in the commission of a crime and may contain fruits or evidence of the crime. See State v. Teeter, 249 Kan. 548, 552, 819 P.2d651 (1991).” 31 Kan. App. 2d at 638. We agree this argument is not persuasive for the reasons stated by the Court of Appeals. The conviction of aggravated robbery is therefore affirmed. Judgment of the Court of Appeals is affirmed. Judgment of the district court is affirmed in part and reversed in part. Beier, J., not participating. Brazil, S.J., assigned.

The opinion of the court was delivered by Hoch, J.: Appellant filed a petition to set aside and vacate a judgment theretofore entered against him in an action for damages. Plaintiff’s demurrer to the petition was sustained, and defendant appeals. The question presented is whether under the facts alleged the petitioner was entitled to a hearing on the petition to vacate the judgment. On April 22, 1938, a jury returned a verdict of $300 in favor of Mildred Laidler in an action brought by her against Chester Peterson for personal injuries suffered in an automobile accident. No appeal was taken. On December 9, 1938, Peterson filed a petition to vacate the judgment and alleged that the verdict and judgment were obtained against him as a result of fraud practiced by the plaintiff and that the fraud could not with reasonable diligence have been discovered during the term at which the verdict and judgment were rendered, or within three days after the verdict and judgment, and that the fraud was discovered by him on the 6th day of December, 1938. He alleged that the plaintiff conspired with her attorney, and with a physician who became a principal witness in the case, for the purpose of defrauding the defendant in bringing a false and groundless action for damages against him and claiming that plaintiff had received painful, serious and permanent injuries in the automobile accident, although knowing that such allegations were untrue; that on December 6, 1938, plaintiff’s attorney called on him “at his store in the town of Earlington, Kansas, for the purpose of serving a notice of attorney’s lien upon him attempting to collect or make some compromise of the fraudulent judgment so obtained by plaintiff and her coconspirators, as aforesaid”; that in the course of.the conversation at that time plaintiff’s attorney admitted to him that the plaintiff did not receive any injuries in the automobile accident, that the doctor who testified had not treated the plaintiff for any of said alleged injuries as he had testified, and that plaintiff was not indebted to him in the sum of $45, or in any other amount for said alleged injuries as theretofore testified to in the trial; that the $45 alleged at the trial to be owing to the doctor was not on account of treatment of injuries of the plaintiff, but was for two X-ray pictures, at $10 each, made for the purpose of bringing the action for damages but which were not used upon the trial, and for $25 which he, the attorney, had agreed to pay to the doctor for appearing as a witness in the trial. Peterson further alleged that the attorney for the plaintiff told him in the same conversation he had sued him because he thought he had insurance and that he, the defendant,“ Could recover from the insurance company and that his client, the plaintiff, understood he had inherited a large sum of money upon the death of one Walford Peterson, thought by the plaintiff to be defendant’s father. Peterson further alleged that the attorney told him that the only money which plaintiff or her husband owed to the doctor was for professional services to the plaintiff and her family at a time long prior to the automobile accident, and that the plaintiff owed the attorney the sum of $50. Upon these allegations and others incidental thereto, and which need not here be recited, Peterson asked the court “by reason of the newly discovered evidence” to vacate the judgment. The plaintiff demurred to the petition on the principal ground that it did not state facts necessary to give the court authority to make the order prayed for, and the demurrer was sustained. The question here presented is not whether the judgment should be vacated, but whether facts were alleged which entitled the petitioner to a hearing on the petition to vacate. In determining that question all well-pleaded allegations of the petition must be considered as true, since the case is here upon demurrer. It should also be noted that this is not a collateral attack upon the judgment, but an action brought by one of the parties in the same proceeding. Three sections of the code of civil procedure are involved — G. S. 1935, 60-3005, 60-3007, subdivision 4, and 60-3008. Section 60-3005 provides for the granting of a new trial where the grounds alleged therefor could not with reasonable diligence have been discovered before, but are discovered after the term at which the verdict was rendered and more than three days after the verdict, application to be made by petition and filed not later than the second term after discovery. Section 60-3007, subdivision 4, provides that judgments may be vacated or modified at or after the term at which such judgment was rendered “for fraud, practiced by the successful party, in obtaining the judgment or order,” and 60-3008 provides that such proceedings to vacate can only be commenced within two years after the judgment was rendered. In the instant case the judgment was rendered on June 1,1938, and the petition to vacate was filed on December 9,1938. The petition was filed within the time prescribed in either of the sections referred to. A majority of the court has reached the conclusion that the petition was good as against demurrer, but there is disagreement as to the particular section of the code which is applicable. One view sup ports the petition under the provisions of 60-3005 and another under those of 60-3007, both sections being invoked by appellant. Section 60-3005 provides that new trials may be granted on account of newly discovered evidence which with reasonable diligence could not have been discovered at the time of the trial. The petition here, while technically a petition to vacate, and not in so many words a petition for a “new. trial,” met the conditions laid down in the section. It adequately pleaded newly discovered evidence, it was filed “not later than the second term after discovery,” and assuming as against the demurrer, that the admissions were made as and when alleged, it cannot be said that there was any lack of diligence in discovery by the petitioner. In the case of Huls v. Gafford Lumber & Grain Co., 120 Kan. 209, 243 Pac. 306, this court stated that “intrinsic” fraud may be a basis for relief under section 60-3005 (then Civil Code, § 308). In that case the court said: “ ... if the fraud which has crept into judicial proceedings is intrinsic, it must be corrected, if at all, by a motion for new trial filed within three days after the judgment tainted with such fraud is rendered (Civ. Code, § 306) or by a petition for a new trial, if applicable, filed not later than the second tem after the discovery of the fraud (Civ. Code, § 308). Whether such new trial is invoked by motion or by petition, such proceedings are supplemental to those of the original action and must be undertaken in that identical case.” (p. 215.) We next consider the provisions of section 60-3007, fourth, which provides for vacating a judgment for “fraud, practiced by the successful party, in obtaining the judgment or order.” It is contended by appellee that the fraud referred to in that section is “extrinsic” fraud, that the fraud alleged was entirely “intrinsic,” and that therefore the petition was subject to demurrer. It is difficult and perhaps impossible to harmonize some of the statements made upon that proposition in different decisions of this court. In most cases, however, an examination of the particular facts dispels the seeming conflict. Strangely, one of the cases most frequently cited in support of the view that the fraud contemplated by this section of the code is “extrinsic” fraud only, is the case of Potts v. West, 124 Kan. 815, 262 Pac. 569. Careful examination, however, of the facts in that case discloses that it in fact supports the opposite view. In that case the petition to vacate was filed about six years subsequent to the judgment. The court stated that the proceedings were governed by the provisions of the code which required that action be brought within two years. The court then proceeded to discuss the contention of the petitioner that the petition to vacate might be considered a new and independent suit in equity and as such be independent of the code provisions. It was upon that point that the court said, “That may not be done, because the fraud of which he complains was intrinsic in the determination of the action to quiet title. Equity may set aside a judgment procured by extrinsic fraud.” In other words, being filed out of time, under the code, it would have to be based, as an independent proceeding in equity, upon “extrinsic” fraud. Several cases were therein discussed, among them the case of Harvey v. Dolan, 103 Kan. 717, 176 Pac. 134. The latter case involved an action to open up a decree in a former suit to quiet title, and it was alleged that in the petition to quiet title certain false and fraudulent allegations had been made. The action to vacate was not brought until six years after the rendition of the judgment and the case simply held that the petition could not be entertained, not having been filed within two years. In Elfert v. Elfert, 132 Kan. 218, 294 Pac. 921, it was held that the judgment could not be vacated because the petition had not been filed within the time prescribed by sections 60-2530 and 60-3007, which were therein involved, and the opinion continues with this paragraph: “Appellant also contends that this action should be treated as an equity proceeding to set aside the judgment on the ground of fraud. However, the fraud in this case that is alleged is intrinsic to the action, and under the rule laid down in Potts v. West, 124 Kan. 815, 262 Pac. 569, could not be used as a basis for an independent suit in equity.” (p. 223.) The court there plainly indicated that it is only in the case of independent proceedings in equity, not based upon the code, where allegations of “intrinsic” fraud will not be entertained. (See, also, Steele v. Duncan, 47 Kan. 511, 28 Pac. 206; Laithe v. McDonald, 12 Kan. 340; Laithe v. McDonald, 7 Kan. 254; Railway Co. v. Lovelace, 57 Kan. 195, 45 Pac. 590.) There are other Kansas cases, however, holding to the contrary. Perhaps the principal case is Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079. While that case contains very strong statements to the effect that judgments cannot be vacated under section 60-3007 because of “intrinsic” fraud, the significant fact may be noted that it appears clearly from the original briefs in the case that it was an independent action and not a proceeding in the same suit. Independent actions to vacate, and not supplemental proceed ings, were also involved in the cases of Garrett v. Minard, 82 Kan. 338, 108 Pac. 80; Cheever v. Kelly, 96 Kan. 269, 150 Pac. 529; Fry v. Heargrave, 129 Kan. 547, 283 Pac. 636, and Wagner v. Beadle, 82 Kan. 468, 108 Pac. 859, which involved an independent action begun six years after the judgment. In the cases of McCormick v. McCormick, 82 Kan. 31,107 Pac. 546; Miller v. Miller', 89 Kan. 151, 130 Pac. 681, and Bleakley v. Barclay, 75 Kan. 462, 89 Pac. 906, relief was sought against foreign judgments. Blair v. Blair, 96 Kan. 757, 153 Pac. 544, involved a petition to set aside a divorce decree entered thirty-two years previously. In Putnam v. Putnam, 126' Kan. 479, 268 Pac. 797, the motion to set aside a decree in a divorce action was filed nine years after the judgment. It thus appears that most of the cases which support the view that “extrinsic” fraud only can be the basis for actions under section 60-3007 are distinguishable from the case at bar. While it was said in the recent case of Rogers v. J. R. Oil and Drilling Co., 149 Kan. 807, 89 P. 2d 847, that allegations of “intrinsic” fraud could not be entertained, the petition was held insufficient for want of allegations of facts upon which to base a charge of conspiracy and fraud and much stress was laid upon the fact that there was no allegation that the fraud had been newly discovered and no allegation that appellants were not fully aware of the alleged fraud at the time the various orders and judgments were rendered. In those vital particulars the case differs fundamentally from the one at bar. In a discussion relative to extrinsic and intrinsic fraud it was said in Shuckrow v. Maloney, 148 Kan. 403, 83 P. 2d 118: “Counsel for the appellees seeks to justify the action on the ground that where the relief is on account of extrinsic fraud an independent action can be maintained. That rule of law is perfectly sound. But where such independent action is sought to be maintained, the question of vital concern is, Was the alleged fraud extrinsic or intrinsic? If the former, an independent action could be maintained to correct it, if brought in time and in conformity with the other provisions of the civil code. But if the fraud alleged was not extrinsic, then the requisite steps to secure redress must be taken in the identical case or in supplemental proceedings in that identical case in which the fraud was perpetrated, not in an independent lawsuit.” (p. 407.) In view of the conflict and some confusion of reasoning within some of the cases upon the question of whether • actions under subdivision 4 of section 60-3007 brought within two years may be based upon “intrinsic” fraud, it seems unnecessary to discuss at length the differences between “extrinsic” and “intrinsic” fraud. The code itself uses neither adjective, and simply provides that judgments may be vacated “for fraud, practiced by the successful party, in obtaining the judgment or order.” In discussing the matter of “extrinsic” and “intrinsic” fraud Mr. Justice Burch, in a vigorous opinion in the case of Eaton v. Koonz, 138 Kan. 267, 25 P. 2d 351, said: “The court has distinguished between extrinsic fraud and intrinsic fraud occurring in the course of a proceeding. The distinction is sound, and is adhered to. Extrinsic fraud consists in preventing fair presentation of issues. Intrinsic fraud relates to fair determination of issues. (Potts v. West, 124 Kan. 815, 262 Pac. 569.) Some of the conduct displayed in the proceedings under consideration may be classified as extrinsic fraud, but it is not necessary to catalogue what was extrinsic and what was intrinsic. Practical application of the distinction is often difficult, and the court does not propose to become so involved in rules and distinctions and categories of its own making or recognition that it becomes impotent to deal in a forthright manner, when necessary, with that most persistent of all baleful practices, the practice of fraud.” (p. 272.) Quoting the above language with approval Mr. Chief Justice Dawson, writing for the court, expressed a similar view in Shuckrow v. Maloney, supra. While the case dealt with relief sought in probate proceedings, the comment made as to the attitude of the court with reference to distinctions between “extrinsic” and “intrinsic” fraud is not without pertinency here. It was there said: “From these instructive cases it will be seen that where an estate has been wound up and the administrator discharged this court has been rather lenient in-giving countenance to independent action for relief on account of fraud in the probate proceedings, and has not rigidly measured the aggrieved parties’ right to maintain them on the technical question whether the fraud complained of was extrinsic or intrinsic.” (p. 411.) If the question in the case at bar were to be determined entirely on technical grounds there might well be difference of opinion as to whether the fraud alleged was wholly “intrinsic.” The petition alleged that the plaintiff, her attorney and a doctor entered into a conspiracy prior to the trial to secure a judgment against the defendant by means of false and fraudulent testimony. Such a conspiracy, if entered into, would certainly tend to prevent the defendant from having a fair trial. If such a conspiracy was entered into, unknown to the defendant, how can it be said that he should have been prepared to meet the testimony offered in consummation of the conspiracy? How would he controvert the testimony of the doctor that he had treated the plaintiff for injuries received or that of the plaintiff that she was so treated by him. Appellee contends that-the petition to vacate was subject to demurrer because the alleged admissions of the plaintiff’s attorney were made as part of the negotiations of a compromise settlement. It is well established, as contended by appellee, that offers of compromise settlement, made by one of the parties to an action, are not ordinarily admissible against him, but the petition here does not allege that the admissions were in any way a part of an offer to compromise. (22 C. J. 311, 312.) Appellee also contends that the admissions of one alleged conspirator, made in the absence of the coconspirators, are inadmissible, and that when a conspiracy has been consummated the admission of one, in the absence of other conspirators, is a mere narrative of a past occurrence and can affect only the one who makes it. In the instant case admissions were alleged to have been made by the attorney for the plaintiff. Moreover, it must again be noted that the petition being here upon demurrer must be construed in the light most favorable to the petitioner; that conspiracy was not pleaded as a mere legal conclusion, but that the facts constituting the alleged conspiracy were set out with particularity. When conspiracy has been established admissions of one of the conspirators, even though made in the absence of the others, are ordinarily admissible. (Hutson v. Imperial Royalties Co., 135 Kan. 718, 13 P. 2d 298.) Whether, upon a hearing upon the petition, the petitioner could produce any testimony other than his own statements to substantiate the allegations, we may not conjecture. We are only concerned as to his right to be heard. True or false, the allegations made were sufficient to withstand demurrer. The demurrer should have been overruled and the petitioner given opportunity to produce any testimony he had to convince the court that the judgment should be vacated. Not only is the petitioner entitled to be heard, but those against whom the serious allegations are made are equally interested, in our opinion, in an opportunity to deny and disprove them. More than that, the maintenance of the high standing of the courts requires that all provisions for insuring integrity of judicial determinations be stoutly preserved. The case is reversed, with instructions to overrule the demurrer. Allen, J., concurs in the result only.

The opinion of the court was delivered by Dawson, C. J.: The question in this appeal is whether a district court having jurisdiction of an action to partition the real property of an intestate estate must yield jurisdiction of the property to the administrator claiming dominion over it by virtue of an order of the probate court. The material facts were these: The late W. A. Page, of Butler county, died intestate on May 2, 1938. He was the owner of some farming land in Butler county and some 1,600 acres of land in Thomas county. He also owned considerable city property in El Dorado, and certain oil leasehold and oil royalty interests in Butler county. An estimated value of all his assets, real, personal and mixed, was about $86,500. His liabilities may amount to $45,000 or more — a sum greatly in excess of the value of his personal estate. The delinquent taxes on the intestate’s real property were in excess of $3,000 in May, 1938. Page died a widower. He had six daughters and seven sons, all of whom except one son, Gordon Page, survived him. These, with four granddaughters who are the children of the deceased son, constitute his heirs. Within a few days after the death of Page all of the heirs entitled to act as administrator filed in the probate court of Butler county their renunciation of such rights and petitioned that one Frank E. Lichlyter be appointed. On May 12, 1938, he was appointed and qualified, and at once entered upon his duties. On May 16, 1938, the administrator filed in the probate court his application for an order that he be granted the right of possession, management and 'control of all the real property of the intestate. On the same day that court directed him to give notice of such application in two issues of an El Dorado weekly newspaper, on May 19, and May 26, and that it would be heard in the probate court on May 27 at 10 a. m. On that date the court heard the application. The administrator gave sworn testimony touching the condition of the estate, its income, liabilities, and other pertinent facts — following which showing (which was unopposed) the probate court made the following order: “To protect the rights of creditors, heirs and other distributees of the estate of W. A. Page, deceased, the administrator thereof, Frank E. Lichlyter, be and he is hereby given the right of possession, management and control of the interest of W. A. Page, deceased, in and to all real estate owned by said W. A. Page at his death and particularly to all real estate described in said aforementioned application for possession of real estate.” • Soon thereafter the administrator took possession of the Thomas county land and leased the same to tenants for the benefit of the estate. On May 23, 1938, seven of the sons and daughters of W. A. Page, deceased, filed in the probate court of Butler county a petition for the probate of a copy of an alleged lost will, but no further action has yet been taken on that-petition. On August 8, 1938, the plaintiff James Clifford Page, a son and heir of W. A. Page, resident of Thomas county, commenced an action in partition in the district court of Thomas county, setting up the death of his father while a resident of Butler county, the appointment of Lichlyter as administrator by the probate court of Butler county, and that he was the duly acting, authorized and qualified administrator. All the heirs were impleaded, together with their spouses, also the guardian for certain of the heirs who were minors, and their respective interests in the estate were set forth. Plaintiff alleged that at the death of W. A. Page he was the owner of 1,600 (described) acres of land in Thomas county, also owner of lands and town lots in Butler county, and of divers and sundry property interests in Butler county. Plaintiff also alleged that the estate of W. A. Page “is now in the process of being probated in the probate court of Butler county,” that certain claims against the estate had been filed in that court, and that— “Upon, partition of the real estate set out herein there should be transferred to the probate court of Butler county, Kansas, and to the estate of the said W. A. Page, deceased, sufficient money to pay said claims if the personal property is insufficient to pay said claims.” Plaintiff’s petition concluded with the usual recitals and prayer of an action in partition. Some time later the administrator by his attorney, and two groups of the heirs by their respective attorneys, by special appearances in the district court of Thomas county, filed motions to dismiss the partition action. These motions recited at length the facts set out above, and alleged that by virtue of the order of the probate court of May 27,1938, that court had drawn to itself and its administrator all the property of the estate of W. A. Page, to the exclusion of every other court, and that the probate court’s jurisdiction had been so acquired prior to the commencement of plaintiff’s action in partition in the district court of Thomas county. The administrator, Frank E. Lichlyter, was called as a witness on behalf of the movants and gave testimony in accord with the allegations of the motions to dismiss. No material dispute of fact appeared. On December 8,1938, the trial court overruled the motions to dismiss, and this appeal followed. The correctness of the trial court’s ruling turns on the proper significance to be attached to chapter 219 of the Laws of 1937 (G. S. 1937 Supp., 22-735 to 22-739). Prior to its enactment we had always been faced with the possibility (and sometimes the actuality) of the concurrent pendency of a partition suit in the district court by heirs and devisees of a dead man’s real property while the administration of his estate was still pending in the probate court. In Mackey v. Mackey, 99 Kan. 433, 163 Pac. 465, Id. (rehearing), 100 Kan. 63, 163 Pac. 465, a situation of this sort was considered. We said: “The plaintiff contends that the district court usurped the jurisdiction of the probate court as to the residence property. We think not. The pending administration of Bridget’s personal estate did not necessarily bar the heirs from their right of immedate partition of the realty. (Raynesford v. Holman, 68 Kan. 813, 74 Pac. 1128; O’Keefe v. Behrens, 73 Kan. 469, 479, 480, 85 Pac. 555.) Cases there may be where partition is wisely deferred until the personal estate is settled, for it may happen that the realty may have to be heavily drawn upon to satisfy the claims against the personal estate. (30 Cyc. 198.) But even in such cases, it is not necessarily error to partition the realty, because it will not be relieved from satisfying the claims against the personal estate on that account.” (p. 434.) This rule of law was adhered to until the statute of 1937 was enacted. (Overlander v. Overlander, 115 Kan. 478, 223 Pac. 304; Barnes v. Barnes, 140 Kan. 612, 38 P. 2d 93.) For several years prior to 1937 the Kansas Judicial Council gave protracted study to this general subject. In its quarterly bulletin for December, 1934, pp. 74-76, appears a discussion and two. proposed legislative enactments dealing with it., It is there said: “All of these difficulties can be avoided by a statute providing that the administrator shall take charge of and administer nonexempt real property substantially in the same way as he administers nonexempt personal property. The laws of many states so provide. No reason suggests itself to us why statutes making such provisions should not be enacted in this state. Simplicity and certainty of the law with respect to the authority of an administrator and his duties and with respect to what property of decedent is available for the payment of his debts will avoid much confusion and unnecessary litigation. To correct our statutes in these regards we propose two measures.” (p. 74.) Then follow drafts of two proposed statutes, the second of which corresponds in its essential features with the statute of 1937. The Judicial Council followed this with further comment in its bulletin issued in April, 1935, p. 18, and submitted another proposed draft of a bill which corresponds still more closely with the act of 1937. The same subject is again discussed and a similar draft of a bill appears in the December, 1936, issue of the bulletin at pp. 191-193; and in the bulletin for April, 1937, pp. 9,10, the Judicial Council chronicles the gratifying fact that its labors on this theme had eventually become successful, and that its proposed measures for the correction of the anomalies of the law had been enacted to become effective on its publication in the statute book (Laws 1937, ch. 219). The provision of the new statute of present concern reads: “The administrator or executor (unless other provision is made by a will) shall have the right to possession of all the personal property of decedent chargeable with the payment of debts; he shall also have the right to the possession of all the real property of decedent chargeable with the payment of debts if and when an order of the court is* made giving him such right of possession; but such an order shall be made only upon application therefor and a hearing upon notice as provided by law for the hearing of a petition for the sale of real property, and a finding by the court that such an order is necessary for the protection of the rights of creditors, or of heirs, or other distributees. The administrator or executor shall control and manage the property in his possession under the directions and orders of the probate court. When directed or ordered to do so by the court the administrator or executor may lease the real property under his control, or any part thereof, for a term not exceeding one year, and shall receive the rents, issues and profits therefrom, and by like direction or order may keep up the repairs, insurance and taxes, on the real property. . . .” (G. S. 1937 Supp. 22-736.) Of less present importance, but still somewhat pertinent, is section 4 of the statute. It reads: “Whenever the court shall be satisfied that any real estate need not be sold or leased for the payment of debts of the estate, legacies, or costs of administration, the executor, or administrator may be ordered to deliver possession of the same to those entitled to it as heirs or devisees.” (G. S. 1937 Supp. 22-738.) In passing, it may be noted that in plaintiff’s petition to partition the real property it was suggested that out of the proceeds of the sale of the real estate in partition the district court should transfer to the probate court sufficient money to pay the debts of the deceased. This is a right-about-face to the text and purpose of the new statutes. It is the probate court which in its discretion may turn over to the heirs and devisees any realty not necessary to be sold or leased for the payment of debts, legacies and cost of administration. (See Wright v. Simpson, 142 Kan. 507, syl. ¶ 1, 51 P. 2d 1.) It is needless to extend discussion on the legal question at issue. The history of the proposed legislation and its eventual enactment make it clear that the legislature intended to and did make a very material change in the law relating to the disposition of decedent’s estates, and to that end it conferred on the probate court original and exclusive jurisdiction of a decedent’s real estate whenever the welfare of the estate under administration so requires, and the order of the probate court on that subject cannot be gainsaid in another action nor before another court, except by a direct appeal. It follows that the motion to dismiss the partition action in the district court was proper and should have been sustained. The judgment must therefore be reversed with instructions to that effect. It is so ordered.

The opinion of the court was delivered by Smith, J.: This case was begun on two causes of action: one to set aside a will on account' of lack of testamentary capacity, the other to enforce an oral contract to devise real estate. A demurrer of defendants to the. evidence in- the first cause was sustained and no appeal was taken. . In ,the other case judgment was for plaintiff. Defendants appeal.-, -. ,- The plaintiff is the daughter of Maria Elizabeth Miller. The defendants are the other heirs at law of Mrs. Miller and certain other parties with whose identity we are not concerned. After alleging the addresses of the various parties, the petition in the first cause of action alleged that Mrs. Miller died on March 9, 1937, the owner of two eighty-acre tracts of land and a town lot, describing them. The allegations in this cause with reference to the lack of testamentary capacity will not be set out here, since we are no longer concerned with it. The petition in the second cause of action made the allegations in the first petition a part thereof and then alleged that in the lifetime of Mrs. Miller she made her home with plaintiff on a certain quarter section of land, describing it; that plaintiff took care of her mother and in consideration of one dollar and love and affection Mrs. Miller conveyed to plaintiff two hundred and forty acres of land, reserving to herself a certain interest, during her lifetime; that after the execution of this deed Mrs. Miller informed plaintiff that her other children were mad at her for having deeded this land to plaintiff and requested plaintiff to redeed eighty acres of this land back to her, and informed plaintiff that if plaintiff and her husband would deed this eighty acres back to her she would will this particular eighty to plaintiff; that relying on this promise plaintiff and her husband did deed this particular eighty to Mrs. Miller. The petition further alleged that notwithstanding this promise Mrs. Miller willed the eighty acres in question to a son. Judgment was prayed that the court decree the specific performance of the oral contract pleaded. The defendants demurred to the second cause of action on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was overruled. In' their answer to the second cause of action defendants first entered a general denial; then they admitted that Mrs. Miller deeded to plaintiff the two hundred forty acres in question, and that plaintiff and her husband conveyed the eighty in question back to Mrs. Miller and that Mrs. Miller devised the eighty acres in question to Phillip Miller, her son, for his use during his lifetime. For further answer, defendants alleged that if any oral agreement was made, as alleged, it was unenforceable under the statute of frauds, and was barred by the statute of limitations and was unenforceable under the provisions of G. S. 1935, 33-105, and was void for want of consideration. The answer also alleged that the action was a collateral attack on the order of the probate court admitting the will to probate, and could not be maintained. The reply was a general denial of all new matter stated in the answer. As has been noted, the trial court sustained the demurrer of the defendants to the evidence of plaintiff as to the first cause of action. There is no appeal from that. As to the second cause of action, the trial court found that during her lifetime Mrs. Miller made an oral contract with the plaintiff, wherein she agreed that if plaintiff would redeed to her the eighty-acres in question she would will it to plaintiff on her death, and relying on that promise plaintiff deeded the eighty to Mrs. Miller and Mrs. Miller failed to comply with her contract to leave the land in question to plaintiff in her will. The court further found that plaintiff had performed all obligations that devolved upon her and that the contract should be enforced and the title to the real estate should be in plaintiff. Judgment was entered in accordance with these findings. The motion of the defendants for a new trial was overruled. Hence this appeal. The first argument of defendants is that the court erred in overruling their objection to the testimony of P. M. Popp, the husband of plaintiff. The objection was on the ground that the witness was an interested party and was asked about a transaction with a deceased person. The statute relied on is G. S. 1935, 60-2804. It provides, in part, as follows: “No person shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person.” The argument of defendants is that the testimony of Popp showed that he was a real party in interest and was seeking, through his wife, to recover the title to the land in question. In order to deal with this argument we must examine the record as to the testimony of Popp. He testified, in part, as follows: “Q. Will ask you if that quitclaim deed, if a quitclaim deed back to your mother-in-law, conveying back to her this particular eighty acres, that was discussed in this other deed, wasn’t executed by you and your wife on or about September 2, 1931? A. Yes. “Q. Now, would like to have you state to the court just how that conveyance back to your mother-in-law happened to be made, if you know? A. I do know. “(Objected to as being conversation with deceased party by a party in interest.) “Mr. McMullen: He is not in interest. (Objection overruled.) “A. Well, she says the other children, they don’t like that. They fussed about it, and to keep peace in the family, she wanted us to deed it back to her and she would give it back in a will. “Q. Did you hear your mother-in-law, Maria Elizabeth Miller, have that conversation with your wife, this plaintiff, Paulina Popp ? A. Yes.” Also note— “Q. How many conversations would you say that you heard Mrs. Maria Elizabeth Miller have with your wife, Paulina Popp, concerning the reconveying back to Maria Elizabeth Miller of this eighty? A. I couldn’t say that, but it was quite a few times. Those conversations were had in our house and over to her home. The other children, they fussed about it, she gave her that much land, and she wants that particular eighty acres back, and give it back to her in a will. That is what she agreed. “Q. As a result of these conversations and these promises as you have stated them, did your wife later deed back to Mrs. Miller this particular eighty acres of land? A. Yes. “Q. And where was that deed executed, if you know? (Objection as not the best evidence. Overruled.) A. At Mr. Hartman’s office in Hoisington. “Q. And will ask you if any conversation was had at that particular place and time between your mother-in-law, Maria Elizabeth Miller, and Mr. Hartman, as to why this deed was being made? Just answer that yes or no. A. Yes. “Q. Would like to have you state that conversation to the best of your memory, to the court. A. Mr. Hartman says that not very many children give back anything what they have got, and she says, she agrees — by that time —she says, T am going to give that back. I agreed to them I give that back to them in the will.’” He testified further: “Q. Will ask you if you heard any conversation concerning this particular land and the deeding of it, between your mother-in-law and Mrs. Wilhelm, her daughter? A. Yes. “Q. Would like to have you state to the court, to the best of your recollection, just what that conversation was. A. Well, as near as I can remember, Leah, she kind of fussed about it, she didn’t had as much like my wife did, and so Mrs. Miller says, ‘I got that eighty back in a deed, and I agreed to give them back that in a will.’ “Q. Was this land left back to your wife in the will? A. No.” It will be noted from the pleading and this testimony that the two-hundred and forty, acres was deeded in the first place to Mrs. Popp, the plaintiff; that Mr. Popp joined with plaintiff when the eighty was conveyed back to Mrs. Miller; that the contract is alleged to have been made between plaintiff and her mother and the action was brought in the name of Mrs. Popp. Under such circumstances the case of Bertholf v. Cornel, 132 Kan. 122, 294 Pac. 673, is in point. There a nephew claimed that his uncle had made an oral contract with him to leave him certain property in return for services. The question.in the case revolved around certain deeds purporting to have been executed by the uncle in his lifetime and delivered to the nephew. The wife of the nephew was permitted to testify as to the contract between her husband and his uncle, even though she was named as a grantee with her husband. This evidence was objected to for the reason urged here. This court held that the statute in question should be strictly construed in favor of the competency of the witness, and held that the wife could testify to a conversation had between her husband and deceased. In the case of Schuler v. Rehberg, 145 Kan. 176, 64 P. 2d 571, the action was to enforce a contract whereby the deceased agreed in his lifetime to leave the “home place” to plaintiff in return for certain services to be performed. When the action was brought after the death of deceased to enforce the contract the contract was proved in a large measure by the testimony of the husband of plaintiff as to conversations he had with deceased in the presence of plaintiff. The admission of this testimony was urged as error. This court held the testimony was admissible notwithstanding the relationship. We have concluded, therefore, that the trial court did not err in admitting the testimony of Mr. Popp. The defendants next argue that the contract upon which judgment was given was not proved by clear, convincing and satisfactory evidence. Many authorities are cited wherein this court has held that contracts of the sort sued on here must be proven by such evidence. This is undoubtedly the rule. Many times we have examined a record and held that the evidence did not meet this test. We never have done so, however, where the evidence was as direct and positive as it is here. The trial court is the trier of the facts in this sort of a case, just as in any other. The proof must be clear, satisfactory and convincing to it. (See Shoemake v. Davis, 146 Kan. 909, 73 P. 2d 1043.) This court will not disturb a finding of fact where it is supported by competent and substantial testimony. (See Klein v. Blackshere, 113 Kan. 539, 215 Pac. 315.) Besides the evidence of Mr. Popp, to which reference has already been made here, Paulina Popp testified as follows: “Mr. McMullen: Would like to have you repeat the conversation to the court, stating just what was said by your mother and what was said by Mr. Hartman, to the best of your recollection. A. Well, Mr. Hartman said, ‘Not very many children would do that, if they got something, they would keep it, they wouldn’t give anything back.’ “Q. What, if anything, did your mother say in regard to that.? A. She said, if we' deed it back to her, she will make a will, and she give it to us in a will.” Also note: “Mr. McMullen: What, if anything, did your mother say to her? A. Well, she said it wasn’t any of the other children’s business what she do with her property, and she said she will give it back to us anyhow. “Q. Did she say how she was going to give it back to you? A. Yes; in her will. “Q. Just tell the court what was said by your mother to your husband, to the best of your recollection. A. Well, she said if we deed that back to her she would give it back in the will. “Q. Did she say that a number of times to your husband? A. Yes, she begged until we deed it back to her.” Phillip Wilhelm testified: “A. My wife, she made a remark that she' is giving them practically more than they were entitled to, according to the others. Well, Mrs. Miller said, ‘It isn’t any of your business and I can do with my property as I please,’ and in fact, she said, ‘They deeded it back to me, but I’ll give it back to them again anyhow,’ and of course, she said it in her own language.” Also note the cross-examination of Phillip Wilhelm: “Q. And that she could give it to the Popps by will or deed, if she so desired; if that was her wish, isn’t that what she said? A. Well, sure, that was her wish and not alone her wish, she says she would.” Leah Wilhelm testified with reference to a conversation between herself and Mrs. Miller, as follows: “Did she say how she was going to give it back? A. In her will.” In this case the contract was a simple one. It was proved by direct testimony. There can be no doubt but what plaintiff performed all the obligations she assumed in connection with the contract. It would have been necessary for the trial court to have disbelieved the direct testimony of more than one witness in order for a different finding to have been made. Bray v. Cooper, 145 Kan. 642, 66 P. 2d 592, was an action to establish an oral contract for the devise of property. This court said: “Appellants, however, contend the evidence must show a definite contract, the contract must be clearly and certainly established and must be equitable' in its provisions. (Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743; Pantell v. Bower, 104 Kan. 18, 178 Pac. 241; Woltz v. First Trust Co., 135 Kan. 253, 9 P. 2d 665.) Concerning these general principles there is no questiqn. The difficulty arises in connection with their application to the particular facts in each individual case. The duty of weighing the evidence and determining its sufficiency primarily is that of the trial court. (Schuler v. Rehberg, supra.) . . . It is deemed unnecessary to review and analyze here the facts in these numerous cases. The principles applicable have been frequently stated and were again discussed in the most recent case of Schuler v. Rehberg, supra. . . . . Appellants urge this type' of case has been recognized as a great temptation for fraud. That is true. As heretofore indicated, however, the trial court is just what the name indicates. It is the trier of the facts, and under the facts in this case we cannot disturb the judgment.” (pp. 646, 648.) Defendants next argue that the. plaintiff failed to prove that the contract pleaded and found to have been made by the parties was equitable. In this connection defendants argue that if the reconveyance from plaintiff to her mother carried with it the obligation to redeed or will the property to the plaintiff, then the deed conveyed nothing to the mother except the record title. This situation is made plain through the pleadings and evidence. Mrs. Miller apparently wanted the legal title reconveyed back to her because the other children were quarreling with her about it. Perhaps she thought the rest of them might not find out about the promise to will the property to plaintiff. It was her way of securing peace in her family in her declining years. We see nothing inequitable about it. The next argument by defendants is that the trial court erred in excluding the evidence of J. H. Hartman. He is the notary public before whom the deeds were executed. It appears that he would have testified about a statement of Mrs. Miller’s as to the reason she wanted the deed back to the eighty. No affidavit as to what this testimony would have been was furnished the trial court on the motion for a new trial. The trial court was thus given no opportunity to pass on the admissibility of the evidence at that time. Under such circumstances the refusal of the trial court to admit it cannot now be urged as error. (See Robinson v. Sullivan, 127 Kan. 248, 273 Pac. 461, also Mohr v. Women’s Benefit Ass’n, 134 Kan. 311, 5 P. 2d 789.) The judgment of the trial court is affirmed.

The opinion of the court was delivered by Allen, J.: This is an original proceeding in habeas corpus to obtain the custody of a minor child. On January 10,1928, the circuit court of Henry county, Missouri, granted a decree of divorce in favor of the petitioner, Loren M. Kruse, against the respondent, Bertha E. Kruse. As a part of the divorce proceedings the Missouri court awarded the custody of the child, Lorene Kruse, alternately to each parent for six months of each year. On September 13, 1928, the court modified the original order and gave the custody of the child to the respondent Bertha E. Kruse. Right of visitation was given the petitioner. Shortly after the divorce decree, the mother, Bertha E. Kruse, brought the child, Lorene, to Cherokee county, Kansas. Lorene is now thirteen years of age, and lives in the home of her grandmother, Nancy J. Gallagher, in that county. It does not appear that the child has been in Missouri since she was brought to this state by her mother in 1928.' On September 15, 1939, the circuit court of Henry county, Missouri, entered a decree giving the custody and control of the child to the father, Loren Kruse. The decree recites that the defendant Bertha E. Kruse was “duly served with process issued out of this court,” and that defendant by her attorneys filed .an application for a continuance in such proceeding. Petitioner relies on the decree of September 15, 1939, and asserts that under the full faith and credit clause of the federal constitution (art. IV, sec. 1), we are bound to recognize and enforce the decree of the Missouri court. Did the Missouri court have jurisdiction to award the custody of the child to the father by the decree of September 15,1939? In 2 Beale, Conflict of Laws, section 144.3, it is said: ■ “Since custody of a child by one parent carries with it domicile and a domestic status, jurisdiction to give the child to one parent or the other depends in principle on the domicile of the child; and a state which is the temporary residence of the child, not the domicile, cannot confer the right to custody. A fortiori, a decree for custody rendered in a state where the child is neither resident nor domiciled, is void for lack of jurisdiction ... If after a divorce the party to whom custody was given removes with the child to another state, this would seem to give the second state jurisdiction over the custody, and put an end to the jurisdiction of the first state; for after the divorce each party may change domicile at will, and the child’s domicile changes with that of the parent in whose custody he has been placed. . . .” In section 147.1 of the same work it is said: “When the custody of a child has been awarded to one parent by a court having jurisdiction so to do, the right of this parent will be recognized by other states. “The facts upon which the award was based have become res judicata, and cannot be reexamined in the second state. But this estoppel extends only to conditions which existed at the time of the original decree; the second court may examine any facts which have occurred since the original decree which throw light upon the fitness of the parents to have custody of the child.” The question of jurisdiction in this class of cases received careful consideration in Wear v. Wear, 130 Kan. 205, 285 Pac. 606. In that case the wife sued the husband for divorce in Oklahoma. The decree was in favor of the plaintiff and she was given the custody of the minor child. The child was in Kansas on a visit at the time the decree was rendered. The wife brought habeas corpus for custody of the child. In affirming the order of the district court awarding the custody of the child to the mother, it was said: “The trial court correctly held that the contest as presented to the court was one between the father and the mother, and that as between them the matters adjudicated by the Oklahoma court in the divorce case were res judicata as to matters determined by the decree in that case, and as of the time it was rendered. The trial court specifically offered to hear evidence as to changed conditions which would authorize or justify a different order with respect to the custody of the child, but, as shown by the entry in the journal, counsel for respondents stated in open court they had no evidence of that character to offer.” (p. 225.) In “The Progress of the Law” by Beale, 34 Harvard Law Review, 50 (1920), it was said: “In Groves v. Barto [109 Wash. 112, 186 Pac. 300], upon a divorce in Colorado the custody-of the child had been awarded to the mother. The mother then changed her domicile to Washington, the father assenting. Several months later the father secured a modification of the original decree according to which custody of the child was awarded to him; and then applied to the Washington court to give him possession of the child. This application was refused, on the ground that the change of domicile deprived the Colorado court of any further control over the child. The court also found that the welfare of the child would best be subserved by the mother’s custody. The decision may, it would seem, be sufficiently rested on the first ground. “In Griffin v. Griffin [95 Ore. 78, 187 Pac. 598], a California mother, upon a decree of divorce, had been awarded custody of the children; and had been forbidden to remove them from the county without permission. She secured permission to take them to Oregon, on condition she brought them back at a certain time. Instead of returning, she acquired a domicile in Oregon. As a result of her action, the California court modified its decree and awarded custody to the father, who brought habeas corpus in Oregon to obtain the children. The court denied the petition upon two grounds: First, that the best interests of the children demanded that they remain with the mother; second, that at the time of the last California decree the children were domiciled in Oregon and the California court no longer had jurisdiction over their status. “The first ground seems rather questionable. There was no finding unfitness on the part of the petitioner, as in the former case. Has the sovereign within whose territory a minor is found power to award custody of the child away from its otherwise fit parent or domiciliary guardian, merely because he believes the welfare of the child will thereby best be secured? In Nugent v. Vetzera, the English court thought not; and sent several children of an English mother, who had been brought up in the English customs and religion, to their Austrian guardian, although the court felt that the welfare of the children would suffer thereby. In cases of temptation an English court has undoubtedly without due consideration acted otherwise. The American courts are somewhat more liberal; but it is doubtful whether the mere supposed ‘welfare’ of the child would induce any court to remove a child from the custody of a not unfit guardian. A doctrine which would allow the court to do so would be a very dangerous one. “The second ground, however, seems sound, though it involves novel doctrine. That the California court cannot by its order constrain an adult person, not a wrongdoer, to remain in the state, and cannot prevent his acquiring a new domicile for himself, is certain. But the fact that the mother acquired a new domicile for herself in Oregon does not necessarily mean that the children’s domicile also changed, and there is little authority on the point. It is submitted, however, that upon divorce the parent with whom the child actually lives acquires or retains the power over the child’s domicile. Whether this suggestion goes too far or not, at any rate it seems clear, as this case decides, that the parent to whom the general custody is awarded obtains this power, and may exercise it even against the order of the court. The court might have put an end to the mother’s custody while she remained in California; its power over her and the children ceases when they cease to be there domiciled, and its decree can no longer affect their status.” (p. 58.) In the recent case of State, ex rel. Larson, v. Larson, 190 Minn. 489, 252 N. W. 329, the facts were similar to the case at bar. There the parents were domiciled in Iowa. In 1931 the parties were divorced in that state and the decree awarded the custody of the minor child alternately to each parent for six months. Thereafter the mother established her domicile in Minnesota. In accordance with the decree the child spent six months of each year in Iowa with the father and six months of each year in Minnesota with the mother. In 1933, at the expiration of the third six-months period with the mother, the mother refused to surrender the child to the father. Proceeding in habeas corpus followed. The lower court awarded the custody of the child to the mother, and this decree was affirmed. After a review of the authorities the court stated: “Applying the above-discussed principles to the case at bar, we conclude that the minor child was domiciled in Minnesota at the time of the commencement of this action. After the Iowa divorce the mother changed her domicile to Minnesota. The minor’s domicile is that of the parent to whose custody it has been, awarded. So for each of the six-months periods that the mother had the custody the minor’s domicile was in Minnesota. When this action was commenced the child had been in Minnesota for a few days over the six-months period, but had not been returned to Iowa. The domicile would not be reestablished in Iowa until the minor had returned there.” The court held that under the full faith and credit clause of the federal constitution, the court was not bound to recognize and enforce the Iowa decree. Section 32, Restatement, Conflict of Laws, reads as follows: “The minor child’s domicile, in the case of divorce or judicial separation of its parents, is that of the parent to whose custody it has been legally given; if there has been no legal fixing of custody, its domicile is that of the parent with whom it lives, but if it lives with neither, it retains the father’s domicile.” A parent to whom the custody of a child has been awarded often takes the child into another state and there establishes a new domicile. Where such migration occurs and the child has acquired a new domicile, a decree for the custody of the child in a state where the child is neither resident nor domiciled, is void for lack of jurisdiction. In the case before us the child has been in the custody of her mother, living at the home of her grandmother in Kansas since 1928. The petitioner alleges that the mother is not a fit person for the custody of the child. From the return to the writ by respondents, it appears that the child has a comfortable home with her grandmother; that she is well cared for and is happy. The father has married a second wife and has another child. Under the original decree the father was required to pay $15 per month toward the support of the child. No payments have been made. The father has neither written to nor visited the child during the eleven years she has been in Kansas. Under these changed conditions the welfare of the child is of paramount importance. (Woodall v. Alexander, 107 Kan. 632, 193 Pac. 185, and cases cited.) We are requested to appoint a commissioner to take testimony and to continue the cause until such time as the testimony can be taken and a report of the commissioner be made. We think, however, if an inquiry is to be made as to fitness of the mother to have the custody of the child, the proceedings should be in Cherokee county, where the respondents reside and where the witnesses are available. On the record before us we do not.think the custody of the child should be awarded to the petitioner. The writ is therefore denied. This order will not prejudice the right of petitioner to bring such proceedings in Cherokee county as he may see fit.

The opinion of the court was delivered by Gernon, J.: Heckert Construction Company, Inc., (Heckert) and SE-KAN Asphalt Services, Inc., (SE-KAN) challenge the sale of asphalt paving materials by the City of Fort Scott (City) to pri vate citizens and entities. Heckert and SE-KAN claim that the City is selling asphalt paving materials from its municipal asphalt plant in violation of K.S.A. 12-16,121. We agree. The facts are not in dispute. The City owns and operates a municipal asphalt plant. Following a public hearing, the Fort Scott City Commission (City Commission) determined that asphalt was not readily available from nongovernmental entities and authorized the sale of asphalt to private citizens and entities. Heckert and SE-KAN sell asphalt in and around Fort Scott, Kansas. They appeared before the City Commission in opposition to the private sale of asphalt but were unable to persuade the City Commission not to sell small quantities of asphalt to its citizens. As a result, Heckert and SE-KAN brought a declaratory judgment action against the City to enjoin the City from selling asphalt to private individuals and entities. The district court denied Heck-ert and SE-KAN’s petition, upholding the City Commission’s determination that asphalt was not readily available from a nongovernmental entity and authorizing the sale of asphalt to private individuals and entities in accordance with K.S.A. 12-16,121. Heck-ert and SE-KAN appealed, and the matter was transferred to this court pursuant to K.S.A. 20-3018(c). A judgment rendered or final order made by a political subdivision exercising judicial or quasi-judicial functions may be reversed, vacated, or modified by the district court on appeal under K.S.A. 60-2101. A decision of a legislative body is quasi-judicial if a state or local law (1) requires notice to the community before the action, (2) requires a public hearing pursuant to notice, and (3) requires the application of criteria established by law to the specific facts of the case. Reiter v. City of Beloit, 263 Kan. 74, 85, 947 P.2d 425 (1997). Because the City Commission’s decision was quasi-judicial in nature, the court’s standard of review is whether, as a matter of law, (1) the City acted fraudulently, arbitrarily, or capriciously, (2) the City’s order was substantially supported by evidence, and (3) the City’s action was within the scope of its authority. See 263 Kan. at 86. Heckert and SE-KAN argue that the district court erroneously interpreted the language of K.S.A. 12-16,121, which provides: “(a) As used in this section and K.S.A. 12-16,122, and amendments thereto: (1) ‘City’ means any city. (2) ‘County’ means any county. (3) ‘Governing body’ means the governing body of any city and the board of county commissioners of any county. (4) ‘Paving material’ means crushed rock, asphalt, gravel, aggregate sand or other materials used to pave roads, streets and drives. “(b) Except as provided in subsection (c), the governing body of any city or county shall not sell or otherwise provide paving material to any private person or private entity. “(c) The provisions of subsection (b) shall not apply if the governing body has: (1) Made a determination that such paving materials are not readily available from a nongovernmental entity; or (2) adopted a resolution declaring the existence of a disaster, emergency or the threat of disaster or emergency.” The interpretation of a statute is a question of law over which this court has de novo review. An appellate court is not bound by the trial court’s interpretation. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). When interpreting the language of a statute, the fundamental rule is that the intent of the legislature governs if that intent can be ascertained. Courts presume that the legislature expressed its intent through the language of the statute, so when a statute is plain and unambiguous, the court must give effect to the legislature’s intent as it is expressed. 275 Kan. at 305. Ordinary words are given their ordinary meanings. A statute should not be read to add something that is not found in the plain words used by the legislature or delete something that is clearly within the ordinary language used. GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001). The language of K.S.A. 12-16,121 is unambiguous. The legislature’s clear intention for K.S.A. 12-16,121 is to prevent local governments from competing with the private paving material industry as long as paving material is readily available from a private company. The key question to resolving this dispute is the meaning of the phrase “readily available from a nongovernmental entity” in K.S.A. 12-16,121. Heckert and SE-KAN argue that they are nongovernmental entities that can provide asphalt to the private individuals and entities in the City. The City, however, argues that paving materials from Heckert and SE-KAN are not readily available because the cost to haul small quantities of asphalt from their plants would be cost prohibitive to the residents of the City. To determine the legislature’s intent, the court must first consider the ordinaiy meanings of the words chosen by the legislature. GT, Kansas, L.L.C., 271 Kan. at 316. “Readily” is defined as “in a ready manner: with readiness: as a: with prompt willingness: without hesitating, quibbling, or delaying: with alacrity: willingly.” Webster’s Third New International Dictionary 1889 (1993). Black’s Law Dictionary defines “available” as “[sjuitable; useable; accessible; obtainable; present or ready for immediate use.” Black’s Law Dictionary 135 (6th ed. 1990). When combined in the context of K.S.A. 12-16, 121, the phrase “readily available” means that something is willingly accessible or obtainable. At the public hearing on the issue of readily available paving materials from nongovernmental providers, Heckert and SE-KAN advised the City Commission that they had plants within 36 miles of downtown Fort Scott and that they had previously provided hot mix asphalt to private and public customers in and around Fort Scott and would continue to do so. Heckert and SE-KAN further noted that they routinely provide asphalt to customers within a 40-to 80-mile radius of their plant sites. Heckert and SE-KAN’s willingness to service the Fort Scott market is undisputed. No individuals or private entities appeared before the City Commission stating that they had requested and been denied asphalt from either Heckert or SE-KAN. Nevertheless, the City Commission found that paving materials were not readily available from nongovernmental providers and authorized the sale of asphalt from the City’s asphalt plant. The district court’s decision upholding die City’s determination is based on its finding that Heckert and SE-KAN “would have little interest in providing asphalt for the type of work represented by [the City’s] invoices or could only do so at a cost that would make such small amounts expense prohibitive for the customer.” There is no evidence in the record to support this finding. Neither Heck-ert nor SE-KAN advised the City Commission that they were only interested in the sale of large quantities of asphalt. Likewise, there was no information before the City Commission regarding the cost for hauling any amount of asphalt from Heckert’s or SE-KAN’s plants. Consequently, the City’s order is not supported by sufficient evidence and must be reversed. This matter is reversed, based on the record before us, and remanded with instructions to the trial court to enjoin the City from selling asphalt to private individuals and entities.

The opinion of the court was delivered by Davis, J.: Melvin W. Holmes was convicted by jury of premeditated first-degree murder and criminal possession of a firearm. His hard 40 sentence and convictions were reversed by this court on the basis of prosecutorial misconduct, and his case was remanded for a new trial in State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001) (Holmes I). He was tried again for the same charges, convicted by the jury, and sentenced by the court to a hard 40 sentence. He again appeals, raising those issues not addressed in his first appeal, see 272 Kan. at 491, as well as new issues. A statement of the basic facts appears in Holmes I, 272 Kan. at 492-93, supplemented by the following facts. Holmes and Glenda Smith dated for over 2 years and lived together in Smith’s home for 6 months prior to Smith’s death. On March 6, 1999, Holmes and Smith spent the day at Smith’s home using drugs. Both were habitual drug users. Holmes had taken heroin and cocaine approximately three times and smoked crack at least three times, while Smith had injected cocaine throughout the day. Around midnight, Smith showed signs of paranoia (“tweaking”) because of the drug use and was seen looking out the window and holding a knife. Smith eventually left her residence for 25 to 30 minutes and upon return went into the bathroom. Because Smith’s veins were poor, her usual stay in the bathroom was 35 to 40 minutes if she was injecting cocaine. Sometime later, Smith left the bathroom and went into the bedroom where she laid down next to Holmes on the bed. Soon after, Smith began “nagging” Holmes. Their relationship was problematic because Holmes did not have a job and had sold all his belongings to obtain drugs to support their habits. Holmes grabbed a hammer located next to the bed and hit Smith on the back of her head. The hammer blow broke Smith’s skin and would have required five stitches had she lived through the ensuing events. Smith jumped up from the bed and grabbed her gun. The fight moved from the bedroom to the hallway as the two struggled for control of the gun. The gun clicked several times but did not fire. In the hallway, Holmes pushed Smith to the floor and pinned her down with one knee. Although the gun was pointed at Smith’s chest, she continued to fight and placed both hands on the gun while Holmes had one hand on the gun. Holmes threatened Smith that he “could” or “would” kill her, but Smith continued to fight when the gun went off. Holmes and Smith both let go of the gun, and the gun dropped on Smith’s chest. The bullet traveled through her heart. Believing she was dead, Holmes immediately went into the bathroom where he injected a combination of cocaine and heroin (“speedball”) and had a drug-induced seizure. The time of shooting is disputed, but after Holmes recovered from his seizure, he called 911 and told them that “he had shot his girlfriend.” The call was made at 5:19 a.m. When police officers arrived and knocked on the door, Holmes opened the door and calmly walked toward the officers to be handcuffed. After the officers placed Holmes in their patrol car, they conducted a safety sweep of the house and found Smith. At 5:52 a.m., Officer Travis Easter asked Holmes who lived in the residence. Holmes responded that he lived in the residence, but it was Smith’s house. Easter asked Holmes if he was willing to sign a consent to search the home form so that the lab personnel could examine the scene. Holmes agreed to sign. The officers took Holmes out of the patrol car, unhandcuffed him, and Holmes signed the consent to search. Easter then placed Holmes back into the patrol car and transported him to the police station for questioning. The only conversations between Easter and Holmes pertained to the heat temperature in the car, if Holmes’ dog was loose, and a squeaking noise Holmes heard from a nearby car. The defendant initiated each conversation. At 6:06 a.m., Easter placed Holmes in an interview room. At 7:15 a.m., Detectives Joseph Schroeder and Blake Mumma entered the room. Schroeder observed that Holmes was quiet, sub dued, and had his hands around his face as if he was resting his head on them. In order to establish a rapport with Holmes, Schroeder obtained Holmes’ personal history information using a standard form which included name, address, date of birth, social security number, employment history, family history, place of birth, prior arrests, height, weight, military background, and schooling. In addition, Schroeder questioned Holmes about his relationship with Smith. After the 5-to 10-minute personal information interview, Schroeder advised Holmes of his Miranda rights, reading verbatim from a “Your Rights” form, and Holmes signed the Miranda waiver. When the detectives questioned Holmes about the shooting, Holmes shook his head and said, “I think I’ll just quit talking, I don’t know.” Mumma redirected the interrogation, and Holmes continued to talk. The interrogation ended around 10 a.m. Before the detectives left, Mumma presented Holmes with a consent to search his person form in order to obtain scrapings and wipings from his body. Holmes signed the consent. On March 9, 1999, Holmes was charged with one count each of first-degree murder and criminal possession of a firearm. On September 3, 1999, Holmes filed a motion to suppress the statements made during the interrogation and the evidence gathered from the consent to search his person. The court held an evidentiary hearing and overruled the motion, finding that the statements, waiver of rights, and consent to search were all given voluntarily and knowingly. On September 15, 1999, a jury convicted Holmes of both counts. Holmes appealed, and on November 9, 2001, this court reversed the juiy convictions and remanded his case to the district court for a new trial based on prosecutorial misconduct. Prior to the second trial, Holmes filed a pro se motion to suppress. The court overruled the motion without an evidentiary hearing, finding that the motion had been previously heard and overruled by the court. The second jury convicted Holmes of both counts, and a hard 40 sentence was imposed for the first-degree murder, followed by a consecutive sentence of 9 months for the criminal possession of a firearm. In this appeal, Holmes contends: (1) The trial court erred in denying his motion to suppress because (a) the search of the residence was unlawful thereby invalidating his statements to police; (b) in the alternative, his statements to the police were involuntary; and (c) he invoked but was denied his Miranda rights; (2) the court erred by failing to grant an evidentiaiy hearing on his second motion to suppress; (3) the trial court abused its discretion in various parts of the trial; (4) the trial court erred in denying Holmes’ pro se motion for ineffective assistance of counsel; (5) insufficient evidence was presented to establish premeditation; (6) the trial court failed to instruct on the effect of sympathy and prejudice; (7) insufficient evidence supported the aggravating factors for the hard 40 sentence; (8) prosecutorial misconduct occurred during closing arguments; and (9) cumulative errors require the reversal of his convictions. (1) Denial of Motion to Suppress (a) The search of the residence was unlawful, thereby invalidating Holmes’ statements to police. Holmes claims he did not voluntarily give his consent to search the residence because he was under the influence of drugs, held in police custody for 45 minutes prior to signing the consent, and not advised that he had the right to refuse to sign the consent. He argues that his consent to search the home was involuntary and his confession must be suppressed as fruit of the poisonous tree infected by the unlawful search and seizure of evidence from the residence. While the State contends the search and seizure issues are not properly before this court because they were not raised by Holmes during the first trial, our review of the record establishes that the issue of his consent was litigated during the suppression hearing in the first trial. The State further argues that Holmes did not object to the consent to search at trial and thus the issue was not preserved for appeal. When a motion in limine or a motion to suppress is denied, the moving party must object to the evidence at trial to preserve the issue on appeal. State v. Saenz, 271 Kan. 339, 349, 22 P.3d 151 (2001). Holmes failed to object to Officer Easter’s testi mony regarding Holmes’ consent. However, because consent was raised by Holmes during his suppression hearing and this issue is so integral to his argument regarding the admissibility of his confession, we elect to address the issue. “ ‘The existence and voluntariness of a consent to search and seizure is a question of fact that the trier of fact must decide in light of the totality of the circumstances; the trial court’s decision will not be overturned on appeal unless clearly erroneous. State v. Buckner, 223 Kan. 138, 144, 574 P.2d 918 (1977). The State must prove voluntariness by a preponderance of the evidence. 223 Kan. at 143.’ ” State v. Rexroat, 266 Kan. 50, 55, 966 P.2d 666 (1998) (quoting State v. Ruden, 245 Kan. 95, 105, 774 P.2d 972 [1989]). “In determining whether consent was voluntary, the trial court should consider whether the individual was threatened or coerced, and whether he was informed of his rights. [Citation omitted.]” Ruden, 245 Kan. at 105. The individual’s mental state is also a factor in determining the voluntariness of his or her consent to search. See United States v. Watson, 423 U.S. 411, 424-25, 46 L. Ed. 2d 598, 96 S. Ct. 820 (1976). The evidence admitted during Holmes’ motion to suppress, the testimony of Officer Easter regarding Holmes’ signing the consent to search, and the absence of any evidence indicating that Holmes’ consent to search was anything but his free and voluntary choice support the determination that Holmes’ consent was voluntary. Knowledge of the right to refuse consent is not required for a finding of voluntariness. See Watson, 423 U.S. at 424-25; Schneckloth v. Bustamante, 412 U.S. 218, 234, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). Based upon the totality of all the circumstances, including the testimony elicited at the hearing on Holmes’ motion to suppress in his first trial as set forth below, we conclude that the trial court was correct in its determination that the consent was voluntary and the evidence seized was properly admitted into evidence. See State v. Wimberly, 246 Kan. 200, 210-11, 787 P.2d 729 (1990). Thus, the search of the residence was correctly based upon Holmes’ voluntary consent to search. We therefore reject Holmes’ argument that his confession be suppressed under the fruit of the poisonous tree doctrine. (b) In the alternative, Holmes’ statements to the police were involuntary. Holmes contends that his confession must be suppressed as involuntary for the following reasons: (1) He was still under the influence of the drugs; (2) he was suffering from sleep deprivation at the time he was read his Miranda rights; (3) officers failed to honor his Miranda rights after he expressed a desire to stop talking; (4) he was held in the interrogation room alone; and (5) he was emotionally grieving over the death of the victim. In regard to our scope of review as to whether Holmes’ confession was voluntary, the determination that a statement was freely, voluntarily, and intelligently given will be upheld if there is substantial competent evidence to support such a conclusion. In making the factual review, the appellate courts will not reweigh the evidence and will give deference to the factual findings of the trial court. The legal conclusion drawn from those facts is subject to de novo review. State v. White, 275 Kan. 580, 596-97, 67 P.3d 138 (2003). “To determine whether a defendant’s confession is voluntary, a court looks at the totality of the circumstances. The prosecution bears the burden of proving that a confession is admissible by a preponderance of the evidence. Factors include the duration and the manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused’s age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry is whether the statement was the product of the free and independent will of the accused.” White, 275 Kan. 580, Syl. ¶ 8. The question of whether Holmes’ confession was the product of his free and independent will is primarily dependent upon the facts surrounding the statements given. The statements given by Holmes were videotaped. A redacted version of the videotape was played to the jury, and the jury was given a transcript. However, Holmes failed to include these exhibits in the record on appeal. The burden is on Holmes to furnish a record which affirmatively shows that prejudicial error, occurred in the trial court. Without such a record, an appellate court presumes the action of the trial court was proper. State v. Decker, 275 Kan. 502, 507, 66 P.3d 915 (2003). The available evidence regarding Holmes’ confession supports the conclusion that his confession was voluntary. Officers Schroeder and Mumma entered the interrogation room 1 hour after Holmes was placed there by Officer Easter and over 2 hours after Holmes’ last possible drug use based upon Holmes’ call to 911. Schroeder testified that Holmes did not display any signs that he was incapacitated. Holmes was coherent, able to answer questions and speak with the detectives logically, and demonstrated the ability to recall past events. However, Holmes did appear tired and answered slowly during the personal history interview, and Schroeder did not explain to Holmes the consequences of waiving his Miranda rights. In addition, Mumma testified that Holmes did not indicate that he was sick but did inform the detectives that he had used a large amount of drugs within the last 24 hours. Mumma did not explain to Holmes the importance of the rights he was giving up — believing that they were self-explanatory. However, Mumma noted that Holmes stated that he had previously been Mirandized during other investigations. Holmes argues that his mental condition rendered his confession involuntary. See State v. McCorkendale, 267 Kan. 263, Syl. ¶ 3, 979 P.2d 1239 (1999) (Mental condition is a factor to be considered in determining the voluntariness of a confession.). Holmes points to evidence of substantial drug use over the prior 24-hour period, sleep deprivation, emotional grief over his girlfriend’s death, and her blood being on him, which added to the circumstances showing that he lacked the mental capacity to waive his rights. He contends that these circumstances produced an environment where a free, voluntary, and intelligently considered waiver was impossible. (1) Drug use Holmes contends that his drug use impaired his ability to voluntarily give his confession. In response, the State cites two cases in arguing that Holmes’ drug use did not render his confession involuntary. In State v. Jacques, 270 Kan. 173, 189, 14 P.3d 409 (2000), the court determined that Jacques’ confession given after he had used cocaine was voluntary because he was “able to answer questions in a coherent manner, follow the conversation, under stand what was being asked of him, had experience with the Miranda form, and had been questioned by the police on a previous occasion.” As such, Jacques’ use of cocaine prior to being questioned did not automatically require the trial court to suppress statements made during investigation. 270 Kan. at 188. In State v. Harden, 206 Kan. 365, 480 P.2d 53 (1971), Harden was under the influence of alcohol during the confession. The detectives could not detect that the drinking interfered with his responses or understanding of questions because his answers were very precise and normal. The Harden court concluded that the defendant’s mental condition had not been impaired to the extent that the statement was involuntary. 206 Kan. at 370-72. We believe that this case is most analogous to White, 275 Kan. 580, a case not cited by either party. White testified that he was high on “wet” (cigarette or marijuana dipped in chemicals such as PCP or formaldehyde) at the time of his interrogation by the detectives. One detective testified that White was coherent, wide awake, and showed no signs of being under the influence of “wet” (typically having a strong chemical smell, being very violent, and exhibiting extremely bizarre and rude behavior). The court declined to reweigh the evidence and found substantial evidence supported the district court’s finding that the statement was voluntarily made. 275 Kan. at 597-98. In this case, the detectives testified that Holmes appeared coherent, answered questions rationally, and recalled events leading up to the shooting. In addition, he was cooperative with the detectives and showed no signs of being under the influence of drugs except for appearing tired. Holmes further argues that his drug use limited his ability to give consent and analogizes his drug impairment to cases where a person was raped, where a person blacked out, or where a person was intoxicated and unable to move or speak. In light of the more relevant authority just discussed, the court need not draw these comparisons to the cases Holmes cites. Substantial evidence supports the trial court’s findings that Holmes’ statements were not involuntary based on his drug use and were knowingly given. (2) Sleep deprivation Holmes argues that “sleep deprivation plays tricks on the mind [and] can only be seen as a period of great instability for any man making him a ready victim for an inquisition.” The State responds that Holmes had approximately 4 to 5 hours of sleep the night before. Neither party cites any authority regarding what role sleep deprivation plays on the voluntariness of a confession. In State v. Crawford, 253 Kan. 629, 643-44, 861 P.2d 791 (1993), Crawford argued that his “will was overborne” due to lack of sleep and use of cocaine. The officers would not allow him to sleep and threatened to “whop” him if he did not answer questions. One officer testified he never saw Crawford sleeping but “ ‘saw him put his head down, look down at the desk, but . . . the interview continued and he continued to respond to questions.’ ” 253 Kan. at 644. The Crawford court found under the totality of the circumstances that despite claims of being under the influence of cocaine, sleep deprivation, and coercion, Crawford’s statements were voluntary. 253 Kan. at 643-45. See also State v. William, 248 Kan. 389, 410, 807 P.2d 1292, cert. denied 502 U.S. 837 (1991) (confession was voluntary where the defendant did not ask for sleep and the evidence did not indicate that the officers promised the defendant he could go to sleep as soon as he confessed). In this case, the detectives testified that during the interrogation Holmes stated that he habitually slept for 4-to 5-hour intervals. However, the detectives observed that even though Holmes continued to answer questions during the interrogation, he appeared tired and rested his head on his hands at times. Without evidence that Holmes asked to sleep or that he was not allowed to sleep, we cannot conclude that sleep deprivation rendered his statement involuntary. (3) Isolated in police custody Holmes was isolated in police custody for 1 hour and 9 minutes before the detectives entered the interview room at 7:15 a.m. Miranda rights were given approximately 15 minutes afterwards. The interrogation lasted until 10 a.m., and Holmes was secured to the table and floor in isolation until 11:45 a.m. Between 11:45 a.m. and 12:50 p.m., Holmes signed the consent to search his person and was processed for those items. The second interview, which began at 1 p.m. and ended 15 minutes later, involved questions regarding how to contact Smith’s daughter. At 1:22 p.m., Holmes was taken to a jail cell. Holmes argues that the fact he was isolated in police custody when he was asked to confess was “inherently coercive,” even though he admits there was no evidence of overt coercion on the detectives’ part. The State responds that since the interrogation was not conducted in an overbearing, coercive manner and was not overly lengthy, Holmes’ confession was knowingly and voluntarily made. Holmes asserts that courts have recognized that there is an inherently compulsive or coercive nature to postarrest confessions involving isolation in custodial surroundings, citing Miranda v. Arizona, 384 U.S. 436, 458, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Kansas courts have recognized that the procedural safeguards of Miranda are to be timely applied when the police fail to warn a person in custody of his or her Miranda rights and use deliberately coercive or improper tactics to obtain an incriminating statement. See State v. Lewis, 258 Kan. 24, 35-37, 899 P.2d 1027 (1995) (suspect was arrested, held for 10 hours, and only warned of Miranda rights upon making an incriminating statement). Holmes admits there was no evidence of overt coercion and that the detectives read him his Miranda rights prior to any questioning regarding the shooting. In addition, Holmes was isolated for only approximately an hour before the first interrogation. Thus, the evidence is insufficient to establish that the mere fact of being isolated in police custody was inherently coercive. Holmes’ isolation in police custody did not render his statements involuntaxy. (4) Emotional state Holmes also contends that his emotional grief over his girlfriend’s death and the fact that he had her blood on him rendered his waiver involuntary. Holmes cites Haley v. Ohio, 332 U.S. 596, 599-600, 92 L. Ed. 224, 68 S. Ct. 302 (1948), in arguing that his fragile emotional and mental state was similar to that of a 15-year-old minor. Consequently, he contends the State’s burden to prove a knowing and voluntary waiver should be greater. In State v. Jones, 218 Kan. 720, 722, 545 P.2d 323 (1976), the court held that an accused charged with the crimes of murder and robbery might be under a certain amount of emotional stress; however, the court could not say that because defendant was crying he could not freely and voluntarily confess to the crimes. See also State v. Goering, 8 Kan. App. 2d 338, 347, 656 P.2d 790 (1983) (Meyer, J., dissenting) (the fact defendant became emotional during confession does not make that confession any less the product of free will). Holmes has not pointed to any evidence indicating that he showed emotional stress or grief during the interrogation, and the fact he had the victim’s blood on him does not render his confession involuntary. Looking at the totality of the circumstances, Holmes’ confession was freely, voluntarily, and knowingly made. Holmes admits the interrogation was noncoercive, and the detectives followed procedural safeguards against inherent coercion by reading Holmes his Miranda rights. Also, Holmes’ waiver of Miranda rights and his ability to communicate were not impaired by his drug use, sleep deprivation, or his emotional state. Substantial evidence supports the district court’s finding that Holmes’ statements were freely, voluntarily, and intelligently given. (c) Invocation of Miranda rights Holmes conversed with the detectives during the initial interrogation, but when they reached the point of questions regarding details of the shooting, he shook his head and said, “I think I’ll just quit talking, I don’t know.” Mumma took Holmes’ statement to mean that he was uneasy about the line of questioning and that he did not appear comfortable with the direction the conversation was taking. Mumma moved the interrogation in another direction, and Holmes continued to talk. The court ruled that Holmes’ statements were all voluntary. Holmes’ pro se motion alleged that Detective Schroeder testified that Holmes never expressed his desire to stop talking to the detectives. However, Schroeder testified during the first suppression hearing that Holmes said, “ 1 think I’ll quit talking’ and 1 don’t know.’ And that’s when Mumma said, “Would you like to talk about something else?’ and [Holmes] said, ‘Yes.’ ” Holmes’ brief does not specifically address this issue, but his pro se motion to suppress alleges that the detectives failed to honor his invocation of Miranda rights when they continued to interrogate him after he expressed a desire to stop talking. He contends that the statements regarding the shooting should have been suppressed. The State responds by classifying his statement as an ambiguous request and, thus, the detectives were not required to stop to clarify his statement. Holmes’ failure to provide the court with the original and redacted videotape or the transcript of the interrogation makes resolution of this issue difficult; the absence of such a record creates a presumption that the action of the trial court was proper. See State v. Navarro, 272 Kan. 573, 588, 35 P.3d 802 (2001). A suspect must unambiguously request counsel so that a reasonable police officer in those circumstances would understand the statement to be a request for an attorney. State v. Ninci, 262 Kan. 21, 41, 936 P.2d 1364 (1997). The same rule applies to the right to remain silent. State v. Donesay, 265 Kan. 60, 73, 959 P.2d 862 (1998). When a suspect malees a statement which might be ambiguous as to whether the suspect is asserting a right to remain silent or to confer with counsel, the interrogator may ask questions to clarify, but the interrogator is not required to clarify and may continue the questioning. State v. Speed, 265 Kan. 26, 37-38, 961 P.2d 13 (1998). The State cites State v. Morris, 255 Kan. 964, 975-76, 880 P.2d 1244 (1994), and McCorkendale, 267 Kan. at 273, in support of its position. In Morris, the court found the statement “ Tm not sure what I want to do’ ” was not an unambiguous invocation of rights. 255 Kan. at 976. In McCorkendale, the court held that the statement “ ‘So that’s all I [got] to say’ ” was not an unequivocal invocation of his right to remain silent, and since it could have also been interpreted as a statement that he had finished explaining the matter, the statement was at best ambiguous. 267 Kan. at 273. However, we believe the statement in this case is most analogous to State v. Fritschen, 247 Kan. 592, 606, 802 P.2d 558 (1990), where Fritschen stated, “ 1 don’t want to talk about it any more, it hurts too much.’ ” The officer interpreted this to mean that Fritschen was not invoking his right to silence but that he did not want to think about the murder. The officer asked Fritschen if he would continue answering questions, and Fritschen agreed. The Fritschen court, citing Smith v. Illinois, 469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490 (1984), stated that only prior statements and the statement itself may be looked at in determining whether the statement itself is ambiguous. 247 Kan. at 607. A defendant’s words are treated as if they are plain and unambiguous and, therefore, not subject to construction. See Donesay, 265 Kan. at 68. The court interpreted that Fritschen was saying he was upset and having difficulty talking and, thus, the statement did not even reach the level of a potentially ambiguous request. Fritschen also found that even if the request was ambiguous, the officer’s further inquiry concerning whether the defendant wanted to continue answering questions followed proper procedure. 247 Kan. at 607-08. As in Morris, McCorkendale, and Fritschen, we interpret Holmes’ statement that “I think I’ll just quit talking, I don’t know” as an ambiguous invocation of rights. The statement could be construed as not wanting to talk about the shooting details at that moment in the interrogation but not knowing if he should. However, Holmes’ statement could also be construed as an assertion of his right to remain silent. Nevertheless, the officers followed proper procedure by further inquiring whether he wanted to talk about something else. The trial court properly denied the motion to suppress, finding that all statements were voluntary and given freely and knowingly. Applying our standard of review, we conclude that the facts found by the trial court were supported by substantial competent evidence. Those facts support our independent legal conclusion that Holmes’ confession was voluntarily given. We therefore affirm the trial court’s admission of Holmes’ confession during trial. (2) Failure to Grant a Second Evidentiary Suppression Hearing Before the first trial, defense counsel filed a motion to suppress. Judge James Fleetwood held an evidentiary hearing and denied the motion. After the case was remanded from this court for a new trial, Holmes filed a pro se motion to suppress and pro se memo randum in support of the motion. Judge Clark V. Owens II overruled the second motion, finding that the court had previously heard and overruled the suppression issue. The trial court can reentertain an earlier motion to suppress which has been denied. State v. Jackson, 213 Kan. 219, Syl. ¶ 1, 515 P.2d 1108 (1973); State v. Olson, 11 Kan. App. 2d 485, 488, 726 P.2d 1347 (1986). The decision to rehear an earlier motion is a matter which lies within the sound discretion of the trial court. State v. Riedel, 242 Kan. 834, 837, 752 P.2d 115 (1988). Discretion is abused when no reasonable person would agree with the trial court. Sterba v. Jay, 249 Kan. 270, 279, 816 P.2d 379 (1991). Holmes argues that he was denied due process when the district court summarily overruled his pro se motion to suppress filed prior to the second trial without granting an evidentiary hearing. Holmes asserts that his second motion was not identical to the first motion because it raised new issues and additional evidence not previously presented. Specifically, he alleges that he did not freely and voluntarily give his consent to search the home and that the law enforcement officers gave inconsistent statements at the first suppression hearing and the first trial. For those reasons, he asks this court to reverse the trial court’s decision and remand for an evi-dentiary hearing on the pro se motion to suppress. The State responds that this issue is not properly before this court for two reasons: (a) Holmes was not entitled to hybrid representation and (b) defense counsel only objected to issues outlined in the first motion to suppress and failed to object to the introduction of the evidence at trial. Even if the merits of the issue are addressed, the State argues an evidentiary hearing was not required because the second motion’s allegations are without merit. (a) Hybrid representation. While a party has the right to represent himself or herself or be represented by counsel, he or she does not have the right to a hybrid representation. State v. McKesson, 246 Kan. 1, 12, 785 P.2d 1332, cert. denied 495 U.S. 937 (1990). In the second suppression hearing, the court warned Holmes of the dangers of hybrid representation and that generally it was not allowed. However, the court made an exception for that hearing and allowed counsel to argue Holmes’ pro se motion to suppress. The prosecution did not object to the trial court’s decision. The State cites State v. Ames, 222 Kan. 88, 98-101, 563 P.2d 1034 (1977), in arguing that the defendant could have represented himself or been represented by counsel, but not both. However, Ames does not support the State’s assertion. In Ames, the trial court allowed the defendant to file a plethora of pro se motions at both pretrial and posttrial hearings and to argue some of those motions; however, the court did not allow Ames to participate at the trial. This court did not criticize the trial court for allowing the defendant to file pro se motions or hear those motions. Rather, we found that the trial court did not abuse its discretion in limiting the defendant’s participation in his defense. 222 Kan. at 101. In this case, the trial court allowed Holmes’ pro se motion to be argued by counsel. As a result, the State’s argument fails. (b) Failure to object. The State asserts that this issue was not preserved for review because Holmes only objected to issues outlined in the first motion to suppress and failed to object to the introduction of the evidence at trial. Nevertheless, our review of the issue on its merit is still resolved in the State’s favor. (c) Additional issues and evidence raised in the second motion to suppress. Holmes argues that the district court erred in refusing to grant an evidentiary hearing on the second motion to suppress because it raised additional issues and evidence not presented in the first motion. Holmes first points to the issue of whether his consent to search was voluntary. The State concedes that the consent to search issue “was not contained in the motion to suppress filed prior to Holmes’ first trial,” but argues that the issue does not have merit. However, our review of the record reveals that the consent to search issue was raised in the first motion which asked the court to suppress the physical evidence obtained by the alleged unlawful and unconstitutional search and seizure. The second motion addressed the same issue but in more detail. The consent to search the home issue was raised in the first motion to suppress, litigated in the first suppression hearing, and reiterated in the second mo tion to suppress. As such, the trial court in considering the second motion did not err by summarily dismissing the consent to search issue as being previously heard by the court. Holmes also argues that additional evidence was raised in the second motion to suppress that was not available at the first suppression hearing and, thus, the district court abused its discretion by not granting an evidentiaiy hearing. Holmes alleges that Schroeder’s testimony regarding Holmes’ appearance and his ability to articulate in the first suppression hearing and the first trial was inconsistent. The State does not address the additional evidence claims. “Normally, . . . the motion, when made before trial, will be heard once and disposed of; however, if at trial new or additional evidence is produced bearing on the issue or substantially affecting the credibility of the evidence adduced at the pretrial hearing of the motion, . . . [K.S.A. 22-3216] authorizes reentertainment of the motion in the court’s discretion.” Jackson, 213 Kan. at 226. Schroeder, in the first suppression hearing, stated that Holmes appeared quiet, tired, seated, subdued, his speech was clear, and he did not display any signs that he was incapacitated. In contrast, at the first trial, Schroeder reiterated these observations but also described Holmes’ speech as stuttered and shaky at times. Additionally, with regard to certain statements, Schroeder had the impression that Holmes was unsure of what he was saying. Holmes argues that he was entitled to an evidentiaiy hearing based on these inconsistent statements but does not argue how they were material to the issues or substantially affected the credibility of the evidence. In addition, Holmes does not cite any authority to support his position. Holmes merely asserts that the court considering the second motion was unreasonable and arbitrary in refusing to grant an evidentiaiy hearing. An issue which is not adequately briefed is deemed abandoned. State v. Brown, 272 Kan. 843, 844, 35 P.3d 910 (2001). Moreover, the record shows defense counsel told the court considering the second motion that “[t]he motion to suppress was previously litigated . . . and, again, I think Mr. Holmes in an abundance of caution filed a motion to preserve that issue for appeal.” “A litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal. [Citation omitted.]” State v. Boorigie, 273 Kan. 18, 27, 41 P.3d 764 (2002). The court did not abuse its discretion in overruling the second motion based on defense counsel’s statement that the suppression issue in the second motion had been previously litigated. (3) The trial court abused its discretion in various parts of the trial “The admission of evidence lies within the sound discretion of the trial court. [Citation omitted.] An appellate court’s standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion. [Citation omitted.]” State v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (2002). In his pro se brief, Holmes argues that the trial court abused its discretion in various parts of the trial by (a) allowing the jury to use the transcript without proper redaction and by denying his pro se motion for discovery (b) for a picture showing that the victim slid down the wall and (c) for information regarding whether Schroeder had a medical reason for a bad memory. The State responds that the transcript was sufficiently redacted and that even if the jury viewed portions of the videotaped interrogation that were not edited correctly, this error was cured by a K.S.A. 60-455 limiting instruction. The State does not address Holmes’ discovery arguments. (a) Redacted Transcript. Counsel for both sides prepared a transcript of the videotaped interrogation which was played for the jury at trial. Defense counsel filed a motion in limine requesting that Holmes’ prior criminal record, prior bad acts, personal history, and activity not directly related to this case be redacted from the videotape and transcript. In the preliminary hearing, the court set aside a portion of die hearing to talk about the redaction of the videotape, the transcript, and the motion in limine. At that time, the prosecutor informed the court that prior to the hearing, both prosecution and defense tediously went through the transcript to agree on what should be deleted. The prosecutor presented defense counsel with the “full version of everything that’s on the video, as well as what we have so far agreed to redact.” Defense counsel responded: “I’ve seen the videotape, and ... I think we’ve probably hit 90 plus percent of it. And we certainly have hit the most actionable parts, and they’re contained in what we had of the written transcript. But when I compared that to the video, I think we cleaned it up tremendously. And I think for [the prosecutor] and I to agree to what needs to be redacted, I don’t think we have a problem there. And so I’ll go through this tonight and just make sure, but, I mean, I’m comfortable with the effort that we have put forth.” On the first day of trial, defense counsel told the judge that he went through the redacted transcript and requested that items or comments such as the purported sale of drugs or sale of drugs also be deleted. An off-the-record discussion was held by the court and counsel at the bench. At that time, both parties agreed on the sections to be edited. Prior to the viewing of the videotape during trial, the court asked defense counsel if there was any concern as to the transcript itself being admitted. Defense counsel objected to the jury having a copy of the transcript in case something had been left out because he had seen the videotape in its entirety but not the redacted copy of the videotape. The court decided that the jury could use the transcript only if the videotape was inaudible. However, once the videotape was played, the court determined that the jury needed to use the transcript to follow along with the videotape. Following the videotape being viewed, defense counsel stated to the court: “Judge, if I may, I’d like to make a record of a conversation that we had back in your waiting area regarding the videotape that was played. Despite our best efforts, there were some parts of the tape that were not edited correctly as [the prosecutor] and I had agreed to. And I do not want to direct attention to it, but that was the reason why I objected to it being admitted without watching it. The Court informed us that [it] would not play the videotape or . . . give a copy of the transcript to the jury without playing [the videotape] in the courtroom if [the jury] requested that. . . . [I]t was my understanding in our conversation that we would have the opportunity to redact or edit any portion that would be presented to [the jury] so that it conformed with the Court’s previous order. And, also, as a result of the videotape, we are requesting . . . the [K.S.A. 60-455] other crimes evidence PIK instruction.” Both parties and the court agreed to issuing the K.S.A. 60-455 limiting juiy instruction. The redacted transcript was not admitted as evidence, and the transcripts were collected from the jury members. Additionally, the redacted videotape was not allowed to go with the jury for its deliberations. Holmes contends that his due process rights were violated when the court knowingly allowed the jury to use the transcripts without proper redaction. He alleges the prosecutor told the court that the videotape transcripts had not been edited as agreed upon and the court still allowed the jury to use the transcripts. The State contends that a review of the record indicates that the transcript was sufficiently redacted and any potentially prejudicial material from the videotape was cured by issuing the jury instruction for prior other crimes evidence. “When reviewing a constitutional challenge to the admission of evidence, the appellate court applies the federal constitutional rule. Under that rule, an error may not be held to be harmless unless the appellate court is willing to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. [Citation omitted.]” State v. Groschang, 272 Kan. 652, 671, 36 P.3d 231 (2001). The major problem in reviewing this issue is that Holmes has failed to include the videotape or the transcript in the record on appeal. Without these items, it is virtually impossible to fully assess Holmes’ claims. The appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. See State v. Decker, 275 Kan. 502, 507, 66 P.3d 915 (2003). Moreover, review of the evidence in the record does not support Holmes’ position. During the preliminary hearing, defense counsel stated that the transcript was sufficient and at the beginning of trial, defense counsel amended portions that he viewed were incorrect in the transcript. Ultimately, both parties gave their best efforts to sufficiently edit the videotape and the transcript. Additionally, the parties agreed to remedy the portions not edited correctly with a K.S.A. 60-455 limiting instruction. The jury would have been exposed to the videotape with or without the transcript. Using the transcript would not have changed the result of the trial. The trial court did not abuse its discretion in allowing the jury to use the transcript to comprehend the redacted videotape. Holmes’ due process rights were not violated. (b) and (c) Denial of Discovery. Holmes contends the trial court abused its discretion in denying his discovery request for a picture showing that Smith had slid down the wall and for information regarding whether Detective Schroeder had a medical reason for a bad memory. The party asserting the trial court abused its discretion bears the burden of showing such abuse of discretion. Jenkins, 272 Kan. at 1378. However, the record on appeal does not support Holmes’ claim. The trial court sustained Holmes’ pro se motion for discovery, and defense counsel stated he believed that he had everything from the State except for the copy of the videotape in regard to Holmes’ pro se motion for discovery. Holmes has not met his burden of showing the district court abused its discretion. (4) Denial of Holmes’ pro se motion alleging ineffective assistance of counsel Defense counsel filed a motion for new trial on August 19,2002. See K.S.A. 22-3501. Holmes filed a pro se “Motion to Declare Ineffective Assistance of Counsel, and Act of Preservation” on August 22, 2002. The trial court held a hearing on these posttrial motions, as well as other motions filed by Holmes on September 27, 2002. The parties disputed whether the trial court could rule on the pro se motion for ineffective assistance of counsel. The prosecutor stated: “I really don’t know what to tell the Court to do. Um, at a 60-1507 hearing, the defendant gets a new attorney. So when this issue is raised pre-sentencing, I’ve tried to pull together some case law about how this works in this procedural [posture] of the case, and I’m not convinced that I have adequately exhausted that. “. . . And so I think what the Court has to do is determine whether or not we can proceed today . . . .” Holmes was afforded the opportunity to speak on his behalf but did not raise any additional arguments for his motion. The court, nevertheless, decided to rule on the motion. The trial judge stated: “Well, I think that the Court is in a position that I can effectively rule on the Motion to Declare Ineffective Assistance of Counsel, and Act of Preservation. “First, I’m going to — after considering all the arguments and the statements made in this motion, the motion itself is without merit and it is overruled.” The defendant represented himself for the remaining motions, except for the motion for new trial and the “Motion Implementing Disciplinary Action.” The trial court set the latter two motions for a later hearing to allow defense counsel to withdraw from the case and for new counsel to be appointed. Newly appointed defense counsel filed a supplemental motion for new trial on October 21, 2002, which incorporated the ineffective assistance of counsel claims raised in Holmes’ earlier pro se motion. On November 7, 2002, the trial court heard the remaining motions pending from the previous hearing. To malee the record clear, the prosecutor reviewed the motions that the court had previously ruled upon: however, the prosecutor mistakenly indicated that the motion for ineffective assistance of counsel and act of preservation was still pending. The court again overruled the motion, finding that there was no basis for Holmes’ arguments after reviewing the pleadings filed. After the ruling, Holmes alerted the court that it had previously made the same ruling on the motion. Following that ruling, the trial court entertained the motion for new trial and the supplemental motion for new trial. Defense counsel was given the opportunity to argue those motions. However, defense counsel did not raise additional arguments specific to ineffective assistance of counsel or request that an evidentiary hearing be held. The trial court overruled the motion for new trial, stating that the evidence was admitted appropriately and that the State had met its burden of proof. A preliminary issue arises as the parties characterize the motions differently on appeal. Holmes construes them as K.S.A. 2003 Supp. 60-1507 motions, while the State labels them as pro se criminal (■i.e., posttrial) motions. We agree with the State. Holmes filed his pro se motions within the 10-day time period for motions for new trial but both motions were filed prior to sentencing. Supreme Court Rule 183(c) (2003 Kan. Ct. R. Annot. 213) defines when the 60-1507 remedy can be invoked: “The provisions of K.S.A. 60-1507 may be invoked only by one in custody claiming the right to be released.” K.S.A. 2003 Supp. 60-1507(a) more specifically states: “A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States . . . [or] Kan- . sas, . . . may . . . move the court which imposed the sentence to vacate, set aside or correct the sentence.” (Emphasis added.) These motions' are best characterized as posttrial motions rather than 60-1507 motions because sentencing had not been imposed. Regardless of whether characterized as either 60-1507 or post-trial motions, the fact remains that the court did not provide findings of fact and conclusions of law to assist this court to conduct a meaningful appellate review. “Motions for new trials, like many 60-1507 motions, may be meritless and, thus, 'not entitled to evidentiary hearings. However, the district court must tell us what its findings are and why it concluded the motion to be without merit if we are to conduct any sort of meaningful appellate review.” State v. Monda, 269 Kan. 61, 65, 4 P.3d 618 (2000). Nevertheless, we find that remand is unnecessary in this case based upon our firm conclusion that Holmes’ argument on this issue is without merit. When faced with a motion alleging ineffective assistance of counsel, the district court is to make a preliminary examination to determine whether substantial questions of law or fact are raised, and if the findings are in the negative, the court may summarily deny the motion. State v. Davis, 271 Kan. 892, Syl. ¶ 1, 26 P.3d 681 (2001). The trial court’s actions in summarily denying a motion for a new trial based on ineffective assistance of counsel are reviewed for an abuse of discretion. State v. Kirby, 272 Kan. 1170, 1194, 39 P.3d 1 (2002). Holmes did not identify what further evidence existed outside his pro se motion for ineffective assistance of counsel to necessitate an evidentiary hearing. Instead, he points to three ways that defense counsel failed to perform his duties: (1) Counsel failed to employ a drug expert to explain the effects of drug use, (2) counsel failed to impeach the forensic pathologist’s testimony, and (3) counsel failed to impeach the statements of other witnesses. The State responds that further evidence was unnecessary because: (1) An expert was not needed because there was sufficient testimony on the drug use and (2) the cross-examination of the forensic pathologist was adequate and further bolstered the defendant’s defense. When acting on a motion for a new trial, our court has held that the procedure “is comparable to the procedure for a K.S.A. 60-1507 motion.” Monda, 269 Kan. at 64. When acting on a 60-1507 motion, the court may determine that potential issues of fact are raised in the motion, supported by the files and record, and hold a preliminary hearing to determine if the issues in the motion are substantial. Gaudina v. State, 278 Kan. 103, Syl. ¶ 4, 92 P.3d 574 (2004). It is erroneous to deny a 60-1507 motion without an evi-dentiary hearing where the motion alleges facts which do not appear in the original record, which if true would entitle the movant to relief, and it identifies readily available witnesses whose testimony would support such facts or other sources of evidence. Floyd v. State, 208 Kan. 874, Syl. ¶ 1, 495 P.2d 92 (1972). The motion must set forth a factual background, names of witnesses, or other sources of evidence demonstrating movant’s entitlement to relief. Sullivan v. State, 222 Kan. 222, 223-24, 564 P.2d 455 (1977). In his pro se motion, Holmes first contends that defense counsel failed to hire an expert in the drug field, that this failure to conduct an appropriate investigation was prima facie evidence of ineffective assistance of counsel, and as a result that an evidentiary hearing was warranted. He did not identify an expert witness that would have consulted on the case; rather, he simply alleged an expert witness would have explained that high drug usage can result in paranoid suspiciousness. Holmes bears the burden of demonstrating that trial counsel’s alleged deficiencies were not the result of strategy. See Ferguson v. State, 276 Kan. 428, 446, 78 P.3d 40 (2003). The failure to present expert testimony resulting from reasonable trial strategy does not constitute deficient assistance for purposes of claim of ineffective assistance of counsel. See 276 Kan. at 446-49. “[T]he. trial court, which observed counsel’s performance and was aware of the trial strategy involved, is in a much better position to consider counsel’s competence than an appellate court . . . and should be the first to make a determination of such an issue . . . State v. Van Cleave, 239 Kan. 117, 119, 716 P.2d 580 (1986). A review of the record establishes that sufficient evidence of the substantial effects of drug use was placed before the juiy through testimony from Smith’s daughter, the crime scene investigator, the forensic pathologist, and Holmes. In fact, defense counsel addressed die effects of cocaine during his cross-examination with the forensic pathologist, such as paranoia and heightened awareness. Consequendy, “expert” testimony regarding the effects of cocaine was presented to the jury. Holmes has not demonstrated that defense counsel’s alleged deficiencies were not the result of strategy. Holmes next argues that his counsel failed to impeach the forensic pathologist for inconsistent statements made in the first trial regarding the extent of rigor mortis on Smith’s body and tiiat this impeachment was necessary to support his time line of events. In the first trial, the forensic pathologist testified that rigor mortis was present only in the face and finger tips; while in the second trial, the pathologist testified that some rigor mortis was present in Smith’s lower extremities. The State concedes that counsel failed in this instance; however, it contends sufficient evidence was presented to corroborate Holmes’ version of events. Defense counsel cross-examined the forensic pathologist’s time of testing of Smith’s body for rigor mortis. The pathologist stated that she had tested for rigor mortis at around 7:30 a.m. and that Smith appeared to have been dead for 2 hours. This information indicates that Smith’s death occurred around 5:30 a.m., corroborating Holmes’ time line of events. Holmes failed to provide evidence that defense counsel’s failure to question the inconsistent statements regarding the extent of rigor mortis impeded his version of events. Finally, Holmes argued defense counsel failed to impeach Campbell’s inconsistent statements regarding the time of the shooting and Schroeder’s testimony regarding the location of the gun holster and Holmes’ demeanor during the interrogation. How ever, defense counsel did cross-examine Campbell on this issue as just discussed and the failure to impeach Schroeder was cured since the crime scene photographs showing where the holster was located and the redacted videotape showing the interrogation were introduced at trial. The above analyses illustrate that no substantial questions of law or facts were raised. The district court did not err in summarily denying the motion for new trial based upon Holmes’ pro se motion for ineffective assistance of counsel without an evidentiaiy hearing. (5) Insufficient evidence to establish premeditation “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003). Holmes first argues he was not capable of forming the necessary state of mind to premeditate a murder due to his drug intoxication. Second, he asserts that the shooting was accidental, pointing to the malfunctioning gun to support his position. Third, Holmes reasons that if he intended to kill the victim, he was afforded the opportunity with the hammer blow and since no serious injury resulted at that time, the subsequent shooting was accidental. He asserts a rational juiy could not have found him guilty of first-degree murder because these three circumstances raise a reasonable doubt about his guilt. The State disputes Homes’ reasons and asserts that the evidence was sufficient to establish premeditated murder. The State points to evidence showing that Holmes fired a single shot to Smith’s heart at pointblank range without provocation and then chose to finish his remaining drugs despite Smith’s need for medical assistance. Holmes cites State v. Ludlow, 256 Kan. 139, 147, 883 P.2d 1144 (1994), in arguing that his drug intoxication was so severe it caused him to hallucinate and, thus, he was incapable of forming the requisite state of mind. However, the Ludlow court held there was sufficient evidence to support the jury’s finding that the defendant was capable of forming the requisite premeditation because he showed no outward signs of physical or mental impairment, appeared stable, and had the presence of mind to drive the victim’s automobile to the aiiport, purchase airline tickets using a false name, and board the airplane. Additionally, the court found that even if the defendant experienced memory loss, it would not mean that the defendant was incapable of forming premeditation.. 256 Kan. at 147-48. In this case, Holmes testified that he believed Smith was dead and made the choice to finish his remaining drugs that he. had in his pocket. As a result, Holmes had a seizure after the drug intake. Despite the drug-induced seizure, Holmes was able to call 911 and tell them that he had shot his girlfriend. Neither Officers Bachman nor Easter noticed that Holmes exhibited any signs of impairment during their first encounter with him. Holmes showed no outward signs of mental impairment, he suffered no memory loss, and he was able to testify in detail regarding the events before and after the shooting. Moreover, he was able to explain the reasoning behind his actions at that time. Using the Ludlow factors, Holmes was capable of forming the requisite premeditation. See 256 Kan. at 147-51. Premeditation is a state of mind and may be inferred from the established circumstances of the case, provided the inference is a reasonable one. In such a case, the jury has the right to make tire inference. State v. Parker, 273 Kan. 56, 63, 41 P.3d 789 (2002). A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Davis, 275 Kan. 107, 118, 61 P.3d 701 (2003). Additionally, application of the following authority leads to the same conclusion. See State v. Scott, 271 Kan. 103, 108, 21 P.3d 516, cert. denied 534 U.S. 1047; State v. Decker, 275 Kan. 502, Syl. ¶ 5, 66 P.3d 915 (2003). Premeditation does not necessarily mean that an act is planned, contrived, or schemed beforehand; rather, that premeditation indicates a time of reflection or deliberation. Scott, 271 Kan. at 108. Premeditation may be inferred by the jury from various circumstances, including (1) the nature of the weapon used, (2) the lack of provocation, (3) the defendant’s conduct be fore and after the killing, (4) threats and declarations of the defendant before and during the occurrence, or (5) the dealing of lethal blows after the deceased was felled and rendered helpless. Decker, 275 Kan. 502, Syl. ¶ 5. Applying Decker to this case, the primary weapon utilized in this case was a gun. The firearms examiner testified that the bullets found in the gun were not specifically manufactured for the gun. When the gun did not have ammunition, pulling the trigger would result in a click but no advancement. The examiner found that one of the bullets had a strike mark indicating that the weapon did not rotate; however, the gun fired properly when the examiner tested the gun with the same type of bullet which killed the victim. Holmes argues that the defect found in the weapon supports his argument that he heard the gun click and was not sure if the gun was loaded; thus, the shooting was accidental. He contends this evidence raises doubt about his guilt in the mind of a rational juiy. However, Holmes’ own testimony demonstrates that he thought the gun was unsafe. He testified that “[a]fter the third click ... it wasn’t in my mind that it was gonna go off. But I didn’t — I didn’t know if it had one bullet in it or what was going on. But I was just thinkm, for some reason, that she was still trying — and I did that, so I was really thinkin’ that she could hurt me.” Although the gun might have been malfunctioning, Holmes’ prior experience in the militaiy and his testimony support the belief that he considered the gun to be harmful. Premeditation can also be inferred by lack of provocation. State v. Sanchez-Cazares, 276 Kan. 451, 459, 78 P.3d 55 (2004). After Smith warned Holmes that she had a gun, the two struggled. Eventually, Holmes pinned Smith to the floor and pointed the gun at her. By the time the gun fired, Holmes had control of the gun and of Smith. No provocation existed. Holmes’ conduct before and after the killing can also be used to infer premeditation. See State v. Boone, 277 Kan. 208, 222, 83 P.3d 195 (2004). Prior to the shooting, Holmes struck the victim in the head with a hammer. Holmes claimed that if he intended to kill the victim, his hammer blow would have been fatal and since she was not seriously injured, her death resulted from an accidental shooting caused by the struggle for the gun. Even if this court were to conclude that his conduct before the killing did not infer premeditation, his conduct after the killing supports the jury verdict. After he shot Smith, Holmes saw that she had stopped moving and blood was bubbling out of her mouth. Instead of providing immediate aid, Holmes finished the remaining drugs in his possession. He had a drug-induced seizure and only after he recovered did he contact 911. The time is disputed; Holmes believed that the time was 6 to 7 minutes, where the State contends it was 2 hours. However, the serious nature of the injury necessitated immediate medical attention which Holmes did not provide. Premeditation can also be inferred from threats and declarations made by Holmes before and during the occurrence. See Decker, 275 Kan. 502, Syl. ¶ 5. Holmes threatened Smith that he “could” or “would” kill her after Smith was on the ground. He testified that he was not trying to say “I’m going to kill you” but was “trying to make her stop fightiri me over [the gun].” Holmes also testified that Smith’s hands were still on the gun, “[b]ut I had more control over the gun than she had.” Plus, he testified that he had straddled her and pinned her to the floor with one knee. Holmes’ statements can be considered threats since he had control over the gun and Smith. The dealing of lethal blows after the deceased was felled and rendered helpless is another circumstance for a jury to infer premeditation. Decker, 275 Kan. 502, Syl. ¶ 5. No evidence of such further lethal blows was presented. Nevertheless, the other four circumstances demonstrate that premeditation was established by sufficient evidence. A rational jury could have found Holmes guilty of first-degree murder beyond a reasonable doubt. (6) Instruction to limit the effect of sympathy and prejudice “In a criminal action, a trial court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence. When considering the refusal of the trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction. [Citation omitted.]” State v. Gholston, 272 Kan. 601, 615, 35 P.3d 868 (2001), cert. denied 536 U.S. 963 (2002). Holmes argues that the district court erred in refusing to instruct the jury that it should set aside sympathy and prejudice in deciding the matter. See PIK Crim. 3d 51.07. He reasons the instruction was necessary to ensure a fair trial because one or two of Smith’s family members began crying and were escorted out of the courtroom and as a result that the jury was influenced by that observation. The State relies on an earlier version of the PIK instruction in arguing that the Notes on Use section recommends that the instruction not be given in the absence of “very unusual circumstances.” See PIK Crim. 2d 51.07 (1994 Supp.). The district court utilized this standard as well and refused to give an instruction. However, no Notes on Use follow PIK Crim. 3d 51.07, which was applicable to this case. Instead, the PIK instruction states that the instruction which originally appeared has been deleted because it was disapproved for general use, citing State v. Harmon, 254 Kan. 87, 865 P.2d 1011 (1993); State v. Reser, 244 Kan. 306, 767 P.2d 1277 (1989); State v. Sully, 219 Kan. 222, 547 P.2d 344 (1976); and State v. Maggard, 26 Kan. App. 2d 888, 995 P.2d 916 (2000). The State’s reliance on PIK Crim. 2d 51.07 and Reser is thus unpersuasive. The committee on pattern jury instructions and the defendant cite State v. Rhone, 219 Kan. 542, 548 P.2d 752 (1976), as an example of when the instruction should be approved. In Rhone, the State’s key witness was ill from cancer and unable to testify on the stand. The parties and jury were taken to the witness’ residence to hear the witness’ testimony. As a result, the trial court gave the instruction to the effect that neither prejudice nor sympathy should be allowed to influence the verdict, in substantial accord with that stated in PIK Crim. 2d 51.07. The committee on pattern juiy instructions only provides the Rhone circumstance as guidance on when the trial judge should instruct PIK Crim. 3d 51.07. Holmes’ situation does not compare to the situation in Rhone. In Rhone, the jury was at the witness’ residence, not in the courtroom, and the situation lasted as long as her testimony. In Holmes’ case, the incidents took place in the courtroom, and the incidents were brief since the family members were escorted from the courtroom after they started crying. In the light most favorable to Holmes, circumstances in this case did not warrant the instruction be given to the juiy. (7) Hard 40 sentence The district court imposed a hard 40 sentence pursuant to K.S.A. 2003 Supp. 21-4638, after finding that “this murder was committed in a particularly heinous manner, wicked and vial, and for purposes of obtaining benefit or economic relief on behalf of the defendant.” See K.S.A. 2003 Supp. 21-4636(c) and (f). Holmes argues the evidence was insufficient to support either of those aggravating circumstances. We agree. Where the sufficiency of the evidence for establishing an aggravating circumstance under K.S.A. 2003 Supp. 21-4636 is challenged, the standard of review is whether, after a review of all the evidence, viewed in the hght most favorable to the State, a rational factfinder could have found by a preponderance of the evidence the existence of the aggravating circumstance. State v. Papen, 274 Kan. 149, 163, 50 P.3d 37 (2002). Holmes first argues that the evidence was insufficient to support the existence of the aggravating circumstance of committing a crime for economic benefit. K.S.A. 2003 Supp. 21-4636(c) specifically provides: “The defendant committed the crime for the defendant’s self or another for the purpose of receiving money or any other thing of monetary value.” In resolving this issue, guidance can be gained from the following cases where this court has found evidence sufficient to uphold the aggravated circumstance listed in K.S.A. 2003 Supp. 21-4636(c). See State v. Boldridge, 274 Kan. 795, 809-10, 57 P.3d 8 (2002) (Boldridge aided the shooting of her former husband in order for her son to receive his social security death benefits); State v. Flournoy, 272 Kan. 784, 791-92, 36 P.3d 273 (2001) (defendant would be the executor of the victim’s estate if exonerated for shooting his grandmother); State v. Murillo, 269 Kan. at 281, 289, 7 P.3d 264 (2000) (Murillo committed murder while attempting to find cocaine); State v. Vontress, 266 Kan. 248, 249, 970 P.2d 42 (1998) (Vontress and another man went to the victim’s house “looking for drugs and money”); State v. Kingsley, 252 Kan. 761, 789-90, 851 P.2d 370 (1993) (Kingsley went to the victim’s house with the intention of killing her and taking her money and valuables). Comparison of these cases to the present case reveals that the State did not present sufficient evidence to establish the claim that Holmes killed the victim in order to obtain her property. Unlike Boldridge, Holmes was not named a beneficiaiy to Smith’s will or life insurance policy. Sirriilarly, no evidence was presented Holmes had any rights to Smith’s property, as was the case in Flournoy, nor that he took or intended to take any of Smith’s jewelry or money, as in Kingsley. The State’s theory that Holmes finished off his remaining drugs to relieve himself of the burden of purchasing or sacrificing any other belongings or money to obtain additional drugs is also flawed. In Murillo, there was sparse evidence that Murillo was looking for cocaine when he murdered the victim. The Murillo court found that the defendant killed the victim while in the process of locating his cocaine; while the evidence was not overwhelming, it was sufficient to establish the aggravating factor by a preponderance of the evidence. 269 Kan. at 289. Unlike Murillo, Holmes and Smith struggled over control of the gun, not over control of his drugs. Indeed, Holmes and Smith argued over his lack of property and a job because of his drug purchases, and they both had taken large amounts of drugs earlier that day. However, they both owned their own drugs. Prior to the shooting, Smith had purchased her own drugs that night and injected them while in the bathroom and Holmes had taken his own drugs while in the bedroom prior to their argument. The State did not present evidence that Smith wanted to have Holmes’ drugs prior to the shooting. Instead, the evidence indicated that Smith wanted Holmes to “get more money and go back to work.” Accordingly, we conclude that this aggravated circumstance was not established by a preponderance of the evidence. Holmes also argues that insufficient evidence was presented to support the State’s second aggravating circumstance. We agree. K.S.A. 2003 Supp. 21-4636(f) identifies committing a crime “in an especially heinous, atrocious or cruel manner” as another aggra vating circumstance and subsections (f)(1) through (f)(7) of 21-4636 list seven types of conduct that are considered sufficient to fall under this aggravating circumstance. The State does not cite any of the seven types of conduct listed in K.S.A. 2003 Supp. 21-4636(f) to support this aggravating circumstance but does point to evidence that Holmes threatened that he “could" or “would" kill Smith before firing the fatal shot. K.S.A. 2003 Supp. 21-4636(f)(l) provides that prior criminal threats to the victim are sufficient to find that the crime was committed in an especially heinous, atrocious, or cruel manner. The State also argues that the fact that Holmes struck Smith on the back of her head with a hammer prior to the shooting supports this aggravating circumstance. K.S.A. 2003 Supp. 21-4636(f)(3) provides that infliction of physical abuse before a victim’s death is sufficient for this aggravating circumstance. Additionally, K.S.A. 2003 Supp. 21-4636(f)(5) states that continuous acts of violence begun before a killing would also rise to such a level. Regarding K.S.A. 2003 Supp. 21-4636(f), this court has held: “ ‘All murders are heinous, atrocious, and cruel.’ State v. Cook, 259 Kan. 370, 403, 913 P.2d 97 (1996). ‘However, exceptional circumstances must exist before a murder can be classified as “especially heinous, atrocious or cruel.’ ” State v. Spry, 266 Kan. 523, 531, 973 P.2d 783 (1999). “ ‘The hard 40 sentence should be reserved for special cases .... Otherwise, the legislature would have mandated the hard 40 sentence in all first-degree murder cases.’ ” 266 Kan. at 531 (quoting State v. Willis, 254 Kan. 119, 129, 864 P.2d 1198 [1993]).” State v. Sanders, 272 Kan. 445, 462-63, 33 P.3d 596 (2001), cert. denied 536 U.S. 963 (2002). Accordingly, shooting deaths are not generally considered to rise to the level of being especially heinous, atrocious, or cruel. State v. Conley, 270 Kan. 18, 28, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001). However, this court has recognized an exception to the general rule in State v. Alford, 257 Kan. 830, 838, 896 P.2d 1059 (1995). Alford chased the victim into the lobby of the restaurant, shot her twice, and forced her back into the kitchen. When she attempted to escape, he shot her again, dragged her around the corner of the kitchen, and fired the final two shots. Based on these facts, this court concluded that the murders were committed in an especially heinous, atrocious, or cruel manner. 257 Kan. at 838. See also State v. Brady, 261 Kan. 109, 123-24, 929 P.2d 132 (1996) (both victims were forced to he face down on the floor while the defendant paced around their bodies for 15 minutes before shooting them). In Flournoy, 272 Kan. at 791-94, this court examined the above cases and found that the distinguishing factors that allowed the exception to the rule were that the assailant chased the victim or that the assailant forced the victim to lie on the floor awaiting death. In addition, Flournoy considered the time element of the shooting relevant. Without those factors, a murder cannot be found to be committed in an especially heinous, atrocious, or cruel manner. 272 Kan. at 794. The Flournoy court distinguished its case from Brady because the shooting took place in 1 minute and the victim was not chased or forced to he on the floor awaiting death; thus, the evidence did not support a finding that the murder was committed in an especially heinous, atrocious, or cruel manner. 272 Kan. at 794. We believe that this case is likewise distinguishable from Alford and Brady. The facts of this case do not establish a similar situation where the victim was chased or forced to wait in fear of imminent death. Holmes hit Smith with a hammer because she was nagging him — not in an effort to debilitate her so as to then render a fatal blow. Smith introduced the gun into the fight, a struggle ensued, and Holmes’ threatening statements were made nearly instantaneously with the shooting. Even viewing the evidence in the light most favorable to the State, a preponderance of the evidence does not establish that Holmes’ conduct rose to the level of an aggravated circumstance under K.S.A. 2003 Supp. 21-4636(f). Rather, this is a shooting death not rising to the level of an especially heinous, atrocious, or cruel manner. We, therefore, vacate the defendant’s hard 40 sentence and remand for resentencing in accord with K.S.A. 2003 Supp. 21-4635(c) and K.S.A. 2003 Supp. 22-3717(b). (8) Prosecutorial Misconduct A two-step analysis is applied to allegations of prosecutorial misconduct. First, the court decides whether the prosecutor’s com- merits were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether the comments constitute plain error, that is, whether the statements prejudiced the jury against the defendant and deny him or her a fair trial, thereby requiring reversal. The second step is a particularized harmlessness inquiry for prosecutorial misconduct cases. State v. Tosh, 278 Kan. 83, Syl. ¶ 1, 91 P.3d 1204 (2004). Holmes first argues the prosecutor committed reversible misconduct by making the following statement during closing argument without objection: “The law. Self-defense is an absolute defense if you buy that he had a belief— that’s a subjective test. What’s going on in his head? And there must be a reasonable person must think that it is also necessary. If you buy his self-defense argument, that is an absolute defense. That means you must absolutely find him not guilty of murder at all. The purpose of self-defense is to defend against an aggressor’s imminent use of unlawful force. He is not entitled to self-defense because [the victim] was not the initial aggressor. He was. [The victim] was overpowered, bleeding, and on the ground. Where is his reasonable belief that he is going to suffer deadly harm from her when the gun is pointed at her, not him?” (Emphasis added.) Holmes contends the prosecutor misstated the law when she equated the term self-defense with being “not guilty of murder” because his “self-defense” was voluntary manslaughter. He points to an element of voluntary manslaughter that he intentionally killed the victim “upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person.” The State responds that the prosecutor s argument was an accurate statement of the law pursuant to K.S.A. 21-3211 and State v. Sims, 265 Kan. 166, Syl. ¶ 4, 960 P.2d 1271 (1998) (defendant must honestly and sincerely believe it necessary to kill in self-defense and a reasonable person would have perceived the necessity of self-defense). We agree with the State. The self-defense jury instruction given in this case mirrors the language of K.S.A. 21-3211: “The defendant has claimed his conduct was justified as self-defense. “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 against such aggressor’s imminent 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.” In accord with this instruction, the prosecutor pointed out that the defendant had to have both a subjective and a reasonable belief that self-defense was necessary in order to find that he was not guilty of murder. In contrast, voluntary manslaughter is an intentional killing upon an unreasonable belief that self-defense was necessary. K.S.A. 21-3403(b). Viewing the comments in their entirely, the prosecutor was consistent with the law and the instructions given. Cf. State v. White, 263 Kan. 283, 306-08, 950 P.2d 1316 (1997). Based on our conclusion that no prosecutorial misconduct occurred under the first step, further analysis under the second step is unnecessary. See Tosh, 278 Kan. at 93 (The second step of the analysis is essentially directed to whether the misconduct is so prejudicial that it denies the defendant a fair trial.). Holmes additionally argues that the prosecutor did not confine her remarks to the facts in evidence, pointing to the videotape transcripts without proper redaction as evidence. As we have already concluded that the videotape transcripts were sufficiently redacted, this claim fails as well. Holmes was not denied a fair trial and right to due process under the Fourteenth Amendment to the United States Constitution. (9) Cumulative effect of errors “ ‘Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ [Citation omitted.]” State v. Plaskett, 271 Kan. 995, 1022, 27 P.3d 890 (2001). Holmes argues that the cumulative trial errors in this case require that his convictions be reversed and his case remanded for a new trial. With the exception of the defendant’s sentence, no significant error has been found concerning any of Holmes’ issues, and his claim of cumulative errors fails. Convictions affirmed, sentence vacated, and case remanded with directions for resentencing.

The opinion of the court was delivered by Davis, J.: This is an appeal from a personal injuiy action brought against the defendants for injuries the plaintiff sustained during a 4th of July fireworks display at the defendants’ home. The plaintiff contends that the district court should have applied the doctrines of strict liability and negligence per se, that the court improperly excluded expert and lay opinion testimony, and that the trial court erred in excluding certain rules and regulations relating to the type of fireworks display that caused the plaintiff s injuries. The jury returned a verdict finding the plaintiff 92% at fault. This court has jurisdiction by transfer on its own motion pursuant to K.S.A. 20-3018(c). On July 4, 2001, a party was held at the residence of defendants Milo and Laura West. Their son, defendant Brian West, and defendant Shane Krehbiel, co-hosted the party. The plaintiff, Brent Pullen, was among the invited guests; he knew that a fireworks display was planned, but he was not planning to assist with the display. Pullen assisted Krehbiel in bringing some of the fireworks in his own truck, arriving at the party between 2 and 3 p.m. Before the fireworks display, Brian West observed Krehbiel and Pullen shooting some of the fireworks, trying to blow up a tree root. Pullen estimated that he had consumed 6 to 8 beers and half of a pina colada during the course of the party. Following Pullen’s injury, his blood alcohol level was found to be .144, which according to his own toxicology expert would be more consistent with the consumption of 12 to 16 beers. Krehbiel supplied tire fireworks and was in control of the fireworks display. Later that evening, he asked several people at the party to assist him in shooting off the fireworks, but he denied that Pullen was among those recruited. Although Milo denied recruiting anyone to help with the display, Pullen testified that Milo asked him to help with the display. Pullen further testified that Milo and Krehbiel instructed those assisting in the fireworks display. According to the plaintiff, Milo identified the fireworks to be used that night and told them where to put the 30-gallon barrels designed to hold the mortar cylinders used to launch the night works display. Pullen also testified that Milo told them not to drink alcohol while shooting off the fireworks. Milo, Brian West, Krehbiel, Stuart Peters, and Lance James all testified that Milo did not participate in the giving of these instructions, nor did he participate in supervising the fireworks display. Pullen testified that Krehbiel instructed the shooters to verify that the firework was sitting firmly in the mortar tube, to twist the fuses together when lighting more than one firework at a time, and to back off about 10 to 15 feet from the barrel after lighting the fuses. Krehbiel provided him with a cigar to light the fuses, but Pullen was not provided with any safety equipment to use during the display. Krehbiel testified that he told the shooters not to drink while shooting off fireworks. The fireworks shot during the display were commercial class B fireworks, which do not include consumer fireworks used by the general public. Because of the powerful explosive nature of class B fireworks, certain precautions recommended by rules and regulations adopted in Kansas must be taken in the display of such fireworks. These rules and regulations concern an important issue in this case and are more fully discussed within the opinion. The fireworks were launched from three 30-gallon barrels which were filled % up with dirt. Three mortar tubes (paper and PVC plastic) were buried in each of the barrels. The first and third barrels accommodated 3-and 4-inch mortars, and the middle barrel accommodated 3-, 4-, and 6-inch mortars. Krehbiel estimated that each of the mortar tubes were used for 75 to 100 launchings the evening of the fireworks display. The barrels were set up about 20 yards from the house and about 15 yards apart. Hugh Castillo and Lance James manned the first barrel, Krehbiel manned the middle barrel, and Stuart Peters and Pullen manned the third barrel. Pullen had assisted in lighting fireworks during the 90-minute fireworks display without incident. Krehbiel then said, “Stop, everybody stop,” in anticipation of preparing a “cake” or special firework display that would serve as the grand finale. Six to 10 seconds later, Krehbiel heard a firework go off and saw Pullen on the ground about a foot from the 30-gallon barrel Pullen was using to fire off the mortars. Lance James testified that Pullen was about 3 feet from the barrel. Stuart Peters watched Pullen light the fireworks, saw a flash, and then saw Pullen “get kicked up” and fall over by the barrel. Hugo Castillo testified that Pullen lit the fireworks while standing up and then fell flat down next to the barrel. The county 911 di rector, who went to the accident scene, observed Pullen lying 3 to 4 feet from the barrel. Pullen testified that after he lit three fireworks in the barrel, he backed up 10 to 15 feet and was hit by a firework. At the time of his injury, an explosion or flash went off around roof level of the house. Pullen was taken to the hospital and as a result of his injury, he was blinded in one eye, suffered nerve damage, memory loss, and required steel plates to be inserted in his head. Pullen’s father testified that during a conversation at the hospital with Milo, Milo told him the launching tube used by the plaintiff was deformed because it had a bulge and was split open, causing a misfire in the tube. Pullen’s mother testified that Krehbiel and Brian West told her one of the launching tubes in Pullen’s barrel was bulged and melted, which caused the accident. Pullen’s uncle also testified that Krehbiel had told him the launching tube used by Pullen had a hole in it. Krehbiel testified that he examined the launching tubes in Pul-len’s barrel and noted that they were a little deformed or melted at the very top, but the tubes were not blown out so as to cause misfire. On July 5, 2001, Brian West took the launching tubes from Pullen’s barrel in order to protect himself. Three launching tubes were admitted into evidence at trial. Pullen’s second amended petition alleged the defendants were negligent in their duties to him as an invitee and a licensee and under the doctrine of strict liability. In the pretrial orders, the trial court refused to apply the doctrines of strict liability and negligence per se. The trial court also prohibited any mention of the rules and regulations regarding class B fireworks displays by Pullen’s expert, opinions as to causation by that same expert, and any opinions regarding the number of times certain launching tubes may have been used. The jury was instructed under a negligence theory. PIK instructions relating to the duty owed by an owner or occupier of land, the duty of an injured party, and the duty of one in possession or control of an exceptionally dangerous instrumentality were given to the jury. See PIK Civ. 3d 126.02, 126.70, 126.81. The jury assessed 92% of the fault to Pullen and the remaining 8% of the fault to Krehbiel. Additional facts necessary to resolve the issues in this appeal are set forth in the opinion. In the following analysis, we conclude that the trial court did not err by excluding the doctrines of strict liability and negligence per se and expert testimony concerning the number of times a mortar launching tube had been used. However, we conclude the trial court erred in refusing to permit the introduction of the National Fire Protection Association pamphlet No. 1123, Code for Fireworks Display (2000 ed.) (NFPA 1123), through Pullen’s expert and by way of jury instructions, which contained rules and regulations regarding the handling of class B fireworks displays. APPLICATION OF THE DOCTRINE OF STRICT LIABILITY Before the trial, Pullen filed a motion for partial summary judgment, asking the court to rule as a matter of law that the use of commercial-quality, class B explosive fireworks during an illegal fireworks display constitutes an “abnormally dangerous activity” requiring the application of the strict liability doctrine. In denying Pullen summary judgment on the issue of strict liability, the trial court avoided a decision on the issue of whether the use of class B explosive fireworks constituted an “abnormally dangerous activity,” which is a necessary finding before the doctrine of strict liability may be applied. The trial court noted this was an issue of first impression in Kansas and that a split of authority existed on this issue among jurisdictions throughout the country. Our research confirms the above findings. See Litzmann v. Humboldt County, 273 P.2d 82, 88 (Cal. App. 1954) (doctrine of absolute liability not applicable to public fireworks display); Cadena v. Chicago Fireworks Mfg. Co., 297 Ill. App. 3d 945, 962, 697 N.E.2d 802 (1998) (public fireworks display not ultrahazardous activity); Haddon v. Lotito, 399 Pa. 521, 523-24, 161 A.2d 160 (1960) (a public fireworks display handled by competent operator in reasonably safe area and properly supervised is not ultrahazardous). But see Miller v. Westcor Ltd. Partnership, 171 Ariz. 387, 391-94, 831 P.2d 386 (1991), rev. denied (1992) (operating public fireworks display inherently dangerous activity); Lipka v. DiLungo, 2000 WL 295355 (Conn. Super.) (unpublished opinion filed March 8, 2000) (abnormally dangerous activity); Klein v. Pyrodyne Corporation, 117 Wash. 2d 1, 5-11, 810 P.2d 917, amended 117 Wash. 2d 1, 817 P.2d 1359 (1991) (strict liability applies). The doctrine of strict liability for abnormally dangerous activities is derived from the English case of Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). There, water from the defendants’ reservoir broke through the disused and filled-up shaft of an abandoned coal mine and flooded the connecting mine belonging to the plaintiff. The defendants were held liable upon the theory the defendants had made a “non-natural use” of their land, which brought with it increased danger to others. See Williams v. Amoco Production Co., 241 Kan. 102, 113-15, 734 P.2d 1113 (1987). The Williams court adopted § 519 and § 520 of the Restatement (Second) of Torts (1976): “The general rule imposing strict liability in tort for abnormally dangerous activities as set forth in the Restatement (Second) of Torts § 519 (1976) is stated and adopted: (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm; and (2) this strict liability is limited to the kind of harm the possibility of which makes the activity abnormally dangerous.” “In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) Existence of a high degree of risk of some harm to the person, land, or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activily is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes. Restatement (Second) of Torts § 520 (1976).” 241 Kan. 102, Syl. ¶¶ 8, 9. The Commentary to the Restatement (Second) of Torts § 520 states that whether the activity is an abnormally dangerous one is to be determined by the court, upon consideration of all the factors listed in the section defining an abnormally dangerous activity. Falls v. Scott, 249 Kan. 54, 60-61, 815 P.2d 1104 (1991). When ruling on a motion for summary judgment involving this issue, Falls is instructive: “When the facts are undisputed, whether an activity is inherently or intrinsically dangerous is a question of law to be decided by the court. When ruling on a motion for summary judgment involving this question, the trial court as a matter of law must determine from the undisputed facts contained in the record whether the activity under review is inherently dangerous. When the facts are disputed, the question is to be determined by the jury.” 249 Kan. 54, Syl. ¶ 3. On appeal, Pullen argues that the trial court erred in finding that the fireworks display was not an abnormally dangerous activity and that the doctrine of strict liability was inapplicable to this case. We note that while the trial court discussed some of the factors to be considered in determining whether an activity is abnormally dangerous, its focus was upon the question concerning the plaintiffs participation in the very activity he asked the court to declare abnormally dangerous: “[T]he Court has a question regarding whether strict liability in this case would also apply to the plaintiff s actions.” Upon finding that the facts necessary to a proper disposition of this issue were not entirely undisputed, the trial court ultimately concluded “that the appellate courts of Kansas would not apply the strict liability doctrine under the facts of this case.” Thus, without deciding the issue of whether the activity was abnormally dangerous, the trial court resolved the applicability of strict liability upon the fact that Pullen participated in the very activity he claimed was abnormally dangerous. The defendants based much of their arguments that the doctrine did not apply upon this crucial fact. In this determination, we conclude that the trial court’s decision was correct and thus we need not reach a conclusion as to whether the class B fireworks display was an abnormally dangerous activity. The defendants argue on appeal that Pullen’s participation in the activity barred his recovery under § 523 and § 520 of the Restatement (Second) of Torts (1976). “The plaintiff s assumption of the risk of harm from an abnormally dangerous activity bars his recovery for the harm.” Restatement (Second) of Torts § 523 (1976). Comment d to § 523 provides: “The risk is commonly assumed by one who takes part in the activity himself, as a servant, an independent contractor, a member of a group carrying on a joint enterprise or as the employer of an independent contractor hired to carry on the activity or to do work that must necessarily involve it. Thus a plaintiff who accepts employment driving a tank truck full of nitroglycerin, with knowledge of the danger must be taken to assume the risk when he is injured by an explosion.” (Emphasis added.) However, in this argument, the defendants failed to note that the common-law doctrine of assumption of the risk in Kansas cases is restricted to cases involving employer-employee relationships. Tuley v. Kansas City Power & Light Co., 252 Kan. 205, 210, 843 P.2d 248 (1992). As this case does not present such a situation, § 523 does not operate as a complete bar to the Pullen s recovery. Nevertheless, “[t]he benefit of strict liability does not run to a person participating in the activity deemed ultrahazardous.” 57 Am. Jur. 2d, Negligence § 390, p. 429. One of the factors under Restatement (Second) of Torts § 520 is that the activity carries “(a) the existence of a high degree of risk of some harm to the person, land or chattels of others.” (Emphasis added.) Defendants contend on appeal that by directing the assessment of the risk to “others,” the drafters of the first Restatement (using the term ultrahazardous rather than abnormally dangerous) intended to prevent persons participating in ultrahazardous activities from utilizing the benefit of the strict liability doctrine. Restatement of Torts § 520 (1938). In the case of Whitlock v. Duke University, 637 F. Supp. 1463, 1475 (M.D.N.C. 1986), aff'd 829 F.2d 1340 (4th Cir. 1987), relied upon by the defendants, the court noted: “North Carolina recognizes ultrahazardous. activities as a basis for applying strict liability. [Citations omitted.] However, in none of the cases cited by the plaintiffs does the benefit of strict liability run to a person participating in the activity deemed to be ultrahazardous. Indeed, plaintiffs cite Restatement of Torts § 520 (1938) as reflecting North Carolina’s law of ultrahazardous activity; § 520 states an ultrahazardous activity is one which: ‘a) Necessarily involves the risk of serious harm to the person, land, or chattels of others . . .’ (emphasis added). Again, the benefit of strict liability under § 520 runs to ‘others’; not to those engaged in the activity. See also Gaston v. Hunter, 121 Ariz. 33, 48, 588 P.2d 326, 341 (1978). In Trull, 264 N.C. 687, 142 S.E.2d 622 (1965), the plaintiffs sought to impose liability upon the defendant for vibration injury associated with well drilling. Plaintiffs had contracted with the defendant and brought defendant on their land to drill the well. The Trull court held plaintiffs could not recover because they were not innocent parties within the rule of strict liability. Id. at 693. The court stated, ‘[h]ere the activity was not upon adjoining or neighboring property . . . norwere the plaintiffs unconcerned with the activity itself.’ In the instant case Mr. Whitlock was a participant in the very activity alleged to be ultrahazardous. Therefore, the Court is persuaded that North Carolina’s law of ultrahazardous activity is inapplicable to the case at bar.” The defendants’ argument is persuasive. As implicitly noted by the trial court, strict liability in the context of this case does not apply to the plaintiff who participated in the activity. Rather, it applies to others harmed by the abnormally dangerous activity. While Pullen is not completely barred from recovery based on his participation in an abnormally dangerous activity, he is unable to obtain the benefit of the doctrine of strict liability because he participated in the abnormally dangerous activity. As such, the trial court properly concluded that the doctrine of strict liability was not available to Pullen under the facts of this case. The defendants also argue that if the trial court should have applied the doctrine of strict liability to this case, any error would be harmless. They reasoned that because the Kansas comparative negligence statute, K.S.A. 2003 Supp. 60-258a, applies to cases decided under the doctrine of strict liability, the jury would have reached the same conclusion that Pullen was 92% at fault, barring his recovery. See M. Bruenger & Co., v. Dodge City Truck Stop, Inc., 234 Kan. 682, 687, 675 P.2d 864 (1984). While the evidence presented at trial would likely have been the same if the doctrine of strict liability had been applied, the possibility exists that the jury would have assessed more fault to all of the defendants if it were instructed as a matter of law that they were strictly hable for Pullen’s injuries, even if comparative fault was applied. As such, this argument alone is not grounds for affirming the trial court. APPLICATION OF THE DOCTRINE OF NEGLIGENCE PERSE Pullen argues as he did before the trial court that the doctrine of negligence per se applies and he was entitled to a jury instruction on this theory. He contends that the Kansas Fire Safety and Prevention Act, K.S.A. 31-132 et seq., creates a cause of action based upon a violation of statutes governing the handling of fireworks. “The elements of negligence per se are (1) a violation of a statute, ordinance, or regulation, and (2) die violation must be the cause of the damages resulting therefrom. In addition, the plaintiff must also establish that an individual right of action for injury arising out of the violation was intended by the legislature.” Cullip v. Domann, 266 Kan. 550, Syl. ¶ 3, 972 P.2d 776 (1999). “Generally, the test of whether one injured by the violation of a statute may recover damages from the wrongdoer is whether the legislature intended to give such a right. While, in some cases, statutes expressly impose personal liability on persons or entities for violation of the provisions thereof, or for failure to perform specified duties, the absence of such express provisions does not necessarily negate a legislative intent that the statute shall affect private rights. The legislative intent to grant or withhold a private cause of action for a violation of a statute, or the failure to perform a statutory duty, is determined primarily from the form or language of the statute. The nature of the evil sought to be remedied and the purpose the statute was intended to accomplish may also be taken into consideration. The generally recognized rule is that a statute which does not purport to establish a civil liability but merely makes provision to secure the safety or welfare of the public as an entity is not subject to construction establishing a civil liability. “The question whether a liability arising from the breach of a duty prescribed by statute accrues for the benefit of an individual specially injured thereby, or whether such liability is exclusively of a public character, depends upon the nature of the duty imposed and the benefits to be derived from its performance, and the relevancy of the rule laid down by the statute to private rights. 73 Am. Jur. 2d, Statutes § § 431 and 432, pp. 529-30.” Greenlee v. Board of Clay County Comm’rs, 241 Kan. 802, 804, 740 P.2d 606 (1987). The determination of whether a private right of action exists under a statute is a question of law. Kansas courts generally use a two-part test in determining whether a private right of action is created. First, the party must show that the statute was designed to protect a specific group of people rather than to protect the general public. Second, the court must review legislative history in order to determine whether a private right of action was intended. See Nichols v. Kansas Political Action Committee, 270 Kan. 37, 11 P.3d 1134 (2000) (quoting Nora H. Ringler Revocable Family Trust v. Meyer Land and Cattle Co., 25 Kan. App. 2d 122, 126, 958 P.2d 1162, rev. denied 265 Kan. 886 [1998]) (the Ringler test). K.S.A. 31-133(a)(l) instructs the state fire marshal to adopt reasonable rules and regulations for the keeping, storage, use, sale, handling, transportation or other disposition of fireworks and firecrackers. K.S.A. 31-133(b) provides that any rules and regulations adopted pursuant to this statute may incorporate by reference specific editions or portions of nationally recognized fire prevention codes. The state fire marshal has adopted by reference the National Fire Protection Association’s pamphlet, NFPA 1123 (Approved as an American National Standard on August 18, 2000; 2000 edition supercedes all previous editions.). See K.A.R. 22-l-3(x) (2003 Supp.). The state fire marshal prevention division has also issued pamphlets entitled Fire Fact FO-1, Licensing of Fireworks Operators, and Fire Fact FO-2, Guidelines for Fireworks Displays (which quote their references as NFPA 1123). The trial court found, and we agree, that Fire Facts FO-1 and FO-2 are synopses of regulations as opposed to regulations themselves, and the primary focus of the analysis must be on the enabling legislation rather than upon the regulations promulgated pursuant thereto. The court found that it must look to what the particular legislative body intended as opposed to how the administrative agency interpreted their enabling legislation, and that the state fire marshal’s office could not create a private cause of action not intended by the legislature. Looking at the Fire Safety and Prevention Act, the trial court concluded that negligence per se was not applicable to this case, reasoning: “Number one, this statute contains specific criminal penalties, as well as injunctive relief by the attorney general, the district attorney, or the county attorney at K.S.A. 31-150a and specific administrative sanctions at K.S.A. 31-159. K.S.A. 31-137 confers the right of entering and inspection as to public buildings, businesses and residences. At K.S.A. 31-142, the statute confers the right of judicial review of fire marshal’s actions. “Point number two: This statutory scheme contains no express provision allowing for a private cause of action to enforce the same. Number three: Reading the statue as a whole, it is more than, it is broader than, just the regulation of fireworks; it also address fire safety in business and residences and public facilities. Number four: By its very provisions it is clear that this statue is drawn so as to provide protection to the public at large. Although it is clear and true that portions of this statute enable the enactment of regulations which by their nature target smaller groups or classes of people, it is also clear that the statute as a whole, when read in its entirely, is designed and written to protect the public at large. And so as to part one of the Bingler test concerning private causes of action, the Court finds in favor of the defendants. “As to the second part of the Ringler test, the Court cannot find that the Kansas legislature intended for this statute to create a private cause of action. As already pointed out, the legislature included within the statute a panoply of enforcement mechanisms, both criminal and administrative. The legislature could have just as easily, but did not, expressly grant a private cause of action, nor can this Court infer a private cause of action from this statute.” Pullen argues the defendants violated Kansas statutes, rules, and regulations governing class B firework displays by: (1) failing to obtain the proper permit to conduct the class B display; (2) failing to have a licensed operator in charge and supervise the discharge of the class B display; and (3) failing to follow the rules and regulations of NFPA 1123 governing the display site set-up, proper training of assistants, provision of safety equipment, and procedures for discharging a class B fireworks display as adopted by the state fire marshal. He contends these violations were not in dispute and were the proximate cause of his injuries, leaving as the sole issue to be decided whether he had a private cause of action. Under the first part of the Ringler test (25 Kan. App. 2d at 126), Pullen cites Schlobohm v. United Parcel Service, Inc., 248 Kan. 122, 804 P.2d 978 (1991), in arguing that the statutes and regulations in this case were designed to protect not only the general public but specific individuals, such as Pullen, who are assistants in the discharge of fireworks. In Schlobohm, the plaintiff was injured when walking into a UPS entranceway that had an elevation differential that violated the Uniform Building Code (Code) adopted by city ordinance, and she sought to admit the Code as evidence of negligence per se. On appeal, this court found that the stated purpose of the Code, to provide “minimum standards to safeguard life or limb, health, property, and public welfare,” indicates a legislative intent to provide for the safety of the public in general and not for a particular class of persons. 248 Kan. at 127. However, the ordinance specifically stated that civil liability was not relieved by the enactment even though criminal liability could attach for violation of any of the provisions. The court noted the similarity of the ordinance with that discussed in Noland v. Sears, Roebuck & Co., 207 Kan. 72, 483 P.2d 1029 (1971) (private right of action under city code requiring handrails in stairways), and concluded that the particular section of the Code dealing with the change in floor level at doors protects persons who enter and exit doorways from injury caused by tripping and, thus, was enacted to protect a specific class of individuals. Schlobohm, 248 Kan. at 127. In this case, the express legislative purpose in directing the state fire marshal to adopt reasonable fireworks rules and regulations is “for the safeguarding of life and property from fire,' explosion and hazardous materials.” K.S.A. 31-133(a). The scope of this enabling legislation is thus very broad and is not limited to enacting rules and regulations specifically for those involved in fireworks displays. Moreover, under K.S.A. 31-134 all rules and regulations adopted by the state fire marshal must comply with K.S.A.-77-415. K.S.A. 77-415(4) provides that a “rule” or “regulation” or words of like effect “mean a standard, statement of policy or general order . . . of general application and having the effect of law.” (Emphasis added.) The scope of NFPA 1123 is defined to apply to the construction, handling, and use of fireworks and equipment used for outdoor fireworks display and applies “to the general conduct and operation of the display.” NFPA 1123 § 1.1. The stated purposes of NFPA 1123 are “to provide requirements for the reasonably safe conduct of outdoor fireworks displays,” “to provide recommended local permit regulations,” and “to provide recommended regulations for state certification of display operators.” See NFPA 1123 §§ 1.2.1, 1.2.2, 1.2.3. NFPA 1123 is likewise composed of broad industry standards covering all aspects of fireworks regulation, including construction, storage, and transportation of fireworks; display safety distances; display installations and operations; and operator qualifications. While portions of NFPA 1123 certainly apply to certain groups of individuals, the overall purpose of NFPA 1123 is not just to protect those individuals watching or putting on the display because the danger certainly exists that others (the general public) might be harmed by the storage, use, or transportation of fireworks. These standards, thus, stand in contrast to the specific building code at issue in Schlobohm, which was only designed to protect those peo- pie entering and exiting a certain building. The trial court correctly concluded that K.S.A. 31-133 and the adopted regulations were designed to protect the public in general rather than a specific group of individuals. Under the second part of the Ringer test, Pullen argues that NFPA 1123 does not preclude a private right of action for several reasons. First, he argues it is clear that NFPA 1123 was intended not only for fire protection but to reduce the risk of death or serious injuries to participants in a class B fireworks display. As discussed above, it is clear that the provisions of NFPA 1123 were designed to protect both participants in the display as well as the general public. Second, Pullen contends the language and form of the authorizing statutes and regulations do not preclude civil liability, as NFPA 1123 does not address criminal or administrative sanctions for violations and expressly contemplates a private cause of action by requiring the display operator, sponsor, or both to present verifiable proof of liability insurance. See NFPA 1123, Appendix F § § F.4 and F.4.1 (“Separate insurance coverage might be required for personal injuries or accidents arising from other aspects of the event. Insurance is intended to indemnify the operator in the event of an accident arising from the outdoor display.”). While it is true that NFPA 1123 addresses the consequences of violations, the Fire Safety and Prevention Act, which under K.S.A. 31-134 allowed the adoption of NFPA 1123 as a regulation, provides that a violation of its provisions is a criminal offense and subject to monetary penalties. Moreover, the insurance requirement under NFPA 1123 does not establish that a private cause of action was intended. Fireworks displays by their very nature are dangerous, and this insurance requirement recognizes that a tort claim could be brought against the operator of the display in the event of injury. NFPA 1123 does not expressly provide for a private right of action. Third, Pullen argues that no language in the Fire Safety and Prevention Act indicates that the legislature intended to prohibit a private right of action based upon a breach of NFPA 1123. Pullen points out that K.S.A. 31-163 provides criminal penalties for failure to comply with K.S.A. 31-162, which deals with the installation of smoke detectors in dwelling units, but K.S.A. 31-162(g) also provides that evidence of the failure of a property owner to provide or maintain a smoke detector “shall not be admissible in any action for the purpose of determining any aspect of civil liability.” Pullen contends that by negative implication it is apparent that the legislature did not intend such a result for the preceding statutory provisions, including K.S.A. 31-134, which permitted the state fire marshal to adopt NFPA 1123. This argument is without merit for two reasons. First, while found in Chapter 31, Fire Protection, the smoke detector provisions are part of the Smoke Detector Act, K.S.A. 31-160 et seq., enacted in 1998, and are subject to different criminal penalties (nonclass nonperson misdemeanor) and fines ($25) than the statutory provisions relevant to this case. Moreover, the fact that the smoke detector provisions cannot be used to establish civil liability does not mean that a private cause of action was intended under these statutory provisions. Second, the Fire Safety and Prevention Act provides that any person who violates any rules or regulations adopted under the fire prevention code is guilty of a class B misdemeanor. K.S.A. 31-150a(a). Violations can also result in administrative penalties up to $1,000, “which shall constitute an actual and substantial economic deterrent to the violation for which the penalty is assessed.” K.S.A. 2003 Supp. 31-159(a). The aggrieved person may appeal the penalty to the state fire marshal, and then further appeal any order issued in accordance with the provisions of the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. K.S.A. 2003 Supp. 31-159(b) and (c). Kansas appellate courts generally will not infer a private cause of action where a statute provides criminal penalties but does not mention civil liability. See Kansas State Bank and Tr. Co. v. Specialized Transportation Services Inc., 249 Kan. 348, 373, 819 P.2d 587 (1991) (“If the legislature had intended to grant a private right of action in K.S.A. 38-1522 [child abuse reporting statute which provided for criminal penalties] it would have specifically done so.”); Greenlee, 241 Kan. at 808 (“It would appear that the legis lature has thoroughly addressed the legislative remedies for violation of the cash-basis law and the budget law, and that failure to provide a private cause of action for an individual citizen was intentional.”); Loar v. Roletto, 26 Kan. App. 2d 246, 248, 982 P.2d 993 rev. denied 268 Kan. 887 (1999) (Where legislature provides criminal and administrative remedies for violation of Kansas Automobile Injury Reparations Act, “[t]he absence of a provision securing a private cause of action appears to be intentional.”); Gietzen v. Feleciano, 25 Kan. App. 2d 487, 490, 964 P.2d 699 (1998) (“The legislature saw fit to limit the relief from a violation of the [Campaign Finance Act] to a complaint before the Commission [on Governmental Standards and Conduct]. It did not provide a cause of action for damages in favor of a party aggrieved about a violation, and we will not read one into the statute.”). This court expanded on this point in discussing violations of the Campaign Finance Act in Nichols v. Kansas Political Action Committee, 270 Kan. at 52. In finding no private cause of action existed, the court noted that the wrong perpetrated by the defendants “became a wrong only [because] the legislature made it so” and the “statutorily created wrong is to be remedied in the manner prescribed by the legislature.” 270 Kan. at 52. Pullen points to Schlobohm and the Uniform Act Regulating Traffic (UART), K.S.A. 8-1401 et seq., as situations where criminal penalties are imposed but private cause of actions still exist. However, Schlobohm is distinguishable in that the ordinance specifically stated that civil liability was not relieved by its enactment, although its violation may induce a fine or imprisonment. 248 Kan. at 126-27. The provisions of the Kansas Fire Prevention Act and NFPA 1123 do not expressly create a private cause of action. Disobeying the requirements for permits, licenses, and safety procedures is only wrong because the state fire marshal adopted NFPA 1123 as a regulation through the authority granted by the legislature. The provisions of the Kansas Fire Prevention Act create criminal and administrative penalties for violations of NFPA 1123. Pullen fails to demonstrate that the legislature intended to create a private cause of action. The authority cited above establishes that the leg islature did not intend to establish a private cause of action for violations of NFPA 1123. We conclude that the trial court properly ruled that the doctrine of negligence per se was inapplicable to this case. INTRODUCTION OF NFPA 1123 TO THE JURY After ruling that the doctrine of negligence per se was inapplicable to this case, the trial court refused to allow Pullen to introduce any evidence of NFPA 1123 to the jury. Specifically, the trial court refused to instruct the jury regarding relevant portions of NFPA 1123 regarding class B fireworks displays and refused to permit Pullen’s expert, Chuck Thacker, to testify about the application of NFPA 1123 to the incident in this case. Prior to instructing the jury, the trial judge expressed concern about making any references to NFPA 1123 based on its prior negligence per se ruling: ‘Well, what I think would be inconsistent for me to do would be to have made the ruling that I’ve made up to this point [negligence per se] and then to instruct the jury . . . that there are certain duties imposed upon a landowner, to wit to limit the number of launchings from a tube and to require head, eye and ear protection. That would be basically to create a private cause of action when I have said that there is no such private cause of action.” The question we must resolve is whether trial court’s exclusion of the pertinent provisions of NFPA 1123 prejudiced the plaintiff and denied him a fair trial. We conclude that the exclusion of such evidence prejudicially affected the jury’s determination of fault and had the pertinent provisions of NFPA 1123 been admitted the verdict might very well have been different. Pullen’s proposed jury instructions regarding the duty of care included requests consistent with pertinent provisions of NFPA 1123 that the jury consider the cost and inconvenience of requiring proof that the operator was properly licensed and insured and that permits and site inspections were completed as required by state statutes, rules or regulations or local ordinances. Pullen’s proposed instructions also provided that he sustained injuries due to the fault of the various defendants in several ways which were specific violations of the Kansas statutes and rules and regulations. For example, relevant to Krehbiel: “(1) In failing to obtain the proper fireworks display operator license required by the state of Kansas; “(2) In failing to provide proper training in the discharge of the Class B fireworks; “(3) In failing to provide proper safety equipment required to discharge the Class B fireworks; “(4) In allowing plaintiff to participate in the discharge of the Class B fireworks; “(5) In failing to properly supervise the discharge of the Class B fireworks; “(6) In failing to warn plaintiff of the degree of danger involved in the discharge of the Class B fireworks; “(7) In fading to obtain the proper permit issued by the local authorities as required by the statutes, rules and regulations adopted by the state of Kansas; “(8) In failing to have the fireworks display site inspected by the proper local authorities prior to the fireworks display as required by statues, rules and regulations adopted by the state of Kansas; “(9) In failing to replace mortars after every 7 launchings; and “(10) In failing to abide by all regulations applicable to the discharge of Class B fireworks.” Instead, the trial court instructed the jury that the duty owed by an occupier of land was one of reasonable care under the circumstances, which could be determined by considering the foreseeability of harm to the plaintiff, the magnitude of the risks of injuxy to others, the individual and social benefits of maintaining the land in such a condition, and the cost and inconvenience of providing adequate protection whether incurred by the owner or occupier of the land and/or community. See PIK Civ. 3d 126.02. The juiy was also instructed that Pullen claimed that his injuries were sustained due to the fault of the various defendants, as follows: “1. As owner [occupier] of the land and co-sponsor of the Class B fireworks display, failing to exercise reasonable care under all the circumstances surrounding the Class B fireworks display. “2. As owner [occupier] of the land and co-sponsor of the Class B fireworks display, failing to take exceptional precautions to prevent injuries from the Class B fireworks. “3. As owner [occupier] of the land and co-sponsor of the Class B fireworks display, failing to make certain that the launching tubes were changed during the fireworks display. “4. As owner [occupier] of the land and co-sponsor of the Class B fireworks display, failing to provide head protection and eye protection to the shooters.” If the juiy instructions, read as a whole, fairly instruct the juiy on the law governing the case and are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal. Refusing to give an instruction is not error when its substance is adequately covered in other instructions. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Koser v. Atchison, Topeka & Santa Fe Ry. Co., 261 Kan. 46, 51, 928 P.2d 85 (1996). Pullen argues the trial court misunderstood the application of NFPA 1123 as it related to proof of the standard of care and his proffered evidence in this case. Pullen contends that NFPA 1123 was admissible as an industry standard and he should have been permitted to present those standards to the jury. Pullen contends that the trial court essentially gutted his case, leaving him to argue without any substantiation or legal support that the defendants had breached a duty of care to him. We agree. In Cerretti v. Flint Hills Rural Electric Co-op Ass’n, 251 Kan. 347, 837 P.2d 330 (1992), a sailboat owner brought personal injuiy and wrongful death actions against the electric company after his wife was electrocuted and he was injured when the mast of his sailboat contacted a power line strung over a lake. At trial, a copy of the pertinent provisions of the National Electrical Safety Code (NESC) was received into evidence, and the jury was instructed that it was to decide whether the NESC was applicable and if any provisions had been violated. The jury was instructed that evidence of compliance or lack of compliance with applicable safety codes was not conclusive on the question of presence or lack of ordinaiy care and that proof of compliance was not a defense to a charge of negligence unless such practice is consistent with standards of ordinary care. On appeal, Flint Hills argued that the trial court erroneously imposed negligence per se for an alleged violation of the NESC, because Flint Hills equated the NESC with an ordinance. This court declined to construe the NESC as an ordinance but rather construed it as an industry standard approved by the American National Standards Institute. 251 Kan. at 356. In concluding that the jury instructions conformed with Kansas negligence law, the Cerretti court reasoned: “Conformity with the NESC or an industry-wide standard is not an absolute defense to negligence. While it may be evidence of due care, compliance with industry standards, or standards legislatively or administratively imposed, does not preclude a finding of negligence where a reasonable person engaged in the industry would have taken additional precautions under the circumstances. Whether the company is negligent, even though it complied with the code, is usually a question to be determined by the jury under proper instructions by the court. “The degree of care required for Flint Hills is that which would be used by a prudent person engaged in the industry, under like conditions and commensurate with the dangers involved and the practical operation of the system, to guard against contingencies which can reasonably be foreseen and anticipated. Flint Hills was aware that persons sailing upon the lake could be seriously injured or killed if a boat’s aluminum mast contacted its high voltage power fine strung over the lake. The law imposes upon Flint Hills the duty of exercising the utmost or highest degree of care to prevent such injury where people have the right to be upon the property for work, pleasure, or business. Conformity with an industry-wide standard when a high voltage line was originally installed does not preclude a finding of negligence where a prudent person engaged in the industry would have taken additional precautions under the circumstances.” 251 Kan. at 356-57. In this case, the 2000 edition of NFPA 1123 was approved as an American National Standard on August 18,2000, and it superceded all previous editions of NFPA 1123 as the applicable industry standard. (NFPA 1123, p. 1123-1.) Pullen argues that the applicable provisions of NFPA 1123 are admissible to prove the minimum standards of care necessary for the safety of the public and anyone assisting in a class B fireworks display. We agree. Expert testimony concerning customs or industry standards is not relevant, or at least unnecessaiy, where the jury is competent from its own experience to determine and apply the reasonable care standard. Simon v. Simon, 260 Kan. 731, Syl. ¶ 4, 924 P.2d 1255 (1996). However, without utilizing these standards in this case, the juiy was left to determine what “reasonable care” and extraordinary precautions” must be exercised by persons sponsoring and participating in a class B fireworks display. The jury likely had little experience or knowledge regarding commercial fireworks, what types of safety precautions must be taken, and the requirements for operation of displays, operator qualifications, and licenses or permits. See Simon, 260 Kan. 731, Syl. ¶ 3. An example of how difficult this determination would be for the jury is as follows: NFPA 1123 § 2.3.4 requires that the type of mortar tubes used in this case should only be fired up to 7 times during a performance. Evidence was presented at trial that the mortar tubes were used 75 times or more and that one of the mortar tubes used by Pullen was melted or deformed. The jury was simply instructed that Pullen claimed the defendants were negligent by “failing to make certain that the launching tubes were changed during the fireworks display.” Without any guidance regarding the NFPA requirement, the jury had no way of knowing that the mortar tubes were used 10 times more than the industry standard — which might have resulted in the deformity to the tube. With this information, a possibility certainly exists that the jury might have assigned more fault to the defendants. Additionally, NFPA 1123 places several requirements upon the operator and sponsors of a fireworks display to ensure safely. NFPA 1123 §§ 7.1 and 7.3 provide that the operator (Krehbiel) was required to be licensed and that the operators, suppliers, or the sponsors (Milo, Laura, & Brian West) were required to obtain a permit. This would have insured operator competency, requiring experience and knowledge of the laws, regulations, and safety practices of the operator, and demonstrated the financial responsibility of the operators, suppliers, or sponsors, requiring proof of liability insurance. NFPA 1123 §§ 5.1.3 and 5.1.3.2 also provide that Kreh-biel was primarily responsible for safety and for ensuring that all assistants were fully trained. However, many safety provisions were violated during the display because the shooters did not wear head and eye protection, used cigars although smoking materials are not allowed near the fireworks, or were under the influence of alcohol. See NFPA 1123 §§ 5.1.3.3, 5.1.6, and 5.1.8. Once again, had the jury been instructed regarding these standards, a real possibility exists that the juiy would have assigned more fault to the defendants. After ruling that the doctrine of negligence per se was inapplicable to this case, the trial court mistakenly excluded any mention of the requirements of NFPA 1123 to the jury. As noted in Cerretti, “ ‘mere proof of failure to comply with a given safety standard does not automatically demonstrate the lack of ordinary care and negligence.’ ” 251 Kan. at 354. Thus, the NFPA 1123 standards were important to Pullen’s case so that the jury could evaluate the degree of care owed when sponsoring or participating in a class B fireworks display, and the district court should have so instructed. We have no doubt that the exclusion of the pertinent provisions of the industry standards contained in NFPA 1123 prejudiced Pullen, requiring this court to reverse and remand for a new trial consistent with this opinion. EXPERT TESTIMONY REGARDING THE RULES AND REGULATIONS GOVERNING CLASS B FIREWORKS AND THE CAUSATION OF PULLEN’S INJURIES Pullen argues the trial court abused its discretion by not permitting expert witness Chuck Thacker to testify about the rules and regulations governing class B fireworks and the causation of his injuries. “The qualification of an expert witness as well as the admissibility of expert testimony are matters within the broad discretion of the trial court. The admissibility of expert testimony is a matter to be determined by the trial court in the exercise of its discretion. The trial court’s determination will not be overturned absent an abuse of such discretion.” “If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness. K.S.A. 60-456(b).” Dieker v. Case Corp., 276 Kan. 141, Syl. ¶¶ 1, 2, 73 P.3d 133 (2003). In order for expert testimony to be admissible, the testimony must be helpful to the jury and the basis of the expert’s opinion must be shown to be generally acceptable within the expert’s par ticular scientific field. Expert conclusions or opinions are inadmissible where the normal experiences and qualifications of lay persons serving as jurors permit them to draw proper conclusions from given facts and circumstances. State v. McIntosh, 274 Kan. 939, 956, 58 P.3d 716 (2002). Chuck Thacker has a Master s Degree in Public Administration and a Bachelor of Science degree in Fire Science. He currently is Deputy Chief of the Grandview, Missouri, Fire Department, and president of Thacker & Associates, L.L.C., an organization devoted to fire protection consulting. He previously worked for the Excelsior Springs, Missouri, Fire Department for 10 years where he dealt with fires and injuries related to fireworks. He also was Deputy Chief of the Overland Park, Kansas, Fire Department for 12 years, where for 10 years, part of his responsibilities were ensuring that mortar tubes in an annual fireworks display were not overused, that the shooters were properly licensed, and that the display area was properly set up. Thacker was initially contacted by Pullen to conduct a code analysis of the fireworks display incident in this case, which included examining the code requirements that apply to the launching of class B fireworks, determining what violations occurred, and checking for the issuance of proper permits and licenses. In a report dated July 24, 2002, Thacker reviewed NFPA 1123, the Kansas State Fire Marshal Prevention Division Fire Facts FO-1, Licensing of Fireworks Operators, and FO-2, Guidelines for Fireworks Displays, and the Kansas State Fire Marshal regulations, K.A.R. 22-1-1 et seq. He opined as to which NFPA 1123 requirements and regulations applied to this case and what violations occurred during the fireworks display. Thacker’s second report dated September 30, 2002, set forth four possible theories of what may have caused the accident, including improper use of mortars, improper fuse fighting equipment, physical (alcohol) impairment, and shell misfire, reasoning in relevant part: “NFPA 1123, Section 2.3.4. states that mortars of any type 6 inches in diameter or less shall be permitted to be reloaded and fired up to 7 times during a performance. The exception to this requirement is there is no limit to the number of times a steel mortar 6 inches or less can be reloaded. The mortars used in this display were plastic. According to Shane Krehbiel, there were 75 launchings from each tube. “This overuse of the mortars may have created enough heat to cause the mortar to deform thereby causing the shell to leave the mortar at an angle different then intended. “The overuse of the mortars may have created enough heat to cause the fuse for the shell or the shell itself to reach its ignition temperature and misfire. “Cigars were used to light the fuses for this display. An ash may have fallen from a cigar into a mortar and caused the shell to fire. NFPA 1123, Section 5.1.6 states that smoking materials, matches or open flame devices shall not be allowed within 50 feet of any area where fireworks or other pyrotechnic materials are present. The exception is that fuses, portfires, and torches shall be permitted to ignite fireworks. “Alcoholic beverages were being consumed during the display. NFPA 1123, Section 5.1.8 states that no person shall be allowed in the discharge area while under the influence of alcohol, narcotics or medications that could adversely affect judgment, mobility or stability. “The shell may have misfired. There are times when shells have misfired. If a shell misfired, this misfire could have caused other shells in the vicinity to also fire. The concussion from a misfire may have been enough to alter die trajectoiy of other shells in the vicinity.” (Emphasis added.) The report also considered the reasons for NFPA 1123 § 2.3.4: “Upon reviewing Section 2.3.4 of NFPA 1123,1 spoke with the staff liaison for this document. Section 2.3.4 was added to the document to establish a standard for not steel mortars. The committee determined that seven firings were not enough before non-steel mortars began to deform. The committee based their decision on pyrotechnic industry experience.” Prior to trial, Krehbiel filed a motion in limine seeking to prohibit Pullen and any witnesses from stating, mentioning, or referring to the contents of those expert reports and the opinions stated therein, NFPA 1123, and Kansas State Fire Marshal Fire Facts FO-1 & FO-2. The trial court excluded the July 24, 2002, report because it simply contained Thacker s opinions about what law applied in this case, which was a question for the court. The trial court later excluded the opinions contained in Thacker’s September 30, 2002, report because: “1. There is no factual foundation for Mr. Thacker’s opinions. “2. Mr. Thacker’s opinions are speculation and conjecture. “3. Mr. Thacker lacks the qualifications necessary to render such opinions. “4. The information received regarding NFPA is hearsay.” The trial court’s exclusion of the September 30, 2002, report is supported by Thacker’s own deposition testimony on December 6, 2002. Thacker admitted that he had never performed an analysis of the code requirements and regulations that apply to the launching of class B fireworks, that he had never personally shot off class B fireworks, that he did not do any testing of fireworks in this case, and that he did not consider himself to be a fireworks expert. It is, thus, difficult to conclude that no reasonable person would have found him unqualified to give an expert opinion regarding causation in this case. Likewise, Thacker also admitted that he did not have evidence to support most of his theories of causation, such as evidence that the mortar tubes were deformed, that they had been overused to the point that the heat would cause the shell to misfire, or that any of the launchers were physically impaired by alcohol when shooting off the fireworks. The only evidence of a misfire was that two shells exploded between the top of the barrels at the roof line and Pul-len’s head injuries might indicate that one of the shells misfired. However, Thacker did not examine any of the shells to help definitively make this determination. As such, no factual foundation existed for these opinions and they were simply based on conjecture and speculation. The trial court did not abuse its discretion by excluding the September 30, 2002, report. The trial court excluded the July 24,2002, report, reasoning that it would decide what law was applicable to this case, and the court later mistakenly determined that the jury should not be exposed to any evidence of the NFPA 1123 requirements adopted by the Kansas State Fire Marshal. Although the court clearly felt Thacker was unqualified to testify regarding causation, the court did not make a determination as to whether Thacker was qualified to testify about which statutes, rules, regulations, or requirements regarding class B fireworks were applicable to this case. Thacker’s experience in monitoring an annual commercial fireworks display for 10 years arguably qualified him to testify at least to which NFPA 1123 requirements were applicable to this case and to what objective facts he had learned through his investigation, for example, whether the defendants had the required licenses or permit. However, his testimony would not have been of any special help to the jury in determining whether the requirements and regulations had actually been violated. See Simon, 260 Kan. 731, Syl. ¶ 4 (“Expert testimony concerning customs or industry standards is not relevant, or at least unnecessary, where the jury is competent from its own experience to determine and apply the reasonable care standard.”)- With knowledge of the relevant industry standards and objective accident facts, the jury would have been just as capable of determining whether NFPA 1123 was violated as was Thacker. Accordingly, the trial court’s exclusion of Thacker’s opinions regarding causation and violations of pertinent statutes, regulations, and NFPA 1123 is affirmed. However, for the reasons expressed above in addressing the admissibility of pertinent provisions of Kansas statutes, regulations, and NFPA 1123 regarding industry standards of care, the trial court’s exclusion of Thacker’s opinion as to which of these were applicable to this case is reversed. Upon remand, evidence of the relevant Kansas statutes, regulations, and NFPA 1123 requirements is admissible and should be submitted for the jury’s consideration. OPINION TESTIMONY REGARDING THE NUMRER OF TIMES THE MORTAR TURE HAD REEN FIRED Pullen argues the trial court abused its discretion by ruling that Leslie Pfannenstiel’s proffered testimony regarding the number of times a mortar tube had been used was inadmissible expert testimony rather than admissible lay opinion testimony. “Whether a witness, expert or layman, is qualified to testify as to his or her opinion is to be determined by the trial court in the exercise of its discretion. That discretion is not subject to review except for abuse.” Hawkinson v. Rennett, 265 Kan. 564, Syl. ¶ 8, 962 P.2d 445 (1998). 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. State v. Price, 275 Kan. 78, 83, 61 P.3d 676 (2003). Pfannenstiel is a licensed pyrotechnician, a wholesaler and retailer of display fireworks, and part of his business involves checking in and out mortar tubes at least once or twice a year. He sold or loaned the 12 mortar tubes to Krehbiel which were used in the fireworks display in this case. In a pretrial deposition, Pfannenstiel compared a mortar tube which had been used in over 75 launch-ings to a paper mortar submitted as one of the mortar tubes used during the display. At trial, Pfannenstiel proffered testimony that a mortar tube admitted into evidence as one being used in the display did not look like it had been used for 75 to 100 launchings as the prior testimony in the case reflected. He acknowledged that he had examined the mortar tube and had estimated that only 7 to 12 launchings had been made from that particular mortar based on the coloration inside the tube. The trial court concluded that the proffered testimony constituted expert testimony which was inadmissible because Pullen had failed to identify Pfannenstiel as an expert and had failed to provide an expert report as required by court order. The court also found that the opinion testimony had insufficient foundation. On appeal, Pullen contends that Pfannenstiel’s testimony should have been admitted as “lay opinion” testimony under K.S.A. 60-456(a), which provides: “If the witness is not testifying as an expert his or her testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.” K.S.A. 60-456(a) permits opinion testimony by a witness not testifying as an expert if such an opinion is incidental to the witness’ actual knowledge of the facts and circumstances of the case. Moore v. Associated Material & Supply Co., 263 Kan. 226, Syl. ¶ 10, 948 P.2d 652 (1997). The defendants argue that Pfannenstiel’s lay opinion was inappropriate because he did not directly observe the events at issue and his testimony regarding the mortar tubes was expert in nature. As noted above, K.S.A. 60-456(b) limits expert opinion testimony to those inferences and opinions the trial court finds are “(1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.” K.S.A. 60-419 sets out the standard regarding the competency of either an expert or lay witness to testify: “As a prerequisite for the testimony of a witness on a relevant or material matter, there must be evidence that he or she has personal knowledge thereof, or experience, training or education if such be required. Such evidence may be by the testimony of die witness himself or herself. The judge may reject the testimony of a witness that the witness perceived a matter if the judge finds that no trier of fact could reasonably believe that the witness did perceive the matter.” Keeping in mind these authorities, we first note that the proffered testimony was relevant to determining whether the industry standard permitting 7 launchings was violated and to challenge the credibility of Brian West, who submitted the mortar tube as one having been used during the display, and Krehbiel, who opined that it had been used 75 to 100 times. Despite its relevancy, the trial court determined it was expert testimony subject to exclusion for failure to comply with court orders involving expert testimony. There is no dispute that Pullen failed to identify Pfannenstiel as an expert and failed to file a report. Thus, the exclusion of Pfan-nenstiel’s proffered testimony on this basis constituted no abuse of discretion. The ultimate issue to be resolved is whether the trial court abused its discretion in determining that Pfannenstiel’s testimony was expert in nature. Based upon the record before us, we cannot say that no reasonable person would agree with the trial court’s ruling that an opinion regarding the number of times commercial, class B fireworks were launched from a mortar tube was expert in nature. In addition, we note that the trial court found Pfannenstiel’s proffered testimony lacked sufficient foundation. Implicit in this determination was a finding that in accordance with the provisions of K.S.A. 60-456(b), the opinions were not “within the scope of the special knowledge, skill, experience or training possessed by the witness.” The trial court thus determined that Pfannenstiel lacked sufficient qualifications to render an opinion. Even if the testimony was characterized as a lay opinion, the trial court found that Pfan-nenstiel lacked the personal knowledge and experience to express an opinion as to the number of times the mortar tube presented to him in the deposition had been used. As Pfannenstiel admitted that he only checked mortar tubes in and out once or twice a year and did not personally observe the fireworks incident, we cannot say that no reasonable person would agree with that determination. The trial court is affirmed in part and reversed in part, and the case is remanded for a new trial.

The opinion of the court was delivered by Allegrucci, J.: This workers compensation discharge case presents a matter of first impression for the court. A cause of action for retaliatory discharge for exercising rights under the Kansas Workers Compensation Act is well established where the defendant is an employer against which a workers compensation claim has or may be made. William Gonzalez-Centeno, who worked two jobs, filed a workers compensation claim against one employer and sued the other for retaliatory discharge. There are two issues before this court. The first is whether Gonzalez has a cause of action for retaliatory discharge against the North Central Kansas Regional Juvenile Detention Facility (NCKRJDF), which was not the employer against which his workers compensation claim was asserted. The district court ruled that an injured employee’s protection from retaliation is not limited to the employer against which the workers compensation claim was filed. NCKRJDF raises this issue on cross-appeal. The other issue is whether the district court erroneously entered summary judgment in favor of NCKRJDF for lack of evidence supporting Gonzalez’ contention that he was fired by NCKRJDF as a result of a work-related injury or making a workers compensation claim against his other employer. Gonzalez raises this issue on appeal. Gonzalez does not take issue with the findings of fact made by the district court. The following facts are based on the district court’s findings. Gonzalez began employment with two unrelated employers, Venator and NCKRJDF, in August 1996. At the time Gonzalez began working at NCKRJDF, he was given an employee manual that reserved NCKRJDF’s right to preclude employees from working at any other employment. NCKRJDF hired Gonzalez under an oral employment-at-will agreement. In November 1996, while working for both Venator and NCKRJDF, Gonzalez sustained an accidental injury to his back while working at Venator. He filed for and received workers compensation benefits from Venator from November 29,1996, through March 16, 1998. In June 1997, during the period when he was receiving workers compensation benefits, Gonzalez was fired by Venator for absences necessitated by his work-related injuries. Venator reinstated him in March 1998, after he made a claim against it for retaliatory discharge. In December 1997, Gonzalez had surgery for his back injury. In January 1998, he was released to return to work. On June 24, 1998, Gonzalez aggravated his back injury before reporting for work at NCKRJDF. After working at NCKRJDF for 3 hours that day, Gonzalez had to go home due to the pain. The Director and Assistant Director of NCKRJDF were present when Gonzalez explained why he needed to leave his shift early. On June 29, 1998, Gonzalez was in pain on account of his back injury. Before 8:00 a.m., he telephoned NCKRJDF and told the administrative secretary that he was unable to work. Gonzalez had been told earlier that he was to talk only to the Director or Assistant Director if he was unable to come in to work. On July 2, 1998, NCKRJDF’s Director gave Gonzalez a verbal warning because he had not spoken to the Director or Assistant Director when he telephoned to say that he was unable to work on June 29. On July 27, 1998, Gonzalez called NCKRJDF at 7 a.m. to say that he was unable to work on account of back pain. He did not speak to the Director or Assistant Director. Gonzalez did not believe that NCKRJDF’s Director had the right to require employees to contact him or the Assistant Director direcdy, and Gonzalez considered the directive to be harassment. On July 29, 1998, Gonzalez was terminated from NCKRJDF for insubordination because he had not spoken to the Director or Assistant Director when he called in sick. Law of the case. In a motion for judgment on the pleadings, NCKRJDF raised the question whether Gonzalez has a cause of action for retaliatoiy discharge against it because it was not the employer against which Gonzalez’ workers compensation claim was filed,' The trial court overruled the motion. After discovery, NCÍCRJDF filed a motion for summary judgment. Among other things, NCKRJDF again raised the question whether Gonzalez had a cause of action against it, and the district court reaffirmed its earlier reasoning and conclusion. On appeal, Gonzalez complains that the district court should not have entertained NCKRJDF’s second motion for summary judgment because the district court’s ruling on the first motion was the law of the case. The district court reaffirmed its earlier ruling, thus eliminating any complaint that the law of the case was disturbed. Cause of action. Whether to adopt or recognize a cause of action is a question of law over which we have unlimited review. Wilkinson v. Shoney’s, Inc., 269 Kan. 194, 203, 4 P.3d 1149 (2000). Kansas courts adopted a public policy exception to the employment-at-will doctrine in Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981), that afforded protection from discharge for an employee who had filed a workers compensation claim. Since Murphy was decided, the workers compensation public policy exception has been extended to include the possibility that a workers compensation claim will be filed, Pilcher v. Board of Wyandotte County Comm’rs, 14 Kan. App. 2d 206, 787 P.2d 1204 (1990); retaliation against the noninjured spouse of an employee who exercised his or her workers compensation rights, Marinhagen v. Boster, Inc., 17 Kan. App. 2d 532, 840 P.2d 534 (1992); and retaliatory demotion, Brigham v. Dillon Companies, Inc., 262 Kan. 12, 935 P.2d 1054 (1997). The question before this court is whether the exception should be extended to include a cause of action for retaliatory discharge against an employer other than the employer against which a workers compensation claim was or might be asserted. In this case of first impression, we turn to decisions from other states’ courts. Whether a discharge is actionable if the alleged retaliation was on account of a workers compensation claim filed against a previous employer is an issue that has been answered in the affirmative by the majority of courts that have considered it. In Darnell v. Impact Industries, Inc., 105 Ill. 2d 158, 473 N.E.2d 935 (1984), the Illinois Supreme Court considered a retaliatory discharge action brought by an employee who was discharged by Impact Industries when it learned that she had filed a workers compensation claim against her previous employer. In recognizing her cause of action, the court majority agreed with the argument “that the evil resulting from the discharge of an employee for having filed a workers’ compensation claim against a prior employer is as great as if the discharge had been effected by the prior employer.” 105 Ill. 2d at 161. The court continued: “We perceive no distinction between the situation where an employee is discharged for filing a workers’ compensation claim against the defendant employer and one where the employer discharges the employee upon discovering that the employee had filed a claim against another employer. In either situation a retal-iatoiy discharge is equally offensive to the public policy of this State as stated in the Workers’ Compensation Act. [Citation omitted.] To hold that the tort of retaliatory discharge requires that the workers’ compensation claim be made against the discharging employer would seriously undermine the comprehensive statutory scheme which provides ‘for efficient and expeditious remedies for injured employees.’ [Citations omitted.]” 105 Ill. 2d at 161-62. Three justices dissented, expressing the view that continued expansion of the retaliatory discharge cause of action was imprudent. 105 in. 2d at 163-66. In Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66 (Ky. 1995), a majority of the Kentucky Supreme Court refused to recognize a wrongful termination action by an employee who was discharged because he had filed workers compensation claims while employed by another employer. The decision was based on a provision of the Kentucky Workers’ Compensation Act, which prohibits harassment, discrimination, or discharge of an employee for pursuing a lawful workers compensation claim and creates a civil cause of action for injuries caused by violations of the section. 898 S.W.2d at 67-68. The Kentucky court majority reasoned that the motive for the employer against whom a workers compensation claim was filed to discharge would be retaliatory but the motive for another employer would be economic, that is, concern that its insurance rates might be affected by the employee’s history. The court concluded that the public policy expressed in the statutory provision does not embrace economic discharge. 898 S.W.2d at 68-69. Three justices dissented, expressing the view that the statutory language did not restrict a cause of action to the employer against which a claim has been filed. They also noted that another provision of the same act encourages the hiring and retention of previously injured workers and prohibits their discharge because of prior injuries. 898 S.W.2d at 70. In Goins v. Ford Motor Co., 131 Mich. App. 185, 347 N.W.2d 184 (1984), the Michigan Court of Appeals held that Goins stated a cognizable claim against Ford, his current employer, for retalia-toiy discharge because he filed a workers compensation claim against his former employer, General Motors. Subsequent opinions by the Michigan Court of Appeals recognized the cause of action for retaliatory discharge against another employer but disapproved Goins on the ground that a retaliatory discharge action sounded in contract rather than tort. In Phillips v. Butterball Farms, 448 Mich. 239, 531 N.W.2d 144 (1995), the Michigan Supreme Court agreed with the Goins panel and held that an action for retaliatory discharge for filing a workers compensation claim sounds in tort rather than contract because the employer’s duty not to retaliate stems from public policy rather than an implied promise by the employer. In Taylor v. Cache Creek Nursing Centers, 891 P.2d 607 (Okla. App. 1994), the Oklahoma Court of Appeals held that state statute, Okla. Stat. tit. 85, § 5 (1993 Supp.), which prohibits an employer from discharging an employee because he or she filed a workers compensation claim covered cases in which the employee’s workers compensation claim was filed against a previous employer. The employer that discharged Taylor was the corporation, Cache Creek, that had purchased the nursing home in which Taylor worked. The Oklahoma Court of Appeals concluded that Taylor could maintain an action for retaliatory discharge against the successor business employer. 891 P.2d at 610. In the unpublished opinion of Hayes v. Computer Sciences Corp., 2003 WL 113457 (Tenn. App.), the Tennessee Court of Appeals recognized a cause of action for retaliatory discharge by an employee who alleged that he was fired because he had filed a workers compensation claim against a previous employer. Its decision was made in spite of the Tennessee Supreme Court’s identifying that “the plaintiff made a claim against the defendant for workers’ compensation benefits” was an element necessary to establish a prima facie case for retaliatory discharge. Slip op. at *5. The Court of Appeals also distinguished a whisde-blowing case in which it said that the dismissal must result from actions taken by the employee while employed by the defendant. Slip op. at *5 n.3. The basis for the Court of Appeals’ recognition of the cause of action was that it “is clearly supported by both the Workers’ Compensation Act and public policy.” Slip op. at *4. In summary, of those courts that have considered the issue, only the Kentucky court refused to recognize a cause of action for retaliatory discharge against an employer other than the one the workers compensation claim was filed against. The Kentucky majority’s reasoning, that the motive for termination was economic rather than retaliation, can be seen as elevating the significance of motive and individual conduct over the public good. In recognizing a cause of action for retaliatory discharge in workers compensation cases, the Court of Appeals in Murphy stated: “We believe the public policy argument has merit. The Workmen’s Compensation Act provides efficient remedies and protection for employees, and is designed to promote the welfare of the people in this state. It is the exclusive remedy afforded the injured employee, regardless of the nature of the employer’s negligence. To allow an employer to coerce employees in the free exercise of their rights under the act would substantially subvert the purpose of the act.” 6 Kan. App. 2d at 495-96. The above cases are distinguishable from the present case only in that the alleged retaliation was on account of a workers compensation claim filed against a previous employer. We nevertheless find the reasoning of the majority of courts from other jurisdictions that have addressed the issue is persuasive, and we are convinced that reasoning applies as well to the circumstances of the present case. We affirm the district court’s ruling recognizing a retaliatory discharge cause of action against an employer other than the one against which the workers compensation claim was filed. Entry of summary judgment. In granting summaiy judgment to NCKRJDF, the district court stated that it found no evidence to support Gonzalez’ view that he was fired as a result of a work-related injury or the filing of a workers compensation claim against another employer. We disagree. On appeal, Gonzalez relies heavily on Coleman v. Safeway Stores, Inc., 242 Kan. 804, 752 P.2d 645 (1988). In Coleman, the court stated: “Allowing an employer to discharge an employee for being absent or failing to call in an anticipated absence as the result of a work-related injury allows an employer to indirectly fire an employee for filing a workers’ compensation claim, a practice contrary to the public policy of this state.” 242 Kan. 804, Syl. ¶ 3. Gonzalez contends that it necessarily follows from Colemans prohibiting termination of an employee who fails to call in sick from a work-related injury that termination of an employee who fails to talk to a specific person when calling in sick from a work-related injury is prohibited. The first question we consider is whether the broad liability language from Coleman reflects current law, and the answer is no. With a variety of facts presented and a burden-shifting analysis adopted in subsequent cases, the statement from Coleman has been treated not as a rule of law but rather as depending on the peculiar circumstances of each case. Thus, we conclude that whether an employer’s discharging an employee for failing to call in an anticipated absence that results from a work-related injuiy gives rise to liability is a question of fact. Language to the contrary in Coleman,-242 Kan. 804, Syl. ¶ 3, is disapproved. There are significant factual differences between Coleman and the present case. Coleman, who had been employed by Safeway for several years, sustained a work-related wrist injuiy in June 1984. She was treated by the company doctor. In September 1984, she had surgery for the injury, which required her to be absent from work. “During the time she was off work, although she was under the care of the company doctor, her employer assessed infractions against her for failing to call in daily to report her absences.” 242 Kan. at 806. When she returned to work, she was terminated due to the number of infractions. Safeway policy provided for termination of an employee who accumulated six attendance infractions.; The district court discounted the infractions for work-related absénces but granted summary judgment in favor of Safeway on the ground that “Coleman had incurred enough infractions before her surgery to be terminated.” 242 Kan. at 806. This court agreed that absences caused by her work-related injury should not be counted against Coleman. In addition, the court considered “Safeway’s claim that Coleman was not discharged for absences, but for failing to call in to report absences, is [un]persuasive given the fact that Coleman was being treated by a company physician who provided reports to Safeway regarding Coleman’s condition.” '242 Kan. at 816. What this court found fault with in the district court’s reasoning was its failure to read the record in the light most favorable to Coleman, .the nonmoving party. Even though Coleman came forward with evidence that she had fewer than six infractions before her surgery, thus raising a genuine issue of material fact, the district court found that she had accumulated six attendance infractions before her surgery. Hence, this court determined that the district court erred in granting summary judgment on the disputed factual question regarding the number of accrued infractions. The circumstances in Coleman differ significantly from those of the present case. Coleman injured her wrist while working at Safeway, was under the care of the Safeway doctor, who reported on her condition to Safeway, and she missed work,as a result of the surgery. Safeway was fully aware of Coleman’s condition, her absences, and the reason for her absences. Safeway’s knowledge of Coleman’s status made a requirement that she call in daily to report absences entirely superfluous, and, in these circumstances, the court prohibited termination for failing to call in an anticipated absence resulting from a work-related injury. In contrast, Gonzalez injured his back while working at Venator in November 1996. He had surgery for the injury in December 1997. He filed for and received workers compensation benefits from Venator from November 1996 to March 1998. On June 29, 1998, Gonzalez called NCKRJDF to say that he would be unable to work due to back pain. A few days later, he was reprimanded for failing to speak directly to the Director or the Assistant Director whe,n he called in sick. On July 27, 1998, Gonzalez again called NCKRJDF to say that he would be unable to work due to back pain and, because he viewed the requirement as harassment, again failed to speak directly to the Director or the Assistant Director. As a result, Gonzalez was fifed. In this case, Gonzalez did not injure his back while working at NCKRJDF and he was not under the care of the NCKRJDF company doctor who would have reported his condition to NCKRJDF. His injuiy occurred in November 1996, and he underwent surgery in December 1997. He had recovered from the surgeiy, his workers compensation benefit payments had ceased, and he had returned to work months before the insubordinate incidents of June and July 1998. In these circumstances, NCKRJDF was not fully informed of Gonzalez’ condition, his absences were not predictable, and NCKRJDF officers depended on Gonzalez to inform them of his anticipated absences so that a replacement could be secured for Gonzalez’ work in the juvenile detention facility. In these circumstances, 'NCKRJDF’s lack of knowledge of Gonzalez’ daily status made a call-in requirement necessary rather than superfluous. Thus, the present case is readily distinguishable from Coleman on its facts. It has long been recognized that Coleman does not prohibit discharge of an employee who is unable to perform his or her work at the time of discharge, even if the inability to work was due to a work-related injury. Rowland v. Val-Agri, Inc., 13 Kan. App. 2d 149, Syl. ¶ 4, 766 P.2d 819 (1988). In an opinion where Coleman was cited for another proposition, the Court of Appeals factually distinguished the circumstances of Coleman’s discharge from those of Rowland. See 13 Kan. App. 2d at 153-54. Rowland was injured at work in October 1984 and given a medical release for “light duty” in March 1985. Because his employer had no light duty available, he did' not return to work. In May 1985, he was terminated in accordance with company policy to terminate employees who have taken 6 consecutive months’ leave. Rowland sued for wrongful termination. The entry of summary judgment against him was affirmed on the following ground: “When a discharged employee is not capable of performing the duties of his or her job because of a work-related injury and the termination of that employee’s workers’ compensation claim is not a condition of his or her reemployment, but another position cannot be found which the employee can fill, the employee does not have a tort action for retaliatory discharge against his or her former employer.” 13 Kan. App. 2d 149, Syl. ¶ 4. Thus, because Rowland was unable to perform his employer’s work, the employer’s attendance policy provided a sound basis for termination. Burden-shifting analysis. Since Coleman was decided, Kansas appellate courts have adopted the burden-shifting analysis of discrimination and free speech cases for use in workers compensation discharge cases. Rebarchek v. Farmers Co-op Elevator C Mercantile Ass'n, 272 Kan. 546, 553, 35 P.3d 892 (2001). With the burden-shifting analysis the complainant initially must present a prima facie case of being fired for exercising his or her workers compensation rights. The elements of a prima facie claim for retaliatoiy discharge for filing a workers compensation claim are: (1) The plaintiff filed a claim for workers compensation benefits or sustained an injury for which he or she might assert a future claim for such benefits; (2) the employer had knowledge of the plaintiff s workers compensation claim injury; (3) the employer terminated the plaintiff s employment; and (4) a causal connection existed between the protected activity or injury and the termination. 272 Kan. at 554. Upon such a showing, the burden shifts to the employer to articulate a legitimate, nonretaliatory reason for terminating the employee. Once the employer discharges this obligation, the complainant must continue with the burden of proving by a preponderance of the evidence that the reasons offered by the employer were merely a pretext for wrongful termination. 272 Kan. 546, Syl. ¶ 5. In Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (applying Kansas law), the Tenth Circuit Court of Appeals applied the burden-shifting analysis to a retaliatory discharge claim and considered the meaning of Coleman in that context. Bausman, in its reasoning and result, demonstrates that the Coleman statement does not preclude an employer from invoking the attendance record of an employee who claims a work-related injury as a facially legitimate reason for an employee’s termination. However, that invocation may not be enough to entitle the employer to summary judgment. Bausman worked for Interstate Brands Corp. (IBC) from June 1986 to July 1994. In July 1992, she notified IBC that she had suffered a repetitive stress injury to her wrist, elbow, and shoulder as a result of her work. She underwent surgery for her condition on January 14, 1993. By April 1993, her doctor released her for work without restrictions. More than a year later, on May 2, 1994, Bausman was warned about excessive absences. Immediately after the warning, she was absent for approximately 2 weeks and again toward the end of May 1994. She received a written warning that stated: “ ‘Any absences in the next six months before 11-25 94 will result in your discharge.’ ” 252 F.3d at 1119. Then she was absent for several weeks and was terminated on July 5, 1994. Bausman contended that her absences were on account of her work-related injury. The district court entered summary judgment in favor of IBC. The federal Court of Appeals reversed. 252 F.3d at 1124. The federal Court of Appeals concluded that Bausman made a prima facie case of retaliatory discharge with the record showing a factual dispute regarding IBC’s knowledge of the cause of some of Bausman’s absences. 252 F.3d at 1120. It further concluded that IBC’s articulated reason for firing Bausman — her attendance record — was facially legitimate. 252 F.3d at 1120. With regard to the question of pretext, the federal Court of Appeals concluded that summary judgment on the issue of pretext was premature: “To affirm summary judgment, we must be able to conclude that Ms. Bausman ‘failed to produce any evidence from which a reasonable inference could be drawn’ that IBC’s proffered reasons for her termination were ‘pretextual.’ Stewart v. Adolph Coors Co., 217 F.3d 1285, 1291 (10th Cir.2000). “To show pretext, Ms. Bausman relies upon essentially the same evidence that she earlier relied upon to establish her prima facie case concerning whether IBC knew or should have known that her absences were due to her work-related injury. Under the burden-shifting analysis, although the prima facie presumption of unlawful intent ‘ “drops out of the picture” once the defendant meets its burden of production, . . ., the trier of fact may still consider the evidence establishing the plaintiffs prima facie case “and inferences properly drawn therefrom . . . on the issue of whether the defendant’s explanation is pretextual,” ’ Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000) (citations omitted) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255, n. 10, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)). And ‘a prima facie case and sufficient evidence to reject the employer’s explanation may permit a finding of liability,’ even absent ‘additional, independent evidence of discrimination’ or other unlawful intent. Id., 530 U.S. at 149, 120 S. Ct. at 2109. “It remains uncontroverted that IBC knew Ms. Bausman claimed almost all of her 1994 absences as resulting from her work-related injury, and that she had filed a workers’ compensation claim based upon that injury. Just as was drawn in connection with her prima facie case, an inference may be drawn that IBC acted with unlawful retaliatory intent, notwithstanding its asserted ‘neutral’ reason for the discharge. “On the present record, it also appears that IBC had excused Ms. Bausman’s absences due to her work-related injury from September 1992 until early 1994, assessing no attendance points against her, and apparently doing so without benefit of detailed physician’s notes. However, her injury did not go away. While Ms. Bausman had received surgical treatment in 1993, and thereafter was taking medications for her repetitive stress injury to her arm, it was apparent from the facts known to her supervisor that she continued to struggle with frequent arm soreness, coupled with gastric disturbances, and that these chronic problems were persisting into May and June 1994. (See Supp. App. 124, 131.) Ms. Bausman’s claim for workers’ compensation for this injury likewise continued to accrue — a fact which a jury could reasonably conclude IBC managers knew at the time the decision was made to terminate her employment. “These are questions better suited for resolution by the finder of fact based upon the evidence presented and a first-hand opportunity to evaluate the credibility of the witnesses. We cannot say that appellant ‘failed to produce any evidence from which a reasonable inference could be drawn’ in her favor concerning whether IBC’s stated reason for her termination was pretextual. To the contrary, we conclude that Ms. Bausman raised a genuine issue of material fact concerning pretext, and that the summary judgment entered by tire district court based upon this element of her retaliatory discharge claim was in error.” 252 F.3d at 1122-24. Use of the burden-shifting analysis in the present case produces the same result as in Bausman. Gonzalez made a prima facie case with evidence showing that he sustained a work-related injury and filed a workers compensation claim, NCKRJDF had knowledge of the work-related injury, NCKRJDF terminated his employment, and there was a causal connection between his work-related injury and the termination. NCKRJDF articulated a legitimate, nonre-taliatory reason for terminating Gonzalez. Gonzalez’ burden was only to demonstrate a genuine dispute of material fact as to whether NCKRJDF’s stated reason was unworthy of belief. To affirm the district court’s entry of summary judgment, the court must be able to conclude that Gonzalez failed to produce any evidence from which a reasonable inference could be drawn that NCKRJDF’s reason was a pretext. See Bausman, 252 F.3d at 1122. Gonzalez showed and the district court found that NCKRJDF knew Gonzalez’ absences were due to his work-related injury, that NCKRJDF required no employee other than Gonzalez to speak direcdy to the Director or Assistant Director, and that NCKRJDF terminated Gonzalez after only one warning about his failing to speak to the Director or Assistant Director, thus raising an inference favorable to Gonzalez. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, this court applies the same rules. Where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1275, 38 P.3d 679 (2002). Because reasonable minds could differ as to the conclusions drawn from the evidence in the present case, the entry of summary judgment was improper. The judgment of the district court is affirmed in part and reversed in part, and the case is remanded to the district court for further proceedings.

Per Curiam: This is an original uncontested proceeding in discipline. The formal complaint charged respondent, Kathy A. Sto-ver, with violating KRPC 1.1 (2004 Kan. Ct. R. Annot. 342) (competence), KRPC 1.7 (2004 Kan. Ct. R. Annot. 391) (conflict of interest: general rule), KRPC 1.8 (2004 Kan. Ct. R. Annot. 396) (conflict of interest: prohibited transactions), KRPC 5.5 (2004 Kan. Ct. R. Annot. 469) (unauthorized practice of law), and KRPC 8.4 (2004 Kan. Ct. R. Annot. 485) (misconduct). The hearing panel concluded that Stover violated these rules and that the facts as alleged in the formal complaint were sufficient to support a finding that Stover violated KRPC 3.4 (2004 Kan. Ct. R. Annot. 449) (fairness to opposing party and counsel) and Supreme Court Rule 211(b) (2004 Kan. Ct. R. Annot 275). “In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. [Citation omitted.] Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. [Citations omitted.] “This court views the findings of fact, conclusions of law, and recommendations made by the disciplinary panel as advisory, but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Thus, the disciplinary panel’s report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence. [Citations omitted.]” In re Lober, 276 Kan. 633, 636-37, 78 P.3d 442 (2003). Stover was licensed to practice in Kansas and Missouri. Her Kansas license was suspended because she failed to pay the inactive attorney registration fee. At the time of the hearing, Stover lived in Wisconsin and was never licensed to practice law in Wisconsin. The hearing panel made the following findings of fact: Stover offered to serve as a professional and business manager and attorney to Michael Jahnz, a professional musician. Michael agreed. Stover created business cards and web pages that listed her as his manager and attorney. Michael and his wife, Jennifer, requested Stover s help in settling a dispute with a contractor. The contractor was hired to repair the Jahnzes’ roof but caused more damage to the home. Stover took photographs of the damages, drafted a letter to the contractor, spoke by telephone with the contractor’s insurer, and made demands on behalf of Mr. and Mrs. Jahnz. Stover took no further action. The Jahnzes did not pay the contractor, and the contractor eventually filed a hen against the property. Stover refused to return the photographs. During the course of representing Michael in his music career, Stover’s behavior became increasingly bizarre. Once, Michael appeared on a radio talk show and dedicated a song to his wife. Stover became very upset, claiming the song should have been dedicated to her. Eventually, the Jahnzes felt that Stover failed to adequately promote Michael’s music career and terminated the business relationship with her. Thereafter, Stover began to terrorize the Jahnzes. Specifically: “Respondent entered Mr. and Mrs. Jahnz’ residence without permission at times when they were not at home; [on one occasion, the Respondent took the Jahnzes’ dog]; the Respondent repeatedly intercepted electronic mail addressed to Mr. Jahnz; the Respondent wrongfully maintained unauthorized internet web sites in Mr. Jahnz’ name; the Respondent published Mr. Jahnz’ name, portrait, picture, or likeness for advertising and trade purposes without permission; the Respondent published original works of music created by Mr. Jahnz without permission; . . . the Respondent refused to the return property belonging to Mr. Jahnz; [and the Respondent made repeated phone calls and sent many letters, specifically threatening to force the Jahnzes into bankruptcy].” To escape Stover’s harassment, the Jahnzes changed their telephone numbers. Finally, after having to file bankruptcy, the Jahnzes filed a civil suit in Wisconsin against Stover. The Jahnzes alleged that Stover “(1) violated [their] right to privacy, (2) engaged in false advertising, (3) committed legal malpractice, (4) breached her fiduciaiy duty to Mr. and Mrs. Jahnz, (5) retained property unlawfully, and (6) committed slander against Mr. and Mrs. Jahnz.” The district judge ordered that Michael Jahnz be allowed access to Stover’s computer to discontinue websites and reassign websites to Michael. Stover would not allow access to her computer and refused to execute the necessary assignment. The district judge found her in contempt of court and sentenced her to 6 months in jail. The district judge informed her that she would be released if she signed the assignment and allowed access to her computer. Stover replied by laughing. She was then jailed. The district judge also determined that Stover committed perjury. In her deposition, Stover admitted to refusing to allow Michael access to her computer; however, before the district court, she stated she did not refuse access. The civil case was ultimately decided in favor of the Jahnzes. Their attorney notified the Kansas Disciplinary Administrator of Stover’s conduct. The office of the Disciplinary Administrator filed a formal complaint, which was sent by certified mad to Stover. She signed the return receipt but did not file an answer. During the disciplinary hearing, the panel was notified that Sto-ver was hospitalized. The Disciplinary Administrator, Stanton Ha-zlett, called the hospital and confirmed Stover’s hospitalization. The hearing continued despite Stover’s absence. Hazlett pointed out that Stover had been the subject of two prior disciplinary cases. Stover was informally admonished on both occasions. Hazlett informed the panel that Stover had appealed the Wisconsin district court’s decision. He recommended that Stover be disbarred but requested that the panel’s decision be held in abeyance until the outcome of that appeal. The panel agreed. After the hearing, Hazlett notified Stover of the hearing’s outcome. The Wisconsin Court of Appeals later affirmed the district court decision in an unpublished decision. Stover did not seek further review. Hazlett wrote to the hearing panel and requested the addition of subsequent exhibits, including the Wisconsin Court of Appeals decision. The hearing panel issued a scheduling order, directing Stover to file any written objections to the Disciplinary Administrator’s additional exhibits and to file a written closing argument that included a disciplinary recommendation. Stover did not respond to the scheduling order. The hearing panel arrived at the following conclusions of law: The Disciplinary Administrator complied with Supreme Court Rule 215 (2004 Kan. Ct. R. Annot. 292), which states that “[s]ervice upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail.” Stover had adequate notice of the proceedings against her. The formal complaint alleged that Stover violated KRPC 1.1, KRPC 1.7, KRPC 1.8, KRPC 5.5, and KRPC 8.4. In addition, the panel deemed it appropriate to consider whether Stover violated KRPC 3.4. KRPC 1.1 requires that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for tire representation.” 2004 Kan. Ct. R. Annot. 342. Stover violated KRPC 1.1 by falsely holding herself out as an attorney licensed to practiced law in Wisconsin and by failing to provide adequate representation in the Jahnzes’ dispute with the contractor. KRPC 1.7(b) states that “[a] lawyer shall not represent a client if the representation of that client my be materially limited by the . . . lawyer’s own interests.” 2004 Kan. Ct. R. Annot. 391. Stover violated KRPC 1.7(b) because “Respondent’s obsession with Mr. Jahnz clouded her ability to provide appropriate representation.” KRPC 1.8(a) states that “[a] lawyer shall not . . . knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to the client unless . . . the client consents in writing thereto.” 2004 Kan. Ct. R. Annot. 396. Stover violated KRPC 1.8(a). She acquired an interest adverse to the Jahnzes by creating websites that used Michael’s name and likeness without his written permission. KRPC 3.4 states: “A lawyer shall not: “(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. . . . “(b) falsify evidence . . . “(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.” 2004 Kan. Ct. R. Annot. 449. Stover violated “KRPC 3.4(a) when she refused to allow Mr. Jahnz . . . access to her computer!,] ■ • • KRPC 3.4(b) when she testified falsely before [the district judge, and] .... KRPC 3.4(c) when she failed to execute the irrevocable assignments as ordered.” KRPC 5.5(a) states that “[a] lawyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.” 2004 Kan. Ct. R. Annot. 469. Stover violated KRPC 5.5(a) by holding herself out as licensed to practice law in Wisconsin, and she engaged in the practice of law in Wisconsin without a Wisconsin license. KRPC 8.4 states: “It is professional misconduct for a lawyer to: . . . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; . . . [or] (g) engage in any other conduct that adversely reflects on the lawyer s fitness to practice law.” 2004 Kan. Ct. R. Annot. 485. Stover violated KRPC 8.4(c) by testifying falsely before the district judge. The panel also found that Stover violated KRPC 8.4(d) when she refused to comply with the district court’s orders. In addition, the panel concluded that by “testifying falsely, refusing to comply with the orders of the Court, and engaging in a pattern of behavior designed to harass and intimidate Mr. Jahnz,” Stover violated KRPC 8.4(g). Supreme Court Rule 211(b) states that “[t]he respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint.” 2004 Kan. Ct. R. Annot. 275. Stover violated Supreme Court Rule 211(b) by failing to file an answer to the formal complaint. Regarding its recommended discipline, the panel considered the following factors based on the American Bar Association’s Standards for Imposing Lawyer Sanctions (ed. 1991) (Standards): “Duty Violated. The Respondent violated her duty to her client to provide competent representation, the Respondent violated her duty to her client to avoid conflicts of interest, the Respondent violated her duty to the public to maintain personal integrity, and the Respondent violated her duty to the legal system to refrain from making false statements. “Mental State. The Respondent intentionally violated her duties. “Injury. As a direct result of the Respondent’s misconduct, Mr. and Mrs. Jahnz have suffered and will continue to suffer actual injury.” The panel found the following aggravating factors: “Prior Disciplinary Offenses. The Respondent has been informally admonished on two previous occasions: [In the first action, her credibility was in issue, and the panel determined that she violated the Model Rules of Professional Conduct Rule (MRPC) 1.3, MRPC 1.4, MRPC 1.16, and Kan. Sup. Ct. R. 207. In the second action, the panel found that respondent violated KRPC 1.1, KRPC 1.3, and KRPC 1.4], “Dishonest or Selfish Motive. [The district judge] concluded that the Respondent provided false testimony. Accordingly, the Hearing Panel concludes that the Respondent’s misconduct was motivated by dishonesty and selfishness. “Pattern of Misconduct. The Respondent repeatedly refused to comply with court orders. Accordingly, the Respondent engaged in a pattern of misconduct. “Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.7, KRPC 1.8, KRPC 3.4, KRPC 5.5, KRPC 8.4, and Kan. Sup. Ct. R. 211. As such, the Respondent committed multiple offenses. “Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent failed to file an Answer. In her response to the initial complaint, the Respondent took no responsibility for her actions. “Refusal to Acknowledge Wrongful Nature of Conduct. The Respondent has failed to acknowledge the wrongful nature of her conduct. “Vulnerability of Victim. Mr. and Mrs. Jahnz relied on the Respondent to provide adequate and thorough representation. Mr. and Mrs. Jahnz were vulnerable to Respondent’s misconduct. “Substantial Experience in tire Practice of Law. The Respondent was admitted to the practice of law in the state of Kansas in 1985. At the time the Respondent committed the misconduct, the Respondent had been practicing law for approximately 15 years. As such, the Hearing Panel concludes that the Respondent has substantial experience in the practice of law. "Indifference to Making Restitution. The Respondent has made no attempt to purge the contempt and comply with the [district court’s] orders. “Illegal Conduct. [The district judge] concluded that the Respondent testified falsely and, therefore, committed the felony crime of perjury.” The panel found no mitigating circumstances. The panel also considered the following Standards: Standard 5.11: “Disbarment is generally appropriate when: (a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, [or] misrepresentation . . .” Standard 6.11: “Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.” Standard 6.21: “Disbarment is generally appropriate when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party, or causes serious or potentially serious interference with a legal proceeding.” The panel unanimously recommended disbarment. Since her initial communication with the Disciplinary Administrator, Stover has not filed a brief in this case nor did she appear before this court. The panel’s findings of fact and conclusions of law remain uncontested. The panel considered KRPC 3.4, although violation of this rule was not charged in the formal complaint. Under certain circumstances, violations not included in the formal complaint may be considered by the hearing panel. In re Swisher, 273 Kan. 143, 148, 41 P.3d 847 (2002); State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984). “Due process requires only that the charges must be sufficiently clear and specific to inform the attorney of the misconduct charged, but the State is not required to plead specific rules, since it is the factual allegations against which the attorney must defend.” Caenen, 235 Kan. at 458. “Where the facts in connection with the charge are clearly set out in the complaint a respondent is put on notice as to what ethical violations may arise therefrom.” Caenen, 235 Kan. 451, Syl. ¶ 3. Paragraph 3 of the formal complaint detailed Stover s behavior leading to her contempt of court. The facts of this case support the panel’s conclusion that Stover had adequate notice of the potential to be found in violation of KRPC 3.4. The panel also found Stover in violation of KRPC 5.5(a) (2004 Kan. Ct. R. Annot. 469). KRPC 5.5(a) states: “A lawyer shall not: . . . practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.” The panel did not cite the rules violated in Wisconsin. Our research demonstrates that Wisconsin Supreme Court Rule 20:5.5 deals with the unauthorized practice of law. When Stover falsely held herself out as licensed to practice law in Wisconsin, she violated this rule. We adopt and affirm the findings of fact made and the conclusions of law drawn by the hearing panel. Further, we agree with the panel’s recommended discipline of disbarment. It Is Therefore. Ordered that Kathy A. Stover be and she is hereby disbarred from the practice of law in the state of Kansas, that her privilege to practice law in the state of Kansas is revoked, and that the Clerk of the Appellate Courts of Kansas strike the name of Kathy A. Stover from the roll of attorneys licensed to practice in the state of Kansas. It Is Further Ordered that this order shall be published in the official Kansas reports, that the costs herein be assessed to the Respondent, and that the Respondent forthwith comply with Supreme Court Rule 218 (2004 Kan. Ct. R. Annot. 301). Gernon and Luckert, JJ., not participating. Allen, S.J., and Larson, S.J., assigned.

The opinion of the court was delivered by Beier, J.: Defendant Dajuan Wilkerson appeals from his convictions and sentences for first-degree premeditated murder and attempted first-degree premeditated murder. Wilkerson claims seven errors: (1) admission of evidence of a shootout that occurred 2 days before the charged crimes; (2) admission of evidence of his nickname; (3) questioning of one of his alibi witnesses regarding her silence during a law enforcement interview; (4) wording of instructions and the verdict form; (5) sufficiency of the evidence; (6) cumulative error; and (7) his sentence to 50 years in prison with no opportunity for parole. The convictions before us arose out of the murder of Damene Lattimore and the attempted murder of Adeana Gibson. Wilkerson borrowed a car from Donald Simmons, Gibson’s stepfather. Simmons knew Wilkerson by his nickname, “Silence,” which Simmons pronounced “Silas.” Two days before the murder, Wilkerson drove the car to Sean Deshazer s house, and he and Deshazer got into an argument that led to an exchange of gunfire. One of the shots fired by Deshazer struck one of the car’s doors on the driver s side. Deshazer and Lattimore were friends. When defendant returned the car to Simmons, he told Simmons that he had been involved in a shootout. Simmons found spent shell casings in his car and disposed of some of them by throwing them on top of a building. On the night of the murder, according to Gibson’s testimony, Lattimore was asleep and Gibson was running a bath about midnight when Gibson heard a knock at the door. She opened it when she recognized Wilkerson waiting outside. She also knew him as “Silence.” Gibson did not know the man with Wilkerson. Wilkerson asked to speak with Lattimore, and Gibson went to the bedroom to tell Lattimore that “Silence” was there to see him. Lattimore merely shook his head in response. As Gibson returned to the living room, the stranger who had accompanied Wilkerson into the house pointed a gun at her and told her to “get on the floor.” She lay in the hallway, face down, outside of die bedroom. Wilkerson then entered the bedroom and pointed a gun at Lat-timore. He asked Lattimore: “Why is your homeboy shooting at me?” Lattimore replied: “Man, I don’t know. I don’t have nothing to do with that.” The light in the bedroom went off, and Wilkerson fired. He then turned the light back on and again asked Lattimore: “Why your homeboys keep on tripping with me? He keeps on shooting at me.” Lattimore again replied: “I don’t have nothing to do with that. That’s on them. Me and you already talked about this. I’m not in that.” According to Gibson, Lattimore then offered Wilkerson money. Wilkerson said Lattimore “would have to kick in more than that” and told Lattimore to “give up his homeboy.” Wilkerson then said: “Oh man, did I hit you?” Lattimore said he had been hit and then pleaded: “Please don’t shoot me.” Wilkerson said: “That’s all right ‘cause I don’t . . . fuck with no slob ass niggers no way.” Wilkerson then shot Lattimore three more times. As Wilkerson walked by Gibson on his way out of the house, he fired two shots at her. One grazed her head, and another went through her left wrist. Gibson pretended to be dead so that he would not fire again. Then, after Wilkerson and his accomplice left, she called 911. It was eventually determined that Lattimore had suffered four gunshot wounds before he died, three in the abdomen and one in the head. At the time of the crimes, Simmons happened to be visiting a house across the street from Gibson’s. Someone else with Simmons heard the gunshots. As police arrived in the neighborhood to respond to Gibson’s 911 call, Simmons and two friends got into his car to leave. They were stopped when a police officer noticed the bullet hole in the door of Simmons’ car, and Simmons was questioned. Simmons told police that he had lent his car to “Silas” and that the bullet hole had resulted from a shootout in which Silas was involved. When an officer presented Simmons with a picture of a man named Silas, Simmons said that was not the person to whom he had lent his car. Eventually, Simmons was shown a picture of Wilkerson, and Simmons identified him as the man who borrowed his car. During trial, Simmons would eventually identify Wilkerson as “Silas.” Gibson also was questioned the night of the murder. At first, she said she was unable to identify the shooter, but she later identified Wilkerson. She said she had not immediately identified him because she was frightened. After Simmons was questioned, police retrieved two spent shell casings and one bullet fragment from the roof of the building where Simmons had thrown the spent casings he had found in his car. Police also retrieved a spent casing from the floorboard of the car and three partial bullets and one spent casing from Deshazer’s yard. Testimony at trial finked the gun used at Deshazer’s house and the murder weapon, a .45 caliber semiautomatic. A tray of ammunition designed to hold 50 rounds for such a gun was found in a search of the house where Wilkerson was staying at the time of the murder; nine rounds were missing from the tray. Wilkerson’s defense was alibi. According to his ex-girlfriend, Nicole Lane, and her family, he was with Lane, their three children, and her parents from approximately 10 p.m. until 1:30 a.m. on the night of the crimes. Wilkerson first accompanied them to a gas station, then to Wal-Mart, and then to Lane’s residence, where he stayed while Lane packed her belongings into her parents’ car. Wilkerson then led Lane and her family to the highway, and they departed without Wilkerson for Muskogee, Oklahoma. At trial, the following exchange occurred between the prosecutor and Lane: “State: That’s Detective Otis. Remember when he came down to Muskogee back in November of last year? “Lane: Mm-hmm. “Defense: Objection. . . “Court: Overruled. “State: You do remember that? “Lane: Yes. “State: He told you he wanted to talk to you about a murder that had concern — that had occurred here on September 12th? “Lane: Yes. “State: . . . you wouldn’t talk to him? “Lane: Yes. “Defense: Objection . . . “Court: Grounds?” An off-the-record discussion followed at the bench. Then the prosecutor continued: “State: Like I was saying, you knew he wanted to talle to you about a murder possibly involving [defendant], and you refused to talk to him, correct? “Lane: Yes.” The prosecutor later asked Lane when she first became aware she would have to testify about her whereabouts on the night of the murder, and she responded that she knew after defendant first went to court. She also replied that she became aware of the investigation when Otis first questioned her. The jury charge included Instruction No. 14, which read: “The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty. “The test you must use in determining whether tire defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” The defense objected to the use of the word “until” rather than “unless” in the first paragraph of the instruction. It also objected to the instructions’ reference to Wilkerson as “defendant” rather than by his name and to the verdict form’s listing of the “guilty” option before the “not guilty” option. Admission of Evidence of Shootout Wilkerson’s challenges to admission of the evidence of his shootout with Deshazer have varied over time. Before and during trial he focused primarily on persuading the judge that any evidence of the shootout could be admitted only under K.S.A. 60-455 and thus would require a limiting instruction consistent with that statute. Although the judge did not accept the argument that K.S.A. 60-455 applied and admitted the evidence independent of it, he invited the defense to submit a limiting instruction of its own design for his consideration. The defense did not do so. In his appellate brief, Wilkersonargued that the evidence should not have been admitted because it “1) does not directly establish the crime charged as required by the ‘other crimes’ rule, and 2) the prejudicial effect of this evidence outweighed, by far, any probative value the unreliable testimony of Sean Deshazer may have possessed.” The probative value/prejudicial effect balance echoes the third factor in evaluating K.S.A. 60-455 evidence, see State v. McHenry, 276 Kan. 513, 519, 78 P.3d 403 (2003), as well as other relevant evidence, see K.S.A. 60-422. Finally, at oral argument before this court, Wilkerson’s counsel resurrected the K.S.A. 60-455 argument, asserting that the shootout evidence could have been admitted only if accompanied by an instruction limiting its consideration for the purpose of proving motive or identity, i.e., that Wilkerson had a motive to kill Latti-more because of his shootout with Lattimore’s friend or that the gun Wilkerson used in the shootout was the same gun used by Lattimore’s killer. We first address Wilkerson’s K.S.A. 60-455 argument. The statute provides in pertinent part: “[E]vidence 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 . . . such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” The State insists that Wilkerson waived or abandoned his argument based on this statute by fading to submit a proposed limiting instruction to the district judge and by failing to argue the issue sufficiently in his appellate brief. We are satisfied that Wilkerson has done what is necessary both at trial and on appeal to require us to address the issue. Many previous cases have held that, when evidence is admitted by the prosecution in a criminal trial to demonstrate one of the material facts listed in K.S.A. 60-455, a limiting instruction must be given to guard against the juiy’s use of the evidence merely to demonstrate the defendant’s propensity to engage in criminal behavior. See, e.g., State v. Denney, 258 Kan. 437, 443, 905 P.2d 657 (1995); State v. Whitehead, 226 Kan. 719, 722, 602 P.2d 1263 (1979); State v. Bly, 215 Kan. 168, 176, 523 P.2d 397 (1974). On appeal, we review a district judge’s performance of the analysis necessitated by the statute on an abuse of discretion standard. See, e.g., McHenry, 276 Kan. at 519; State v. Higgenbotham, 271 Kan. 582, 588-89, 23 P.3d 874 (2001). Here, we agree with Wilkerson that evidence of the shootout was relevant to demonstrate motive and identity, but it was also relevant to explain the tit-for-tat sequence of events leading to the murder, the pattern and reliability of the police investigation, and the history of the parties’ relationship, particularly the context for the killer’s statements to Lattimore about his “homeboys.” The evidence also bolstered the credibility of Gibson’s eventual identification of Wilkerson as the shooter; it demonstrated that she had heard from his own mouth and seen a demonstration of his willingness to avenge betrayal, making her hesitant to identify him. Under all of tírese circumstances, we see no abuse of discretion in the district court’s decision that the shootout evidence could be admitted independent of K.S.A. 60-455. In addition, although the better practice may have been to give a modified limiting instruction — one tlrat cautioned the jury not to use the evidence to demonstrate propensity but allowed it to use the evidence for other purposes, including but not limited to motive and identity — we see no error in failing to give such an instruction on the unique facts presented here. The shootout evidence was so interwoven with the commission of the charged crimes and with the investigation leading to Wilkerson’s apprehension that we see little or no chance the jury would have relied on that evidence only to demonstrate his general propensity toward criminality. We next address Wilkerson’s argument regarding the “other crimes” rule. The rule is derived from our decisions in State v. Schlicher, 230 Kan. 482, 490, 639 P.2 467 (1982); State v. Holt, 228 Kan. 16, 21, 612 P.2d 570 (1980); and State v. Solem, 220 Kan. 471, Syl. ¶ 3, 552 P.2d 951 (1976). It states simply: “Evidence which is otherwise relevant in a criminal action is not rendered inadmissible because it may disclose another or independent offense.” Solem, 220 Kan. 471, Syl. ¶ 3. Moreover, “evidence which has a direct bearing on and relation to commission of an offense is admissible without a limiting instruction.” Solem, 220 Kan. at 476 (citing State v. Martin, 208 Kan. 950, Syl. ¶ 2, 495 P. 2d 89 [1972]). In Solem, we upheld a district court’s admission of a prior uncharged offer to sell drugs attributed to defendant. We said: “In the instant case the record discloses continuing contacts related to drugs, between the agents of the attorney general’s office and defendant. The statement attributed to defendant tended to prove those contacts existed and eventually led to the transaction which resulted in defendant’s arrest. Defendant’s prior offer to sell the drugs was relevant and material to his ultimate sale of drugs to the agent. As stated in Martin, the fact the questioned evidence related to a prior crime . . . does not prohibit its introduction to show commission of the offense charged.” Solem, 220 Kan. at 476. In Holt, which Wilkerson urges us to overrule, we upheld the admission of evidence that the defendant had threatened one in dividual with a gun sometime prior to shooting a second individual with the same gun. There, we said: “This evidence was not offered under K.S.A. 60-455 to prove motive or any of the other factors listed in that statute, nor was it introduced in rebuttal to evidence of defendant’s good character. It was offered to show that defendant had the alleged murder weapon in his possession prior to the killing with which he was charged. As such it was relevant for a purpose independent of K.S.A. 60-455, and thus the criteria of that statute are inapplicable and no § 455 limiting instruction is required.” Holt, 228 Kan. at 21. Finally, in Schlicher, we upheld the admission of incriminating statements alleged to have been made by the defendant long after the charged crime, even though an explanation of their context revealed other criminal activity he had engaged in. We said: “As pointed out in State v. Martin, . . . the admissibility of evidence tending directly to establish a crime is not destroyed because it discloses the commission of another and separate offense. . . . In each instance, the testimony about other crimes was admissible to show the background and circumstances present when the defendant made damaging admissions which connected him with the commission of the [charged] homicide. The admissions themselves were clearly relevant and admissible to show the defendant had particular knowledge about the circumstances of the crime and his participation therein.” Schlicher, 230 Kan. at 490. A version of the rule of these cases has now found its way into the Comment to PIK Crim. 3d 52.06, which states: “Evidence tending directly to establish the crime charged is not rendered inadmissible because it discloses the commission of another and separate offense.” (Emphasis added.) PIK Crim. 3d 52.06, Comment III B(6). Wilkerson focuses his argument on the word “directly.” The “other crimes” rule cannot apply to him, he contends, because the shootout evidence only circumstantially linked him to the murder and was more prejudicial than probative. He also insists that De-shazer’s credibility was highly questionable. Where evidence is admissible independent of K.S.A. 60-455, the primary test for its admission is its relevance to an issue in question. State v. Wimbley, 271 Kan. 843, 853, 26 P.3d 657 (2001). Further, “[t]he admission of evidence independent of K.S.A. 60-455 is entrusted to the sound discretion of the trial court and will not be overturned absent a clear showing of abuse of discretion.” State v. Deal, 271 Kan. 483, 501, 23 P.3d 840 (2001). A review of our cases persuades us that the inclusion of the word “directly” in the “other crimes” rule is misleading. In fact, direct evidence of the crime charged is not required. We have held that circumstantial evidence linking a defendant to a murder weapon, the modus operandi of the crime charged, or the victim is admissible under the rule. See Holt, 228 Kan. at 21 (evidence defendant brandished gun similar to murder weapon before murder admissible to show possession); State v. Mack, 255 Kan. 21, 29-30, 871 P.2d 1265 (1994) (evidence of “logically connected” similar incident admissible when same gun used in both shootings); Deal, 271 Kan. 483 (evidence of defendant’s earlier threats admissible to show rocky relationship with victim). To the extent the shootout evidence was circumstantial rather than direct evidence against Wilkerson, the distinction is of no moment. We agree with the State that the district court did not abuse its discretion in admitting this relevant evidence, which had a “tendency in reason” to prove several material facts. State v. Lietner, 272 Kan. 398, 412, 34 P.3d 42 (2001) (defining relevant evidence). Cf State v. Cobum, 32 Kan. App. 2d 657, 671, 87 P.3d 348, 360 (2004) (Johnson, J., concurring) (difficult to distinguish evidence to prove “some other material fact” under K.S.A. 60-455 from evidence admissible independently for its “direct bearing on and relation to” commission of charged offense). Finally, we also agree with the State that the district court struck a sound balance between the probative value and the prejudicial effect of the evidence. It was reasonable to conclude that the evidence was highly probative. In contrast, the relative blameworthiness of the shootout and the charged crimes made undue prejudice unlikely. Wilkerson’s argument regarding Deshazer’s credibility is addressed to the wrong decision-making body. It is not this court’s function to weigh witness credibility. See State v. Moore, 269 Kan. 27, 30, 4 P.3d 1141 (2000). Defendant’s Nickname Wilkerson next challenges the State’s introduction of his nickname, asserting it placed gang association evidence before the jury. Wilkerson’s argument has no support in the record or in logic. During a pretrial motions hearing, the State acknowledged that gang evidence had no relevance, and it scrupulously avoided making any connection between Wilkerson’s nickname and gang affiliation or activity. The nickname was never referred to as a gang or street name, and the nickname itself disclosed no such connection or character. There was no error in permitting the prosecution to introduce evidence of the nickname as part of Simmons’ and Gibson’s versions of pertinent events. Questions Regarding Witness’ Prior Refusal to Speak Wilkerson also takes issue with the prosecutor’s questions about Lane’s pretrial refusal to speak to police. He asserts the questions violated Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), relying on the Court of Appeals’ application of Doyle in State v. Hazley, 28 Kan. App. 2d 664, 670, 19 P.3d 800 (2001) (“no meaningful analytical distinction between prosecutorial comment on . . . silence when the defendant has chosen to invoke his or her Fifth Amendment privilege against self-incrimination and such silence when the defendant’s sole witness has relied on the same privilege”). Doyle and Hazley are distinguishable. The record in this case does not indicate that Lane was ever in custody or that she ever received Miranda warnings before refusing to talk to investigators. As the Court of Appeals recognized in Hazley, it is the administration of Miranda warnings that sets up a Doyle violation; the warnings imply that a person’s invocation of his or her right to silence will carry no penalty, and a later breach of that bargain at trial offends due process. Doyle involved a defendant’s refusal to speak after Miranda. Hazley involved the sole defense witness’ identical behavior. Lane was not the defendant and was not Wilkerson’s sole witness. She was not even his sole alibi witness. In contrast to the Doyle and Hazley limits on proper witness examination, evidence of bias “may always be shown in order to place the witness’ testimony in proper perspective. [Citation omitted.]” State v. Abu-Fakher, 274 Kan. 584, 600-01, 56 P.3d 166 (2002). Here, the prosecutor’s questioning of Lane about her ear lier refusal to speak was designed to highlight her probable bias. No error resulted. Jury Instructions and Verdict Form Wilkerson next argues that Instruction No. 14 and other instructions and the verdict form were fundamentally unfair. Specifically, he claims Instruction No. 14’s use of the phrase, “until you are convinced from the evidence that he is guilty,” misled the “jury into believing that they should expect to be convinced of the defendant’s guilt.” In Wilkerson’s view, the word “unless” should have been substituted for the word “until,” because “ ‘until’ implies an expectation of a future event or occurrence which shall happen. ‘Unless’ implies a future event or occurrence which may happen.” (Emphasis added.) In addition to making this definitional distinction, Wilkerson points to State v. Hundley, 236 Kan. 461, 693 P.2d 475 (1985), in which this court reversed a conviction and remanded a case for a new trial because the self-defense instruction had used the word “immediate” rather than “imminent.” We agree with Wilkerson that Instruction No. 14 and PIK Crim. 3d instruction 52.02, which it follows, would have been improved by the substitution of the word “unless” for the word “until.” However, we do not believe our agreement requires reversal. The whole of the instructions given in this case, when read together, accurately stated the law. The jury could not reasonably have been misled by them, and thus die instructions did not constitute reversible error even if they were in some way erroneous. State v. Peterson, 273 Kan. 217, 221, 42 P.3d 137 (2002); see also State v. Jones, No. 89,293, unpublished opinion filed Oct. 17, 2003, rev. denied 277 Kan. 926 (“until” rather than “unless” in jury instruction not reversible error when instructions, read as a whole, could not have misled jury on allocation of burden of proof). Wilkerson also challenges other jury instructions, claiming they dehumanized him because they referred to him as “defendant” rather than by given name. His challenge to the verdict form focuses on its listing of the “guilty” option before the “not guilty” option. PIK instructions do not require the use of a criminal defendant’s name and use of PIK instructions generally is recommended. See Kleypas, 272 Kan. 894, 1035, 40 P.3d 139 (2001). In addition, this court has approved a similar verdict form. See State v. Wesson, 247 Kan. 639, 652, 802 P.2d 574 (1990), cert. denied 501 U.S. 1236 (1991) (where guilty blank preceded not guilty blank, no prejudice to accused). Wilkerson was not prejudiced by the instructions referring to him as defendant, nor by the order of the jury’s options on the verdict form. Sufficiency of the Evidence ‘When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003). Wilkerson’s sufficiency argument questions the credibility of Gibson. Again, this court does not reweigh a jury’s determination of the credibility of a witness. See State v. Moore, 269 Kan. 27, 30, 4 P.3d 1141 (2000). When the evidence in this case is viewed in the light most favorable to the prosecution, we see ample proof that (1) Wilkerson was involved in a shootout with a friend of Lattimore shortly before Lattimore’s murder; (2) The same gun used during the shootout was used to commit the murder; (3) Gibson testified that the murderer talked to Lattimore about his “homeboys” shooting at the murderer; (4) Gibson identified Wilkerson as the murderer; and (5) Bullets fired at the murder scene matched the type of bullets found at the place where Wilkerson was staying. We have no trouble concluding that a rational factfinder could have found Wilkerson guilty beyond a reasonable doubt. Cumulative Error “ ‘Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ [Citation omitted.]” State v. Plaskett, 271 Kan. 995, 1022, 27 P.3d 890 (2001). For the reasons stated above, there was rio error to be termed “cumulative.” Hard SO Sentence Wilkerson received a hard 50 sentence pursuant to K.S.A. 2003 Supp. 21-4638, because he “knowingly or purposely killed or created a great risk of death to more than one person” and “committed the crime in an especially . . . cruel manner.” “The constitutionality of a statute is a question of law over which this court has unlimited review.” State v. Beard, 274 Kan. 181, Syl. ¶ 1, 49 P.3d 492 (2002). Wilkerson asks this court to revisit State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001), in which we upheld a hard 40 sentence as constitutional. See Conley, 270 Kan. at 36. He relies on several recent United States Supreme Court cases. See Ring v. Arizona, 536 U.S. 584, 589, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002); Apprendi v. New Jersey, 530 U.S. 466, 494, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); and Jones v. United States, 526 U.S. 227, 243, 143 L. Ed.2d 311, 119 S. Ct. 1215 (1999). We have already considered these cases and nevertheless upheld the hard 50 sentence as constitutional. See, e.g., State v. Hebert, 277 Kan. 61, 108, 82 P.3d 470 (2004); State v. Boldridge, 274 Kan. 795, 812, 57 P.3d 8 (2002), cert. denied 538 U.S. 950 (2003). We therefore reject Wilkerson’s challenge to his sentence. Affirmed.

The opinion of the court was delivered by Allen, J.: The defendant was prosecuted on an information charging burglary and grand larceny. He was found guilty of grand larceny, and appeals. The information charged that the defendant Melvin O’Neal, together with Walter Kimzey and Buck Hughes, codefendants, on the 12th day of April, 1938, did unlawfully, feloniously and burglariously break and enter a warehouse belonging to Elk county, Kansas, and did steal, take and carry away certain gasoline, oil and grease belonging to Elk county of the aggregate value of $41. The defendants Kimzey and Hughes pleaded guilty to grand larceny, and testified on the trial of the defendant O’Neal. It is asserted the trial court erred in permitting the state to introduce evidence of unrelated offenses. The warehouse of Elk county is located about three or four miles north of Longton, in Elk county. Two employees of the county testified that on the morning of April 13, 1938, they found a lock on the door to the warehouse had been broken and certain drums or containers of oil, gasoline and grease had been taken from the warehouse. Walter Kimzey, one of the original codefendants, testified that on the night of April 12, 1938, accompanied by Buck Hughes and the defendant O’Neal, the party of three went to. an oil rig located about two miles northwest of the home of the defendant, and there they' got some wrenches and an empty barrel; they then went to the Griffin lease across the line in Chautauqua county, where they got a barrel of oil and a belt; that they then returned to the home of the defendant and unloaded the property they had gathered up; that they then went to the county warehouse where they got out. of the building the gasoline, oil and grease described in the information; that the defendant was present and helped load the material; that they then drove to a pasture south of Longton, where the property was unloaded and where it was subsequently found. The testimony of Buck Hughes was in substance the same as the testimony of Kimzey. When asked how much motor oil they got he stated: “I don’t know. It all spilled out before we got home. I don’t know how much.” Ben Carter, sheriff of Elk county, testified that he went to the warehouse on April 13,1939, to make an investigation. He testified: “Q. Tell us what investigation you made when you got there. A. I went down there and went out to the warehouse and when I got there there was a latch on the door and there had been a staple through there and this hasp had been fastened over this staple and there had been a padlock in the door, and the lock was laying on the ground. It was still locked, but the staple was out of the door where it was fastened. “Q. Was the door open? A. The door was open. “Q. Where did you go from there? A. I looked around there and we found some car tracks. These tracks was kind of truck tracks and they was All-State tires and knobby tires, and on the left rear wheel the tread was wore off pretty bad, and the tire on the right wheel was in pretty good shape and it made a good track, and the left wheel on this truck had a wobble in it, and didn’t run true. We left there and went to Longton. A road leads over east, and when I came to the road I found the tracks going east, and I went down there and these tracks east was knobby tires also, but they was new, and I didn’t follow them any further, and turned and came back to the road. But when I was following these tire tracks every once in a while when you would come to a little hill there would be oil dropped out of the back end on the ground, and when I went over east there was no oil, and it was a different track, because it was a better tread on them. I went south up over the Jones hill and there was quite a bit of oil along the hill. It’s a rather steep hill and the oil had run out rather freely going up. And on south of this road leads to a road down about a mile north of the county line, probably half a mile, and a road goes east and west, and the north-and-south road has a little bend in it around over a culvert, and when they came to these four comers I suppose they had stopped, but a puddle of oil run out about as big as a man’s hat. It looked like they had stopped there. I went on south and 1 couldn’t find no tracks any further south and I came back and went east, arid I found where the car had went east, and I came on back and I didn’t follow it only about a mile, I think, east, and I came back, and I went to Melvin O’Neal’s house, and this car track had went in his di’iveway there. He wasn’t home. His wife wasn’t home. I went from there to Kimzey’s and this car track had gone into Kimzey’s yard. He lives on this road north and south, and O’Neal is about half a mile south of Kimzey and about three-quarters of a mile west, and I found these tracks leading into both places, and I went over south into Chautauqua county and I looked around down there, but I couldn’t find no tracks south and I came back and come home. That- was on the 13th day of April, 1938. “Q. Mr. Carter, this place where you say there was quite a spot of oil on the ground, that is a crossroad, is it not? A. Yes, sir. . “Q. A road running north and south and one east and west? A. Yes, sir. “Q. And that is about how far west of the Cove schoolhouse? A. About a mile east of the Cove schoolhouse. “Q. From that crossroad how far is it and what direction to O’Neal’s house? A. It’s about three-quarters of a mile west to where Melvin O’Neal lives. “Q. You saw this track going into this place? A. Yes, in his driveway, and turned around by the house.” On the following day the sheriff went to the home of Walter Kimzey and found Kimzey and the defendant O’Neal sitting in O’Neal’s car in the yard. Shortly after he arrived, O’Neal backed his car out and drove away. The sheriff further testified: “A. The truck corresponded with the tracks and the tires was All-State tires, knobby tread on the two rear wheels and the right rear wheel was in good shape, and on the left it was pretty well worn, and the truck had grease all over it, and there was grease on the hind wheels and in the bed and on the differential like it had went down through the truck dripping out. “Q. Did you observe the track the truck made in the yard? A. Yes, sir; it made the same kind of track I had been following all the time. “Q. And the same land as the one in which O’Neal drove away? A. Yes, sir.” The sheriff testified that Kimzey and Hughes told him where the property taken from the warehouse was cached, and that such property was found at the place so described. Defendant contends the evidence admitted as to the offenses committed in Chautauqua county for which he was not on trial was prejudicial to him and might have been the basis for the verdict returned. In State v. Adams, 20 Kan. 311, the defendant was charged with the crime of burglary, and alleged the court erred in admitting evidence which tended to show the defendant guilty of a separate unrelated crime. The court said: “The rule of law applicable to questions of this kind is well settled. It is clear that the commission of one offense cannot be proven on the trial of a party for another, merely for the purpose of inducing the jury to believe that he is guilty of the latter, because he committed the former. You cannot prejudice a defendant before a jury by proof of general bad character, or particular acts of crime other than the one for which he is being tried. And on the other hand, it is equally clear, that whatever testimony tends directly to show the defendant guilty of the crime charged, is competent, although it also tends to show him guilty of another and distinct offense. (The State v. Folwell, 14 Kan. 105.) A party cannot, by multiplying his crimes, dimmish the volume of competent testimony against him. A man may commit half a dozen distinct crimes, and the same facts, or some of them, may tend directly to prove his guilt of all; and on the trial for any one of such crimes it is-no objection to the competency of such facts, as testimony, that they also tend to prove his guilt of the others. By this rule, whatever is done in preparation for a crime, or in concealing the fruits, is competent, although in such preparation or concealment is committed another and distinct offense. . . .” (p. 319.) In State v. King, 111 Kan. 140, 206 Pac. 883, the admissibility of evidence touching separate crimes perpetrated by a defendant on trial for a specified offense was considered and the authorities reviewed. It was there said: “The ordinary rule, of course, is that evidence of extraneous crimes is not admissible. But to that rule there are many well-recognized exceptions which are as potent as the rule itself. Any pertinent fact which throws light upon the subject under judicial consideration — the accused’s guilt or innocence of the crime for which he is charged and on trial — -is admissible; nor is such probative fact to be excluded merely because it may also prove or tend to prove that the accused has committed another crime or many crimes. . (p. 144.) The testimony was clearly admissible. The defendant with his confederates had engaged in a series of depredations immediately preceding the commission of the crime charged. At the first stop— an oil rig two miles northwest of the home of defendant — wrenches were secured. As the lock on the door of the warehouse was broken, it is a fair inference the wrenches were secured in preparation for breaking and entering the warehouse. The evidence revealed a preexisting design and plan to steal oil and gasoline, and the empty barrel secured at the time the wrenches were taken was further evidence of preparation to carry out such plan and design. The evidence was also admissible to repel the defense of an alibi interposed by defendant. The various raids were so closely related in point of time as almost to amount to inseparable acts, and clearly disproved the contention of defendant that he was elsewhere at the time. It is also contended that the verdict is based on the uncorroborated testimony of the accomplices, Kimzey and Hughes, and therefore a new trial should be granted. The answer to this assertion is found in the testimony of the sheriff. By following the knobby tracks of the tires used on the truck and the oil drippings, the officer was led from the warehouse to the home of the defendant — and the truck when found was smeared with oil and grease. We see no merit in this contention. Moreover, in this jurisdiction the uncorroborated testimony of an accomplice in a crime, if otherwise sufficient and given full credence by the jury, will sustain a verdict of guilty. (State v. Carter, 148 Kan. 472, 83 P. 2d 689; State v. McIntyre, 132 Kan. 43, 48, 294 Pac. 865. See, also, 4 Wigmore on Evidence, §§ 2056, 2057; State v. Carey, 76 Conn. 342, 56 Atl. 632.) Finding no error in the record, the judgment must be affirmed. It is so ordered.

The opinion of the court was delivered by Thiele, J.: Plaintiff brought an action to recover damages from the state highway commission. The trial court sustained a demurrer to her petition and she appeals to this court. The question presented is whether a particular highway was defective within the meaning of G. S. 1935, 68-419, and the petition will be reviewed in view of that question. It was alleged that about one-half mile west of Augusta, Kan., U. S. Highway No. 54, hereafter called the highway, which there runs east and west and is under the control and supervision of the defendant, is intersected by a township road running north and south which is hereafter referred to as the township road; that to the east of the township road and running north from the highway for a distance of one and one-half miles is a dike constructed by the city of Augusta with full knowledge of the defendant and by joint action between them; that the dike created a dangerous defect and obstruction in the highway; that the dike was erected at a height of approximately fifteen feet above the surface of the township road, extended north from the shoulders of the highway and completely blocked the vision of drivers of automobiles on the township road approaching the highway from the north as to cars coming from the east on the highway; that the defendant further created a defect in the township road by erecting a stop sign at least seventy feet north of the highway on the west side of the township road instead of placing the sign on the north side of the highway; that on October 17,1937, plaintiff was riding south on the township road in an automobile driven by another person, who stopped at the stop sign some seventy feet north of the highway and then proceeded south on the township road at about ten miles per hour until the highway was reached, when speed was reduced; that vision of the driver to the east was obstructed by the dike; that when the automobile in which plaintiff was riding was driven upon the highway it was struck by a car being driven from the east to the west along the highway, and in the collision plaintiff received injuries for which she sought damages. We also note the allegations that since the accident the stop sign has been moved to the intersection of the township road and the highway; that the driver of plaintiff’s car stopped at the sign as originally placed and assumed it was not necessary that she stop thereafter because of failure of the defendant to erect a stop sign in the highway; that claim was timely made to the defendant and by it refused and denied. As has been stated, the trial court sustained a demurrer to this petition on the ground it did not state facts sufficient to constitute a cause of action. The defendant’s liability, if any, is by reason of G. S. 1935, 68-419, and it has no liability under that statute unless by reason of a defect in a state highway, and the question whether an alleged defect is within the statute is a question of law. (See Douglas v. State Highway Comm., 142 Kan. 222, 46 P. 2d 890, and Phillips v. State Highway Comm., 146 Kan. 112, 68 P. 2d 1087, and cases cited.) The plaintiff alleges the highway was defective because pursuant to a contract between the city of Augusta and the defendant a dike was erected parallel to a township road which intersected the highway at right angles, the effect of which was to cut off vision in one direction of a driver on the township road. We fail to see where that constituted a defect any more than if the highway commission had erected one of its tool sheds on lands adjacent to the intersection, nor any more than if the township had erected a township hall at the same location. The dike complained of was not in the highway nor any part of it. It ceased at the north edge of the highway. There is no allegation of any fact with respect to the dike that states it impeded traffic on the highway in any manner. A very similar question was before this court in Bohm v. Racette, 118 Kan. 670, 236 Pac. 811, 2 A. L. R. 571. There a certain tract had large hedges along the north and west sides. Plaintiff’s intestate was driving west on a road to the north of the above tract and collided with a car coming north on a road to the west and plaintiff sought recovery, among others, from the county and the township on the theory the hedges constituted defects in the highway. In another case growing out of the same accident, one of the passengers in the plaintiff’s car sought recovery. Demurrers were sustained to the petitions, and on appeal were disposed of together, this court saying: “Plaintiffs argue that the high hedge was a defect in the highway within the meaning of that statute. With that argument the court cannot agree. The hedge was no part of the highway. So far as the highway was concerned, if did not matter whether there was a hedge there or not. It may have been big or little, and the highway be in perfect condition. The petitions allege that the highway was in good condition. A defect in a highway is something that interferes with movement over it. Roads in good condition made dangerous by something on the sides of them are not for that reason defective within the meaning of the statute on which the plaintiffs rely. Counties and townships are liable, under certain conditions, for defects in highways, but not for dangerous conditions that exist on the sides of them.” (p. 672.) Under the reasoning of that case, which we approve, the presence of the dike did not constitute a defect in the highway. Plaintiff further contends that the stop sign being placed on the township road seventy feet from the state highway constituted a defect. A similar contention was made in Phillips v. State Highway Comm., 146 Kan. 112, 115, 68 P. 2d 1087, on rehearing 148 Kan. 702, 84 P. 2d 927, and was not sustained. The present statute, G. S. 1937 Supp., 8-511, does not make it obligatory that any stop sign be placed at intersections such as are here described. We have examined the cases cited by appellant in her brief. No good purpose would be served by distinguishing the facts in them from the case now before us. None of them supports the contention that the situation disclosed by the petition constituted a defect in the state highway. The above disposes of the appeal and we shall not discuss appellee’s contention that the defect, if any, was not the proximate cause of the accident. The judgment of the trial court is affirmed.

The opinion of the court was delivered by Wedell, J.: This was an action by a beneficiary, widow of the insured, to recover on a life insurance policy. Judgment went for plaintiff, and the insurance company appeals. The action was tried by the court, and it made findings of fact and conclusions of law. Defendant complained concerning the last-sentence contained in finding number eight, to be quoted presently, of the court’s refusal to make findings requested by it and objected to all conclusions of law. Appellant’s principal contentions are, first, the policy was not in force on the date of the insured’s death, and second, the action was barred under the provisions of G. S. 1935, 40-412. The policy was issued for the sum of $2,500. It was a twenty-year policy and was issued on January 14, 1920. It provided for payment of premiums annually, semiannually or quarterly. ,The annual premium was $129.83. The quarterly premium was $32.43. Insured had made premium payments for a number of years prior to the year 1937, under the “cash or loan value” provision of the policy. In this manner the premiums were fully paid to the quarterly period of the year 1937, ending on April 14, 1937. The trouble began with the premium due April 14, 1937. Material facts pertaining to the following subjects, to wit, the status of the policy as to loan value, the contents of the notice to insured as to loan value, the grace period, date of notice of intention to forfeit or cancel the policy for nonpayment of premium; a check mailed to the insurer on June 30, 1937, and the response of the company to that check, are all covered in chronological order in the findings of fact. In order, however, that the reader may have before him the conclusions of law made by the court, while analyzing the facts, we shall state those conclusions now. They were: “1. The notice of intention to cancel said policy deposited in the mail box in front of the office on May 14, 1937, was insufficient and inadequate in form to cancel said policy. “2. Said notice of intention to cancel was prematurely sent. "3. Said policy had not been canceled and was in force and effect at the time insurer received the check for $184.51, which paid premium and interest due and renewed said policy until January 14, 1938. “4. Said policy of insurance was in force and effect on the date of the death of insured on December 6, 1937. “5. Plaintiff is entitled to judgment against defendant for $2,500 and interest, less the amount or amounts due insurer on said loan or loans.” For the purpose of this appeal, it is sufficient to begin with those findings which narrate the facts, beginning with the year 1937. Those findings were: “3. . . . The premium due upon said policy January 14, 1937, and the interest due on said date were not paid within the grace period. The loan value of said policy at said date was not sufficient to pay an annual premium and interest on said loan, so that an automatic loan was applied to cover a quarterly premium due January 14, 1937, amounting to $32.43, together with interest on the policy loan from January 14, 1937, to January 14, 1938, in the sum of $68.22 increasing the loan from $1,036.30 to $1,196.95. The premium due on said policy April 14, 1937, was not paid. The cash value of said policy on April 14, 1937, if there had been no loans against it would have been $1,105. The insured was entitled to a refund of unearned policy loan interest of $51.16. This refund of unearned interest reduced the indebtedness from $1,136.95 to $1,085.79 as of April 14, 1937, which left a cash value of said policy in the sum of $19.81, which was not sufficient to pay the quarterly premium due April 14, 19S7, and the interest upon said loan for that quarterly period. “4. The policyholder was notified of each loan against said policy each time an automatic loan was made. “5. Upon May 14, 1937, the defendant duly deposited ‘in the mail box in front of the offipe,’ at Concord, N. H., a notice properly addressed to the policyholder, postage prepaid, which said notice reads as follows: ‘To Albert A. Shelton, 205 S. Santa Fe St., Salina, Kan. Being the insured under Policy No. 11006, issued by the United Life and Accident Insurance Company, said policy providing for a period of grace of thirty-one days for the payment of premiums and containing provisions for cancellation or forfeiture in case of nonpayment of premiums at the end of such period. Notice is hereby given that on April 14, 1937, a premium of $32.43 will fall due on said policy; and of the intention of said company to forfeit or cancel said policy if such premium be not paid within the period of grace provided in the policy. United Life and Accident Insurance Company.’ “6. Letters mailed at Concord, N. H., addressed to Salina, Kan., consume three full days for transportation by United States mail. “7. Said notice of intention to cancel said policy of insurance mailed at Concord, N. H., on the afternoon of May 14, 1937, did not arrive at Salina, Kan., earlier than May 17, 1937. “8. During and after May, 1937, Albert A. Shelton, insured, was in ill health and from then until his death was confined almost constantly to his room or home. During all of that time his wife, beneficiary in said policy, and plaintiff herein, received, opened and answered his mail for him. She testified, and the court so finds, that said notice deposited ‘In the mail box in front of the office’ on May 14, 1937, was not received by insured, or by her. “9. On June 29, 1937, insuror mailed a letter to insured, which read as follows: “ ‘June 29, 1937. “ ‘Mr. Albert A. Shelton, 205 S. Santa Fe street, Salina, Kansas: Policy 11,006 — $2,500. “ ‘Dear Mr. Shei/ton — Notice is hereby given that your policy ceased to be in force because of your failure to pay the premium due April 14. “ ‘At the time of default there was charged against your policy a total outstanding indebtedness of $1,136.95 which was in excess of the value of the available automatic nonforfeiture option. “ ‘We genuinely regret that after continuing your policy for over seventeen years you permitted it to lapse at a time when we may assume your need for it is greater than when the poliey'was first taken out. “‘You will be glad to know that on approval of your application for reinstatement and a payment of $67.87 your policy will be reinstated and the premiums paid up to January 14, 1938. “ ‘If you wish to take advantage of this option kindly sign the enclosed loan agreement and have a competent physician fill out the enclosed reinstatement blank. Return these completed papers with your policy and remittance of $67.87. “ ‘If the state of your insurability is still satisfactory to the company your policy will be reinstated promptly, subject to the indebtedness as stated in the loan agreement. “ ‘We trust that you will take advantage of the assistance we are able to extend you to retain your insurance in force. Make sure that when you die your life insurance policy is alive. Yours truly, HMF’ Supervisor.’ “10. On June 80, 1987, and before said letter dated June 29, 1987, was received by insured, his wife, Cora W. Shelton, for and on his behalf forwarded and sent a check payable to insuror for $184.51, drawn on the Farmers National Bank of Salina, Kan., and covering the premium on said policy for one year, and the interest on the loan made as aforesaid, as per the notice or statement sent insured during January, 1937. No objection as to the form of payment or offer to pay is or has been made or was made by insuror, and it has been stipulated by the parties at the trial of this case that at all times on and after June 80, 1987, sufficient) money to pay said, check has been on deposit in the Farmers National Bank of Salina, Kansas, if and when presented for payment, and that same would have been paid if presented for payment by insuror. “11. Thereafter on July 8, 1937, insuror mailed a letter to insured which letter was received by insured and reads as follows: “ ‘July 8, 1937. “ ‘Mr. Albert A. Shelton, 205 So. Santa Fe street, Salina, Kan.: Policy 11,006. “ ‘Deak Mr. Shelton — Thank you very much for your check for $184.51 which you mailed with the notice of the premium due January 14, amounting to $122.33 annually, and $62.18 loan interest. “ ‘This is the amount due on January 14,1937. However, on March 30, 1937, upon nonpayment of this premium an automatic premium loan was applied to cover loan interest of $68.22, which was unpaid due January 14, and a quarterly premium due January 14, 1937, of $32.43, making a total loan of $1,136.95. Loan interest on this increased loan was deducted to January 14, 1938, and your policy showed premiums paid to April 14, 1937. Upon nonpayment of the premium due April 14, the policy ceased to be in force, and you have no doubt received our letter dated June 29 informing you that your policy had terminated and outlining a plan to enable you to apply for reinstatement. “ ‘Upon receipt of your check for $184.51 which we cannot, of course, accept until your policy is approved for reinstatement, we credited this amount to our suspense account pending receipt of an application for reinstatement completed by a physician. We are enclosing another reinstatement form in case you have misplaced the one mailed you in our letter of June 29. Upon receipt of this reinstatement form properly completed we would suggest that you write us authorizing us to apply the amount which we hold in our suspense account as follows: $32.43 to cover the quarterly premium due April 14, 1937, 49c interest on the overdue premium, $63.60 to cover the semiannual premium due July 14, 1937, provided of course your policy is approved for reinstatement and the balance of $87.99 be applied to reduce the loan charged against your policy. We hope you will return the reinstatement form as promptly as possible and let us know if our suggestion regarding application of the check which we hold in our suspense account pending reinstatement of your policy meets with your approval, at which time the policy will receive immediate consideration for reinstatement. “ ‘Very truly yours, HTR:MER’ Supervisor.’ “12. The court further finds that said check for $184.51 was not cashed by insuror and was not placed in its suspense account as stated in its letter of July 8, 1987, but was in fact held by it in its original condition, and was returned to insured, being enclosed with its letter to the insured dated August 5, 1937, the pertinent part of which letter, dated August 5, 1937, read as follows: “ ‘As we cannot accept your check dated June 30 for $184.51, we are returning it to you with this letter representing refund of the amount received after your policy lapsed.’ “13. On December 6, 1937, insured, Albert A. Shelton, died, and proof of death of the insured and claim and demand for payment was made on defendant herein on or before January 7, 1938, and payment refused. “14. The petition and praecipe for summons were filed in this case on January 20, 1938, and service of summons was had upon the commissioner of insurance at Topeka, Kan., on January 22, 1938, at 9 o’clock a. m. “15. In her petition plaintiff renewed her tender of payment of said $184.51 and at the trial of this case paid said sum into court for the benefit of defendant.” (Italics ours.) The grace period for payment of premiums was thirty-one days. In the automatic.nonforfeiture clause was contained this provision: “. . . When the total indebtedness to the company hereon shall equal or exceed the loan value, this policy shall be void thirty-one days after notice shall have been mailed to the last-known address of the insured and the assignee of record, if any, unless during such period the indebtedness shall be reduced to an amount not exceeding the loan value.” The “cash loans” clause, however, contains an additional requirement as to notice. It reads: “After three full annual premiums have been paid, the company will at any time advance upon this policy the amount of its then cash surrender value, less all indebtedness upon this policy and interest thereon, the same to bear interest at the rate of six percent per annum, payable annually in advance; provided that failure to repay any advance, whether made in cash or in payment of premiums, or to pay interest shall not avoid the policy until thirty-one days after notice shall have been mailed to the last-known address of the insured and the assignee of record, if any, that the total indebtedness thereon to the company equals or exceeds the loan value.” (Italics ours.) The parties have fully treated the following questions: Did the notice of May 14, 1937 (see finding No. 5), which sought to advise the insured “that on April 14, 1937, a premium of $32.43 will fall due on said policy,” conform to the statute governing notice of intention to forfeit, which was in force at the time the policy contract was made and which it is agreed was section 2, chapter 212, Laws of 1913. It provided: “Before any such cancellation or forfeiture can be made for the nonpayment of any such premium the insurance company shall notify the holder of any such policy that the premium thereon, stating the amount thereof, is due and unpaid, and of its intention to forfeit or cancel the same, and such policyholder shall have the right, at any time within thirty days, after such notice has been duly deposited in the post office, postage prepaid, and addressed to such policyholder to the address last known by such company, in which to pay such premium; and any attempt on the part of'such insurance company to cancel or forfeit any such policy without the notice herein provided for shall be null and void. The affidavit of any responsible officer, clerk or agent of the corporation, authorized to mail such notice, that the notice required by this section has been duly addressed and mailed by the corporation issuing such policy shall be prima facie evidence that such notice has been duly given.” (Italics ours.) Did the depositing of the notice “in the mail box in front of the office” of the insurance company, comply with the above statutory requirement that the notice be deposited in the post office; was the affidavit made in compliance with the above statute sufficient to prove that notice of. intention to forfeit had been duly given where the oral testimony of the insurer’s witness disclosed the notice had been deposited in the mail box in front of its office, and that the notice had not been returned to its file as “uncalled-for mail,” and where appellee in charge of her husband’s mail during the period of his illness testified, and the court believed, that the notice had not been received by the insured or by appellee (see finding No. 8); was the cash loan provision applicable to the subject of notice of intention to forfeit, and if so, did the notice of May 14, 1937, comply with that provision; was the notice of May 14, 1937, of insurer’s intent to forfeit, premature; was the policy in force on the date of insured’s death? All questions' presented become secondary to the last one stated. If the policy was never effectually terminated then the policy was not void on the date of the insured’s death. The grace period was thirty-one days. The insured, therefore, had thirty-one days after April 14, within which to pay the premium and could have paid it on May 15, 1937. That was his vested right under the terms of the policy contract. The notice of intention to forfeit, assuming for the moment it was sufficient in content and that the affidavit concerning the giving of notice complied with that portion of the statute, was given during the grace period and was, therefore, premature and did not effectuate a forfeiture of the policy. (Pedersen v. United Life Ins. Co., 139 Kan. 695, 697, 33 P. 2d 297; Sebal v. Columbian Nat. Life Ins. Co., 144 Kan. 266, 268, 58 P. 2d 1108, and numerous cases therein cited.) The letter of June 29, 1937, from appellant to insured, does not constitute, and was not intended to constitute, a notice of intention to forfeit if the premium was not paid. (See finding No. 9.) That letter stated the policy ceased to be in force by reason of failure to pay the premium due on April 14, 1937. But appellant could not have forfeited the policy under section 2, chapter 212, Laws of 1913, heretofore quoted, before thirty days had elapsed after the insured, under a valid notice, had been notified of the insurer’s intent to forfeit. No valid notice of such intention was ever given. The check of the insured in the sum of $184.51 was mailed June 30, and was received by appellant prior to July 8, 1937. The stipulation admits the check was good. (See findings No. 10.) The policy was never forfeited and was in force on the death of the insured. Since the notice of May 14 was prematurely given, it is unnecessary to consider its insufficiency on any of the grounds alleged or whether the manner of mailing constituted notice under the statute. Appellant contends the action was barred under the provisions of G. S. 1935, 40-412, which reads: “No action shall be maintained upon or in respect to any contract of life insurance heretofore or hereafter made, upon which any premium shall remain unpaid after expiration of the period specified in the policy for the payment of such premium, for the enforcement of any right under such contract which is by the terms of the policy conditioned upon the payment of such premium, or which is by the terms of the policy subject to termination or cancellation for failure to pay such premium, unless such action, or an action to reinstate such policy as a premium-paying policy, shall be commenced within six months after the expiration of the period specified in the policy for the payment of the premium so remaining unpaid in cases of failure to pay which may hereafter occur, or within six months from the date hereof in cases of failure to pay which have heretofore occurred.’’ It is true, the policy on its face did not contain a provision for a thirty-day notice of intention to forfeit. But that, in legal contemplation, was not the entire policy. The 1913 statute requiring such a notice was in effect on the date this policy was issued. The policy, of course, could not be written in derogation of that statute. The statute prescribed the manner in which the policy could be terminated, and it gave insured thirty days after a valid notice of intention to forfeit within which to pay the premium. That statutory requirement was a part of the policy as much as though it were expressly incorporated therein. (Reynolds v. Insurance Co., 105 Kan. 669, 675, 185 Pac. 1051; Cunningham v. Insurance Co., 106 Kan. 631, 189 Pac. 158; Bank Savings Life Ins. Co. v. Baker, 120 Kan. 756, 244 Pac. 862; Sebal v. Columbian Nat. Life Ins. Co., 144 Kan. 266, 268, 58 P. 2d 1108.) No valid notice of intention to forfeit was given and the premium, therefore, did not remain unpaid after the expiration of the period specified in the policy and the action was brought in time under the limitation prescribed in G. S. 1935, 40-412. Moreover, this is not an action by the insured to enforce some right he might have had under the policy, but is an action by the beneficiary. It has been held an action on the policy by the beneficiary is governed by the limitations provided by the civil code and not by G. S. 1935, 40-412, of the insurance code. (Pedersen v. United Life Ins. Co., 139 Kan. 695, 33 P. 2d 297.) The judgment is affirmed.

The opinion of the court was delivered by Dawson, C. J.: Plaintiff’s husband, a motorbus mechanic, died by inhaling carbon monoxide fumes emitted from defendants’ interstate motorbus while he was lying beneath the bus and repairing it in defendants’ car shop in Wichita. Instead of making a claim of compensation under the workmen’s compensation act in behalf of herself and children, plaintiff brought this action for damages, alleging that defendants were engaged in interstate commerce, to wit, the transportation of passengers and freight in and through the states of Kansas, Missouri, Oklahoma and Colorado; and that they had failed and neglected to equip their repair shop with suitable safety appliances to carry off noxious gases, thereby violating the federal employers’ liability act, and causing the death of plaintiff’s husband, and that defendants were consequently liable to her in damages. The trial court sustained defendants’ demurrer to plaintiff’s amended petition, and she appeals. The statute under which plaintiff sought to subject defendants to liability reads, in part, thus: “Every common carrier by railroad while engaging in commerce between any of the several states or territories, . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” (45 U. S. C. A. 92, § 51.) Can it be said that this statute governs the liability of other interstate carriers than railroads? The United States supreme court has answered that question in the negative. In Robinson v. Balt. & Ohio R. R., 237 U. S. 84, the plaintiff, an employee of the Pullman Company, sustained injuries while engaged in its service and while defendants’ sleeping car was part of an interstate railroad train belonging to and operated by the Baltimore and Ohio Railroad Company. He sought, unsuccessfully, to subject the railroad company to liability under the statute quoted above. While the court’s chief concern in that case was centered on the contractual relationship of plaintiff and his immediate employer, and between it and the railroad company, in the opinion we find the following significant language: “We are of the opinion that congress used the words ‘employee’ and ‘employed’ in the statute in their natural sense, and intended to describe the conventional relation of emplo3>-er and employee.” In Wells Fargo & Co. v. Taylor, 254 U. S. 175, the plaintiff, an employee of an interstate express company, sustained injuries when its express car was derailed while moving as part of an interstate railway train. He sought to subject his employer to liability under the provisions of the federal employers’ liability act. As in the Pullman employee’s case, cited above, the supreme court considered at length the contractual relationship of the express company to the railway company, and of the plaintiff’s relationship to each of them. His contention that his employer, the express company, was liable to him under the federal employers’ liability act was not sustained. The circuit court of appeals had held that the express company was a “common carrier by railroad” within the meaning of the employers’ liability act of April 22, 1908, c. 149, 35 Stat. 65. The supreme court’s opinion, in part, reads: “The act provides that ‘every common carrier by railroad’ shall be liable in damages for the injury or death of any of its employees occurring while it is engaged and he is employed in interstate commerce and resulting in whole or in part from the negligence of any of its officers, agents, or employees, or from any defect or insufficiency, due to its negligence, ‘in its cars, engines, appliances, machinery, track, roadbed,’ etc.; ... As respects the express company, it appears not merely that Taylor was in its employ, but also that the injuries were received while it was engaged and he was employed in interstate commerce; and so the question is presented whether the act embraces a common carrier by express which neither owns nor operates a railroad, but uses and pays for railroad transportation in the manner before shown. The district court answered the question in the negative and the circuit court of appeals in the affirmative. A negative answer also has been given in a like situation by the court of errors and appeals of New Jersey, Higgins v. Erie R. R. Co., 89 N. J. L. 629; and a recent decision by the supreme court of Minnesota makes persuasively for that view. State, ex rel. Great Northern Expess Co., v. District Court, 142 Minnesota, 410. In our opinion the words ‘common carrier by railroad,’ as used in the act, mean one who operates a railroad as a means of carrying for the public — that is to say, a railroad company acting as a common carrier. This view not only is in accord with the ordinary acceptation of the words, but is enforced by the mention of cars, engines, track, roadbed and other property pertaining to a going railroad (see Southern Pacific Co. v. Jensen, 244 U. S. 205, 212-213); by the obvious reference in the latter part of §§ 3 and 4 to statutes requiring engines and cars to be equipped with automatic couplers, standard drawbars and other appliances intended to promote the safety of railroad employees (see San Antonio & Aransas Pass Ry. Co. v. Wagner, 241 U. S. 476, 484); by the use of similar -words in closely related acts which apply only to carriers operating railroads, c. 196, 27 Stat. 531; c. 225, 35 Stat. 476; c. 208, 36 Stat. 350, and by the fact that similar words in the original interstate commerce act had been construed as including carriers operating railroads, but not express companies doing business as here shown. 1 I. C. C. 349; United States v. Morsman, 42 Fed. Rep. 448; Southern Indiana Express Co. v. United States Express Co., 88 Fed. Rep. 659, 662; s. c. 92 Fed. Rep. 1022. And see American Express Co. v. United States, 212 U. S. 522, 531, 534. “As Taylor was not an employee of the railroad company and the express company was not within the employers’ liability act, it follows that the act has no bearing on the liability of either company or on the validity of the messenger’s agreement.” (pp. 186, 187.) In United States v. Interstate Commerce Commission, 288 Fed. 649, the question before the court of appeals of the District of Columbia was whether a refrigerator car company was a “carrier by railroad” under the transportation act of 1920. Its cars moved regularly in interstate railway freight trains. In answering that question in the negative, the court quoted from Wells Fargo & Co. v. Taylor, supra. This judgment was affirmed in Chicago Refrigerator Co. v. I. C. C., 265 U. S. 292, where Mr. Justice Sutherland, speaking for the court, said: “If the car company is a carrier by railroad, it would seem to follow that sleeping car companies and express companies are likewise included within the words. Evidently, however, congress did not think so, since § 209 of the act contains special provisions in respect of these companies, which would have been entirely unnecessary if they had been so included. The contention that the car company, if not a carrier by railroad, is a ‘system of transportation’ and hence within the words of the statutory definition, may be readily disposed of. The phrase forms part of the definition: ‘a carrier by railroad or partly by railroad and partly by water, whose railroad or system of transportation is under federal control,’ etc. It is plain that the words ‘whose railroad or system of transportation,’ etc., are not to be read independently, but as qualifying the language immediately preceding; and they are to be taken distributively as though the clause had read ‘a carrier by railroad, whose railroad is under federal control, or, a carrier partly by railroad and partly by water, whose system of transportation is under federal control.” (p. 297.) It is argued, however, that the federal motor-carrier act of 1935, whereby the authority of the federal government was extended over the business of motor carriers engaged in interstate commerce, had the legal effect of subjecting that business to all the regulations theretofore imposed on railroads engaged in such commerce. On the contrary, the act of 1935 declares its purposes thus: “(a) It is hereby declared to be the policy of congress to regulate transportation by motor carriers in such manner as to recognize and preserve the inherent advantages of, and foster sound economic conditions in, such transportation and among such carriers in the public interest; promote adequate, economical, and efficient service by motor carriers, and reasonable charges therefor, without unjust discriminations, undue preferences or advantages, and unfair or destructive competitive practices; improve the relations between, and coordinate transportation by ' and regulation of, motor carriers and other earners; develop and preserve a highway transportation system properly adapted to the needs of the commerce of the United States and of the national defense; and cooperate with the several states and the duly authorized officials thereof and with any organization of motor carriers in the administration and enforcement of this chapter. “(b) The provisions of this chapter apply to the transportation of passengers or property by motor carriers engaged in interstate or foreign commerce and to the procurement of and the provision of facilities for such transportation, and the regulation of such transportation, and of the procurement thereof, and the provision of facilities therefor, is hereby vested in the Interstate Commerce Commission. “(c) Nothing in this chapter shall be construed to affect the powers of taxation of the several states or to authorize a motor carrier to do an intrastate business on the highways of any state, or to interfere with the exclusive exercise by each state of the power of regulation of intrastate commerce by motor carriers on the highways thereof.” (49 U. S. C. A., p. 70, § 302.) The purposes and policy of congress being thus avowed and thus limited, this court cannot approve appellant’s argument that by this statute congress impliedly imposed on interstate motorbus carriers all the liabilities theretofore laid on interstate railroads, including the federal employers’ liability act. If or when congress deems it proper to impose all such liabilities on interstate motorbus carriers, or on interstate airplane carriers, or on any other new modes of interstate transportation as they appear, it will amend the statute of 1908 by express legislation, and will not rely on diffusive and debatable interpretations of existing statutes to accomplish its purpose. Such in effect was the conclusion of the supreme court of Wyoming in Baldwin, State Treasurer, v. Byrne (Wyo. not yet officially reported), 86 P. 2d 1095. In that case a driver of a motor truck who resided in Wyoming was killed in a highway accident in Colorado while engaged in interstate commerce in his employer’s service. The controlling question in the case was whether his widow was entitled to compensation under the Wyoming statute and incidentally whether the local workmen’s compensation act as applied to her case had been superseded by the enactment of the federal statute of 1935. The Wyoming supreme court said: “Finally, it is argued for appellant that the accident and death involved occurred in interstate commerce, . . . While it is clear that the national congress has legislated in regard, to some phases of motor-carrier transportation, our attention is not directed by counsel to any provisions of the motor-carrier act which specifically cover or even trench upon the field occupied by the AVyoming workmen’s compensation act.” (p. 1102.) In State, ex rel. Wash. Motor Coach Co., v. Kelly, 192 Wash. 394, 74 P. 2d 16, proceedings in mandamus were instituted to determine whether industrial insurance premiums tendered by a motor-coach company engaged in interstate commerce, and by other relators, shoúld be accepted. The state officer, Kelly, whose duty it was to handle the premiums and to administer those lawfully collected, took the position on advice of counsel (presumably to procure a speedy and authoritative decision on the question) that the federal motor-transportation act of 1935 completely preempted the whole field of interstate commerce by motor transportation to the exclusion of any right in the state to legislate upon any phase of the subject. In its opinion the court set out the pertinent section of the federal employers’ liability act (as we have done above), and said: “There is nothing in this declaration nor in the act itself remotely suggesting a purpose to regulate the liability of employers engaged in this type of interstate commerce to their employees.” (p. 403.) In our own analogous case of Stark v. Wilson, Receiver, 114 Kan. 459, 219 Pac. 509, we held that where a conductor of a streetcar engaged in interstate commerce between Kansas City, Kan., and Kansas City, Mo., was killed in the line of duty his family’s right to compensation was founded on the workmen’s compensation act and not on the federal employers’ liability act. The judgment is affirmed.

The opinion of the court was delivered by Greene, J.: F. O. Rucker, while attempting to cross the Atchison, Topeka & Santa Fe Railway Company’s track at a public crossing in Butler county, between six and seven o’clock P. M., on December 17, 1904, was struck by a passenger-engine and killed. This action was brought by V. A. Osburn, as administrator of Rucker’s estate, to recover damages for his death. The jury returned a general verdict in favor of the plaintiff for $8000, and also returned special findings. The plaintiff moved for judgment on the gen eral yerdict and special findings, and the defendant moved for judgment on the special findings notwithstanding the general verdict. The cpurt denied the plaintiff’s motion, and allowed the defendant’s motion, set aside the general verdict and entered judgment on the special findings for the defendant. The plaintiff prosecutes this proceeding in error. Neither party filed a motion for a new trial. Many acts of negligence were charged in the petition, but the court withdrew all of them from the consideration of the jury except the following: “That the defendant, its agents and employees carelessly and negligently used an engine drawing said train that was defective and out of repair and was leaking steam, and was supplied with a defective and poor and inefficient headlight. “That the defendant failed to erect or maintain at said crossing an automatic or electric alarm-bell or any alarm, bell or other method of warning persons using said crossing of the approach of trains.”, A trial court has a very wide discretion in granting a new trial where the special findings are inconsistent with one another, or are evasive, or apparently unfair, or are inconsistent with the general verdict, but the same rule does not obtain where, notwithstanding a general verdict, the court is asked to enter judgment on the special findings. The final conclusion of a jury is expressed in their general verdict, and special findings are permitted only for the purpose of ascertaining whether the jury have considered and found the elemental ingredients which should inhere in and support their general'verdict. In passing upon a motion for judgment upon special findings notwithstanding the general verdict the court is not required to reconcile inconsistent findings. It is not necessarily fatal to the general verdict that the special findings are inconsistent with one another. The question is, Are they, when considered as a whole, so inconsistent with the general verdict that they cannot be harmonized with it? Nor is it enough to warrant a judgment upon the special findings that they may be susceptible of an interpretation which would overthrow the general verdict. Before they will sustain a judgment they must be so inconsistent with the general verdict that they will not bear an interpretation which will harmonize with the general verdict. (Jackson v. Linnington, 47 Kan. 396, 28 Pac. 173, 27 Am. St. Rep. 300; Kansas City v. Slangstrom, 53 Kan. 431, 36 Pac. 706; MacElree v. Wolfersberger, 59 Kan. 105, 52 Pac. 69; A. T. & S. F. Rld. Co. v. Brown, Adm’r, 33 Kan. 757, 7 Pac. 571; St. L. & S. F. Rly. Co. v. Ritz, 33 Kan. 404, 6 Pac. 533; Bevens v. Smith, 42 Kan. 250, 21 Pac. 1064; U. P. Rly. Co. v. Fray, 43 Kan. 750, 23 Pac. 1039; Anderson v. Pierce, 62 Kan. 756, 64 Pac. 633;, Drinkwater v. Sauble, 46 Kan. 170, 20 Pac. 433.) The special findings upon which the court entered judgment for the defendant are the ninth, tenth, eleventh, twelfth, fourteenth, sixteenth and seventeenth. The ninth finding was to the effect that the plaintiff as he approached the crossing could possibly have seen the approaching train for a distance of 600 feet, if clear of the stock-yards. This finding furnishes no information on the question; the stock-yards were there, and obstructed his view. Findings Nos. 10, 11, 12, 16 and 17 may be considered together. They are that “before” and “immediately before” driving upon the crossing, if the deceased had stopped, looked and listened he could have seen the approaching train at a distance of from 500 to 700 feet, and could possibly have heard it when 300 feet away. The actual distance the deceased was from the track at this time is unknown. The jury expressed it as “before” and “immediately before” driving upon the track. He may have been so nearly entering upon the crossing as to have been unable to protect himself, and, in view of the general verdict, this appears to have been the conclusion at which the jury arrived. On the motion for judgment on the special findings, when the jury in answer to questions as to the distance' the deceased could have seen or heard the train when he entered on the crossing give minimum and maximum distances, the court should accept the minimum or the maximum distance as the one or the other harmonizes most with the general verdict. It appears that the train which struck the deceased was running at about forty-five miles per hour, or about sixty-six feet per second. The minimum distance which the deceased could have seen or heard the approaching train immediately before he passed upon the track, according to these special findings, was 300 feet. At the rate.the train was traveling it would require 4%-seconds to run this distance. The logic of the general verdict is that while the deceased could have seen or heard the train 30Ó feet away, immediately before entering on the track, he was then in such a position that he could not escape injury. The fourteenth finding is as follows: “Ques. If the deceased had looked up the, track thirty-four feet before reaching the track upon which he was struck, how far up said track could he have seen the train as it appeared? Ans. Four hundred to seven hundred feet.” This was evidently construed by the trial court to mean that the train was within full view of the deceased when he was within thirty-four feet of the track. This is not the proper interpretation to be placed upon it, especially in the face of the general verdict. There is no finding that the train was within 400 feet of the crossing when the deceased was thirty-four feet away. The most that can be said of ■ it is that if the train had been within 400 feet of the crossing when- the deceased was thirty-four feet away he could have seen it had he looked. The deceased was riding in a buggy drawn by two horses. When he was thirty-four feet from the track the heads of the horses were about twenty feet from the track. It was dark, the train was running fast, and the engine was leaking steam, which to some extent obscured the head light. The jury may have found that these conditions deceived the deceased as to the distance the train was from the crossing when he entered upon it and the time it would take it to reach the crossing. In passing upon a request for judgment upon special findings against the general verdict all these conditions are resolved in favor of the general verdict. Whether the jury adopted this or some other view, there is nothing in the special findings that compels the conclusion that the special findings and general verdict cannot stand, and where such is the case it is error for the court to set aside the general verdict and enter judgment on the special findings. The judgment of the trial court is reversed and the cause remanded, with instructions to set aside the judgment and enter judgment for the plaintiff on the general verdict.

The opinion of the court was delivered by Mason, J.: D. G. Donovan sued Charles Hager for damages for breach of contract, alleging that the defendant, after having on July 19,1904, agreed to sell his entire wheat crop of that year to the plaintiff at the price of seventy-three cents per bushel, had refused to deliver it. Hager filed an answer consisting of a general denial and allegations that on August 26, 1904, he had made a verbal contract with Emmett Donovan, as the plaintiff’s agent, to sell to the plaintiff “certain wheat” at the market price; that he had delivered under such agreement wheat to the value of $42.36, for which amount he asked judgment. The reply included a verified denial “that Emmett Donovan was the agent of the plaintiff or in any manner empowered to vary or change the contract” set out in the petition, and an allegation that whatever he had done was in pursuance of the contract. Upon a trial the jury returned a verdict for the plaintiff for $367.18, upon which the court rendered a judgment which the defendant now seeks to reverse. The evidence of the plaintiff directly supported the petition. The defendant testified admitting the making of a contract for the sale of his wheat crop, his version of it differing from the plaintiff’s only in this, that he contended it was conditional upon his being able to get the wheat thrashed within thirty days. His defense was based on the theory that he had not been able to get the thrashing done within that time and that therefore the contract by its own terms had ceased to become operative. The assignments of error relate wholly to the giving and refusing of instructions and to the admitting and excluding of evidence. There was no dispute concerning the amount of wheat actually delivered or its value at the market price. The plaintiff maintained that this wheat was delivered under the contract set out in the petition; the defendant that it was delivered and accepted at the market price of eighty-five cents a bushel. The court directed the jury peremptorily to give the defendant credit for it at the latter rate. The reason for this is not important, since if any error was committed it must have been against the plaintiff. The further instructions were merely to the effect that if the jury found that the contract was made as claimed by the plaintiff they should find for him; otherwise for the defendant. The substantial complaint of the defendant regarding the instructions is based on the refusal to submit the further question whether a new contract had been entered into in August between him and Emmett Donovan, as the plaintiff’s agent, superseding the first one. This claim of error is not wéll founded, inasmuch as no such issue was raised by the pleadings. The answer made no mention of the annulment of the first contract, or of any subsequent agreement concerning the same wheat; it merely said that in August the defendant agreed to sell to the plaintiff “certain wheat” at the market price, and under that arrangement delivered* forty-nine bushels and fifty pounds. All controversy regarding the wheat so delivered was eliminated by the peremptory instruction referred to, and there remained for determination, as the court indicated, only the question, What were .the terms of the original contract? Complaint is also made of the refusal of the court to permit the defendant to prove that he used due diligence to get his wheat thrashed within thirty days. The offer was manifestly made for the purpose of showing that under the contract as he stated it the defendant was relieved from performance by circumstances beyond his control. Had the jury accepted his account of the matter this evidence would haye been important, but it was rendered immaterial by a special finding that the contract was not made subject to his ability to get the wheat thrashed within the time stated. The defendant made an effort, which may be assumed to have been successful, to establish that Emmett Donovan, who died before the trial took place, was the plaintiff’s agent. Some evidence on the point was ruled out, but this assumption makes it unnecessary to consider whether its exclusion was proper. Questions were then asked of the defendant as a witness concerning a transaction and a conversation he had had with Emmett Donovan. Objections to these questions were sustained, and the final complaint, made relates to this ruling. The circumstances were such that the trial court might naturally have inferred, and probably did infer, that the purpose of the inquiry was to show that Emmett Donovan (who was the plaintiff’s son) had agreed to set aside his father’s contract. If so, for reasons already stated it would have required an amendment to the pleadings to make the evidence competent. But it is argued that if the evidence had. been admitted it might have tended to show what the first contract was. In order to lay the foundation for a review of the ruling upon that theory it was necessary to advise the trial court of the character of the testimony sought to be elicited. This was not done. These are two questions to which objections were sustained: “What took place between you and Emmett Donovan at that time ?” “I will ask you whether or not at that time you had any conversation with Emmett Donovan as to the former transaction you had with his father ?” It was not apparent on the face of these questions what facts the defendant was seeking to establish by them, nor was any statement made as to what the answers were expected to be. Therefore their rejection cannot be made available on appeal. (Marshall v. Marshall, 71 Kan. 313, 80 Pac. 629.) A general attack upon the soundness of the result reached is made upon the ground that a finding that the plaintiff had a contract with the defendant for all of the year’s crop at the rate of seventy-three cents a bushel is inconsistent with a ruling compelling him to pay eighty-five cents a bushel for the small quantity of wheat which he actually received. No inconsistency is apparent. However binding the contract may have been, it was only an executory contract relating to the sale of personal property. It was not one the specific performance of which could be compelled. If after making it the defendant chose to repudiate it he had the privilege of doing so, subject to his obligation to respond to the plaintiff in damages for any injury occasioned thereby. The wheat still belonged to the defendant and was subject to his control. If he refused to let it go at the contract price and the plaintiff saw fit to accept it at its then market value the act ef fected no estoppel to claim damages for the refusal. Whatever evidential value the circumstance may have had was for the consideration of the jury. The judgment is affirmed.

The opinion of the court was delivered by Greene, J.: Keziah Bell Brewer recovered a judgment in the district court of Wyandotte county against the Loyal Mystic Legion of America, a foreign fraternal beneficiary association authorized to do business in Kansas, upon a benefit certificate issued by the association to John W. Brewer, her husband, in which she was the beneficiary. The defendant prosecutes error to this court. Summons was served upon the state superintendent of insurance. The defendant appeared specially and challenged the jurisdiction of the court for the following reasons: “Comes now the defendant and appears specially for the sole and only purpose of objecting to the jurisdiction of the court over the person of the defendant, and the subject-matter of the action, for the following reasons: That no proper service was made upon the proper officer as required by law, as shown by the return filed herein; second, that- the defendant was not sued in the county in which it kept its principal place of business, or in which the beneficiary contract was made, or in which the death of the member occurred, or in the county of the residence of such deceased member, as shown by the petition filed herein.” This motion was denied, and this is the first alleged error of which complaint is made. Chapter 23 of the Laws of 1898 is an act providing for the organization and regulation of beneficiary orders and associations. Section 5 thereof reads: “Each such association now doing or hereafter admitted to do business within this state, and not having its principal office within this state, and not being organized under the laws of this state, shall appoint, in writing, the superintendent of insurance and his successors in office to be its true and lawful attorney, upon whom all lawful process in any action or proceeding against it may be served, and in such writing shall agree that any lawful process against it which is served on said attorney shall be of the same legal force and validity as if served upon the association, and that the authority shall continue in force so long as any liability remains outstanding in this state. Copies of such certificate, certified by said superintendent of insurance, shall be deemed sufficient evidence thereof, and shall be admitted in evidence with the same force and effect as the original thereof might be admitted. Service upon such attorney shall be deemed sufficient service upon such association.” (Gen. Stat. 1901, § 3572.) The defendant had been admitted to do business in this state, had appointed in writing the superintendent of insurance and his successors in office to be its true and lawful attorney, and had agreed that any lawful process against it which might be served on its attorney should be of the same legal force and validity as if served upon the association. In respect of the venue of actions against, such associations this statute differs from those providing for the venue of actions against foreign corporations generally, and foreign insurance companies. It will be observed, that the venue in the latter cases is fixed by statute in the county in which the cause of action arose or where the plaintiff resides. (Gen. Stat. 1901, §§ 1262, 3404.) No such provision is found in the act providing for the organization and regulation of foreign fraternal beneficiary associations. The action be ing transitory, unless the venue has been expressly laid by statute section 4483 of the General Statutes of 1901 applies. That section provides: “An action other than one of those mentioned in the first three sections of this article, against a non-resident of this state, or a foreign corporation, may be brought in any county in which there may be property of or debts owing to said defendant, or where said defendant may be found; but if said defendant be a foreign insurance company, the action may be brought in any county where the cause, • or some part thereof, arose.” The statute requiring as a condition precedent to the entering of this state by a foreign fraternal beneficiary association that it shall appoint in writing the superintendent of insurance its attorney upon whom all process against it may be served was enacted for the express purpose of giving any .court in the state authority to obtain jurisdiction of such corporations in any county in the state where an action might be commenced against it. Another objection to the jurisdiction of the trial court which is insisted upon is based on the fact that both plaintiff and defendant were non-residents of the state when the action was commenced, and that the cause of action arose outside the state. The answer to this is that the defendant, while incorporated under the laws of another state, had, before the action was commenced, voluntarily entered the state for the purpose of conducting its corporate business in the state, and in compliance with our statute had submitted itself to the processes of the courts of the state as fully and to the same extent as if it were in fact a resident of the state. This same principle was involved in Insurance Co. v. National Bank, 58 Kan. 86, 48 Pac. 592. In that case both the plaintiff and defendant were foreign corporations, and the cause of action arose outside the state. Mr. Justice Allen, speaking for the court, upon this question, said: “The old theory that a corporation resides only in the state of its creation no longer obtains. It is now held that, for the purpose of conferring jurisdiction on the courts, a corporation is present in any place where it transacts its business; and that service of process may be made on its agents through whom, .as its instruments, its business is transacted. The intangible corporation is held to be present wherever its business is carried on, whether that be in the state where its charter was obtained, or in any other sovereignty. St. Claire v. Cox, 106 U. S. 350, 1 Sup. Ct. 354, 27 L. Ed. 222.” (Page 88.) The defendant interposed an objection to the introduction of any testimony upon the trial, for the reason that the petition did not state facts sufficient to constitute a cause of action. Error is predicated upon the denying of this motion. This indefinite way of attacking a petition is hardly fair to the court or to the adverse party, and should not be encouraged. Such attacks should in fairness definitely point out the particular in which the petition is claimed to be defective, that the court may be informed of the exact question involved, and also that the opponent may, if he desires, have an opportunity to amend his pleading. The specific objection made to the sufficiency of the petition in this court is that it omits to state that the defendant had failed or refused to make an assessment to pay plaintiff’s benefit, and does not state that if such assessment had been made it would have produced sufficient funds to have paid the benefit. The only defense pleaded was that long prior to the death of Brewer he had neglected and refused to pay his assessments and quarterly dues, and for these reasons he had been expelled from membership in the association, and thereby his rights to any benefits under the certificate had become' forfeited. This was equivalent to an admission that the corporation had not made an assessment, and to an assertion that it would not do so — a denial of the existence of the facts the non-existence of which the defendant contends plaintiff should have stated in her petition. If it were necessary to plaintiff’s right of recovery that she state that the officers of the corpora tion had not made the assessment, and that such assessment, if made, would have produced sufficient funds to pay the amount of the benefit certificate, the answer supplied this omission by the statement of facts equivalent to an admission that the officers had not made such assessment. The objection to the introduction of the Trembly deposition was that it was incompetent, irrelevant and immaterial. The witness in this deposition, among Other things, testified concerning the death of John H. Brewer. It devolved upon the plaintiff to prove the death of her husband, and Trembly, in the deposition, testified that Brewer was dead and that he died September 22, 1899. This testimony was relevant and material. Trembly was competent to give such evidence, and it is a well-known rule that if a deposition is admissible for any purpose a general objection to its introduction should not be sustained. Error is also predicated on the refusal of the court to permit the defendant to introduce in evidence the statutes of the state of Nebraska, and also the constitution and by-laws of the defendant association. Neither were pleaded, and the objections to their introduction in evidence were made upon this ground. When the objection was sustained the defendant stood upon its answer and did not seek to amend. It is a well-recognized rule of law that the courts of one state will not take judicial notice of the statutes or decisions of other states, and they must be pleaded as other facts before proof can be introduced to show what they are. (Swank v. Hufnagle, 111 Ind. 453, 12 N. E. 303; Smith v. Mason, 44 Neb. 610, 63 N. W. 41; Williams v. Finlay, 40 Ohio St. 342; Railroad Co. v. Johnson, 61 Kan. 417, 69 Pac. 1063; Shed v. Augustine, 14 Kan. 282; Hunter’s Adm’r v. Ferguson’s Adm’r, 13 Kan. 462, 475.) The constitution and by-laws of an association stand on no different ground of admissibility in evidence than any other fact, and the foundation for their introduction in evidence must be found in proper allegations in the pleadings. (McDonald v. Life Ass’n, 154 Mo. 618, 55 S. W. 999, citing numerous authorities.) Many errors are charged which are based upon the refusal of the court to permit the defendant to introduce evidence, but the items thus offered and excluded were such that they could only have been properly introduced where the constitution and by-laws of the association were before the court or were admissible under the pleadings. We find no prejudicial error in the record, and the judgment is therefore affirmed.

The opinion of the court was delivered by Graves, J.: This is an action to recover damages sustained on account of a fire alleged to have been set out by the plaintiff in error. Judgment was given for the plaintiff in the district court of Miami county, and the railroad company brings the case here for review. The plaintiff, S. A. Noland, resides on a farm two and a half miles north of Paola, in Miami county. On this farm he had an orchard. On November 15, 1904, a fire occurred in the orchard, killing about eighty trees. This action was then brought against.the plaintiff in error and the Missouri, Kansas & Texas Railway Company. No evidence having been presented against the latter company, the court directed a verdict in its favor, which was returned by the jury. The plaintiff in error complains of the judgment against it for several reasons: First, because the court refused to direct a verdict for it; second, because the court erred in entering judgment in favor of the plaintiff. These objections rest practically, upon the same grounds and may be considered together. It is contended that there is no evidence showing that Noland owned the premises described in the petition. We think there is some evidence upon this subject. F. S. Hazleton, deputy county surveyor, made a survey and plat of the railroad track on the Noland farm which shows that the orchard was located on the northeast quarter of section 28, township 16, range 28, being the land described in the petition as the land owned by S. A. Noland. This plat is a part of the evidence in the case. Aside from this, several witnesses described the orchard and premises as the orchard on Noland’s farm which was burned November 15, 1904. It does not appear that Noland owned any other farm upon which an orchard was destroyed hy fire on that date. In the absence of any other testimony this identification is sufficient. It is further claimed that the evidence fails to show that the fire originated from plaintiff in error’s engine. It appears from the evidence quite clearly, however, that a heavy freight-train operated by plaintiff in error passed the orchard about the time the fire started. The train left Paola, two miles and a half away, at 12:50 P. M., and the fire started on the right of way near the track at about one o’clock P. M. There is no other cause suggested and nothing appears to indicate that the fire might have originated in any other manner. Upon this evidence the jury found that plaintiff in error’s engine started the fire, and we cannot say there is no evidence upon which to base such finding. The origin of a fire may, like any other fact, be inferred from circumstances; direct proof is more satisfactory, but not essential. (Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876; Railroad Co. v. Blaker, 68 Kan. 244, 75 Pac. 71, 64 L. R. A. 81.) It is further contended that as the two railroad companies were sued jointly the plaintiff must prevail as against both or not at all. We do not so understand the law. Whatever may be the rule in actions ex contractu, in actions ex delicto the plaintiff may join any or all of the tort-feasors as defendants. (2 Bouv. Law Dic. 16; 11 Encyc. Pl. & Pr. 852; 15 Encyc. Pl. & Pr. 583; 6 Thomp. Neg. § 7435, where many cases are cited in support of the text.) Upon the question of damages, evidence was presented showing the value of the trees destroyed independently of their value to the freehold, and also the value of the farm before and after the fire. The court in an instruction, of which plaintiff in error complains, told the jury that in determining the amount of damages sustained the evidence introduced upon both methods should be considered. The objection to this in struction is not so much on account of what it states as for what it omits to say. It is urged that the court should have gone further, by stating that the verdict could not, in any event, exceed the difference in the value of the farm before and after the fire. The instruction as given is correct, and in harmony with the former decisions of this court. (Railway Co. v. Lycan, 57 Kan. 635, 47 Pac. 526; Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876; Railway Co. v. Geiser, 68 Kan. 281, 75 Pac. 68.) It does not appear that the attention of the court was called to this question, either at the trial or by the motion for a new trial, nor is it covered by the petition in error. When it is desired to have a particular question presented to the jury the court should be requested so to do. (Douglass v. Geiler, 32 Kan. 499, 4 Pac. 1039.) The plaintiff, evidently for the purpose of making some affirmative proof that plaintiff in error was guilty of negligence at the time the fire was set out, produced experts and by hypothetical questions propounded to them elicited evidence tending to show that fire will not escape from a locomotive engine properly equipped and carefully operated. The objection is made that as there was no evidence of fire escaping from the engine this evidence was immaterial and erroneous. The evidence was probably unnecessary, in view of the statutory provision which makes the escape of fire from a locomotive engine prima facie evidence of negligence, but we are unable’ to say that its admission was erroneous. The plaintiff might properly anticipate that the jury would find that the fire originated from the engine, in which case this evidence might be considered upon the question of negligence in permitting the fire to escape. The judgment is affirmed.

Per Curiam: At a road crossing near the station of Agra, a small town in Phillips county, B. F. Wheel-barger was struck by an engine on the railroad of the Chicago, Rock Island & Pacific Railway Company, and was injured thereby. On September 9, 1905, he recovered in the district court of that county the sum of $1700 as damages for such injuries. The railway company brings the case here for review. It is claimed that the undisputed evidence in the case shows the plaintiff to have been guilty of contributory negligence which in law bars a recovery, and that the district court erred in not sustaining a demurrer to the evidence and directing a verdict for the defendant. This embraces the controversy presented. The evidence of the plaintiff upon this point reads: “Ques. You drove on Railroad avenue directly west until you came to the north-and-south section road? Ans. Yes, sir. “Q. And then you turned directly north and drove to the crossing? A. Then I turned north and drove to the crossing. “Q. What is the distance between Railroad avenue, this road running parallel with the track, and the main track of the Rock Island? A. T should judge 200 feet —may be a little less, I could not say exactly. “Q. After you started to drive west on Railroad avenue did you look up or down the track for any trains ? A. Yes, sir. “Q. And then after you had looked on Railroad avenue, just west of First street, you did not look again for trains or cars until you came to the crossing? A. I looked when I came in about eighty feet of the crossing. “Q. Within eighty feet of the crossing? A. Yes, sir; my team came to a stop in a snow-drift, and I started them up and drove across the road, and after I drove the team up I looked east of the wagon to see if there was a train coming. I did n’t see any or hear any, so I drove on. “Q. Then you looked east when you were eighty feet from the crossing? A. Yes, sir. “Q. You did not see a train when you looked east? A. No, sir. “Q. Did you look again ? A. Yes, sir; thirty or forty feet from the track I looked again. “Q. Where did you look that time? A. Both ways —east and west. “Q. Did you look toward the station-building? A. Yes, sir. “Q. And past this tool-house? A. Yes, sir; I did. “Q. Did you see a train at that time ? A. No, sir. “Q. You were forty feet from the railroad at that time? A. Between thirty and forty feet; thirty-five, as near as I can tell. “Q. When did you first see this engine and tender? A. It was about ready to strike me. “Q. How many feet from you? A. I could not say —six or eight. I did n’t have time to get down. “Q. It was not more than ten feet? A. I do not think it was. “Q. Where was your team and wagon at that time? A. On the track. “Q. Were you on the crossing at that time ? A. Yes, sir. “Q. Between the time you looked between thirty-five and forty feet from the crossing and the time you saw the engine about ten feet from you, did you look for trains? A. From that time? “Q. Yes. A. No, sir; I did not. “Q. Which way were you facing as you drove toward this crossing? A. I was facing the north, and a little west. “Q. Your right-hand side was toward the station-building? A. Yes, sir. “Q. And toward the train which afterward came? A. Yes, sir. “Q. You have no use of your right eye? A. No, sir; not to do any particular good. “Q. Are you totally blind in your right eye? A. I am not totally blind, but I cannot see any distance. “Q. So that the train which finally approached came from your side on which you are not able to see? A. Yes, sir.” “Q. At what rate of speed was your team going when you drove on the crossing? A. Walk, going slow; they never trotted after I turned the corner. “Q. That was when you were eighty feet from the crossing? Mr. Wheelbarger, at this crossing and where the north-and-south section road and railroad crosses the country is perfectly level ? A. Yes, sir. “Q. There are no buildings on either side of this crossing until you reach this tool-house, or car-house, you mentioned? A. Yes, sir; that is the first building on the south. “Q. And between this tool-house and the beginning of this side-track switch there are no buildings on the right of way? A. No, sir. “Q. Did you notice as you drove down this Railroad avenue that there were cars on this side-track? A. Yes, sir. “Q. What called your attention to them? A. Looking for the cars. “Q. How far down did they extend — to the west end of the house-track? A. I don’t know how far from there. It was right close up to the derailing point. "Q. What was the state of the weather on'February 6, 1905 ? A. It was cloudy and snowing a little. “Q. Was it very cold? A. Tolerably cold and disagreeable ; it was not so awful cold, it was disagreeable. “Q. About four o’clock in the afternoon this accident occurred? A. It was, as near as I can tell. “Q. Was the .team you were driving gentle? A. Yes, they were gentle. “Q. Were you expecting a train to come along at that time? A. I expect a train every time I cross the - track. There was not any train due, but I am always watching for trains. “Q. But you were expecting a train at this time; in other words, you thought there might be one come along? A. Yes, sir; I take pains to notice for the trains. “Q. When you first saw this engine it was about ten feet from you. Was any part of your wagon on the crossing? A. The front part was on the crossing. “Q. That is, the front wheels of your wagon? A. About the center of the wagon, as near as I can tell.”' This statement is not modified by any other testimony In the case. The general surface of the ground at this point is practically level and smooth. The railroad track is about three feet above the natural level of the land, and is straight for at least eighty rods each way from the crossing where the injury occurred. The plaintiff was a drayman, and had been engaged in business at that place for about four years. He was familiar with the grounds and other conditions, including the operation of trains on the railroad. He had a gentle team, which was completely under his control. When he was thirty-five feet from the crossing he looked east for an approaching train and saw none. He did not look again. According to measurements and observations made by an engineer, which are not disputed, the plaintiff when thirty-five feet from the crossing had a clear view of the track in the direction from which the engine came for 465 feet. At thirty feet from the crossing he could have seen 538 feet, and at twenty feet the track was open to view for 1083 feet. It is clear from this evidence that the plaintiff might have seen the engine in time to have prevented the injury if he had used ordinary care to do so. Under such circumstances no recovery can be had, even though the railroad company was negligent. (Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 591, 24 Pac. 1101; Roach v. St. J. & I. Rld. Co., 55 Kan. 654, 41 Pac. 964; Young v. Railway Co., 57 Kan. 144, 45 Pac. 583; Railway Co. v. Bussey, 66 Kan. 735, 71 Pac. 261; Zirkle v. Railway Co., 67 Kan. 77, 72 Pac. 539; Limb v. Railroad Co., 73 Kan. 220, 84 Pac. 136.) The judgment of the district court is reversed, with directions to enter judgment for the defendant.

The opinion of the court was delivered by Graves, J.: This action was dismissed because it was commenced .in violation of section 1283 of the General Statutes of 1901, which prescribes certain duties to be performed by foreign corporations before they will be permitted to do business in the state. The statute contains a provision imposing a penalty for non-compliance with its requirements, which reads: “No action shall be maintained or recovery had in any of the courts of this state by any corporation doing business in this state without first obtaining the certificate of the secretary of state that statements provided for in this section have been properly made.” (Gen. Stat. 1901, § 1283.) The Minnesota Thrasher Manufacturing Company, the payee of the notes mentioned in the petition, never complied with this law, and for that reason could not maintain this action to enforce payment of the notes. Therefore it is urged that no other holder- can prosecute such an action. We cannot consent to this proposition. The notes, even if taken in violation of this statute, which does not clearly appear, are not void. They constitute a valid contract between the parties, and may be enforced in any proper tribunal. (The State v. Book Co., 69 Kan. 1, 76 Pac. 411, 1 L. R. A., n. s., 1041; Hamilton v. Reeves & Co., 69 Kan. 844, 76 Pac. 418.) The payee is not a party to this action — it parted with all of its rights to the notes at Stillwater, Minn., to a purchaser in good faith, and for full value. It is not suggested by the testimony that the transfer of the notes was colorable only, and made for the purpose of evading the law. On the contrary, the transfer appears to have, been made bona fide, and as an incident to the sale of the entire assets and business of the Minnesota Thrasher Manufacturing Company. The plaintiff, being the owner of the notes, and having fully complied with the law, thereby acquiring the right to conduct its business in this state, should not be deprived of the right to maintain actions in the courts of this state. The judgment is reversed, with directions to proceed in accordance with the views herein expressed.

The opinion of the court was delivered by Porter, J.: The first complaint we shall notice is of error in finding No. 25 made by the court. This finding in substance is that prior to purchasing the springs defendant had no knowledge or notice that the Loomis hotel property had any special right to the use of the waters other or greater than that enjoyed by the general public. Plaintiff contends that this is not a finding of fact but a conclusion of law; that there was no issue raised by the pleadings in reference to what the rights of the public were in the use of the springs. The petition, however, alleges that for more than forty years the public had enjoyed the free and uninterrupted use of the waters of the springs; that the citizens of Geuda Springs had enjoyed the privilege from the time the town was established. In his opening statement on the trial plaintiff’s counsel stated one of the issues in the following language: “The • first proposition under which we claim the right to use these springs is that of prescription — that is, as a citizen of Geuda Springs; that the use of them vested in every citizen of that town, and has so existed for a period of thirty-five years. . . . We claim that by virtue of having that right as a citizen of Geuda Springs; that the defendant could not close the springs against them.” Plaintiff proved by several witnesses that the public had enjoyed the privilege for a great many years. The petition also alleged that defendant had notice of the special claim to the use of the waters by the proprietors of the hotel and their guests and servants. The answer contained a specific denial of such notice. The reply alleged that the agent of Tuttle in the purchase of the springs had actual and constructive notice of plaintiff’s claim as set forth in the petition. The finding was therefore of facts well within the issues. Nor do we agree with the contention of counsel that it is wholly immaterial whether Jobling’s rights were greater or less than those claimed by the public in general. As we shall attempt to show further on, this is one of the controlling facts in the case. Did plaintiff acquire an easement in the use of the waters by grant, or, as alleged in the petition, by virtue of an executed parol contract? Finding No. 5 by the court is that one of the inducements for building the hotel was the agreement on' the part of the owners of the springs that the guests and servants of the hotel should have the use of the waters, but that this agreement was never reduced' to writing. Finding No. 7 is that Gilbert, 'vfrho built the hotel, and his successors in interest, including the guests and servants of the hotel, had used the waters of the springs without objection on the part of the owners, but that such use was enjoyed in the same manner and to the same extent as by the public generally. These findings, together with the finding that defendant at the time he purchased the springs had no notice of any right claimed by virtue of such agreement, present the further question whether an innocent purchaser of the' springs can be bound by, or in anywise affected by, the fact that an agreement of the kind had been in fact made and relied upon by the original builder of the hotel. The conveyance under which Tuttle took title to the land whs the ordinary warranty deed, with no restrictive language. That percolating waters, such as these springs are, belong to the owner of the land as much as the land itself, admits of no doubt. (City of Emporia v. Soden, 25 Kan. 588, and cases cited at p. 608, 37 Am. Rep. 265. See, also, note to Wheatley v. Baugh, 25 Pa. St. 528, in 64 Am. Dec. 721.) In the case of Armor v. Pye, 25 Kan. 731, it was held that where the recorded deed made no mention of a right of way through lands a subsequent grantee took without notice. (To the same effect see Cox v. Leviston, 63 N. H. 283; Taylor v. Millard, 118 N. Y. 244, 23 N. E. 376, 6 L. R. A. 667; National Exchange Bank v. Cunningham, 46 Ohio St. 575, 22 N. E. 924.) It is contended by defendant that the claim set up by plaintiff is a non-apparent, non-observable, disconnected easement, and can only be binding on Tuttle by proof of actual notice. This, doubtless, was the conclusion arrived at by the trial court. Plaintiff’s hotel is situated on the block of ground adjoining the tract upon which the springs are, but seven lots which do not belong to the hotel property intervene. The springs are disconnected from the dominant estate to which it is claimed they are appurtenant. There is no connection between the two to indicate that one is servient to the other. It has been held not indispensable to the existence and enjoyment of an easement that the dominant and servient estates should be in contiguity with each other. (Jones, Easements, § 5; Witt v. Jefferson [Ky.], 18 S. W. 229.) But there should be such a connection between the use and the thing used as to suggest to a purchaser that the one estate is servient to the other. (Taylor v. Millard, 118 N. Y. 244, 23 N. E. 376, 6 L. R. A. 667; Simmons et al. v. Cloonan et al., 81 N. Y. 557; Kuhlman v. Hecht, 77 Ill. 570.) Thé servitude must be open, apparent, and visible, so as to raise a presumption of notice, or the purchaser will not be bound. (Jones, Easements, §§ 121-123.) It is manifest that whatever right plaintiff and his predecessors in title had or claimed to the use of the waters of these springs, it was one which, as the trial court found, was enjoyed by the public generally, and possessed no distinctive qualities which made it apparent or observable to a purchaser without notice, or which put him upon inquiry, unless a purchaser was bound by knowledge of the use enjoyed by the public. The latter condition involves the consideration of the right claimed by prescription. It is not seriously contended by plaintiff that the record discloses any facts which defendant was obliged to take notice of which would have challenged his attention to the claim of the hotel proprietor of any special right to the use of the waters, except the fact that the public used the springs. The grant, therefore, resting in parol, was not sufficient to affect or bind defendant in the absence of actual notice. Did plaintiff acquire an easement in the springs by prescription ? “To determine to what extent an adverse right can be acquired, it is necessary to consider the elements which must enter into the acquisition of such right. And in general it may be stated that to acquire such rights the user must be continuous and uninterrupted, actual, open, notorious, and exclusive.” (2 Farnham, Waters & Water Rights, § 535.) The same author says: “If the use which was made of the water was one which the proprietor had a right to make, and it did no injury to the other person, it would not make the slightest difference how long it had continued. It was not until the use of the water became wrongful as to another or injured his rights that it became adverse so that its continuance would give a good title.” (§ 535.) It must, therefore, be adverse, and this character of the use has been defined to be a use under a claim of right known to the owner of the servient tenement— use such as the owner of an easement would make of it without permission asked or given, and disregarding entirely the claims of the owner of the land. (22 A. & E. Encycl. of L. 1194.) It is well settled that the use of a watercourse cannot be adverse to the rights of another so long as there is an abundance of water to supply both. (Faulkner v. Rondoni, 104 Cal. 140, 37 Pac. 883.) By the nineteenth finding of the court it appears that during all'the time the springs have been known there has been a surplus of water beyond what has been required by the owners. It is a contention of defendant, which is supported by this finding, and seems to be borne, out by the authorities, that the use of the surplus waters of these springs by the public generally, or by plaintiff’s predecessors in title, cannot be considered adverse so long as the use was in no respect a deprivation of the rights of the owner of the servient estate; in other words, the right to use merely the surplus waters flowing from the springs was a mere license, which could never ripen into a prescriptive right. In Brossard v. Morgan, 7 Idaho, 215, 61 Pac. 1031, it was held that there was no adverse user of waters for the reason that each of the parties was using the water claimed by him, and there was an abundance for both. It was there said: “As against the plaintiffs, the use of waters from Stockton creek lacked every essential element of adverse use and possession. There was no deprivation of possession or use as against plaintiffs, and no claim of adverse title asserted against them by defendant/’ (Page 219.) In Talbott v. Butte City Water Co., 29 Mont. 17, 73 Pac. 1111, it was said: “To take the water when the prior appropriator has no use for it invades no right of his, and cannot even initiate a claim adverse to him.” (Page 27.) “When there is sufficient water in the river to supply all parties, there can be no such thing as adverse use of the water to start the statute of limitations running.” (Egan v. Estrada, 6 Ariz. 248, 253, 56 Pac. 721.) In Hunter v. Emerson and Emerson, 75 Vt. 173, 53 Atl. 1070, plaintiff sued to enjoin the use by defendants of a spring upon his land. Defendants claimed a right by prescription, and they and their grantors had used the waters for domestic purposes for more than forty years; they had also erected a fence around the spring. The court held that since it did not appear that the fence was built in the assertion of a right to the spring, or for its protection, or to exclude other persons from using the water, title by adverse possession could not be acquired by the building of the fence. The syllabus reads as follows: “The open, notorious and continuous taking of water from a spring for a period of more than fifteen years, is permissive, and not adverse and under a claim of .right, when it is consistent with another’s title, though :no express license is given.” To the same effect are the following cases, which, '.however, involve, the right to the use of the waters of streams: Alta Land etc. Co. v. Hancock, 85 Cal. 219, 24 Pac. 645, 20 Am. St. Rep. 217; Cox v. Clough, 70 Cal. 345, 11 Pac. 732; Smith v. Logan, 18 Nev. 149, 1 Pac. 678; Wheatley v. Baugh, 25 Pa. St. 528, 64 Am. Dec. 721. When a right of way is claimed by prescription the rule is well settled that the user or enjoyment must, have been adverse as well as continuous and exclusive. If permissive merely, it is a license, which can never ripen into an easement. (U. P. Rly. Co. v. Kindred, 43. Kan. 134, 23 Pac. 112; Railway Co. v. Conlon, 62 Kan. 416, 63 Pac. 432; Insurance Co. v. Haskett, 64 Kan. 93, 67 Pac. 446.) In Falter v. Packard, 219 Ill. 356, 76 N. E. 495, the rule is stated in substance as follows: The user must have been under a claim of right, with the knowledge of the owner of the estate, but without his consent. It appears from the findings that at no time was any water appropriated by plaintiff’s predecessors in title or their guests or servants, or by the public, that was needed or required by the owners. That such cannot, be held an adverse use of water is,-from the authorities we have cited, no longer open to controversy. (See, also, Farnham, Waters & Water Rights, §§ 537-540; Union Water Company v. Crary, 25 Cal. 504, 85 Am. Dec. 145.) Moreover, it appears that defendant and the former proprietors of the springs were using the water from some of the springs for commercial purposes, and that during the time defendant so used it the supply from these particular springs would be exhausted for five or six hours at a time. Thus defendant, was asserting and exercising a right to the use of all the waters of two of the springs adverse to any right claimed or enjoyed by plaintiff during a portion of the period plaintiff claims to have gained his right by prescription. In this connection finding No. 17 is important, from which it appears that in 1902 defendant constructed a new building over the springs, and closed the entrances so that it became necessary for all persons visiting the springs or using the waters to enter and pass through doors and up and down stairs of the building belonging to defendant. It is apparent- from the findings that plaintiff's use of the-springs was permissive only and at all times consistent with the owner’s rights — never adverse, and that however long continued it could not xipen into an easement. A considerable part of plaintiff’s brief is taken up with a discussion of the testimony and the contention that some of the findings of fact are contrary to the weight of the evidence. An examination of the entire record convinces us that every finding is sustained by competent evidence, and we are therefore not at liberty to disturb any of them. The findings, we think, compel the affirmance of the judgment. It is therefore affirmed.

The opinion of the court was delivered by Price, J.: This is an appeal from an order of the lower court with reference to the disposition of certain funds paid into court in garnishment proceedings and is the fourth appearance in this court of some phase or other of the litigation out of which the present appeal arises. (Grant v. Reed, 163 Kan. 105, 179 P. 2d 945; Grant v. Reed, 163 Kan. 697, 186 P. 2d 239; Grant v. Reed, 165 Kan. 27, 193 P. 2d 214.) The facts are quite involved but for our purposes can be summarized briefly as follows: In May, 1946, Grant sued Reed in the city court of Wichita to recover on a promissory note. Pursuant to the filing of a garnishment affidavit summons was served upon Edwards as garnishee. His garnishment answer admitted an indebtedness of $2,718.28 to defendant. Defendant moved to discharge garnishee Edwards on the ground that the indebtedness was represented by two negotiable bank notes. On the same date an intervening petition was filed by Jones, asserting ownership of the garnished debt by prior assignment from defendant. On August 1, 1946, judgment was rendered in favor of Grant against Reed in the amount of $685, together with costs and interest; and on August 6 an order was made sustaining the motions of defendant Reed and interpleader Jones to discharge the garnishee Edwards. This latter order was appealed by plaintiff to the district court and was docketed in that court as case No. A-19954. On November 7,1946, the district court entered judgment denying the motions of defendant and interpleader to discharge garnishee Edwards and he was ordered to pay to the clerk of the court in satisfaction of plaintiff’s judgment a total amount of $716.37, reprer senting the amount of the judgment, interest and costs, and in addition the court found there had been no assignment of garnishee Edwards’ debt by defendent Reed to interpleader Jones. Edwards immediately paid to the clerk of the court the sum of $716.37, and on November 12, 1946, the following order was entered by the court and approved by counsel for plaintiff, garnishee, defendant, and interpleader: “Now, on this 12th day of November, 1946, comes on to be heard the above entitled matter, and the Court being duly advised in the premises finds that the Garnishee, J. C. Edwards, in the above entitled matter, having paid into Court the amount ordered by the Court to be so paid, to wit: $716.37, should be released as Garnishee in the above matter. “It Is Therefore by the Covet Ordered that said J. C. Edwards be and he hereby is released as Garnishee in the above entitled matter.” No appeal has ever been taken from this order. On October 4,1946, First National Bank of Yukon, Okla., brought suit in the district court of Sedgwick county against Reed and this case was docketed as No. A-20502. Simultaneously a garnishment affidavit was filed regarding a debt owed by Edwards to defendant, garnishment summons being served upon Edwards on October 4, 1946. Defendant Reed and garnishee Edwards are the same parties who were defendant and'garnishee respectively in case No. A-19954, above referred to. On November 2, 1946, the defendant moved to discharge the garnishee on the ground that the latter’s debt to him was represented by two negotiable bank notes. On the same date Jones (being the same person who filed an intervening petition in case No. A-19954, supra) and White Truck Sales, Inc., filed an intervening petition alleging they owned the debt of garnishee Edwards to defendant Reed by assignment antedating the garnishment; that the debt was not subject to garnishment because it was evidenced by two negotiable bank notes and the prayer was for discharge of the garnishee. These motions have never been ruled upon. On November 12, 1946, garnishee Edwards filed his answer in the Yukon bank case, No. A-20502, in which he acknowledged his indebtedness to defendant Reed in the amount of $2,718.28, but further alleged that Jones, together with Knott and DeLanty, also asserted claims to such funds; that he, Edwards, had been ordered to pay into court the sum of $716.37 in Grant v. Reed, case No. A-19954, supra; that he, Edwards, was paying the $2,001.91 balance of said debt to the clerk in the instant action; and prayed for an order discharging him as garnishee and requiring the other claimants above named to intervene and for an order of the court determining the respective interests of said claimants to this balance of $2,001.91 which was on the same day paid into court by him in case No. A-20502. Meanwhile on November 5, 1946, the Yukon bank moved for judgment against defendant Reed for want of any plead ings and on December 18, 1946, judgment was rendered for the bank against Reed in the amount of $2,692.14 together with interest and costs. On January 7, 1947, Knott and DeLanty, plaintiffs in another suit (No. A-20656) against defendant Reed, filed a motion to vacate said default judgment and a similar motion was filed by defendant himself the next day. Going back now to case No. A-19954 we find that on December 13, 1946, defendant Reed and interpleader Jones appealed to this court from the order denying their motions to discharge garnishee Edwards but not from the order of November 12, 1946, approving the garnishee’s payment and discharging him. A supersedeas and cost bond was executed by interpleader Jones as principal and Tuttle as surety. Shortly thereafter and on January 10,1947, in view of the appeal taken in case No. A-19954, the court in case No. A-20502 entered an order that — ■ . . no effort will be made to withdraw the money paid by the garnishee, J. C. Edwards, herein to the Clerk of the above entitled court until the further order of this Court. It Is Therefore Ordered, Adjudged and Decreed that the above action be and it hereby is continued over the term, and that all funds paid into court shall not be disbursed until the further order of the court.” The judgment in case No. A-19954 was affirmed by this court (Grant v. Reed, 165 Kan. 27, 193 P. 2d 214) and the mandate was filed in the district court on June 22,1948. It then developed that the sum of $716.37 paid into court by garnishee Edwards on or about November 7, 1946, in case No. A-19954 was not sufficient to discharge plaintiff Grant’s judgment with interest and costs accrued since that date and so on July 30, 1948, Grant filed a motion for judgment in the amount of $106.75 against the supersedeas bondsmen Jones and Tuttle reciting that— “. . . the mandate from the Supreme Court has been on file with the Clerk of the District Court for more than thirty days and there is still a balance of principal and interest unpaid upon said judgment in the amount of $106.75.” On or about August 2, 1948, this motion was sustained and judgment was entered in favor of plaintiff Grant and against Jones and Tuttle for $101.75, the journal entry being approved by counsel for plaintiff and both bondsmen. Two days later Jones filed the following motion: “Comes now the interpleader, Clarence E. Jones, by his attorneys, Lampl & Lampl, and moves the Court for an order directing the Clerk to pay to the plaintiff a sum sufficient to satisfy her judgment from moneys deposited with the Clerk by the garnishee, J. C. Edwards, in the case of First National Bank of Yukon v. Floyd Russell, No. A-20502.” A copy of this motion filed in case No. A-19954 was served upon counsel for the Yukon bank, plaintiff in case No. A-20502, and on August 14, 1948, the court in case No. A-19954 made the following order: “Now on this 14th day of August, 1948, it being a regular day of the April, 1948, term of this Court, this matter comes on for hearing on the motion of the interpleader for an order directing the Clerk of the Court to pay to the plaintiff a sufficient sum to satisfy her judgment against the defendant from certain moneys deposited with the Clerk of this Court by the garnishee, J. C. Edwards, in the case of First National Bank of Yukon v. Floyd Russell, No. A-20502, the interpleader appearing by his attorneys, Lampl & Lampl, the plaintiff in the case of First National Bank of Yukon v. Floyd Russell, No. A-20502, appearing by its attorneys, Eoulston, Siefkin, Sehoeppel, Bartlett & Powers and the Court, after hearing argument of counsel and being advised in the premises, finds that said motion should be sustained; “It is Therefore: Ordered' and the Clerk of this Court is Hereby Directed to pay to the plaintiff, Julia A. Grant, a sum of money sufficient to satisfy her judgment against the defendant, Loyd M. Reed, alias Floyd Russell, from certain moneys deposited with the Clerk of this Court by the garnishee, J. C. Edwards, in the case of First National Bank of Yukon v. Floyd Russell, No. A-20502.” This is the order from which the appeal now before us was taken. Thus we have substantially the following situation — three different suits were filed against defendant Reed and Edwards was garnisheed in each. In Grant v. Reed, No. A-19954, judgment was rendered for Grant and garnishee Edwards was ordered to pay into court the sum of $716.37 in full satisfaction of plaintiff’s judgment. He made such payment and on November 12,1946, the court entered an order releasing him as garnishee in the case. A month later Reed and interpleader Jones appealed to this court from another phase of the case but not from the order of the court releasing the garnishee. In the meantime the Yukon bank, in case No. A-20502, had recovered judgment against Reed and on November 12, 1946, the same date on which the order was made in case No. A-19954 releasing garnishee Edwards from further liability in that case, he (Edwards) filed his answer in the Yukon bank case in which he set out that he had been ordered to pay into court the sum of $716.37 in case No. A-19954 and that he was paying into court in the Yukon bank case the balance of $2,001.91 and the payment of this balance was so made by him on that date. The court, on Janu ary 10, 1947, then made the order heretofore set out which in effect held in abeyance the disposition of the balance of $2,001.91 paid into court by Edwards until further order of the court. Reed and Jones were unsuccessful in their appeal to this court from the one phase of case No. A-19954 and in the meantime, of course, additional interest on Grant’s judgment had accrued and the sum of $716.37, which had been paid into court by garnishee Edwards back in November, 1946, was insufficient to cover the increased amount and so Grant filed a motion for judgment against Jones and his bondsman. This motion was sustained and judgment was entered in favor of Grant and against Jones and Tuttle for $101.75, whereupon two days later Jones moved for an order of the court directing the clerk to pay to Grant in case No. A-19954 a sum sufficient to satisfy Grant’s judgment against him (Jones) and Tuttle out of moneys deposited with the clerk by garnishee Edwards in the Yukon bank case, No. A-20502. The court sustained this motion and rendered the judgment of August 14,1948, swpra — hence this appeal. Many questions are raised by appellees, one of which is the right of any of the appellants, Grant, Edwards, or the Yukon bank, to appeal, and particularly with reference to Grant who, on August 26, 1948, collected from the clerk of the district court the sum of $101.75 in full satisfaction of the order and judgment from which this appeal is taken. While there may be some question as to Grant’s right to appeal, yet we do not feel called upon to pass on the matter but prefer to decide this case on the one main question involved. And certainly the Yukon bank and garnishee, Edwards, in ease No. A-20502, are parties adversely affected by the order appealed from but further discussion of this point would add nothing to this opinion. In their brief appellants state that the real question involved on this appeal is this: “May a court, in one action, order that plaintiff’s unpaid judgment therein be discharged out of moneys paid into court by a garnishee in a second, utterly unrelated action, pursuant to garnishment procedures initiated in said second action by a plaintiff who has no connection with and is not even a party to said first action?” In other words, could the subsequently-accrued balance of the judgment in favor of Grant in case No. A-19954, which incidentally came into being as a result of the unsuccessful appeal by Reed and Jones, supra, be satisfied out of funds paid into court by garnishee Edwards in the Yukon bank case, No. A-20502? We are cited numerous authorities by appellees concerning priority of garnishments holding that a prior garnishing creditor is, as a general rule, entitled to have the property or effects in the hands of the garnishee applied to the satisfaction of his claim to the exclusion of subsequent garnishing creditors. Appellees also argue that the payment to the clerk by garnishee Edwards of the balance of $2,001.91 in the Yukon bank case, No. A-20502, was in the nature of a “voluntary” payment and not paid under and by virtue of a specific court order and therefore the clerk of the court merely stepped into the shoes of the garnishee; that such sum carried plaintiff Grant’s lien with it as it went from the pockets of the garnishee to the pockets of the clerk, and that the mere act of the clerk in placing it to the credit of plaintiff bank in that case did not ipso facto remove it and make it the the sole and absolute property of the litigants in such case. Appellants on the other hand vigorously contend that when garnishee Edwards by order of court paid to the clerk the sum of $716.37 in case No. A-19954 and on November 12, 1946, was released and discharged as garnishee by order of the court (and from which order of discharge and release no appeal has been taken) he, Edwards, was relieved of all further liability in that case and therefore moneys paid into court by him as garnishee in the subsequent Yukon bank case could not be subjected to the payment of any further claim of Grant'in the former case. We concede that the authorities cited by appellees as to priority of garnishments state the correct rule of law but we have great difficulty so far as their application to the facts of this case is concerned. As to appellees’ point that the payment of $2,001.91 by garnishee Edwards to the clerk in the Yukon bank case was made “voluntarily” it would appear that under the circumstances the provisions of G. S. 1935, 60-960, would apply— “A garnishee may pay the money owing to the defendant by him to the sheriff having the order of attachment or into court. He shall be discharged from liability to the defendant for any money so paid not exceeding the plaintiff’s claim. . . .” Furthermore, the court in the bank case made the order on January 10, 1947, that such fund “shall not be disbursed until the further order of the court,” thus making garnishee Edwards’ payment into court as binding upon him as' if it had been made,, initially upon order of the court. The thing narrows down to this — garnishee Edwards in the Grant case, No. A-19954, paid into court the sum of $716.37 in complete discharge of plaintiff Grant’s full judgment, interest and costs. This amount was the total of Edwards’ obligation (G. S. 1935, 60-954, 60-960). Thereupon the court made the order of November 12,1946, which recited “that'said J. C. Edwards be and he hereby is released as garnishee in the above entitled matter.” This order manifestly discharged him from further liability to plaintiff Grant and the order, never appealed from, constituted a final adjudication to the effect that he was answerable to plaintiff Grant only in the sum of $716.37. Such being the case, we are unable to agree with appellees that the court in a subsequent proceeding in the same case had authority to dip into the garnishment funds paid into court by him in the second unrelated case to satisfy the subsequently-accrued balance due plaintiff Grant in the former case pursuant to a motion for such order by Jones, the unsuccessful interpleader and appellant in the former case. However, we find it unnecessary to go into detail concerning interpleader Jones’ standing to insist that garnishee Edwards pay a judgment belonging to Grant but prefer to rest our decision on the proposition that the ruling of August 14, 1948, was erroneous because of the fact that Edwards had already been discharged and released from any further liability as garnishee in the former case. It therefore follows that the judgment of the lower court must be and the same is hereby reversed.

The opinion of the court was delivered by Smith, J.: This is an original action in mandamus brought by a number of Negro pupils of School District No. 90 in Johnson county, and their parents as next friends, to compel the school board, the principal of South Park School in the district and the county superintendent of public instruction to require and permit these pupils and all others in the district similarly situated to attend school at the school building known as “South Park School.” We issued an alternative writ and after defendants filed their answer we appointed a commissioner to hear evidence and make findings of fact and conclusions of law. Our commissioner made his report in due time. Plaintiffs attacked one conclusion of law. The defendants asked that the report be approved for final judgment on it. The cause was finally submitted on these motions. As submitted to us there is not much dispute about the facts. We shall first refer to the allegations of the petition as they are set out in our commissioner’s report. The petition alleged that there was a grade school population of Negro pupils from the first to the eighth grade in the district. It then alleged the corporate existence of the district and the official status of the defendants; that it was organized as a common grade school known as the South Park School and was governed by G. S. 1947 Supp., 72-302 et seq., and G. S. 1947 Supp., 72-1107; that sev eral years ago the district unlawfully organized and established a separate grade school for the attendance of Negro children and forced them to attend that school, known as “Walker School”; that the plaintiffs had asked that they and other Negro children be admitted to the South Park Grade School; that the school board had refused to admit Negro children to that school and forced them to attend the unlawfully established separate school; that this school was inadequate, insufficient, out of date, dilapidated and not fit for a school; that plaintiffs had appeared at the annual school meeting and demanded that the segregation of the school children of that district be stopped and the Negro children be admitted to the one and only lawfully designated school; that the board had refused to admit them; that the division and classification of the school children were based entirely upon race and color and was illegal and arbitrary. The petition then alleged such conduct was a violation of constitutional rights of the plaintiffs and they had no adequate remedy at law and they had been compelled to employ counsel and to pay a reasonable attorney’s fee, which they alleged was $1,250. The prayer was that this court order the school board to admit all the Negro school children of District No. 90 to the South Park Grade School, which was then designated exclusively for white children, and that an order be made requiring the defendants to pay plaintiffs a reasonable sum for attorney’s fees. The school district answered admitting their official status and that the school district maintained two elementary schools; that at the regular meeting of the board on May 17, 1948, a resolution was passed designating the pupils in the district within a certain area in the district that would attend South Park School and the pupils in a certain area within the district that would attend Walker School. The answer pleaded the notice of a special meeting, waiver of notice on the part of the board and the resolution of the directors of the school district whereby the Walker district was designated. -The answer then pleaded that the resolution was passed because of pupil congestion and taking into consideration the facilities of the school buildings, the number of pupils that could be accommodated and without regard to racial discrimination or color. They also pleaded at the time the action was filed they had prepared plans for improving Walker' School. For a further defense they pleaded that the defendants were not the real parties in interest-and did not have the whole and entire beneficial interest in the subject matter of the action. The prayer was that they be not required to do the things recommended and that the plaintiffs be denied a peremptory writ of mandamus. The answer of the county superintendent was a general denial. The reply of plaintiffs to both answers was a general denial, coupled with the allegation that the allegations of certain paragraphs did not state facts sufficient to constitute a defense. At the outset certain facts were admitted before the commissioner, that is, that District No. 90 was a common school district; that it had for many years maintained two school buildings, one known as “South Park Grade School” and the other known as “Walker Grade School”; the identity of the defendants; that the toilet facilities of Walker School were outside and those of the South Park Grade School were inside the building; that the South Park School building was a new one erected in 1947. For purposes of clarity, the situation can be handled as well by setting out our commissioner’s findings of fact, conclusions of law and recommendations as any other. They are as follows: “findings of fact “1. School District No. 90, Johnson County, Kansas, has for generations maintained two separate school buildings. One known as the South Park Grade School and the other as Walker School. “2. During all of said period of time the Negro school children attended the Walker School and the white school children attended the South Park School. “3. Until 1947 the type of construction of the two buildings was comparable. “4. The school district made available funds in 1947 and a new building was constructed on the site of the old South Park Grade School at a cost of approximately $90,000.00. “5. No provision was made for a new school building to take the place of the Walker School and at the time of the filing of this action said building was in a bad state of repair. The school board did make some improvements prior to the commencement of the 1948 school term. “6. Notwithstanding these repairs at the Walker School the two buildings are not comparable from any point of view and particularly as to sanitation and fire hazard — the Walker building being of frame and stucco construction while the South Park building is of approved semi-fire proof construction. The equipment in the South Park building, while all of it is not new, and the built-in facilities, including the lighting, makes for a modern educational program and is therefore superior to that found at the Walker School. The toilets at .Walker School are on the outside of the building; at the South Park 'new building they are on the inside of the building and the equipment is of the latest design and in furtherance of sanitation. “There is no Gym, as such, at either building, but there is a rather large auditorium in the new South Park building and none at the Walker building. There is a sliding or failing door between the rooms at the Walker, building which may be opened for assembly purposes. “The playground equipment would be comparable if the missing parts at Walker School were procured and installed on the frames now on the ground. “7. There has been established a kindergarten at the South Park School and there is none at the Walker School. “8. There has been installed a lunch service under the state and government program at the South Park School. There is none at the Walker School. .The program was undertaken by the parents of the Negro students but was abandoned and no effort was made by anyone to revive it. In fact there is no place in the Walker building suitable and which could be made sanitary for such purpose. The basement is walled up with rock; it is on several floor levels and there is -evidence of seepage of water. A sump pump has in in the past been installed, but at the date of inspection no pump was in place. “9. There are two teachers in the Walker School and nine at the South Park School. The teachers at the South Park School are all white, the teachers at the Walker School are colored. “10. At the Walker School the eight grades are taught in two rooms. At the South Park School each of the eight rooms has a teacher and there is also a part-time music teacher. There was no showing that music was taught at the Walker School. “11. The textbooks and other teaching material and supplies are the same. “12. The scholastic attainment, as shown by the achievement tests, is comparable. “13. There was some evidence in an attempt to establish that one or both of the teachers at the Walker School were not qualified. Said teachers have been approved, on a temporary basis or otherwise, by the State Superintendent of Public Instruction and are therefore duly qualified. Therefore this contention is without merit. “14. After the completion of the new South Park building the parents of the Negro children made demands upon the Principal and school board that the Negro children be permitted to attend school at the new building. On the ground that said Negro students were not in the assigned attendance area admittance was refused. “15. By reason of these demands the school board did, at a special meeting held on May 15, 1948, adopt a resolution fixing the boundary of the attendance areas of the two schools. The metes and bounds of these attendance areas does not divide the district East and West or North and South, but meapders up streets and alleys, and by reason thereof all of the Negro students are placed in the Walker School attendance area. Under this allocation the white children walk past the Walker School. There may be white families in the Walker area and Negro families in the South Park area. The evidence on this point was not too definite. “16. The designation of the school area for each of the two schools, as set out in the resolution, clearly establishes that the two areas were not designated on a territorial, school census, or any other, reasonable basis and such action taken by the officers of the school district was therefore arbitrary. Such designation does attain the result of segregating the Negro children in the Walker School whether such result was intentional on the part of the school officials or not. “17. In the 1947-48 school term there were 222 pupils in the South Park School and 44 pupils in the Walker School. In the 1948-49 school term there are approximately 245 pupils in the South Park School and approximately the same number of pupils as in 1947-48 at the Walker School. “conclusions op law “1. This action was properly brought and maintained by plaintiffs. “2. A common school district, by appropriate action at the annual school meeting or at a special meeting called for such purpose, may legally establish, maintain and operate two separate school biuldings within the territorial limits of the district. In the establishment of the two school buildings in such school district a division of the district, territorially, may be made by such appropriate action. The division of the territory of such district must be made on some reasonable basis. “3. There is no statute, nor does the law of this state sanction the segregation of Negro pupils in a common school district. “4. The educational facilities of two schools maintained in the same school district must be on a comparable basis at all times in order to give each pupil in the district equal opportunity for a common school education. “recommendations “It is recommended that the division of said school district and the alloctaion of territory to each of the schools be made on a territorial or other reasonable basis. That the school district establish, maintain and operate the two schools located within the district on a comparable basis. In order to accomplish this the Walker school building should be constructed or reconstructed, thus making it fire proof, sanitary and as efficient as the building at the South Park School. The school equipment and facilities should be made uniform and comparable to that of the South Park School. The same educational program, including a kindergarten, the teaching of music, a lunch program, etc., should be instituted at the Walker school. The said building, facilities and program should be made ready for the school year commencing in September, 1949. In the alternative, the peremptory writ of mandamus prayed for in this action should issue.” The plaintiffs ask this court to confirm the commissioner’s report except that they asked us to disregard Conclusion of Law No. 2 because it was ambiguous, confusing and not in conformity with the law; that we set aside and hold for naught the recommendations of the commissioner and that the peremptory writ of mandamus forthwith issue commanding the defendants to admit the plaintiffs and other colored pupils to what is known as “South Park Common Grade School” and that the plaintiffs recover their costs in the action, including a reasonable fee for their attorneys. The defendants urge this court to adopt the commissioner’s report. They made no attack upon the commissioner’s findings. From the findings of fact we note that for generations School District No. 90 has maintained two separate school buildings, one known as the “South Park Grade School” and the other as the “Walker School,” and that during that time the Negro children attended Walker School and the white children attended the South Park School and that until 1947 the two buildings were comparable and that in 1947 a new building was constructed on the site of the South Park building at a cost of approximately $90,000 and no provision was made for a new school building to take the place of the Walker School. Since defendants make no attack upon those findings, it would seem at the outset to be clearly established that defendants and their predecessors have for generations and perhaps since the district has been organized violated the laws of Kansas by segregating the white pupils from the colored pupils. There are very few matters of public policy any better established in this state than that grade-school districts cannot do this. (See Board of Education v. Tinnon, 26 Kan. 1; Rowles v. Board of Education of the City of Wichita, 76 Kan. 361, 91 Pac. 88; Knox v. Board of Education, 45 Kan. 152, 25 Pac. 616; and Thurman-Watts v. Board of Education, 115 Kan. 328, 222 Pac. 123.) There are some instances in Kansas where segregation can be had, that is, cities of the first class are authorized to maintain segregated elementary schools by the terms of G. S. 1935, 72-1724 The powers of the school boards of school districts such as School District No. 90, however, are provided for in G. S. 1947 Supp., 72-406, 72-1028 and 72-1044. Nowhere in these sections do we find any provision that school boards of districts of that type can maintain separate schools for colored and white pupils. It seems futile to labor the point any further. Such is the law. Even if the school building at the “Walker School” had been comparable with that of the “South Park School” still the school board would not have had authority to compel the colored pupils to attend one school building and the white pupils the other. It may not be amiss to observe that perhaps this trouble arose after so many generations of not having trouble because the white pupils were given the $90,000 building while the colored pupils were compelled to use the old building. That may be the reason for the trouble but it is no defense to the action. The commissioner’s report in Findings 5, 6, 7, 8, 9 and 10 are to the effect that the facilities at the Walker School were made quate as compared to those of the South Side School. We are not particularly concerned with that condition here. It may be the reason for this action having been filed but it is of no importance in the final conclusion we find necessary to reach. The next three findings are to the effect that the pupils attending the “Walker School” have as high a scholastic standing as those attending the “South Side School.” We are not concerned with that here. The findings then point out that the demands for the right to attend “South Side School” on the part of the Negro children were made after the completion of the new South Park building and they then point out that the boundaries of the attendance areas of the two schools were fixed by the resolution following these demands. The language of this and the next three findings are so significant we shall quote them here even though they have already been quoted in this opinion. Finding No. 15 goes on to state: “15. By reason of these demands the school board did, at a special meeting held on May 15, 1948, adopt a resolution fixing the boundary of the attendance areas of the two schools. The metes and bounds of these attendance areas does not divide the district East and West or North and South, but meanders up streets and alleys and by reason thereof all of the Negro students are placed in the Walker School attendance area. Under this allocation the white children walk past the Walker School.' There may be white families in the Walker area and Negro families in the South Park area. The evidence on this point was not too definite. “16. The designation of the school area for each of the two schools, as set out in the resolution, clearly establishes that the two areas were not designated on a territorial, school census, or any other reasonable basis and such action taken by the officers of the school district was therefore arbitrary. Such designation does attain the result of segregating the Negro children in the Walker School whether such result was intentional on the part of the school officials or not. “17. In the 1947-’48 school term there were 222 pupils in the South Park School and 44 pupils in the Walker School. In the 1948-49 school term there are approximately 245 pupils in the South Park School and approximately the same number of pupils as in 1947-48 at the Walker School.” It must be remembered that the defendants did not attack those three findings. They ask us to approve them. Thus we have a record showing that the school board by a process of gerrymandering created the Walker School attendance district by meandering up streets and alleys so that all of the Negro children would be vithin that district. To add to this we have a map of the school listrict. It shows the District No. 90 to be about two miles and a naif long and a mile wide. The west boundary of the Walker School district is a half mile from the west boundary of District No. 90; the north boundary is a quarter of a mile from the north boundary of District No. 90; the east boundary is a mile and a quarter from the east boundary of School District No. 90; and the south boundary is a half mile from the south boundary of District No. 90. The Walker School district is about in the center of District No. 90. The school buildings themselves are not very far apart. There seems no dispute but that some of the white children had to walk past the Walker Schoolhouse to get to the South Park School. In addition to that we have an explicit finding that the creation of the two areas was not on a reasonable basis but was arbitrary and had the effect of segregating the Negro children from the white children. Thus we have a clear case of the school board doing by subterfuge, that is, by the arbitrary creation of an attendance district within the district itself and thereby segregating the colored children from the white children, what it could not do directly. In 1947-’48 there were 222 pupils in the'South Park School and forty-four in the Walker School. In the 1948-’49 term there were 245 pupils in South Park and approximately forty-four in the Walker School. The first conclusion of law is that the action was properly brought and maintained by plaintiffs. Nob’ody disputes that now. The second conclusion of law is, first that a common-school dis- • trict may by appropriate action legally establish two separate school buildings within the territorial limits. Nobody disputes that. There is no doubt about that being the law. The conclusion then states that a division of territory for attendance purposes may be made for the district. Nobody disputes that. The next sentence of the conclusion of law states that the division of the territory of such territory must be made on some reasonable basis. The Findings Nos. 15 and 16 clearly are to the effect that the division of territory in the case of School District No. 90 was not made on any reasonable basis. The findings are to the effect that the division of territory was upon an unreasonable basis and was arbitrary. Conclusion No. 3 was to the effect that no statute, nor law of this state, sanctions the segregation'of Negro pupils in a common-school district. Conclusion No. 4 is to the effect that the educational facilities where two schools are maintained must be comparable so that each pupil will have an equal opportunity. Nobody disputes that. We encounter some difficulty, however, when we examine the recommendations of the commissioner. He first recommended that the division of the school districts and the allocation of territory be made on a territorial or other reasonable basis. He then recommended that the district operate the two schools upon a comparable basis and pointed out the steps that should be taken in order to bring “Walker School” building up to the standard where it will be comparable to the “South Park School.” There is a slight implication in these recommendations that the situation will be fully met with when the “Walker School” building is so repaired or reconstructed that it will be comparable to the “South Park” building. It is presumed that it is this recommendation upon'which the defendants made their argument in this court that the report of the commissioner should be adopted. However, that argument overlooks the first sentence of the recommendation, where it is recommended that the allocation of territory to each school be made on a territorial or other reasonable basis. The commissioner had found that the present allocation of territory was not on such a basis. We thus find ourselves confronted with the necessity of making an order which will deal realistically with the situation of District No. 90. The judgment of this court will be that the report is approved in general. If the school district in its judgment so desires it may maintain two school buildings in the district and it may as a corollary of that divide the territory between the two schools and desig- ■ nate pupils from the territory who may attend one school and pupils from other territory to attend the other school. This allocation must be made, however, upon a reasonable basis without any regard at all as to color or race of the pupils within any particular territory. The standards and facilities for each school must be comparable. Colored and white pupils- must be permitted to attend either school, depending on convenience, or some other reasonable basis. In the meantime pending such action, the colored pupils and all pupils in District No. 90 must be permitted to attend the “South Park District School” beginning with the school year of 1949-’50 and until any other building is brought up to the required standard. This court regards the present action of the school board as arbitrary and unreasonable and an attempt by subterfuge to bring about segregation which the statutes and the laws of this state do not permit. This court will retain jurisdiction of this case to the end that the conduct of the district board may conform to this judgment. The writ of mandamus will be allowed.

Per Curiam: H. C. Hanna and four other property owners brought a suit against the cfiy of Paola to enjoin the collection of a special tax levied to pay for the construction of a sewer, and obtained a judgment granting them a permanent injunction, which the city seeks in this proceeding to reverse. Since the petition in error was filed a settlement has been effected between the city and all of the plaintiffs excepting Hanna, whose case stood upon a different footing. No appearance has been made in this court in behalf of Hanna, and we are not advised as to his precise contention. It appears, however, that his property has been benefited by the improvement in question, and that upon any theory he ought in fairness to bear some part of the cost. He has neither paid nor offered to pay any of it. We see no reason why under the general rule he should not for this reason be denied all relief. A reversal is therefore ordered, with directions to enter judgment against him.

The opinion of the court was delivered by Johnston, C. J.: The appellant contends that he was prosecuted under section 133 of the crimes act (Gen. Stat. 1901, § 212,6), and that the information does not sufficiently charge the offense defined in that section. The act denounced in that section is not the uttering or passing of forged paper, but it is the sale, exchange or delivery of-forged paper, or the offer to sell, exchange or deliver such paper, with the. intention of having the same uttered or passed by another. It will be observed that Calhoun is not charged with delivering the note to the bank with the intention that the bank should pass and put- it into circulation, but it is alleged that the delivery was made with the intention to have it passed to the bank. Counsel for the appellant are correct in saying that the offense charged is not fairly within section 133 of the crimes act, which does not apply to the passing of forged instruments of writings, but rather to putting such false instruments and writings into the hands of another with the intention that he shall pass them. The substantial feature of the offense defined in that section is the procuring of another to pass forged paper, and the supreme court of Missouri, in passing upon a similar statute, held that it covered cases where the person to whom it was sold or delivered was innocent of the forgery as well as cases of willing purchasers or takers who might be confederates in the crime. (State v. Patterson, 116 Mo. 505, 20 S. W. 9, 22 S. W. 696.) Counsel, however, cannot be sustained in the claim that the language of the information fails to state an offense within the purview of other sections of the crimes act. It fairly charges an offense under section 134 of the act, which provides: “Every person who, with intent to defraud, shall pass, utter or publish, or offer or attempt to pass, utter or publish, as true, any forged, counterfeited or falsely uttered instrument or writing, or any counterfeit or any imitation of any gold or silver coin, the altering, forging or counterfeiting of which is hereinbefore declared to be an offense, knowing such instrument, writing or coin to be altered, forged or counterfeited, shall upon conviction be adjudged guilty of forgery in the same degree hereinbefore declared for the forging, altering or counterfeiting the instrument, writing or coin so passed, uttered or published, or offered or attempted to be passed,- uttered or published.” (Gen. Stat. 1901, § 2127.) While the pleader used some of the language employed in section 133, the information stated every essential element of the fraudulent passing of a forged instrument as defined in section 134. Calhoun was charged with transferring and delivering the note to the bank, knowing it to be false and forged, and with doing so with the intent to defraud the bank. There is the added averment that his delivery of the note to the bank was made with the felonious intent to have it passed to the bank. It is argued that the averment of an intention-“to have it passed” is not the equivalent of an allegation that he intended to pass it/ The expression was inaccurate, and justly subject to criticism, but when taken in the connection in which it was used it fairly charges Calhoun himself with passing the paper. The indorsement and transfer of the note to the bank with the intention to defraud the bank and to have the note passed to the bank is the substantial equivalent of a fraudulent uttering and passing of the forged paper. Complaint is made that the trial court in its instructions informed the jury of the elements that would eon- stitute the forgery of an instrument an offense other than that which was charged against appellant. As he was accused of uttering and passing a forged instrument it was proper and important that the jury should be advised of what is a false, forged and counterfeited instrument. The passing of an instrument which is not a forgery would not be within the section under which the prosecution was had, and there would have been good grounds to complain if the court had omitted to call the attention of the jury to the essential elements of the forgery of an instrument or writing. There is a contention that one of the instructions was so phrased as to assume the guilt of the defendant. When the instruction is read in connection with the entire charge it is clear that there was no assumption of guilt, and that the jurors could not have been misled, but must have understood that the question whether appellant had uttered and passed the note was open for their determination under the evidence. Nor is there good reason to complain of the instruction “that the offense of uttering a fprged instrument consists in offering to another a false or forged instrument with capacity to injure and with the knowledge of its falsity and with an intent to defraud, and it is not essential that the attempt to defraud be successful, and the putting up of a forged note as collateral security for the purpose of borrowing money is a passing and uttering of such forged note within the meaning of the statutes of this state.” This is a succinct statement of the elements of the uttering and passing of forged paper. Proof of the giving of a forged note as collateral security for a loan of money, with the knowledge that the note was false and forged, and with an intent to defraud, is sufficient to show an uttering and passing of the forged paper; and the fact that the bank did not suffer loss nor find it necessary to realize on the collateral security does not relieve the act of its criminal character. Nor would the fact that the note as passed was not acceptéd as genuine by the one to whom it was offered and who therefore incurred no risk of injury from loss operate to diminish the crime. Objection is made to the charge as to the intent of the accused. It is true, as counsel contend, that the intent to defraud is a vital element of the offense, but, as the court told the jury, if the bank refused the loan unless collateral security was given, and if Calhoun put up the forged note as security and obtained the loan knowing that the note was forged, the jury were warranted in inferring an intent to defraud the bank, and it would be no defense that the loan was subsequently paid by Calhoun. The statement of the court in its instruction was no more than to say that if the recited facts were shown beyond a reasonable doubt it would be sufficient proof of a purpose to defraud. Other rulings in the giving and refusing of instructions are criticized, but we find nothing substantial in the objections. Nor was there error in the admission in evidence of the collateral notes transferred by Calhoun to the bank in connection with the one upon which the prosecution was based. The testimony tended to show that these, too, were forgeries, and that they had been forged by Calhoun. It appears that all of them were given to secure the loan and accomplish the intended fraud upon the bank, and they tended to show ’ knowledge of the forgery and the fraudulent intent of the accused. The testimony was not incompetent because it tended to show that these additional notes were forgeries. They were admissible to show the appellant’s knowledge that the paper passed was false and forged. It has been said: “On a trial for uttering and publishing forged instruments knowledge of the character of the writing may be shown ,by proving that the defendant possessed and uttered other similar forged instruments, and that, too, although such offenses occurred subsequently to the offense under trial, or have been the subject of other indictments.” (13 A. & E. Encycl. of L. 1103, and cases cited.) The exclusion of testimony relating to the insanity of appellant was not error. The preliminary inquiry did not indicate that the witness had such information as to make him a competent witness or to give any value to his opinion. Besides, the questions were not directed to the time of the commission of the offense. We have examined all the assignments of error and we find no grounds for reversal. The judgment is affirmed.

Per Curiam: The real party in interest opposed to the plaintiff in these actions has not appeared here, and any decision of the questions involved would not be as to him res judicata. So far as the county treasurer is concerned, the questions have been decided in Spencer v. Smith, 74 Kan. 142, 85 Pac. 573. The plaintiffs have made a prima facie showing of a claim which they should have an opportunity to present to a court having full jurisdiction to try and determine all the questions of law and fact which may be put in issue by the real parties in interest. On the authority of Spencer v. Smith, supra, the peremptory writ prayed for in each case is allowed.

The opinion of the court was delivered by Smith, J.: Two principal questions are involved herein: (1) Was the instrument which was executed and acknowledged by Mrs. Smith in the form of a deed to Pearly from her, and which was recorded in the office of the register of deeds of the county wherein the land was situated, really a deed which conveyed a present interest in the land, or was it a will, designed- only to convey the land to Pearly after the death of her mother? The instrument was not drawn- in the form of, nor witnessed, as, a will, but in the form of a deed, although it was evidently written by one who had some knowledge of legal forms. It was acknowledged and recorded as a deed, it is to be presumed that the mother caused it to be recorded and paid the fees therefor,. as the child could not be presumed to have done this, and she could not have delivered the deed for record if it had not previously been delivered to her. All these facts, while not conclusive, were entitled to some weight with the court. The first consideration, however, is the instrument itself. The granting clause is complete, in the usual form -of a conveyance of a present interest in fee simple; the exception is of a lifetime lease on the land. The mother was then in the possession of the land, and continued so thereafter for-about fifteen years and until her death. No third party ever claimed any rights thereto under a lease. This exception, therefore, should be construed as the reservation of a life-estate in the mother. In the same sentence with this reservation, and separated therefrom only by a comma, is this clause: “In three days after the said party of the first part is deceased this deed shall be in full force.” We think this should be construed as an extension of the life-estate, or as defining when the grantee in the deed should be entitled to possession of the land, rather than as a contradiction of the immediate grant of the fee. (Lauck et al. v. Logan, 45 W. Va. 251, 31 S. E. 986; Wilson v. Carrico, 140 Ind. 533, 40 N. E. 50, 49 Am. St. Rep. 213; Shackelton v. Sabree et al., 86 Ill. 616. See, also, Wyman v. Brown, 50 Me. 139; Abney et al. v. Moore, Admr., 106 Ala. 131, 18 South. 60; Spencer et al. v. Robbins et al., 106 Ind. 580, 5 N. E. 726; Turner v. Scott, 51 Pa. St. 126; Bunch v. Nicks, 50 Ark. 367, 7 S. W. 563; Hunt v. Hunt [Ky.], 82 S. W. 998, 68 L. R. A. 180; Durand v. Higgins, 67 Kan. 110, 124, 72 Pac. 567.) In Powers v. Scharling, 64 Kan. 339, 67 Pac. 821, Mr. Justice Greene, speaking for the court, said: “In determining whether an instrument be a deed or a will the question is, Did the maker intend to convey any estate or interest whatever to vest before his death and upon the execution of the paper? Or, on the other hand, did he intend that all the interest and estate should take effect only after his death ? If the former, it is a deed; if the latter, a will.” (Page 343.) In Durand v. Higgins, supra, the grantor took back, in a collateral agreement, the full control of the real estate conveyed by the deed during his lifetime, with the right to sell or convey as if the deed had not been given; also, it was stipulated that the grantees should not convey without his written consent, and should sign all deeds for the property when so requested by him. This court, construing the deed and contract together as one transaction, held that the deed conveyed a present estate, was not testamentary, and could not be revoked at the will of the grantor.' It was also said in that case to be hornbook law that if there be repugnant clauses between the premises and the habendum in a deed of conveyance the former must prevail; that “the habendum may lessen, enlarge, explain, or qualify, but not totally contradict, or be repugnant to, the estate granted in the premises.” (Page 124.) Following this well-recognized principle, we must hold that the deed in question by its terms conveyed an estate in fee to Pearly M. Smith, reserving a life-estate in the grantor. The instrument, then, on its face, was a deed and not ,a will. (2) Was the deed ever delivered so as to become effective? It is, of course, the general rule that a deed does not effect the conveyance of the real estate described therein until it is delivered by the grantor to the grantee and is accepted by the latter; though this does not always mean á manual delivery nor an express acceptance. There is no evidence in this case of either such a delivery or such an acceptance, but on the contrary the circumstances seem to negative the idea that either actual delivery or acceptance occurred. Yet we think the presumption of- the delivery arising from the recording of the deed supplies the .place of proof of manual delivery, and the fact that the conveyance was beneficial to a child of such tender years as to be incapable of ail intelligent acceptance or rejection of the deed raises the presumption of acceptance and obviates the necessity of proof thereof. (Tobin v. Bass, 85 Mo. 654, 55 Am. Rep. 392; Stow v. Miller, 16 Iowa, 460; Scrugham v. Wood, 15 Wend. [N. Y.] 545, 30 Am. Dec. 75; Souverbye v. Arden, 1 Johns. Ch. [N. Y.] 240; Tiedeman, Real Prop. § 814; Cecil v. Beaver, 28 Iowa, 241, 245, 4 Am. Rep. 174; Compton v. White, 86 Mich. 33, 48 N. W. 635.) Following this respectable line of authorities, we conclude that the decision of the court, in effect that the deed was delivered and accepted or was valid without actual delivery and acceptance, is right. A deed was also introduced in evidence from Mrs. Mary A. Smith to her other daughter, Mrs. Pentico, purporting to convey the other forty acres of the eighty-acre tract to Mrs. Pentico. This deed appears to be identical in form and content with the deed to Pearly, except only as to the description of the land conveyed and the. name of the grantee. This deed also appears to have been executed, acknowledged and recorded at the same times respectively as was the deed to Pearly. This circumstance also strengthens the-presumption of the validity of Pearly’s deed. (Stow v. Miller, supra.) The plaintiffs in error, however, complain that the court rejected the evidence offered by them of declarations of the mother, on the day after the recording of the deeds, that they were recorded against her wishes and without her consent. This was not a part of the res gestae nor a declaration against her interest at a time when she held the title to the land. It was clearly hearsay, as was also the offered proof of the statements of the mother, made after Pearly and her husband had deeded the land to Hays, as to her (the mother’s) understanding as to when her deed to Pearly was to take effect. •The other objections to the exclusion of evidence we have examined, and find no material error therein. As before said, the presumption is that Mrs. Smith caused Pearly’s deed to be placed of record, in the absence of proof to the contrary. Thereupon the status of the parties to the land became fixed, and nothing Mrs. Smith could say or do thereafter except by a legal proceeding could change that status.' If it was not in fact her intention to convey the land to Pearly, and if the recording of the deed occurred through fraud or mistake, she was not without a remedy. Knowing all the facts, however, including the recording of the deed, she remained silent and apparently acquiescent for about thirteen years, and until after Hays had bought the land from Pearly, and had paid for it, presumably. She then undertook to will the land to Mrs. Pentico. The situation savors strongly of an estoppel, both as to Mrs. Smith and as to her would-be devisee by the will. The judgment is affirmed.

The opinion of the court was delivered by Mason, J.: A real-estate broker wrote to the owner of a tract of land saying that he had a customer for it and asking its price. Correspondence followed which for present purposes may be said to have resulted in a contract in writing for the sale of the land, valid in every respect unless it was rendered non-enforceable under the statute of frauds by this fact: while it showed that the agent was acting for another and was not himself bound, it nowhere disclosed the identity of his principal. The owner refused to convey, and the would-be purchaser in whose behalf the negotiations had been conducted brought a suit to compel him to do so. The petition set out the correspondence in full and thereby invited the question whether the requirements of the statute had been met, which the defendant raised by demurring. The demurrer was sustained, and the plaintiff prosecutes error. As indicated, the inquiry to be determined is this: Where a written agreement for the sale of lands shows that one of the two persons by whom it is made incurs no individual liability, but acts merely as the agent of some one who is not named or described, can specific performance thereof be compelled at the suit of the undisclosed principal, whose relation to the transaction can be proved only by parol evidence, where the statute, of frauds requires such contracts to be in writing? It is settled law that a memorandum in order to meet the requirements of the statute of frauds shall give the names of the contracting parties or some description by which they can be identified. (29 A. & E. Encycl. of L. 864.) Several courts lajsfve held that this rule is not satisfied by the memorandum’s naming an agent who acts for one of the parties throughout the transaction but who is not personally bound. The leading case to this effect is Grafton v. Cummings, 99 U. S. 100, 25 L. Ed. 366, which has been followed in Oglesby Co. v. Williams Co., 112 Ga. 359, 37 S. E. 372, Clampet v. Bells, 39 Minn, 272, 39 N. W. 495, Mentz v. Newwitter, 122 N. Y. 491, 25 N. E. 1044, 11 L. R. A. 97, 19 Am. St. Rep. 514, Breckinridge v. Crocker, 78 Cal. 529, 21 Pac. 179. To the same effect are Schenck v. The Spring Lake Beach Improvement Co., 47 N. J. Eq. 44, 19 Atl. 881, O’Sullivan v. Overton, 56 Conn. 102, 14 Atl. 400, Knox v. King, 36 Ala. 367, Sherburne et al. v. Shaw, 1 N. H. 157, 8 Am. Dec. 47, and Wheeler v. Walden, 17 Neb. 122, 22 N. W. 346. The plaintiff in error concedes that these cases are against his contention, but maintains that another line of decisions declare the contrary doctrine, and that this court is practically committed to it. He chiefly relies upon Walsh v. Barton et al., 24 Ohio St. 28, which is directly in point and goes to the full length claimed, its precise scope being indicated by this extract from the opinion: “This writing, by fair construction, shows that the auctioneers therein named acted, in and about the making of the sale, as the agents of the vendors. . . . The only question, therefore, is whether it be necessary, in order to satisfy the statute of frauds, that the names of the principals should appear in the memorandum, in a case where the contract was, in fact, made by their agents, and the names of the agents are set out in the writing. We think the statute is satisfied -in this lespect when the names of the agents are set out in the writing, though the names of their principals be not disclosed. The case being thus taken out of the statute, the right or liability of the principals.may be enforced," and their identity established, according to the rules of law governing in other cases, where contracts are made by agents without disclosing their principals. White v. Proctor, 4 Taunt. 209; Hood v. Lord Barrington, 6 L. R. Eq. 218; Lerned v. Johns, 91 Mass. 419; Eastern R. R. Co. v. Benedict, 5 Gray, 561, 66 Am. Dec. 384; Gowen v. Klous, 101 Mass. 455; Higgins v. Senior, 8 Mees. & W. 834; Thayer v. Fuller et al., 22 Ohio St. 78.” (Page 39.) The language quoted embraces all that is there said by way of argument. . Of the English cases cited only Hood v. Lord Barrington, 6 L. R. Eq. (Eng.) 218, which appears to have been decided without much discussion, reaches the proposition stated. The case of Thayer v. Luce and Fuller, 22 Ohio St. 62, 78, and the earliest Massachusetts case, Lerned & another v. Johns, 91 Mass. 419, turn upon an entirely different state of facts. In each of them the memorandum contained no reference to any agency, but showed an agreement between two parties each of whom was personally bound by it, and all that was decided was that under such circumstances parol evidence might be adduced that one of the parties named was in fact acting for a third person, who upon such showing would be entitled to all the benefits of the contract and subject to- all its burdens. The effect of the other Massachusetts cases cited is perhaps not important in view of later decisions; In McGovern v. Hern, 153 Mass. 308, 26 N. E. 861, 10 L. R. A. 815, 25 Am. St. Rep. 632, the naming of an auctioneer was held not to be a sufficient designation of the seller, and Grafton v. Cummings, supra, was cited with approval. But in Tobin v. Larkin, 183 Mass. 389, 67 N. E. 340, which is probably the latest expression on the subject in the Massachusetts reports, it was .said that it is sufficient if the memorandum gives the name of the agent by whom one party is represented, although the fact of his agency is shown, and McGovern v. Hern is explained and distinguished on the ground that there the auctioneer, was not in fact the agent of the seller but was merely the person who conducted the formal part of the sale. While occasional expressions are to be found elsewhere favoring what may be characterized as the view of the Ohio and Massachusetts courts, our attention has not been called to any case other than those already mentioned which expressly upholds it. The weight of authority clearly supports the view taken by the trial court. Moreover, whatever conflict exists appears to have resulted from confusing the case of an undisclosed agency with that of an avowed agency, the principal being undisclosed. In reason there should be no diffi- eulty in reaching a satisfactory solution of the question. Where a written agreement for the sale of lands is entered into by two competent persons, each apparently acting for himself, the requirements of the statute of frauds are fully met and the result is a valid and enforceable contract. Being then complete it has no further concern with the statute. It is like any ordinary written contract. Parol evidence cannot vary its terms, but may add a new obligor or obligee by showing that one or the other of the parties was in fact acting as the authorized agent of a third person. The authorities are practically unanimous on this proposition. (They are collected in 1 A. & E. Encycl. of L. 1140, note 1, 1 A. & E. Encycl of L. [Supp.] 216, note 1, 29 A. & E. Encycl. of L. 864, note 3, and in Usher v. Daniels, 73 N. H. 206, 60 Átl. 746, 69 L. R. A. 629.) But when the writing discloses that one of the persons is avowedly acting as an agent for some one else, who is not named or described, an entirely different situation is presented. An imperative requirement of the statute is that the memorandum must indicate the parties. (29 A. & E. Encycl. of L. 864.) This requirement is not met by the naming of an agent who confessedly acts only as such. Not being personally concerned in the matter, assuming no individual liability, he is not a party to the agreement. The mention of his name is therefore immaterial, and fails to satisfy the statute. The memorandum being for this reason futile, no enforceable contract results. The rule that undisclosed principals may by parol evidence be charged with the burdens of a written contract or be given its benefits has no room for operation in such a case, because there is no valid written contract to start with to which to apply it. Such is ¿he condition presented by the petition here involved, and for that reason the defendant’s demurrer was properly sustained. Nothing, in the Kansas decisions cited by the plaintiff in error conflicts with this conclusion. The case of Butler v. Kaulback, 8 Kan. 668, has no application to the question here involved, for there the contract was taken out of the statute by part performance. The case of Wolfley v. Rising, 12 Kan. 535, does not mention the statute of frauds, and all it decided was that parol evidence is admissible to show that an apparent principal in a written contract is in fact an agent and to reveal and charge the real party in interest. In Ross v. Allen, 45 Kan. 231, 25 Pac. 570, 10 L. R. A. 835, the memorandum was held insufficient on various grounds, and Grafton v. Cummings, supra, was cited with approval. In passing it was said that if its only defect had been the failure to show for whom an-agent acted the fault could probably have been remedied by parol testimony. But the remark obviously was not meant to be regarded as decisive of the question. The judgment is affirmed.

The opinion of the court was delivered by Graves, J.: This is an action on a promissory note. It was commenced .before a justice of the peace in Harper county. No written pleading was filed by the defendant, and he did not appear at the,trial. Judgment was entered in favor of the plaintiff, and the defendant appealed to the district court, where the case was tried to a jury. Two defenses were presented orally: First, payment; and, second, that the plaintiff was not the owner of the note, and therefore not the real party in interest. A verdict was returned in favor of the plaintiff. The defendant brings the cáse here for review. The errors assigned are: (1) The exclusion of evidence; (2) the giving of erroneous instructions; and (3) the refusal to instruct as requested. As to the plea of payment, that issue has been settled by the verdict, upon conflicting evidence, and cannot be considered here. The errors assigned all relate to the same point, and may be considered together. The evidence excluded was a conversation had by the defendant with the mother of the plaintiff, concerning the note in suit, which reads: “Ques. What conversation, if any? Ans. Well, she come to me — she built a house in Stronghurst and she wanted some money — and I told her I did not have the money, and she says, T will take it down to the bank and turn it over to them and you can pay it there/ and I says ‘that will be all right’; and it run on a while, and I saw her and she said she did not want the note any longer and wanted to do that, and I went down to the bank and took the notes up and gave my own note.” “Q. In these conversations with Mrs. E. A. Penny was anything said about her having sold the note to the bank and drawn the money on it? A. I just could not tell whether she said she sold it; she said she turned them over to the bank and got the money.” This evidence was admitted on the trial, and after ward taken from the jury by an instruction of the court. The effect of this withdrawal will be better understood by considering, in this connection, a brief history of the transaction: The note represents the price of property purchased by the defendant from the plaintiff. It is in the ordinary form of a promissory note, payable at the bank where the defendant does his banking business, to the order of the plaintiff, and is signed by the defendant. The plaintiff is about forty years old,- unmarried, and resides with his parents. He buys and sells property, loans money, and does business generally in his own name. Some of the witnesses described him as being "rather weak-minded,” and it is claimed that for this reason his mother attends to, and in a general way manages, his affairs. It does not appear that he is under legal guardianship or that he is incompetent to manage his own business, nor is it claimed that his mother has been expressly authorized by him to act in his behalf. It does appear, however, that'she has managed many business transactions for him, with the defendant and others. The close relationship naturally existing between the plaintiff and his mother, together with his long acquiescence in her management of his affairs, is claimed to be sufficient to invest her with the ordinary legal attributes of a general agent, and makes her statements concerning his business admissible as evidence against, him. The conversation hereinbefore mentioned was offered upon this theory. Its admissibility has been discussed at some length, but in the view we have taken it need not be considered here. The note was not indorsed by the payee, but was in its original condition. The plaintiff was at least the owner and holder of the legal title thereto. The rejected conversation does not indicate a sale of the note to the bank, and it constitutes the entire evidence in the case on this subject. The evidence at most shows that the note was “turned over” to the bank, and money received thereon, but whether turned over as collateral security or discounted does not appear. The plaintiff, having the legal title to the note, was a proper party to enforce collection, even though the bank might be entitled to the proceeds when collected. (Manley v. Park, 68 Kan. 400, 75 Pac. 557, 66 L. R. A. 967; Graham v. Troth, 69 Kan. 861, 77 Pac. 92; Greene v. McAuley, 70 Kan. 601, 79 Pac. 133, 68 L. R. A. 308.) The conversation in question was therefore immaterial, and was properly withdrawn from the consideration of the jury. The instructions, given by the court of which complaint is made were the one' withdrawing the above-mentioned conversation from the jury and another which failed to present the ownership of the note as an issue in the case. The evidence, being immaterial, was properly withdrawn. No evidence remaining upon the other question, both instructions were proper. The instructions requested and refused related to the ownership of the note, and for the reason before given were properly refused. The judgment is affirmed.

The opinion of the court was delivered by Smith, J.: This proceeding was brought by the county attorney of Leavenworth county in the name of the board of county commissioners of that county against plaintiffs in error to have adjudged a lien for taxes upon certain lots in the city of Leavenworth and for a decree ordering the sale of the same to satisfy such lien. Judgment and decree of sale were rendered in favor of the plaintiff, and the defendants bring the case here. Douglass demurred to the original and amended petitions of the county commissioners, and presents as his ground therefor that the county attorney did not ffilly comply with the order of the commissioners in bringing the proceeding, in that he did not unite therein as many defendants as might have been united under the order. Yet he does not suggest how his rights were or could have been prejudiced thereby. Nor can we conceive how Douglass would have been in a better position to defend his rights had all other persons been joined as defendants who might have been so joined. If it should occur that he is put to additional costs by-having to defend other like proceedings the trial court will have ample power to protect him. (Whitney v. Morton County, 78 Kan. 502, 85 Pac. 580.) The express mandate of our statute is that no judgement shall be reversed or affected by reason of any defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party. (Gen. Stat. 1901, § 4574.) In civil cases it is not generally considered necessary for an attorney to plead his authority to appear in, nor the extent of his authority in bringing or defending, an action.- Such authority is presumed, although proof thereof may be required upon a showing of reasonable grounds therefor. (Gen. Stat. 1901, § 394.) It is contended by defendants that the act authorizing this proceeding (Gen. Stat. 1901, § 7718) requires the inclusion of all the real estate in the county which has been sold and bid in by the county at any delinquent tax sale and which has remained unredeemed and the certificate of sale untransferred for three and one-fourth years after such sale, subject to the discretion of the commissioners to proceed against a part only. The argument made would logically limit the commissioners to one order, and if they ordered a part only proceeded against they would have exhausted their power and could never order proceedings against the remainder. We cannot assent to this construction. The court is required to “determine the amount of taxes, interest and penalties chargeable to each particular tract of land, lot, or piece of real estate, and the name of the owner or party having interest therein.” (Gen. Stat. 1901, § 7718.) The amount of taxes legally chargeable in each separate road district, school district, township and city in the county, and even the improvement taxes on different streets in each city, -besides the county and state taxes, might all be put in issue in one proceeding, to which there might be one hundred defendants, with no two defendants having any interest in the same issue except as to the state and county taxes. This would be a complete departure from the common-law procedure as well as from the letter and spirit of our code of procedure. When we observe in the record before us that fifty-nine pages are occupied in setting out the pleadings and proceedings had in this case before reaching the trial of the issues, and that there were only two defendants in the case, and the taxes upon only five lots, all in one block of one city, were involved, w§ can only conjecture what utter confusion worse confounded and interminable delays would probably have occurred had there been one hundred defendants, with separate issues as to the taxes upon as many pieces of real estate in different cities, townships, school and road districts. We will adopt the construction of the statute which is contended for when no other reasonable interpretation is possible. It is conceded that the county commissioners in their order exercised the discretion vested in them by the act. Reading the word “action” in the act as plural, as we are authorized to do by section 7842 of the General Statutes of 1901„ the absurdity of the act is obviated, and the county attorney is authorized by section 7719 to exercise the discretion which he did exercise in this case and which it may frequently be necessary for county attorneys to exercise to render the act effective. Again, it is contended that the court erred in overruling the defendants’ objection to the introduction of the tax-rolls of the county and the record of delinquent tax sales to prove the levying of the taxes claimed to have been delinquent and to prove the sale of the lots in question for such taxes. The reason assigned for the objection is that the lots are not described the same in all the tax-rolls and records, and some of the descriptions therein differ from the description of the lots in the petition. ' It appears that the original plat of the city of Leavenworth was filed in 1854, and embraced a block numbered 86, in which were lots numbered 1 to 14, and 21 to 33, inclusive. In 1859 a plat of Latta’s addition to the city was filed, and included a block 86, in which were lots numbered from 15 to 20, and 33 to 58. This block in the addition is contiguous to block 86 in the original plat, and is divided from it by an invisible line only. Latta’s addition has for years been included in the corporate limits of the city, and block 86 of the original plat and block 86 of Latta’s addition now appear as one block, numbered 86, with lots numbered from 1 to 58 inclusive. The lots described in the petition are lots 41, 42, 43, 44 and 45 of block 86 of Latta’s addition to the city of Leavenworth, and there is not and never has been any other block 86 in the city which embraces lots of any of these numbers. The tax-rolls and record of delinquent tax sales for the years of 1884 to 1889 gave the number of the block described in the petition as in “Leavenworth city,” and for other years as in “Leavenworth city proper,” but in no case described them as in Latta’s. addition to the city of Leavenworth. From 1890 to 1904, inclusive, the lots were described as in Latta’s block, Leavenworth, or Leavenworth city proper. In the year 1886 there was no reference in the description of the lots on the tax-rolls to Latta’s' addition or to Latta’s block, yet the evidence shows that the taxes thereon for that year were paid by John C. Douglass and that no other taxes thereon had been paid from 1884 to 1904, inclusive. No effort was made by Douglass to show that there had been a double assessment of the lots owned by him or that the taxes were excessive or illegal in any way. His contention, in effect, is that his property has not been described with technical accuracy, and therefore that he should be relieved from paying his portion for paving and other city improvements, as well as his share of the taxes of the county and state governments. We think the language of this court, as expressed by Mr. Justice Valentine in Ritchie v. Mulvane, 39 Kan. 241, 252, 17 Pac. 830, which, however, is too lengthy to quote, is very applicable to the facts of this case. It was well said in Seaton v. Hixon, 35 Kan. 663, 12 Pac. 22, and we will adopt the statement in this case: “Where a description of real estate is true in every particular, and no other property answers to such description, and the property may easily be found by any one who may be acquainted with such description and with the facts which exist and which may easily be ascertained upon inquiry, held, that the description is sufficient.” (Syllabus.) We do not consider it necessary to discuss the constitutional question raised as to the title of chapter 392 of the Laws of 1901, under the provisions of which act this proceeding is brought. The title is not grammatical, but read in its evident and fair intent is a fair index to the contents of the act. . The judgment is affirmed.

The opinion of the court was delivered by Porter, J.: This case involves the construction of chapter 526 of the Laws of 1905. The single question for decision is whether the district court erred in holding that the statute does not change or enlarge the issues upon an application for the probate of a will. On July 13, 1905, in the probate court of Atchison county, Corman H. Young offered for probate a paper purporting to be the last will and testament of Eva Hendershot, deceased. He .was named therein as executor and sole legatee. Upon the hearing a number of the heirs at law of Eva Hendershot appeared and resisted the probate of the alleged will. After the proponent’s witnesses had testified the heirs introduced the evidence of a number of witnesses, including that of Corman H. Young himself, for the purpose of proving undue influence and fraud upon his part in securing the execution of the instrument, claiming that for a long time prior to the death of Eva Hendershot she was the keeper of a notorious house of prostitution in Atchi-son; that illicit relations existed between her and the proponent; and that for a number of years he had acted as her confidential adviser and business agent. The probate court refused to admit the will to probate, and the proponent appealed to the district court, where there was a trial de novo. The 'district court heard the witnesses who had attested the will but refused to hear the testimony of the relations existing between the testatrix and Corman H. Young, and admitted the will to probate. The, court rendered a written decision, in which is fully set forth the contentions of the parties and the single ground upon which the judgment is based. We quote from it as follows: “The question is, in view of the evidence introduced in this court, Ought the will to be probated? As the law stood before the amendment of section 12 of the wills act, by the legislative enactment of 1905, the answer should be in the affirmative. . . . The contestants claim, however, that since the amendment of said section 12 a full and complete contest of a will may be had in the probate court. ... It seems to the court, however, that that amendment does not change or enlarge the issues involved in the probating of a will.” By this proceeding the heirs seek to reverse the judgment admitting the will to probate. It is claimed that the district court erred in its construction of the act of 1905. Previous to the amendment section 12 of the wills act read as follows: “The court shall cause the witnesses to such will, and such other witnesses or any person interested in having the same admitted to probate as may desire, to come before such court; and said witnesses shall be examined in open court, and their testimony reduced to writing and subscribed by them and filed.” (Gen. Stat. 1901, § 7948.) This section was amended by section 1 of chapter 526 of the Laws of 1905 to read as follows: “The court shall cause the witnesses to such will and such other witnesses as any person interested for or against having the same admitted to probate may desire to come before such court, and said witnesses shall be examined in open court, and the testimony of the witnesses to such will and such other testimony as the court may order shall be reduced to writing and subscribed by them and filed; and the depositions of witnesses may be taken and used on such hearing in the same manner and to the same extent as is provided in the code of'civil procedure.” The amendment was adopted soon after the decision in Hospital Co. v. Hale, 69 Kan. 616, 77 Pac. 537, and may be supposed to have been suggested by that decision. In defining the issues and procedure upon the probate of a will the court said in that case: “The issue upon such offer is whether the will was duly attested and executed, and whether the testator at the time of executing the same was of full age and sound mind and memory, and not under any restraint. (Wills act, § 15; Gen. Stat. 1901, § 7952.) The burden of proving these things rests upon the proponent. The forum in the first instance is the probate court, where no jury is available. The witnesses are those who have attested the will, and any others whom any person interested in having the will admitted to probate may desire to produce. This hearing is conducted in a somewhat informal manner and without notice or pleadings. The order which may be entered is either for the admission to probate of the will or the denial thereof. If the former, such order may be attacked at any time within two years in the district court in an action for that purpose by any person interested in the will or estate of the deceased. If the latter, an appeal may be had to the district court, where the order of trial, the' character and burden of the proof, the same informality of procedure, will be had as before the probate court. ... In both courts the procedure is of the most informal and perfunctory character, and when a prima facie case is made upon the several points as to validity of execution, testamentary capacity, and freedom from illegal restraint, the order of admission should be made, leaving for the more formal and regular proceedings provided by section 20 of the wills act (Gen. Stat. 1901, § 7957) the contest of the nicer and more difficult questions, a contest in which issues are duly formed, evidence properly produced, and the machinery found for obtaining a jury should one be ordered. Upon the application to admit to probate, a party interested in having the application denied may not, as a matter of right, demand the examination of his witnesses in opposition. Just to what extent this preliminary examination ought to go it is difficult in any one case to say; it can be said, however, that it is' not a contest; that is left for another proceeding in another forum. In the rough, it is probably sufficient to say that it should go only to the extent that a prima facie case is made in favor of the validity of the will.” (Page 618.) To the same effect is Lanning v. Gay, 70 Kan. 353, 78 Pac. 810, 85 Pac. 407. Plaintiffs in error argue that, as it is the duty of courts to presume that an act of the legislature is not meaningless but intended to make some change in existing laws, the holding of the district court was erroneous. This argument is grounded upon the assumption that the district court held that section 1 of the act of 1905 does not change either the procedure or the issues in an application for the probate of a will. But the district court did not so hold; nothing in the decision is said concerning a change in procedure. The court only holds that the amendment does not change or enlarge the issues. The decision, therefore, can be said to leave a field of operation for the amendment in the change of procedure in reference to the production of testimony. If the legislature intended, in view of what was held in Hospital Co. v. Hale, supra, to change the issues, and to provide for an action in which the will might be contested, and, as plaintiffs in error contend, afford a cumulative remedy to that provided for in section 20 of the wills act (Gen. Stat. 1901, § 7957), the language used falls far short of indicating such a purpose. The amendment provides that “the testimony of the witnesses to such will and such other testimony as the court may order shall be reduced to writing and subscribed by them and filed.” In an ordinary action the court is given no discretion to order only a part of the testimony reduced to writing. No provision seems to have been made for anything that can be likened to a civil action; and there is no apparent purpose to provide for a regular contest of a will, as in section 20, supra. It is contended by plaintiffs in error that the amendment provides for what amounts to a contest, and considerable learning is adduced in support of the meaning of the word “contest.” The word itself nowhere appears in the amendment; but conceding that the procedure, as amended, permits a contest to be made, it does not necessarily follow that. all that is usually denominated a contest of a will is intended. Under the provisions of section 20 of the wills act a contest of a will has always been considered as a formal proceeding by a civil action, in which the issues are defined by formal pleadings, and the rules of evidence for and against the issues established by repeated rulings. Either party may demand a jury. It must be observed in this connection that section 15 of the act was not repealed expressly, nor was it. amended. It reads as follows: “If it shall appear that such will was duly attested and executed, and that the testator at the time of executing the same was of full age and sound mind and memory, and not under any restraint, the court shall admit the will to probate.” (Gen. Stat. 1901, § 7952.) Unless this was repealed by implication i‘t is still in force. There is nothing in the act which indicates such a purpose, and repeals by implication are not looked upon with favor. The whole act, therefore, and every part of it after the amendment of section 12, must be given effect. The different sections must be construed in harmony with each other. (Wenger v. Taylor, 39 Kan. 754, 18 Pac. 911.) This section, as construed in Hospital Co. v. Hale, 69 Kan. 616, 77 Pac. 537, defines the issues; and, as it has not been repealed, it must follow that the issues in an application for the probate of a will were not changed by the amendment, but remain the same. The procedure so far as the production of testimony is concerned has simply been enlarged. In our opinion the amendment only extended the right which the court in Hospital Co. v. Hale referred to when it used this language : “Upon the application to admit to probate, a party interested in having the application denied may not, as a matter of right, demand the examination of his witnesses in opposition.” (Page 619.) Counsel for plaintiffs in error propound the question, If a will has been obtained as the result of undue influence has it been duly executed within the meaning .of the law? The answer to this question, which is obvious, does not dispose of the contention as to what the legislature intended by giving to a person opposed to the probate the right to demand the examination of his witnesses. The question often arose under the law as it stood before the amendment; the answer then was the same as now. A will obtained by undue influence is not a valid will. Nevertheless a will might be entitled to probate which has in fact been obtained by undue influence, provided a prima facie showing is made to the effect that it was duly attested and executed, and the testator was of full age and sound mind and memory, and free from restraint at the time it was executed. Afterward, upon a showing of undue in fluence, it would not be permitted to stand, for the reason that it had not been duly executed as a valid will within the meaning of the law. But it is argued that the district court should have permitted the parties opposing the probate to introduce the testimony of their witnesses, if any effect is to be given to the amendment. Separate error is urged on account of the refusal. The evidence which was rejected by the trial court was only relevant for the purpose of showing that the testatrix was not free from illegal restraint at the time she executed the will. The theory upon which it was offered was that for several'years she had been under the undue influence of the beneficiary by reason of the immoral relations which it is claimed existed between them and the relation of confidential adviser which he sustained to her, and that proof of these things established the restraint at the time the will was executed. These matters, however, can hardly be said to have respect so much to her freedom from restraint at the time the will was executed as to the general question of undue influence arising from the relations of the parties during a period extending over a considerable time prior to its execution. They involved facts which manifestly were more appropriate to a contest such as is provided for in section 20 of the wills act. (Gen. Stat. 1901, § 7957.) Notwithstanding the amendment, we think it is still true, in the language of Hospital Co. v. Hale, 69 Kan. 616, 77 Pac. 537, that “just to what extent this preliminary examination ought to go it is difficult in any one case to say; it can be said, however, that it is not a contest; that is left for another proceeding in another forum.” (Page 619.) In other words, the same uncertainty with reference to the scope of the inquiry still exists, we think, in spite of the amendment; and the only change is in giving to the party opposed to the probate of the will what was formerly denied him — the right to have his witnesses examined upon the issues involved. The examination is still preliminary in its character. Each case depends to some extent upon its own facts and circumstances; but it rests largely in the discretion of the probate court, or the district court on appeal, to determine the extent of the inquiry which is proper in respect to such matters as undue influence when it is claimed by those who oppose the probate that the will was obtained by undue influence amounting to the restraint contemplated by section 15. (Gen. Stat. 1901, § 7952.) When the court can see from the character of the evidence offered in opposition that it involves matters which it is probable that either party will desire submitted to a jury, and belongs peculiarly to a regular contest of the will, and that, notwithstanding the evidence offered, it should not be allowed to overcome the prima fade showing made by the proponent, it lies in the discretion of the court to admit the will to probate and relegate the controversy to a more formal field. Only a prima fade showing is required to admit a will to probate, and this rule has not been abrogated by the act of 1905. A different rule of evidence obtains in the rejection of a will, and a court should not refuse to admit a will to probate unless, for some of the reasons mentioned in section 15, the court finds conclusively from the evidence that it should not be probated. It was in 1905 that the legislature abolished the ancient privilege of a-second trial in ejectment because experience had proved its exercise a useless, dilatory and expensive ceremony. We find it difficult to believe that the same legislature intended by amending section 12 of the wills hct to establish a procedure by which there should be two trials for the purpose of contesting a will. The judgment is affirmed.

The opinion of the court was delivered by Smith, J.: Two wills purporting to have been made by Caroline Ross in her lifetime were offered for probate in the probate court of Franklin county — one by each of the parties to this suit in this court. A joint hearing was had and evidence was offered by each proponent, and upon consideration thereof the court found that each of the proposed wills had been revoked by Mrs. Ross and refused to admit either one to probate. Each of the proponents appealed to the district court, and after hearing the evidence offered by both parties the district court made the following findings of fact and conclusions of law: “FINDINGS OF FACT. “ (1) Caroline Ross in her lifetime was the widow of George 0. Ross, late of Franklin county, Kansas. George 0. Ross departed this life on or about the 25th day of December, 1899, leaving as his heirs at law Caroline Ross, his widow, and Daniel Ross, Henry Ross, Louisa Hettler, Lydia Z. Woollard, Martinius Ross, and Phoebe Baker, his children. At the time of his death he was the owner of the southwest quarter of section 4, township 18, range 21, in Franklin county, Kansas. “(2) Sometime shortly prior to the'4th day of December, 1902, Caroline Ross and Daniel Ross entered into a verbal agreement whereby it was agreed that Daniel Ross should care for his mother, Caroline Ross, during the term of her natural life, in consideration of which promise she agreed to give to him by will her interest in the real estate above described. At this time both Daniel Ross and Caroline Ross were living upon this real estate as their home. “ (3) On the 4th day of December, 1902, and in pursuance of this agreement, Caroline Ross and Daniel Ross went to the office of John W. Deford, in the city of Ottawa, where they explained to Mr. Deford this agreement, and Caroline Ross advised Mr. Deford that she wanted a will prepared that would carry out the terms of this agreement. She was advised by Mr. De-ford that such a will would not only be a will, but a contract, too, to which advice she replied that that was her intention. Whereupon Mr. Deford prepared for her the will bearing date December 4, 1902, which was made in duplicate, was executed by Caroline Ross, and witnessed by John W. Deford and William A. Deford. After the execution of the will Caroline Ross made inquiries as to what was the proper thing to do with the duplicate wills, and was advised by Mr. Deford that she could keep them, or she could deposit them in the probate court, or she could deposit one in the probate court and deliver the other to Daniel. Accordingly, one of the wills was placed in an envelope and sealed and Mr. Deford wrote upon.the envelope in substance: ‘Will of Caroline Ross, executed December 4, 1902. To be delivered to my son Daniel Ross in case of my decease.’ This she signed and delivered to Daniel Ross, with instructions to deposit it in the probate court, which he accordingly did. The other duplicate she delivered to Daniel'Ross, or it was delivered to him by Mr. Deford in her presence, and with her knowledge and consent. “ (4) On September 25, 1903, the said Caroline Ross went to the law office of Gamble and Costigan, and there executed another will in duplicate, by the terms of which she gave one-half of the real estate in question to her daughter Lydia Z. Woollard and the other half to her son Daniel Ross, which will was witnessed by E. H. Gamble and W. J. Costigan. At the time of the execution of this will Caroline Ross caused to be taken from the probate court the will .executed by her on December 4, 1902, and wrote across the face there-, of: ‘This will is revoked September 25,1903. Caroline Ross. Witness: E. H. Gamble, W. J. Costigan.’. This she did intending to revoke the same. One copy of the will of September 25, 1903, was sealed in an en- ' velope and deposited in the office of the probate court; the other was left with the firm of Gamble & Costigan. “(5) About July 13, 1905, Caroline Ross caused to be taken from the office of the probate court the will so executed by her on September 25, 1903, and destroyed the same by burning it with the intention of revoking it. The copy left with the firm of Gamble & Costigan was never taken from the hands of that firm, but remained there at the time of her death. Some time after July 13, 1905, Caroline Ross departed this life in Franklin county, Kansas. “(6) Daniel Ross is now and has been since some time prior to the execution of the will of December 4, 1902, in possession of the real estate in question. “ (7) By deed under date of March 28, 1904, all of the interest of Louisa Hettler and Henry Ross in and to said lands was conveyed to Daniel Ross and Lydia Z. Woollard, which conveyance not only transferred their then estate but all future interest that might come to them by like deeds. Daniel Ross now owns all of the said real estate except the interest of Lydia Z. Woollard held by her by deed and by inheritance. And the r.eal estate in controversy is worth more than one thousand dollars. “CONCLUSIONS OP LAW. “(1) The said Caroline Ross undertook on September 25, 1903, to revoke the will of December 4, 1902. “(2) If the said Daniel Ross has any rights under and by virtue of the will of Décember 4, 1902, he must enforce such rights in a court of equity. “(3) There should be a judgment against Daniel Ross for costs.” There is no contention that the findings of fact are not supported by the evidence. It is contended, however, that the will in favor of Daniel Ross, executed in December, 1902, was contractual, and was made for a valuable consideration, rendered before the execution of the will and also to be rendered thereafter; that in the absence of any claim to the contrary it is to be presumed that the executory part of the contract was performed by Daniel Ross; that these facts, which are undisputed, rendered this will irrevocable. Considered simply as a will, this instrument was revoked by the subsequent one executed in September, 1903. (Gen. Stat. 1901, § 7975.) The fact being established that Mrs. Ross had executed a subsequent will, which by express terms revoked the one presented by her son, debarred the latter will from probate, and the court could, as it did, only refuse to admit it to probate. This exhausted its jurisdiction and ended the case in that court. In this state probate courts have no equitable jurisdiction, and the district court, hearing the case on appeal, not on error, had the same powers as the court from which the appeal was taken, and no greater jurisdiction. (Phillips v. Faherty, 9 Kan. App. 380, 58 Pac. 801; Lawrie v. Lawrie, 39 Kan. 480, 18 Pac. 499; Sims v. Kennedy, 67 Kan. 383, 73 Pac. 51.) It matters not that the will of September, 1903, was in turn revoked. At common law the revocation of a subsequent will which revoked either expressly or impliedly an earlier one effected a revival or republication of the earlier will. This common-law rule has, however, Been abrogated in this state. (Gen. Stat. 1901, § 7976.) It follows, therefore, that the judgment of the district court is not erroneous and it must be affirmed. It does not follow, however, that Daniel Ross has no rights under the contract, if it be a contract, in consideration of which the will of December, 1902, purports to have been executed. A court of equity alone is competent to determine the facts relating thereto, and the remedy, if any, to which he is entitled. (Baldwin v. Squier, 31 Kan. 283, 1 Pac. 591; Anderson v. Anderson, ante, p. 117. The judgment of the district court is affirmed.

The opinion of the court was delivered by Mason, J.: Luther M. Summers recovered a judgment against the Metropolitan Street Railway Company for damages sustained in consequence of a streetcar running into a wagon in which he was crossing the track on Kansas avenue, in Kansas City, Kan., and the company prosecutes error. The principal contentions made are that a demurrer to the evidence should have been sustained, and that the evidence did not warrant the instructions that were given. One ground of negligence relied on was the running of the car at a dangerous rate of speed. There was evidence ^that it was making from twelve to fifteen miles an hour. No ordinance regulating the matter was shown and there was no specific testimony that the rate was unusual. The jury must be assumed to have known in a general way of the amount and character of the traffic ordinarily carried on upon the street where the accident occurred — to the extent at least of recognizing that Kansas avenue was there not merely a laid-out highway, but an important thoroughfare of the city. Such fact was necessarily a matter of such common knowledge that it could be judicially noticed. (K. C. Ft. S. & G. Rld. Co. v. Burge, 40 Kan. 736, 21 Pac. 589; The State v. Ruth, 14 Mo. App. 226.) In view of this it was a fair matter for their determination whether the speed was safe; if the speed was unsafe it implied negligence. (27 A. & E. Encycl. of L. 61.) An elaborate argument is made to the effect that the plaintiff was guilty of contributory negligence in attempting to cross the track in front of the advancing car, but it depends upon the assumption that when he saw the car he knew how fast it was going. The evidence is consistent with the theory that he supposed the car to be going at a less speed and was justified in believing that he had time to cross in safety. (See Railroad Co. v. Gallagher, 68 Kan. 424, 75 Pac. 469.) An instruction is complained of which involved the “last clear chance” doctrine, and authorized a recovery notwithstanding the plaintiff might have been negligent in driving upon the track, if the motor-man by reasonable diligence could have prevented the accident after discovering him there. The defendant maintains that if the plaintiff was guilty of contributory negligence at all his negligence continued up to the time of the injury, and bars a recovery within the principle of Dyerson v. Railroad Co., 74 Kan. 528, 87 Pac. 680. The rule there stated does not apply to the facts of the present case. After the plaintiff had driven upon the track there was a considerable interval in which he was powerless to avert the collision. It took an appreciable time for him to drive on across, as he did, and it would have taken him longer to turn around and go back. The jury may have believed that during this period the motor-man by reasonable diligence could have stopped his car or have slowed- down sufficiently to permit the plaintiff to escape. “The test is, What wrongful conduct occasioning an injury was in operation at the very moment it occurred or became inevitable? If just before that climax only one party had the power to prevent the catastrophe, and he neglected to use it, the legal responsibility is his alone.” (Dyerson v. Railway Co., supra, p. 536.) The judgment is affirmed.

Per Curiam: John L. Randolph sued J. R. Huekins and his wife, Annie, to recover a judgment for a balance alleged to be due him for furnishing the material and building a residence for the defendants, and to foreclose a mechanic’s lien therefor upon the premises. To the petition was attached a copy of the mechanic’s lien statement which had been filed in the office of the clerk of the district court. The court made special findings of fact, and rendered judgment for the plaintiff. It is argued that prejudicial error was committed in permitting any evidence to be introduced under the petition; also, in permitting evidence to be introduced thereunder tending to prove that certain alterations had been made in the original plans by defendants which entailed extra work and the use of extra material, and the value of each. The allegations of the petition were sufficiently broad to sustain the rulings. The itemized lien statement contained a detailed account of the changes made in the original plan, the extra work occasioned thereby, its value, and the amount of extra lumber so used and its cost. Error is also predicated upon the ruling of the court excluding the testimony of Mr. Hepner in answer to the following question: “What in your judgment could that house, as you saw it, be built for and be built right?” There was no prejudicial error in this. From the special findings of fact it appears that the court very patiently examined all the items on both sides, charging and debiting the accounts between the parties where the evidence warranted, and found a balance in favor of plaintiff and rendered judgment therefor. The court found that the mechanical work was, in several respects, unskillfully done, and that the defendants sustained damages, but that there was no evidence offered tending to show the value of such damages, and therefore the amount could not be determined; and since our attention has not been called to any evidence tending to prove the value of such damages the court must have been correct in its conclusion. The plaintiff in error made his wife a defendant in error, and she filed a cross-petition alleging the same grounds of error relied upon by her husband. The conclusion that the court committed no error as to the plaintiff in error applies equally to her. The judgment is affirmed.

The opinion of the court was delivered by Graves, J.: The defendant was convicted in the district court of Butler county of the illegal sale of intoxicating liquor, and he brings the case here on appeal. In his bill of exceptions several errors have been assigned, but as only two of them relate to the offense of which he was convicted no others will be considered. The first objection made is that the court erred in permitting the state to ask its witness a question which reads, “I will ask you if you have purchased intoxicating liquors from Frank Rennaker?” to which the witness answered, “Yes.” The defendant admitted that he sold liquor, but denied that it was intoxicating, and this was the principal question in dispute on the trial. It is urged that this question calls for a con- elusion and involves a decision by the witness of the entire question submitted to the jury. If it be conceded that , the objection is well taken, still no err.or can be predicated thereon if from all the evidence given by the witness it appears that he was competent to give such an opinion. (Solomon Rld. Co. v. Jones, 34 Kan. 443, 8 Pac. 730; Sparks v. Bank, 68 Kan. 148, 74 Pac. 619; Insurance Office v. Woolen-mill Co., 72 Kan. 41, 82 Pac. 513; Iola v. Farmer, 72 Kan. 620, 84 Pac. 386.) The witness here was an old man, who bought from the defendant and drank several bottles, of liquor which was called “B. B.” The witness stated that he was accustomed to the use of beer as a beverage, and knew its taste and effect; that on this occasion he wanted beer, and while the liquor in question was called “B. B.” he recognized it as beer; and that its effect upon him was intoxicating. The grandson of this witness, who partook of the same drink many times on the same day, testified in substance that it produced upon him all the varying degrees of intoxication, from the delightful, tingling exhilaration of incipient drunkenness to the drowsy, forgetful indifference of stupefaction. The error committed by permitting the witness to answer the question objected to, if any, is so far relieved by this supplementary testimony that we are unable to say that the rights of the defendant were materially prejudiced thereby. The other error assigned is the refusal of the court to give two instructions requested by the defendant, which read: “The jury are instructed that intent .is a necessary ingredient to the commission of crime, and if the evidence shows that the defendant sold ‘B. B.’ and that he did not know that it was intoxicating, and had no reasonable grounds to believe that it was intoxicating, and sold it without any intent of violating the prohibitory law, then you cannot find the defendant guilty.” “The jury are instructed that intent is a necessary ingredient to the commission of crime, and if the jury find from the evidence that defendant sold ‘B. B.’ not knowing that ‘B. B.’ was intoxicating liquor, and honestly believed that it was not intoxicating liquor, and sold it without any intent to sell intoxicating liquors, then you cannot find the defendant guilty.” These instructions were' properly refused. No such intent is essential to guilt in a case of this kind. (The State v. Bush, 45 Kan. 138, 25 Pac. 614; Wagstaff v. Schippel, 27 Kan. 450; The State v. Moulton, 52 Kan. 72, 34 Pac. 412; Yoe v. Hoffman, 61 Kan. 265, 276, 59 Pac. 351.) The appellant has no reason to complain. He was convicted under one count only, when the evidence presented indicated guilt under both counts. The judgment is affirmed.

The opinion of the court was delivered by Graves, J.: A suit to quiet title to the real estate in controversy was commenced by Mary Greenwalt in the district court of Smith county against N. E. Keller and'wife. The defendants demurred to the petition, and the court sustained the demurrer. Judgment was entered for costs against the plaintiff, who brings the case here for review. The sole question decided by the trial court, and the only one presented here, is, What estate did Eliza Bunt take under the will of her husband, William Bunt — a. life-estate merely, or a life-estate with the power of disposition? If she had the power to convey the fee in the real estate during her life, then the plaintiff has full title to the property and is entitled to the decree prayed for. If the widow took a life-estate merely, then, she having died before the commencement of this suit, the lands revert to the heirs of William Bunt, as provided by the will. It is apparent from the will itself that the testator was unable to express his wishes in clear and accurate language. His intent, however, is easily ascertained by considering the instrument as a whole. Perhaps the clearest statement in the will is the one which determines this controversy. He said: “I wish my wife, Eliza Bunt, to have all my property of every kind that I may own at my death, to have for her own use and benefit while she may live. And at her death all property that may be left by her,” etc. By the use of the last clause of the last sentence the power of disposal in fee is added to that which .would otherwise constitute a life-estate only. The only property which he intended his heirs to receive was whatever might be left by .the mother at her death. This clearly indicates that he intended her to use and permanently dispose of a part of the estate so that it would not be in existence at the time of her death for the benefit of the heirs. We think this amounts to a life-estate with power to convey in fee. Language of like import received the same construction in Williams v. McKinney, 34 Kan. 514, 9 Pac. 265, and Ernst v. Foster, 58 Kan. 438, 49 Pac. 527. The judgment of the district court is reversed, with instructions to overrule the demurrer and proceed with the case in accordance with the views herein expressed.

The opinion of the court was delivered by Burch, J.: The plaintiffs sued.the defendant for damages resulting from the killing of their son, Reuben Hamlin, and recovered. The deceased was an employee of the defendant, and with thirty or forty others known as the “steel gang” was engaged in taking out the rails of the defendant’s track for the purpose of replacing them with new ones. The work was conducted in such a manner as not to interfere with the operation of trains. The men were distributed along the track for several hundred feet, the foreman, whose name was Devine, being at the west end of the work. A passenger-train from the west- was expected. As it approached the engine whistled at the station of Partridge, some five or six miles away. .-It whistled again at a highway crossing about half a mile from the steel gang. As it -came nearer Devine gave the engineer the signal that the track was safe, and gave the usual shout to the men to clear the track. The engineer answered Devine’s signal by two blasts of the whistle. A high wind was blowing at the time, and some of the men were gathering up their tools preparatory to quitting work and going to Partridge. Hamlin, who was at the east end of the line of men, failed to leave the track in time to avoid the engine. A judgment for the plaintiffs was reversed by this court in Railway Co. v. Hamlin, 67 Kan. 476, 73 Pac. 58. The decision turned upon the interpretation of a large number of findings of fact, which are printed in full in the report of the case, and to which reference is made. At the second trial the same interrogatories as before, save two or three, were propounded to the jury, and some additional questions were submitted and answered. A comparison of the two' sets of findings reveals a number of material differences, and in every instance the change has strengthened the plaintiffs’ case. Only the variations from the previous findings need be noted here. It now appears that the whistle at Partridge was not heard by any of the steel gang.' The engine was one-fourth of a mile west of the steel gang, instead of only about 450 feet, when-the engineer acknowledged Devine’s signal. On the morning of the accident •the blasts of the whistle could be heard only about one-fourth of a mile, instead of about five miles. Hamlin was about 1600 feet east of the engine,' instead of- 750 feet, when the engineer answered Devine’s,signal. De-vine was about 400 feet west of Hamlin, instead of 300 feet, when he shouted for the men to clear the track. Devine shouted but once. The bell was not ringing when the accident occurred. The ringing sound from the steel rails when a heavy train approaches cannot at all times be heard three or four hundred feet in front of the engine by one standing over or near, the rails. The rumbling of the train could be heard a short distance only in front of it, instead of about 600 feet. Hamlin could not have moved out of the way had he noticed the train when it was twenty-five feet distant from him. The engineer shut off steam and permitted the train to drift through the steel gang. When a train drifts there is scarcely any noise. A high wind was blowing at the time the train approached. These facts, taken in connection with the speed at which the train was running and the noise made by other members of the steel gang, would prevent a man of ordinary care and prudence who was at work from hearing the train as it approached, and were sufficient to prevent Hamlin from hearing the blasts of the whistle, the ringing of the rails and the rumbling of the train. From six to nine trains passed the steel gang each day. It was Devine’s duty to warn the men of the approach of the train. The men cleared the track in the usual and ordinary way. Hamlin did not know that the others were leaving the track because of the approach of the train. Hamlin was discharging a necessary duty in the customary manner. He was standing in a stooped position on the north side of the rail, close to it. He received no warning either from De-vine or from the engineer. While the steel gang was expecting the train, and while Hamlin was familiar with its time for passing going east, he did not know the time it was expected on the day he was killed. These findings harmonize with themselves, with all the others, and with the general verdict, and they meet the arguments advanced in the former opinion of this court. It was there said to be inconceivable that the deceased alone of all the men did not hear or see the train. As the case now presents itself such an inference may be drawn. The evidence bearing upon the question of what Hamlin saw and heard and of what he ought to have seen and heard is wholly circumstantial and depends upon the testimony of many witnesses concerning many facts. The question being one of fact the court does not feel competent to solve it from the record, if it were its duty to do so. It was the duty of Hamlin and of all the men to work and not to spend their time gazing up and down the track and listening for distant trains. It was their duty to work in front of approaching trains as long as it was safe to do so, especially in view of the number which passed each day. It was Devine’s duty to watch and warn. He was eyes and ears and guardian' for his men. The blasts of the whistle, the ringing of the rails and the rumbling of the train were not warnings. They were mere circumstances which might under favorable conditions give notice of the train’s approach. Their inadequacy and inexpediency as warnings were confessed when the duty was imposed upon Devine to notify the men of coming trains. The movement of the other men was not a warning. Nearly half of them were collecting their tools to return to Partridge. Of course, if a monitory fact of any kind other than the regular signal to clear the track had been apprehended by Hamlin it would have been his duty to give it proper heed; but he was not obliged to guide his conduct by such facts unless apprised of-them or unless the conditions were such that knowledge of them ought not to have escaped him. It was Hamlin’s duty to be alert for the warnings he was bound to expect. But it was Devine’s duty to give adequate warning according to the circumstances. In view of Devine’s position at one end of the line of men, the long distance the men were scattered apart, the confusion of noises which prevailed, and the high wind with which his voice was obliged to contend, it was a fair question for the jury whether the ordinary signal — a single outcry — was sufficient. Since the material facts are found in such minute detail it is not necessary to discuss the bearing of the instructions given upon the general verdict or the refusal of the court to give the instructions asked. Some of the special findings do not harmonize with the statements .of some of the witnesses. It was for the jury to determine how much or how little of the testimony of each witness they would accept, and all statements were to be weighed in the light of all the circumstances of the accident. As already indicated, the meritorious question presented to this court is, What inferences of fact should be drawn from the equivocal mass of circumstantial evidence summarized in the special findings respecting the prudence of the conduct of the deceased and the conduct of the defendant? The ordinary rule applies, and the conclusions of the jury expressed in the general verdict will not be disturbed. ' ' The judgment of the district court i§ affirmed.

Per Curiam: If the plaintiff’s amended petition were defective, in that it contained no offer to return, the defendant should have attacked it upon that ground. Instead of this he waived the right to be placed in statu quo, answered to the merits, and went to trial upon all the issues tendered. It still remained in the power of the court to require the plaintiff to do equity as a condition to granting her relief, but upon rendering judgment it saw fit to give the plaintiff all she had already obtained. This being true, no right of the defendant has been prejudicially affected, conceding this to be a case in which the rule invoked by the defendant applies — a point not decided. The record shows the defendant voluntarily went to trial upon all issues tendered by the amended petition. It did not occur to him that the grounds for modifying a judgment may be tried first, and independently of the main cause of action, until after he had tried them together and had been defeated. The objection that the statutory order of procedure was not observed hav ing been delayed until the motion for a new trial, it came too late. There are special findings made by the court which state that certain allegations of the plaintiff’s petition are not sustained by the evidence, but there are abundant allegations of fraud in the plaintiff’s petition not negatived by the special findings which are found to be true by the general finding. Therefore a judgment for the defendant is impossible if the law is to be observed. Some statements of fact are made in the brief which cannot be tested without the evidence, and the evidence is not in the record. The judgment of the district court is affirmed.

The opinion of thé court was delivered by Burch, J.: The defendant is the owner of a" two-story brick building located at the southeast corner of Fifth avenue ánd Main street, in the city of Caldwell. On the north side of . the building is an outside iron' stairway, leading to the second story. In the sidewalk under the stairway is an opéning covered with a grating. . The covering of the opening becoming defective, thé defendant léanéd á large stone over it to make the place safe. The plaintiff, a“ boy thirteen years old, pulled the stone over upon himsélf só that it crushed his ankle. He sued the defendant for damages, alleging among other facts that the place was attractive to children and that children congregated to play in the vicinity of and about the stone. At the trial the jury returned a general verdict for the plaintiff, and also returned the following special findings: . “(1) Ques. What was the age of Harvey Stout at the date of the injury complained of? Ans. Thirteen years. “ (2) Q. At the date of the injury did the boy, Harvey Stout, possess the same intelligence and foresight that boys of his age ordinarily possess? A. No.” “(7) Q. What was the size of the rock which fell upon the boy’s leg? A. About 5" thick, 3 ft. 6" long, 2 ft. 6" wide. “(8) Q. Did not the boy, Harvey Stout, take hold of the top of the rock with his hand or hands and tip or pull- the rock away from the side of the building? A. Yes.” “(10) Q. If you answer No. 9 in the negative, then state the distance the lower end of the rock was from the building. • A. Between 12 and 15 inches. “(11)' Q. Was there any One with the boy, Harvey Stout, at the time of the accident? A. No. “(12) Q. Did not the boy, Harvey Stout, after making one or more efforts to pull the rock away from' the building with his hand or hands, put his foot against the wall of the building, and with his hand or hands tip or pull the rock over onto the sidewalk ? A. No. “ (13) Q. If you answer No. 12 in the negative, then state fully just what the boy did' ahd how the rock came to fall on the boy’s leg? A. He pulled it over. “(14) Q. Was the place where the accident occurred a playground or a place where children were in the habit of playing or congregating? A. No.” “(16) Q. Was there anything attractive to children at the point where the accident occurred? A. No.” “(19) Q. Was the boy, Harvey Stout, of sufficient age and knowledge to know the danger of pulling the rock away from the building? A. No. “(20) Q. Was the rock, just prior to the accident, in such a position as an ordinarily prudent person would consider dangerous and unsafe? A. No. “ (21) Q. Would an ordinarily prudent person' have anticipated that the rock as it stood against the building would injure any one in the exercise of ordinary care? A. No. “(22) Q. Did the rock as it leaned against the side of the building just prior to the accident block or interfere with the use of the sidewalk ?■ A. No. “(23) Q. How wide was the sidewalk at the point where the accident occurred ? A. Ten feet.” A motion for judgment for the defendant on the Spe cial findings was denied and judgment was entered for the plaintiff on the general verdict. The defendant prosecutes error: It is conceded that the special findings are such as to acquit the plaintiff of contributory negligence, but it is urged they likewise show the defendant to have been free from actionable fault. The defendant was bound to exercise ordinary care in the use of his property to prevent injury to others. This duty included the obligation to keep the sidewalk free from dangerous obstructions to its use. It also included the obligation not to imperil in any other way, so far as reasonable prudence could foresee, the safety of persons rightfully upon the premises. The defendant had the right to expect that persons of ordinary capacity would themselves exercise due care, but the place was open to the use of children, and he was bound to act with full knowledge of their inexperience. Even although children were not in the habit of congregating or playing there, they had the right to be on the sidewalk, and were certain to be there. Hence he was required to keep away from them things naturally hurtful with which they would likely come in contact. Besides this, he was bound to take into account childlike propensities and the impulses of children to yield to the fascination of alluring things. It is not suggested that reasonable care on the part of the defendant, under all the circumstances of the case, included any other duties. The special findings show that the stone did not interfere with the use of the sidewalk, and that an ordinarily prudent person would not have anticipated that the stone would injure any one in the exercise of due care. They further show, not only that children were not in the habit of playing or congregating at the place of the accident, but that there was nothing attractive to children there; and they show that an ordinarily prudent person would not have considered the stone to be dangerous or unsafe in the position which it occupied. Finding No. 20 is general, and was returned under full instructions which made foresight for the safety of boys like Harvey Stout a part of the defendant’s duty. There is, therefore, nothing upon which to predicate a liability for negligence. The judgment of the district court is reversed and the cause remanded, with direction to enter judgment for the defendant upon the findings of fact.

Per Curiam: The district court made an order temporarily enjoining appellant from keeping a place where intoxicating liquors were sold in violation of law. An accusation was afterward filed charging him with a violation of the order. He was convicted, and appeals. The errors he complains of are based almost entirely upon a misconception of the character of the proceedings in contempt in such cases. The court upon complaint filed in the original suit may inquire into and punish a violation of the temporary injunction. The proceeding is a part of the injunction suit. (The State v. Thomas, 74 Kan. 360, 86 Pac. 499.) The accusation need not possess the formalities of an indictment or information, and no arraignment of the accused is necessary. Nor can the state be required to elect upon which particular charge it relies for conviction. The contention, argued at length, that before the court could find the accused guilty of contempt the state must prove that he did not have a druggist’s permit has been decided against appellant in The State v. Plamondon, ante, p. 269. It was not incumbent upon the state to show that the prosecutor had personal knowledge of the violation of the injunction. It was so decided in The State v. Thomas, supra. There was an abundance of evidence to sustain the finding of the trial court and support the conviction. The judgment is affirmed.

The opinion of the court was delivered by Price, J.: This is an action by a minor six years of age by his mother as next friend to recover damages on account of the alleged negligence of employees of defendant city. The facts as narrated in the petition are as follows: Plaintiff and his mother reside at 910 S. Eighteenth St., Kansas City, Kan. On the rear of the lot numbered 906 S. Eighteenth St. there was an old dug-out basement in which there was an accumulation of sawdust and debris collected in prior years; that several days prior to September 17, 1945, such debris was set on fire and the fire department of defendant city came out on two different days and endeavored to put out the fire, . . but that they negligently failed to properly perform their duty and after two trips out on two different days they negligently left said dug out basement burning beneath the surface of the debris therein forming a hidden fire trap and an attractive nuisance to small children like minor plaintiff in violation of defendant city’s duty to abate said nuisance and fire trap.” that on September 17, 1945, at or about 6:30, p. m., minor plaintiff, being attracted by the dug-out basement and attractive nuisance negligently left by such employees of defendant city, walked across the same and his right foot and leg sank down about a foot in said debris and into the hot burning coals and embers beneath the surface; that his foot was caught by an old tree limb so that he could not extricate himself and as a result his foot and leg were severely burned. Then follows an allegation concerning the extent of his injuries, all of which it is alleged were “caused by the aforesaid negligence of defendant city and its failure by its agents, servants and employees to perform properly its duty to put out said fire and abate attractive nuisance, as was its duty.” The petition then alleges the giving of the statutory notice of claim to the city, the latter’s denial thereof, and the prayer seeks judgment in the sum of $15,000. No motion was directed against the petition and the defendant city’s demurrer thereto on the ground that it did not state facts sufficient to constitute a cause of action against the defendant and in favor of plaintiff was sustained, following which plaintiff took this appeal. The sole question thus presented' for consideration is whether the allegations of the petition are sufficient to constitute a cause of action in favor of plaintiff and against defendant city. Briefly stated, the respective contentions of the parties are as follows: The defendant city contends that under the general governmental-function rule, particularly as it applies to the operation and maintenance of a fire department, the city cannot be held liable for the negligence, misfeasance or malfeasance of its servants and employees. The plaintiff on the other hand, while conceding the governmental-function rule, argues that the instant case falls within the well-recognized exception to the general rule in that the city may be held liable for the creation and maintenance of a nuisance even while engaged in such govenmental function. The question of liability of a city for the negligence of its agents and employees in the performance of its business has.been before this court many times and it is well settled as a general rule of law in this state and elsewhere that in the absence of a statute imposing liability, a city is not liable for the negligence or misconduct of its officers or employees in the performance of governmental functions as distinguished from its liability for such acts of negligence in its proprietary or quasi-private capacity. (Wray v. City of Independence, 150 Kan. 258, 92 P. 2d 84, citing cases; 38 Am. Jur. 261, Municipal Corporations, § 572.) It is equally well settled in this state that in the maintenance and operation of its fire department a city is acting in its governmental capacity and is not liable in damages for negligence of its officers or employees in the performance of their duties pertaining to the fire department. (Barcus v. City of Coffeyville, 129 Kan. 238, 282 Pac. 698; Perry v. City of Independence, 146 Kan. 177, 69 P. 2d 706; 38 Am. Jur. 322, Municipal Corporations, § 623.) Plaintiff attempts to avoid the effect of the foregoing general principles and relies heavily on the rule laid down in Jeakins v. City of El Dorado, 143 Kan. 206, 53 P. 2d 798, in which the well-recognized exception to the immunity while engaged in a governmental function rule, was followed. There the allegations of the petition were that the city constructed a sewer system emptying into a stream and then so negligently operated it as to make it a nuisance to the damage of plaintiffs, and this court, in holding that it would be no defense to the city that the construction and maintenance of a sewer is a governmental function, said: “In an annotation in 75 A. L. R. 1196, with respect to municipal immunity from liability for acts in performance of a governmental function, it is stated that a majority of the courts passing upon the question have held the immunity of a municipality from liability for acts done in performance of governmental functions does not extend to cases of injury resulting from a nuisance created or maintained by the municipality, and that the municipality is liable although the nuisance was created or maintained in the performance of public duties or governmental functions; and many cases in support are cited.” (p. 209.) As noted, the petition in that case alleged that the city constructed the sewer system and then so negligently operated and maintained it as to make it a nuisance to the damage of plaintiffs, and in the opinion “nuisance” is defined as annoyance, and any use of property by its owner which gives offense to or endangers life or health, violates the laws of decency or obstructs the reasonable and comfortable use of property of another. In the same annotation from 75 A. L. R. we find the following statement at page 1204: “Where the municipality did not create the conditions amounting to a nuisance, its failure to exercise its power to abate the nuisance has been held not to render it liable for injuries resulting therefrom.” Are the allegations of plaintiff’s petition sufficient to bring this case within the attractive nuisance doctrine? We think not. Nowhere is there any allegation that the property in question was other than privately owned and we are unable to hold that the facts alleged show the existence of an attractive nuisance or of a nuisance of any sort. The rule of the attractive nuisance cases has, been recognized and frequently applied in this state but it is based on the negligence of the proprietor who fails to protect young children attracted to his premises by some dangerous thing or place artificially created there and where he should have anticipated that children would be lured into the danger. It assumes that he has the control of the premises and the right and power to erect fences or guards thereon for the protection of children that will be attracted to the thing or place in question. (Tavis v. Kansas City, 89 Kan. 547, 132 Pac. 185.) In fact, we think that the allegations in the instant case make out a weaker case of a nuisance than the facts in the case of Bruce v. Kansas City, 128 Kan. 13, 276 Pac. 284, in which it was held that the maintenance by the city of a free municipal dump and into which a small boy tripped and fell into a pile of hot ashes and was injured thereby was neither an attractive nuisance nor a nuisance of any sort. Even giving the allegations of the petition their most favorable and liberal construction, the most that can be said is that they allege a fire to have occurred on the private property in question; that the fire department of defendant city came out on two different days to put out the fire but that due to the negligent failure of the department to extinguish the fire, a hidden fire trap and an attractive nuisance thus came about. The city did not create or maintain the fire in question. Its fault, if any, consisted in the failure to use the requisite care in remedying a condition otherwise created or occurring. The particular nuisance complained about was created by other persons on private property. The negligence of the city, if any, was its failure to put out the fire, for which it is not liable. (38 Am. Jur. 327, Municipal Corporations, § 626.) Summing up these matters and under the general principles of law heretofore set out, we hold that the allegations of the petition are insufficient to state a cause of action in favor of plaintiff and against the city and that the demurrer was properly sustained. The ruling of the lower court is therefore affirmed.

The opinion of the court was delivered by Arn, J.: This is an appeal from a judgment of the district court affirming a probate court judgment of July 13,1946, which admitted to probate the will of J. M. Osborn, deceased; decreed that a certain postnuptial release executed by decedent’s widow barred her from any interest in the estate; and appointed an executor of the will and fixed his bond. The district court also overruled motions by the widow to vacate the probate court judgment and to set aside the postnuptial release, and then dismissed the widow’s appeal. Hence, the matter comes here on the widow’s appeal. The pertinent facts may be related by the following calendar of events: In 1931, J. M. Osborn’s first wife died and left three daughters surviving. On June 23, 1932, Osborn married this appellant, then Delia Lively. No children were born of the marriage. They lived together until March 25, 1935, on which day they separated and Delia Osborn left for California and never thereafter communicated with her husband, the deceased, although they were never divorced. Before Delia Osborn left she received $250 from her husband J. M. Osborn, and she executed, acknowledged, and delivered to him what is termed a “release.” The release follows: “Know All Men By These Presents, That I, Delia Osborn, wife of J. M. Osborn, of Clifton, Kansas, being now desirous of hereafter living separate and apart from my said husband and maintaining myself separately from him, and knowing my rights under the law as his wife, do hereby, for value received, forever release him, the said J. M. Osborn, from any and all obligation to support and maintain me as his wife in any respect, and I hereby expressly waive any and all rights and claims that I may have as his wife in and to any and all property, both real and personal, that my said husband may have, or hereafter acquire, it being my intention hereby to relieve and release the said J. M. Osborn, my said husband, from any and all responsibility or liability to me, both now and in the future, my relation to him in the future being the same as if I had never been married to him. “Dated at Clifton, Kansas, this 25 day of March, A. D. 1935.” On October 21, 1941, J. M. Osborn executed his last will, leaving his property to his two living daughters and his grandson, a son of a third deceased daughter. The will made no mention of the wife, Delia Osborn. On June 8, 1946, Osborn died. June 18, 1946, the two daughters filed in probate court a petition entitled “Petition For Probate Of Will” which sought: (1) Admission of the will to probate; (2) appointment of an executor, and (8) adjudication of the postnuptial release to be in full force and effect and valid and binding as against the widow, Delia Osborn. The same day the probate court made an order stating that Ida E. Perez and Kathryn Mueller (the two daughters of deceased) appeared and filed their petition for admission of the will to probate, and fixed the time and place of hearing as July 13, 1946, at the probate courtroom. A “Notice of Hearing” was published and a copy mailed by the attorney for petitioners (envelope bore his return address) to Delia Osborn at her last-known address in California. The notice , of hearing advised in detail of the contents of the petition, and that petitioners prayed for a decree that the postnuptial release of Delia Osborn dated March 25, 1935, was valid and binding, and that Delia Osborn was not entitled to a widow’s allowance or distributive share of the estate nor any other interest or share therein. The widow contended she never received a copy of the “Notice of Hearing,” but this fact seems to have been resolved against her by the finding of the district court. On July 13, 1946, a hearing was, had before the probate court and the resulting order was entitled “Order Admitting Will to Probate and Record.” Actually, however, the order of July 13, 1946: (1) Admitted the will of J. M. Osborn, deceased, to probate; (2) appointed an executor and fixed his bond; and (3) decreed that the postnuptial agreement and release executed by Delia Osborn under date of March 25, 1935, was valid and binding and that Delia Osborn had waived all her rights as a widow and heir-at-law of J. M. Osborn, deceased, and was not entitled to a widow’s allowance or any distributive share whatsoever in his property and estate; and that the release constituted a consent to the will and no further election or consent by the widow is necessary. October 25, 1946, the widow filed in probate court (1) a motion to set aside the judgment of July 13, 1946, insofar as it attempted to adjudicate the validity of the release dated March 25, 1935; and (2) a petition to set aside the postnuptial release and to elect to take under the laws of intestate succession. On November 14,1946, the executor and petitioners (appellees here) filed in probate court their motion to dismiss the widow’s petition. On November 22, 1946, these matters were heard by the probate court and the widow’s motion to set aside the probate court judgment of July 13 was denied and the widow’s petition to set aside the postnuptial release and to elect to take under the law was dismissed. December 9, 1946, the widow appealed to the district court from that part of the probate court order of July 13 decreeing the postnuptial release to be valid and binding upon her. On December 20, 1946, the widow filed another appeal in which she appealed from the order admitting the will to probate, the order adjudging the validity of the postnuptial release, and from all orders of the probate court made on November 22,1946. The proceedings were then certified to the district court where the widow on January 25, 1948, filed a motion to set aside the probate court judgment of July 13, 1946, insofar as it concerned the post-nuptial agreement, but the district court concluded to hear the case upon its merits and upon all issues and take the determination thereof under advisement. The trial was had on December 11, 1947, and on March 1, 1948, the district court entered its order of judgment affirming the probate court order of July 13, 1946; overruling the widow’s motion and petition filed in probate court on October 25, 1946, and the widow’s motion of January 25, 1948, filed in the district court; dismissing the widow’s appeal from that part of the probate court judgment of July 13, 1946, relating to an interpretation of the release; and remanding the proceedings to the probate court with directions to proceed with the administration of the estate. The widow’s motion for new trial was subsequently overruled, and she appeals to this court. Appellant presents twelve specifications of error, but as far as this appeal is concerned, the vital one is stated thus: “The Court erred in deciding that the Probate Court acquired and had jurisdiction to admit decedent’s Will to probate and upon the same petition to adjudicate the issues therein tendered as to the meaning and validity of the postnuptial release.” It is appellant's contention in this respect, that at the hearing upon the petition to probate a will, the probate court cannot simultaneously with admitting the will to probate and appointing an executor, determine a controversy with the surviving spouse over the validity and effect of a postnuptial contract or release, and cannot at that time and upon the petition to probate a will, acquire jurisdiction over the subject matter of such a controversy and uphold the contract or release, thus barring the spouse from any interest in the estate. Of course it could not be contended, and appellant does not contend, that the probate court has no right, in a proper proceeding before it, to determine the validity and effect of an instrument such as the postnuptial agreement or “release” now before us. The interpretation of such an instrument and the adjudication of its validity, upon a proper application or petition therefor, is a recognized function of the probate court, because it is a controversy seeking something out of the assets of the estate and must be determined before distribution of the assets (In re Estate of Thompson, 164 Kan. 518, 522, 190 P. 2d 879). The questions arising here are whether the petition to probate the will may raise the issue of the validity of a postnuptial release or agreement, and whether the probate court may, upon such a petition, proceed to adjudicate the validity of such an instrument at the same time and at the same hearing at which the will is admitted to probate. We have concluded that if these questions are to be resolved in favor of appellant, this cause should be remanded to the probate court. Thus there is no occasion to discuss or pass upon the several other matters which appellant specifies as error. Appellees cite Shriver v. Besse, 163 Kan. 402, 183 P. 2d 407, as authority for the procedure followed below. True, the Shriver petition for probate of the will also sought to determine the validity of an antenuptial contract, but there the widow answered before the date set for hearing on the petition, alleging that the antenuptial contract was invalid and that issue was joined, contested, and determined without any question having been raised as to the proper procedure under the probate code. It was not challenged by the widow, and that question was not before this court in the Shriver case. Obviously, there was nothing to prevent an adjudication by the probate court of such matters where all the proper parties entered their appearance, joined issue, and voluntarily sought to have those matters contested and determined. The Shriver case, therefore, is not in point with the question here involved. The probate code contemplates that the real purpose of the petition to probate is to determine whether the decedent died testate, to appoint a representative of the estate, and to deal with such other preliminary matters as are clearly incidental thereto. However, it is not the function of the probate court, upon a petition for probate of a will, to adjudicate the rights of the heirs or determine the persons entitled to the estate. It cannot be said that the adjudication of the validity of the postnuptial release was incidental to the probate of the will. That was a matter which directly concerned the rights of the heirs and the determination of the persons entitled to the estate. We can think of no good purpose to be served by including in the petition for probate allegations seeking a determination as to the validity or interpretation of controversial contracts or agreements, and by then rushing through an order of judgment thereon at the same time the will is admitted to probate. The validity of such instruments is a matter to be determined by an adversary proceeding commenced in the probate court upon the filing of an application for such determination or adjudication after the hearing on the petition to probate the will and the appointment of the executor. The administration of an estate is not a single piece of litigation, but in its entirety consists of many separate and distinct judicial acts, all having for their purpose the orderly and expeditious administration and distribution of the assets of a decedent’s estate pursuant to the various sections of the code. The admission of the will to probate is one such proceeding (Price v. Gibson, 165 Kan. 10, 18, 192 P. 2d 219). Section 59-2204, G. S. 1947 Supp., provides for the commencement of these various probate proceedings — and, for example, in Barrett v. McMannis, 153 Kan. 420, 424, 110 P. 2d 774, we said the appointment of an administrator de bonis non was the “com mencement of a proceeding” under this section. That is to say, it was another proceeding, separate and distinct from the probate of the will. Section 59-2202 recites the essential requirements of petitions generally; and section 59-2220 deals specifically, and separately, with the contents of a petition for probate of a will. Section 59-2224 concerns the hearing to be had upon the petition for probate of a will, and certainly it neither contemplates nor authorizes a determination of the persons entitled to the estate or adjudication of the rights of the heirs by the probate court at such hearing. It should also be noted that section 59-2233 provides for an election by the widow after the will is admitted to probate. In Pee v. Carlyle (1926), 120 Kan. 200, 203, 243 Pac. 296, decided before the adoption of the present code, we said: “In a proceeding to probate a will, the inquiry is limited to the single subject, ‘Is the Instrument a Will?’ If so, it is entitled to probate; if not, it is not entitled to probate. A will has no effect other than potentiality until it has been probated.” After the enactment of the probate code (1939), the above holding was approved in In re Estate of Reed, 157 Kan. 602, 606, 142 P. 2d 824, as follows: “In a proceeding to probate a will the inquiry is limited to the question whether such instrument is entitled to probate and prior to the determination of that issue orders relating to proceedings incident thereto are not res judicata." (Syl. 3.) • This subject is treated in 57 Am. Jur. 528, section 774, as follows: “The probate of a will involves, in general, no more than a determination of the testamentary character of the instrument propounded; the testator’s knowledge of the contents of the instrument and his intent to execute it as his will; the question of the factum of the will, executed and attested in the manner and form required by the state statutes at a time when the testator had the requisite'power and capacity to make a will, and in the absence of mistake, fraud, duress, or other undue influence which invalidates a will; and whether or not the will stands as executed or has been revoked. In a suit to contest a will after probate, the question is not whether the will was properly admitted to probate, but whether it shall be declared invalid in the direct proceeding. A court having exclusive jurisdiction to probate a will does not have the exclusive jurisdiction to determine the question of its jurisdiction for the litigation of issues which do not come within the scope of the inquiry properly to be made on an application to probate a will.” Also see 68 Corpus Juris 875: “A probate proceeding is not severable, but is complete in itself and is a separate and distinct proceeding, such as from the contest of a will, and may not be combined with other proceedings.” Considering together all the sections of the probate code as well as the foregoing decisions and authorities, we must hold that the probate court did not have statutory power and authority to determine the validity of the postnuptial release or agreement at the time of hearing upon the petition for admission of the will to probate and for appointment of a representative of the estate. Both parties cited and in various ways rely upon In re Estate of Hoover, 155 Kan. 647, 127 P. 2d 460, and on rehearing, 156 Kan. 31, 131 P. 2d 917. That case held that the validity of a contract between the testator and his widow could not be adjudicated in the probate court by a proceeding where no application for such an adjudication had been made, and without notice thereof to the widow. There the validity of the contract was later raised by a separate proceeding initiated by the widow. The statement at page 35 of the opinion on rehearing in the Hoover case may have been so broad as to indicate to appellees here that the; procedure they chose to follow in the probate court was proper. If so, it was too broadly stated. The question now before us is one of first impression in this court, and was not considered in the Hoover case. The Hoover case is therefore not in point with the issue now under consideration. Appellant contends also that while the two daughters and beneficiaries under the will had a right to file a petition for probate of the will, they were not proper parties to petition or apply to the probate court for an order adjudging the validity of the postnuptial release, and that such application or petition could have been filed only by the executor. We cannot agree with that contention. These beneficiaries, daughters of decedent, had a right to commence such a proceeding in the probate court by petition therefor at a proper time. That was not done, and, in view of our decision upon the other question discussed above, it may not be a matter with which we are now concerned. However, we mention it in passing because of appellant’s contention that it also pertains to the probate court’s jurisdiction. From what has been said above, it is apparent that on July 13, 1946, the probate court of Washington county lacked statutory power and authority to make the order adjudicating the validity of the postnuptial release. The widow, appellant here, was entitled to have that matter raised in the probate court after the will was admitted to probate, upon a proper application or petition therefor, and to have the matter determined upon notice and hearing. Accordingly, the judgment of the district court is reversed with directions to remand the case to the probate court for further proceedings in harmony with this opinion. It is so ordered.

The opinion of the court was delivered by Parker, J.: This is an appeal from an order overruling a demurrer to an amended petition. The pleading in question sets forth the facts on which appellee bases her right to relief. It is not lengthy and for that reason, except for formal averments including its prayer and immaterial allegations, particularly those pertaining to the extent of plaintiff’s injuries, will be quoted at length. So limited it reads: “Plaintiff further states that on, and prior to the 24th day of December, 1947, she was, and had been employed by the defendant William D. Sharp, as a waitress in defendant’s restaurant located at the above and foregoing address. “Plaintiff further states that among other persons working in and about said restaurant, was one Thomas Jeff Sharp. That the said Thomas Jeff Sharp was allowed and permitted by the said William D. Sharp to work in said restaurant during the same times and hours that this plaintiff was working there. That the said Thomas Jeff Sharp was a man enamored of women and particularly this plaintiff who at all times resisted the advances of the said Thomas Jeff Sharp. That the said Thomas Jeff Sharp was disposed to drinking intoxicating liquor in and about the premises of the said restaurant while he was working there and during the times that he was under the influence of said intoxicating liquor he became more aggressive in his advances toward women in and about said restaurant, and particularly this plaintiff. That this disposition of the said Thomas Jeff Sharp to be enamored of women, and more so when under the influence of itoxicating liquor was well known by the defendant, William D. Sharp, who, despite such disposition on the part of Thomas Jeff Sharp, permitted the said Thomas Jeff Sharp to work in and about said restaurant during the same times and hours that this plaintiff worked, and the disposition of the said Thomas Jeff Sharp to be particularly enamored of this plaintiff, and more so when under the influence of intoxicating liquor was well known and fully realized by the defendant William D. Sharp, and that the defendant William D. Sharp did also know that on every occasion the advances of the said Thomas Jeff Sharp were resisted by this plaintiff. “Plaintiff further states that on the 24th day of December, 1947, at or about the hour of 10:00 P.M. the said Thomas Jeff Sharp, with the full knowledge and consent of the defendant William D. Sharp, was under the influence of intoxicating liquor was allowed and permitted to work in said restaurant in company with the plaintiff who was also at said time working in said restaurant. That at said time the defendant William D. Sharp was also present in said restaurant and observed the actions and conduct of the said Thomas Jeff Sharp, who at said time began to make advances to this plaintiff who resisted the same. That when the advances of the said Thomas Jeff Sharp were resisted by this plaintiff He became angry and willfully assaulted this plaintiff, without any fault on her part, by beating this plaintiff on and about her head, neck, shoulders and arms; that he threw a meat cleaver at her, pulled her hair, poured hot coffee down her back and knocked her to the floor of said restaurant, causing her to sustain and suffer the following injuries to wit: “That the defendant, William D. Sharp was careless and negligent in not using ordinary care to provide this plaintiff with a safe place to work in permitting the said Thomas Jeff Sharp to work in and about said restaurant at the times that plaintiff worked there when he knew or by the exercise of ordinary care could and should have known the disposition of the said Thomas Jeff Sharp toward this plaintiff and other women, all as alleged herein, and in permitting the said Thomas Jeff Sharp to work and be in and about said restaurant in an intoxicated condition, all as is alleged herein, knowing the habits of the said Thomas Jeff Sharp to be in and about said premises in an intoxicated condition during the hours that plaintiff worked, all as is alleged herein, and defendant William D. Sharp was further negligent in failing to restrain the said Thomas Jeff Sharp from committing the assault upon this plaintiff while the same was being committed in his presence all as is alleged herein, all of which negligent and careless acts, and omissions of duty toward this plaintiff on the part of the said William D. Sharp causing and contributing toward the injuries received by this plaintiff as is herein alleged.” Before proceeding to give consideration to the merits of this appeal we feel compelled, because of the state of the record, to comment that if appellee has any confidence in the propriety of the ruling on the involved demurrer there has been no indication of that fact. She-filed no brief and made no appearance when the cause was argued. On that account our decision must be reached without any information as to the theory on which the trial court concluded the amended petition stated a cause of action or any citations of authorities supporting its decision. When the allegations of the pleading heretofore quoted are given consideration in their entirety it becomes apparent that appellee founds her cause of action upon negligence of the appellant in failing to provide her with a safe place to work in that he employed and retained Thomas Jeff Sharp with full knowledge of all proclivities therein charged against the latter, coupled with negligence on appellant’s part in failing to restrain appellee’s fellow servant from committing an assault upon her. Upon further examination of such pleading it is equally apparent .that its allegations do not pretend to charge that the assault therein related was committed in the course of her fellow servant’s employment and with a view to his master’s business but on the contrary that they reveal such assault was committed at a time when that employee had stepped beyond the scope of his employment and was engaged in a personal venture of his own. It can likewise be added that it appears from the face of the pleading that all the vicious, licentious and dangerous characteristics of such fellow servant were known to the appellee and that notwithstanding, and without any assurance of a change in those conditions, she remained in the appellant’s employ. While the question is not here in controversy it should, perhaps, be stated that in this jurisdiction the general, well-established, rule is that while an employer may be held liable to one of his employees for wrongful acts of a fellow servant done in the pursuance of the objects of his employment and in furtherance of his duties (Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621) he is never liable for such acts when they are committed outside the scope of such servant’s employment. (Crelly v. Telephone Co., 84 Kan. 19, 113 Pac. 386). Many more Kansas cases to the same effect could be cited but they will not be here set forth since many of them are to be found in Zamora v. Wilson & Co., infra, presently to be given consideration. For legal treatises and textbooks evidencing that the general rule in this jurisdiction is in line with the weight of authority see 35 Am. Jur. 628, § 199; 56 C. J. S. 1084, § 325; 6 Labatt’s Master and Servant, 2d ed., §§ 2273, 2274, 2347; Wood on Master and Servant, 2d ed., §§ 279, 307. Thus it appears that unless appellee has pleaded facts which bring her within some exception to the general rule her pleading fails to state a cause of action. Doubless, although as heretofore indicated we do not have the benefit of her contentions, her first position is that by charging appellant with knowledge of her fellow employee’s dangerous tendencies and with having retained him as an employee after acquisition of that knowledge she has pleaded around and thus brought herself within an exception to the general rule of nonliability for acts of servants committed without the scope of their authorized employment. If that be her claim it is answered by our decision in Zamora v. Wilson & Co., 129 Kan. 285, 282 Pac. 719. In that case the plaintiff’s husband had been killed by a fellow employee. Her petition charged: “ ‘That . . . Claude Brooks . . . had been in the employ of the defendant, and was ... a dangerous, turbulent and bloodthirsty man, given to commencing quarrels with and brutally assaulting- other persons and other employees of defendant while in and upon defendant’s premises and had assaulted and dangerously injured plaintiff’s deceased on another occasion while he and the said Claude Brooks were in and upon defendant’s premises, all of which facts were well known to the defendant; that notwithstanding the knowledge of said defendant of all of said facts, defendant allowed and permitted the said Claude Brooks to be and remain in its employ and in and upon its premises and in possession of such dangerous instrumentalities as the meat cleaver with which he killed the said Emeterio Zamora.’ ” There, as here, the plaintiff relied upon negligence of the de~ fendant in keeping in its employ a person of known vicious disposition. The defendant relied on the general principle that it was not liable for injury caused by. one employee to another where the act which caused the injury was not authorized by it and was not done in the promotion of the master’s business or as a part of the ■employee’s duties. Prior to the institution of such action this court had decided Roebuck v. Railway Co., 99 Kan. 544, 162 Pac. 1153, wherein it had held: “Under the common law of master and servant, as adopted and enforced by the courts generally, the master is not liable for the willful and criminal assault by one employee upon another, where the assault was not expressly •or impliedly authorized or within the scope of the employment.” (S'yl. ¶ 3.) The plaintiff in the Zamora case in an attempt to evade the force and effect of the case from which we have just quoted argued, that because the petition in her action alleged knowledge by the employer •of the vicious disposition of the offending fellow servant and his retention in the former’s employ notwithstanding, the rule laid down in the Roebuck case was not controlling. We denied her contention, approved the action of the trial court in sustaining a demurrer to her petition, reaffirmed the rule announced in Roebuck v. Railway Co., supra, and regardless of the facts and circumstances pleaded in her petition as above quoted, held: “A master is not liable in damages for the act of his employee in taking the life of a coemployee when the act which caused the injury was not authorized and was not done to promote the master’s business, and was not a part of the employee’s duties, although the act was committed while both were employed on the master’s premises.” (Syl.) Except for one question presently to be mentioned we see no room for differentiation between the facts pleaded in Zamora v. Wilson & Co., supra, and those alleged to exist in the instant case. Therefore, subject to the exception noted, we hold to the view the trial court’s action in overruling the demurrer to the pleading now under consideration is erroneous. Indeed we believe there is a further and additional reason, not heretofore mentioned, which compels that conclusion. The inviolate rule, so far as we have been able to determine, is that notwithstanding the failure of an employer to exercise ordinary care in the employment of his servants, he cannot be held liable, in a case where one servant injures another, if his negligence was merely a condi tion as opposed to the efficient cause of injury (4 Labatt's Master and Servant, 2d ed. §§ 1570, 1571). Here, under unequivocal allegations of the petition, the employer’s conduct in retaining the offending employee merely created a condition which made the action of Thomas Jeff Sharp possible. The efficient or proximate cause of appellee’s injury was his action in stepping aside from his employment and in committing an assault upon appellee. This conclusion finds support in our decisions in Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338; Fraser v. Railway Co., 101 Kan. 122, 165 Pac. 831, dealing with questions pertaining to proximate and remote causes. Also, in 35 Am. Jur. 555, § 126, where the following statement appears: “Notwithstanding an employer has been, guilty of failure to exercise ordinary care for the safety of his employees as required by the common law, or of failure to comply with a statutory duty imposed for the benefit of employees, he can, in the absence of any statutory imposition of liability, be held liable for injuries to his employees only if there is a causal connection or relation between his negligence and the injury of which the employee complains. Under the common law, to enable an employee to recover from his employer for injuries received in the course of employment, he must show that the employer’s negligent act or omission to act, or his noncompliance with a statutory duty, was the proximate cause or at least one of the proximate causes of the plaintiff’s injury. An employer is not liable for injuries to an employee unless the injury is the proximate result of wrongful conduct chargeable to the employer. If the latter’s conduct was only a condition, as distinguished from the efficient cause of the employee’s injury, the employer is not liable. . . .” Appellee’s cause of action based upon appellant’s failure to furnish her with a safe place to work is not good for another reason. Under clear and unambiguous allegations of her petition it appears that she knew as much if not more than appellant about the dangerous and violent characteristics of her fellow servant, with whom she elected to continue to work notwithstanding that knowledge. The rule in this jurisdiction is that if an employee knows that another employee is incompetent, or habitually negligent, and continues his work without objection, and without being induced by his employer to believe that a change will be made or that his employment will be made less dangerous he assumes the risk and hazards, of which he has full and complete knowledge, incident to such employment. For just a few of our decisions to this effect see K. P. Rly. Co. v. Peavey, 34 Kan. 472, 8 Pac. 780; A. T. & S. F. Rld. Co. v. Schroeder, 47 Kan. 315, 27 Pac. 965; McDougall v. Railway Co., 106 Kan. 135, 186 Pac. 1028; McDaniel v. Myers, 156 Kan. 21, 131 P. 2d 650. Others will be found cited in Hatcher’s Kansas Digest, “Master and Servant,” §§89 and 95, inch; West’s Kansas Digest, “Master and Servant,” §§ 216, 217. This, even though the employee continues to work for his employer with such knowledge and information unwillingly, and because of fear of losing his employment (S. K. Rly. Co. v. Moore, 49 Kan. 616, 31 Pac. 138). In Marbach v. Mining Co., 53 Kan. 731, 37 Pac. 122, in determining the duties of the employee under such conditions and circumstances, we held: “An employee should leave the dangerous employment of his employer on discovery of the master’s method of doing business, when he finds that the master does not remedy the danger complained of, and especially is this true when the danger is imminent or obvious from former injuries received by the employee in the place where he is employed.” (Syl. U 5.) There remains one final question. Does the involved pleading state a cause of action against appellant for negligence in failing to restrain Thomas Jeff Sharp from committing the assault upon appellee? We cannot so conclude. At page 556 of the opinion in Roebuck v. Railway Co., supra, to which we adhere, approval was given by this court to a principle announced in Medlin Milling Co. v. Boutwell, 104 Tex. 87, 133 S. W. 1042, which reads: “ ‘It is not the legal duty of the master to protect.the servant from unlawful assaults by strangers, and another servant committing such an assault, not in the scope of his employment, must be regarded as a stranger’.” (p. 90.) It follows appellant’s negligence vel non or his conduct, however reprehensible, in failing to go to appellee’s assistance when assaulted by her fellow servant is therefore wholly immaterial and adds nothing to the allegations of the amended petition which we have heretofore held fails to state a cause of action against appellant for failing to furnish her with a safe place in which to work. The judgment of the trial court is reversed with directions to sustain the demurrer to appellee’s amended petition.

The opinion of the court was delivered by Graves, J.: This suit was commenced November 8, 1904, by H. J. Barnhouse, in the district court of Riley county, to determine the ownership of twenty-five shares of stock in the Manhattan Building and Savings Association. Judgment was entered for the plaintiff, and defendants bring the case here for review. The plaintiffs in error are the executors and the administrator of the last will and testament of C. P. Dewey, who died while a resident of Cook county, Illinois, June 10, 1904. The will was probated and the executors appointed by the probate court of Cook county, where the estate of the testator is being administered. The certificate of stock in- controversy was in the possession of Mr. Dewey at the time of his death. It was found by the executors among the papers of the'deceased, and has ever since been in their possession. While they were temporarily present in Riley county, Kansas, this suit was commenced by the defendant m error, who caused summons to be served therein upon the executors personally. The first question presented in the case is one of jurisdiction. The plaintiffs in error claim that the courts of Kansas cannot acquire jurisdiction over personal property located in another state so as to adjudicate the title thereof, and it is urged that this rule applies with especial and peculiar force when the property belongs to an estate which is in course of administration in the proper court of such other state. As a sequence of this proposition it is contended that an action against foreign executors or administrators cannot be maintained in the courts of this state, except when there is property in the jurisdiction of the court, and then only for the disposition of such property. The solution of this question depends upon the statute of each state, and the legislature of Kansas has relieved its courts of the difficulties which they might otherwise encounter by a clear and comprehensive statute upon this subject, which reads: “An executor or administrator duly appointed in any other state or country may sue or be sued in any court in this state, in his capacity of executor or administrator, in like manner and under like restrictions as a non-resident may sue or be sued.” (Gen. Stat. 1901, § 3009.) Under this statute actions against foreign executors or administrators for the purpose of subjecting the property of the estate to the payment of debts by attachment, and for the foreclosure of mortgages, have been upheld where the only service upon the defendants was obtained by publication, as in ordinary cases. (Cady v. Bard, 21 Kan. 667; Ravenscraft v. Pratt, 22 Kan. 20; Manley v. Park, 62 Kan. 553, 64 Pac. 28; Manley v. Mayer, 68 Kan. 377, 75 Pac. 550; Eells v. Holder, 2 McCrary [U. S.], 622, 12 Fed. 668.) In the cases of Manley v. Park, and Manley v. Mayer this question was fully considered. The authorities .are there cited and discussed. While the cases heretofore decided by this court under the statute above quoted involved the taking of property located within the state, we do not think they exhaust the power conferred upon the courts by that section. On the contrary its language clearly provides that foreign executors or administrators may be sued the same as ordinary non-residents, and that the action may be brought against them in their capacity as executors or administrators. This furnishes a clear and easily understood rule. Ordinarily a non-resident may be sued whenever the service of a summons can be had upon him within the state. When such service has been made the court obtains jurisdiction of him as completely as if he were a resident citizen. The same rule applies to foreign executors and administrators. It has been suggested that the judgment cannot be enforced because the property in controversy is not within the jurisdiction of the court. This may be a matter of serious concern on the part of the plaintiff, but we see no cause for complaint from the defendants on that account.. Whether or not a non-resident defendant, in a personal action commenced while he is temporarily within the state, has available assets out of which the court can satisfy the judgment when obtained is immaterial. As we have seen, the same rule applies to foreign executors and administrators. Courts may not withhold rights expressly conferred by statute because difficulties can be anticipated in the complete ¿enforcement thereof. In this case all the parties interested in the subject-matter of the suit were personally present in court. The matters in controversy are of a purely personal nature, and we see no reason why, under the provisions of the statute, the suit could not be maintained. The plaintiffs in error further claim that the district court committed material error on the trial of the case. This contention will be understood more clearly if considered in connection with some of the facts shown by the evidence. C. P. Dewey, prior to May, 1900, had resided at Manhattan, and conductéd large business interests in that vicinity. He removed to Chicago, but retained control of his Kansas business. In May, 1900, while on a visit to Manhattan, he purchased 100 shares of stock in the Manhattan Building and Savings Association. The by-laws of the company provided that no member should hold or control more than twenty-five shares. Dewey had twenty-five shares issued to himself, twenty-five to his son, Chauncey, twenty-five to his private secretary, and twenty-five were taken in the name of his employee, H. J. Barnhouse, the defendant in error, who afterward indorsed the certificate in blank. Dewey held possession of the certificate and paid all dues thereon until his death, when it was found among his papers by his executors. The defendant in error claims that the stock was purchased and presented to him as a gift by Dewey, who afterward retained possession of the certificate in trust, and paid the dues thereon for defendant in error’s benefit. The executors, plaintiffs in error, claim that Dewey took the certificate of stock in the name of Barnhouse because under the by-laws of the association he could not hold it in his own name, and that Barnhouse indorsed it in blank to accommodate Dewey. Therefore the sole question presented to the jury was whether or not the transaction amounted to a gift. The principal error presented is the refusal of the court to set aside the special findings of fact returned by the jury, which read: “(1) Ques. Was the certificate of stock delivered to Barnhouse in the bank at the time the stock was issued? Ans. Yes, but held in trust by C. P. Dewey-for H. J. Barnhouse. “(2) Q. Did Barnhouse ever have possession of said stock? A. Yes. “(3) Q. Didn’t Barnhouse indorse said stock in blank to Mr. Dewey? A. No. “(4) Q. Has said stock been continuously in the possession of Mr. Dewey and his executors since it was issued? A. Yes, as trustee for H. J. Barnhouse. “(5) Q. Where was said stock found at the time of Mr. Dewey’s death? ' A. In C. P. Dewey’s private box in Chicago. “(6) Q. Where had it been continuously since it was issued until Mr. Dewey’s death? A. Supposed to be in the private box of C. P. Dewey, in Chicago. “(7) Q. Did Mr. Dewey, from time to time, have trial-balances made in which this certificate of stock was included as a part of his property? A. No.” The importance of these special findings will be apparent when it is understood that the decision of the case depends upon two propositions: (1) Was there a gift of the stock in question by Dewey to Barnhouse? (2) If so, was it afterward transferred by Barnhouse to Dewey? In every gift of personal property there must be a delivery by the donor of the thing donated to the donee or to some person for him. The delivery need not be actual; it may be constructive. In this case Dewey did not part with the possession of the certificate of stock in controversy by delivering it to the defendant in error or any other person, but retained the' actual custody thereof continuously after it was issued. The question of actual delivery is therefore eliminated. If there was a constructive delivery to some person for Barnhouse, that person must have been Dewey himself. There is no direct evidence, however,- upon which to base this conclusion; the only way it can be drawn from the evidence' is forcibly to infer it from the circumstances of the transaction, which the jury did by its answer to special question No. 1. There is no evidence, direct or indirect, to' support the answer in the second special finding of fact. The answer to the third question is contrary to the, only evidence in the case on the subject. The only evidence upon this point was that of Barnhouse himself, who stated positively that he indorsed the certificate by writing his name thereon. On this point he, in part, said: “Ques. I will ask you to state, Mr. Barnhouse, whether or not that is your indorsement on the back of that certificate. Ans. Yes, sir. “Q. I will ask you to state if you have any knowledge or any recollection of having put it there. A. I have not.” “Q. It is your signature, however? A. Yes, sir. “Q. And there must have been some purpose in putting it there, was n’t there? A. I suppose so. “Q. You don’t recall now just what it was? A. No, I don’t. “Q. But it would indicate to you that there was some purpose in your signing that stock? A. Yes.” There was nothing in the case inconsistent with this testimony; not a circumstance was shown tending to discredit the statements of the witness. The original certificate, with the name of H. J. Barnhouse indorsed thereon, was shown to the defendant in error and presented in evidence. Barnhouse further stated that he had been Dewey’s employee for many years, and during that time deeds, notes, mortgages and other instruments had been taken in his name, and were by him conveyed, indorsed or assigned, as requested by Dewey; that these transactions were so frequent and so unimportant to him that they were soon forgotten. The transaction relating to the certificate in controversy was but dimly remembered by him; he knew nothing of the custody of the certificate since it was issued, and had made no inquiry as to whether or not-the dues thereon had been paid.' The answer to the seventh question is also in direct opposition to the only testimony given on the subject. Dewey’s bookkeeper was a witness and produced the books containing the accounts of decedent’s business transactions, in one of which the certificate in controversy, and those taken at the same time, were carried together as if they were all the private property of Dewey. This bookkeeper testified that trial-balances were made each month, in which these certificates were all shown together. This was all the evidence given on that subject. These special findings cannot be sustained. Some of them are unsupported by any evidence, others are evasive and indefinite, and as a whole they appear to have been inspired by a determination to sustain the general verdict. The conclusions reached by juries upon questions of fact submitted to them are entitled to great consideration, and where they are sustained by any evidence trial courts seldom, and reviewing courts never, disturb them merely because they are not sustained by the evidence. Juries may not, however, arbitrarily ignore the evidence presented to them and substitute their own personal wishes therefor. They are expected to consider the proofs before them fairly and dispassionately, and to make such findings of fact as may be justified thereby. Whenever it appears that the jury have been influenced, either because of a misconception of the evidence, on account of a misunderstanding of the law as stated by the court, or because of passion or prejudice, their special findings of fact and general verdict should be set aside. The issues in this case are peculiar. A jury might easily misapprehend or fail fully to appreciate its real controlling facts. Dewey was under no obligation, legal or moral, to give this stock to Barnhouse, and the latter does not claim that he was entitled to or expected such a gift. When Dewey received and receipted for the certificate and paid the price thereof he did not direct or authorize the secretary who issued the certificate to deliver it to Barnhouse, and therefore the delivery was made to Dewey, for himself, so far as the secretary was concerned. It is insufficient that Dewey at and immediately prior to that time had stated that he intended to give the stock to the defendant in error or that he was procuring it for him. An intent to give, however strongly and sincerely entertained, does not constitute a gift. Until the donor parts with the possession of the property the gift is incomplete. At the last moment before delivery the donor may change his mind. The fact that the stock was taken in the name of Barnhouse does not necessarily' constitute a delivery. It may have been so taken for the purpose of making a subsequent delivery thereof to him as a gift, or it may have been taken in his name merely for the convenience of Dewey, to be afterward indorsed by the defendant in error, as in the many other transactions spoken of by him. Before a gift can be found in this case it must appear from the evidence that at some time during the transaction in the bank Dewey determined to give the stock to Barnhouse, and instead of delivering it to the latter, although present, and presumably willing to receive and accept it, concluded to constitute himself the trustee of Barnhouse, and thereupon, as donor, delivered the stock to himself, as trustee, receiving and accepting it for Barnhouse. Whether such a delivery is shown by the evidence is a question of fact for the determination of the jury, and great care should be taken by the court, both in the admission of evidence and in its instructions, to have this question of delivery clearly presented to the jury, and thereby avoid mistake' or misconception of the real merits of the inquiry. The judgment of the district court is reversed, for the reason that the special findings of fact returned by the jury show that, either on account of a misapprehension of the evidence or of passion and prejudice, they did not fairly consider the case. The court is directed to set aside the judgment, grant a new trial, and proceed with the case in accordance with the views herein expressed.

The opinion of the court was delivered by Porter, J.: The board of county commissioners of Brown county, upon the petition of W. R. Chadwell, appointed viewers to establish a road between the northwest and southwest quarters of section 14, township 1, range 18, in Brown county. As laid out the road took a fraction over two acres of land from lands belonging to Elizabeth Burkhalter. When the viewers met a claim for damages was presented by Peter Burkhalter in his own name. He is the husband of Elizabeth Burkhalter. Ben Garlock, her son-in-law, also appeared and assisted in presenting the claim. The viewers allowed the sum of $253.70 as damages to Peter Burkhalter and made their report to the county board, and the road was ordered established. Within the time allowed for an appeal Elizabeth Burkhalter filed with the.county clerk an appeal bond and served the proper notice of appeal. In the notice and in the bond the road was described as located on the half-section line between the nbrtheast and southeast quarters, instead of the northwest and southwest quarters. The board of county commissioners filed in the district court a motion to dismiss the appeal for the reason that the. appellant had filed no claim in her own name. In opposition to the motion the affidavits of Peter Burkhalter and Ben Garlock were filed, setting forth that they appeared before the viewers as the agents of the owner of the land, but by inadvertence the name of Peter Burkhalter was given as owner instead of Elizabeth Burkhalter. The court denied the motion to dismiss. There was a jury trial, and judgment for .the appellant awarding her the sum of $575. A motion for a new trial was denied and the case is here for review. ' The principal errors claimed, and the only ones which we think require mention, are: (1) Denying the motion to dismiss the appeal; (2) overruling an objection to the introduction of any evidence; (3) error in the admission of certain testimony and in the instructions given. On the trial the persons who presented the, claim before the viewers testified that they appeared as the agents of Elizabeth Burkhalter. This was not an attempt to impeach a record, but to show a fact which it was proper to establish. To say that because no claim was presented by Elizabeth Burkhalter in her own name there was nothing from which she might appeal is to put the shadow in place of the substance. The award was for damages to the land, and because the viewers allowed the damages in the name of one who was not the owner of the land no valid reason is suggested why the real owner may not appeal from the award. It is the other way around. If the one who appealed had in fact no interest there would be some reason for objecting to the consideration of the appeal on the ground that she was not the party in interest. Moreover, from the record it appears that the notice to appear before the viewers was addressed to, and served upon, Peter Burkhalter. He was named as the owner of the land. The record title was in Elizabeth, and the facts are the same as though this were an appeal from condemnation proceedings and the report of the commissioners had allowed a specific sum in damages for a certain tract of land belonging to Elizabeth Burkhalter and given the name of the owner or supposed owner as Peter Burkhalter. The law in such cases permits the real owner to appeal from the award, and by parity of reasoning the appeal in this matter by the actual owner should be upheld. The substantial rights of the parties in interest and the public are thereby subserved. In C. K. & W. Rld. Co. v. Grovier, 41 Kan. 685, 21 Pac. 779, the report of the commissioners appointed to condemn a right of way designated certain real estate as the property of one Simar, and it was claimed on an appeal by Grovier, who was the real owner, that he was thereby precluded from the right to appeal. The court held that 'all owners whose lands may be condemned must take notice, and, if dissatisfied with the award, “can, and to protect their interest should, take an appeal, regardless of whether or not they are designated as owners in the report.” (Page 687.) In K. C. & S. W. Rld. Co. v. Hurst, 42 Kan. 462, 22 Pac. 618, which was an appeal from the condemnation of a right of way, the appeal bond was held sufficient although the description of the land taken was inaccurate. One of the reasons for holding it sufficient .was that it referred to the report of the commissioners. The appeal bond as well as the notice of appeal served by Mrs. Burkhalter upon the county clerk referred specifically to a road ordered established by the board on a certain day upon the petition of W. R. Chadwell, and both bond and notice were sufficient to perfect the appeal. As to other defects in appeal bonds in condemnation proceedings which have been held immaterial, see C. K. & W. Rld. Co. v. Town-Site Co., 42 Kan. 97, 21 Pac. 1112. The county board cannot claim that its rights or those of the public are prejudiced in the slightest degree, for it could make no difference to the board whether the' allowance be made to Peter or 'Elizabeth. The cost in either event would be the same. The right to appeal is a right given to the party aggrieved, not to some one else in whose name the award has inadvertently been allowed. The mistake in the description of the road was, therefore, of no consequence. There was no possible chance that the board or the county clerk could be misled or prejudiced thereby. The thing appealed from was the allowance of the specific sum of $253.70 as damages for a specific tract of land taken for a road established at a definite time. The district court rightly denied the motion to dismiss and overruled the objection to the admission of evidence on the appeal. The instructions given as to the correct way to measure the damages for land taken stated the law in harmony with repeated decisions of this court. Nor do we find any error in excluding evidence to show that there was a general herd law in effect in Brown county. That fact could not affect the amount of damages allowed for the cost of constructing and maintaining fences along the road. When it is considered that the road was laid out so as to leave a narrow strip or tongue of land belonging to defendant in error on one side of the road, and that fences would be required on both sides of the road, the amount allowed by the jury was probably not excessive. The judgment is affirmed.

Per Curiam: This is an action of replevin, brought by E. J. Grubel against Henry Busche to recover possession of a horse. Defendant had judgment below, and plaintiff alleges error. Busche made the defense that he purchased the horse in good faith from one Dysert, who represented himself to be the owner and had possession. Plaintiff furnished the money with which Dysert bought the horse in the first place, and had a written contract with Dysert by which they were to carry on the business of buying and selling horses. On the trial plaintiff testified that Dysert had possession as his agent, and with his consent delivered the horse to defendant, under an arrangement by which defendant, as plaintiff believed, was to board the horse for its use. Defendant contended that plaintiff had held Dysert out to the world as the owner of the horse by giving him the possession, control and apparent right of disposal; that he had bought it from Dysert and paid for it believing that Dysert was the owner, and relying upon plaintiff’s' conduct; that plaintiff was estopped by his acts and conduct to claim the horse afterward. The principal contention here is that the court erred in instructing the jury to the effect that, though plaintiff owned the horse, if by his acts, statements or silence he permitted Dysert to appear as the owner, with authority to dispose of it, and defendant, induced by the statements, acts or silence of the plaintiff so to believe, relied thereon, and bought the horse in good faith, plaintiff was estopped. It is argued that there was no evidence upon which to base this and another similar instruction in which the words “allowed or permitted” were used to characterize the conduct of plaintiff. Without going into a review of the evidence, it is enough to say that we think there was some evidence upon which to base these and the other instructions complained of. It appears that Busche, the defendant, and Grubel, the plaintiff, have been intimate friends for years; that Busehe drove the horse for two months after the time he claims to have bought it, and plaintiff saw him frequently with it and made no objection or claim of ownership. Both parties testified and each flatly contradicted the other about conversations concerning the horse and Dysert’s relations with plaintiff and their knowledge of what he had done and had authority to do. The merits of the pase rest almost wholly upon the weight and credibility of the evidence, much of which is circumstantial. Two juries, one before a justice of the peace and the other in the district court, have found the facts in favor of defendant. The judgment is affirmed.

The opinion of the court was delivered by Porter, J.: These cases differ in but one respect from that of The State v. Taylor, ante, p. 417, with which they were submitted. An additional claim of error is based upon the failure of the state to have appellants arraigned. The authorities differ upon the question whether in prosecutions for misdemeanors arraignment is required. (2 Encyc. Pl. & Pr. 764, and cases cited.) The modern tendency is toward relaxing the severity of the ancient rules in criminal trials, especially in the lesser grades of felonies and in misdemeanors. Our criminal procedure requires a person charged with a felony to be personally present at the trial, but if the charge be a misdemeanor he need not be present, provided he appears by counsel. (Crim. Code, § 207; Gen. Stat. 1901, § 5649.) In The State v. Baker, 57 Kan. 541, 46 Pac. 947, the failure to arraign defendant in case of a felony was held prejudicial error, but it was there said: “In some cases a formal arraignment may not be indispensable, but in every case there must be a plea or the equivalent of one.” (Page 545.) From the records here it appears that in each case appellant announced himself ready for trial and the trial proceeded to a conclusion without any objection that there had been no arraignment. The case of The State v. Cassady, 12 Kan. 550, was a prosecution for a felony. Upon a similar state of facts it was held that the omission to arraign was not one which would entitle defendant to a new trial, and in The State v. Glave, 51 Kan. 330, 33 Pac. 8, also a felony case, it was held that defendant might under certain circumstances waive arraignment. ■ We now hold that in a prosecution for* a misdemeanor the failure to arraign defendant is not an omission which will entitle him to a new trial or require a reversal. The other assignments of error are ruled by the decision in the case of The State v. Taylor, supra. The judgment is affirmed.

The opinion of the court was delivered by Johnston, C. J.: Alexander Colliati was killed while acting as helper. for an engine hostler named Swan, an employee of the Atchison, Topeka & Santa Fe Railway Company, and this action was brought upon the theory that his death was the result of Swan’s negligence. The railway company provided an ash-pit over which a track was laid and upon which engines were placed so that they might be cleaned of ashes. It is the duty of the hostler to operate engines in moving them over the ash-pit, and of the helper to go under the engine and hoe out the ashes and shake down the fire-box. It was alleged, and proof was offered tending to show, that about nine o’clock at night Swan was ordered to take an engine to the ash-pit to be cleaned, which he proceeded to do, and Colliati went along to assist in the work. Swan was in charge of the e'ngine, but was subject to the signals of Colliati in locating the engine over the ash-pit. When the engine was driven over the ash-pit Colliati.found that it was not located where there was room for the ashes and directed Swan to back the engine, about two feet. Swan moved the engine, waited a short time, and, not hearing from Colliati, got down and found that Col-liati’s lantern was out and that he was pinned between a drive-rod, or bar, and a step on the side of the engine, and had evidently been caught there by a forward movement of the engine. Instead of trying to release him Swan ran to the roundhouse, about three hundred feet away, and called for help, and when he returned with assistance they backed the engine a little and released Colliati’s body, and it was found that he was dead. The theory of the plaintiffs was that after the signal was given and the engine had been backed two feet, as Colliati had directed, he started to look or go under the engine, believing that Swan would not move the engine until again directed by him, and that Swan, becoming rattled, and possibly thinking that he had backed too far, moved the engine forward without warning from Colliati, catching him between the sidebar and the step. The side-bar was across his left shoulder and back, and it pressed him down against the step in a space of from four to six inches when the bar was at the lowest part of the revolution, and in such a way that the breath was squeezed out of him. No bones were broken, and there was testimony that he was not dead when Swan found .him and that if the pressure had been sufficient to cause the heart to cease beating there probably would have been broken bones. He was dead when he was finally released from the position, which was from about five to seven minutes after Swan discovered that he was caught. There was testimony to the effect that one squeezed as Col-liati was would live from three to five minutes. It is claimed”that Swan negligently moved the engine forward without a signal when Colliati was in a place of danger; that he was negligent, too, in not backing the engine and releasing Colliati’s body when he found that he was caught; and also that he negligently operated the injector and blower, making such a noise that signals or directions could not be heard. Swan, the only witness who gave direct testimony of the occurrence, stated that when he was directed to back the engine about two feet Colliati was in a place of safety, and that the engine was not afterward moved. It was also stated that the reason Swan did not immediately reverse the engine and release Colliati was that if he had backed the engine and relieved the pressure on Colliati’s body when there was no one to hold him up he probably would have fallen upon the track and been crushed by the wheels, and there is a claim that the impulse to run for help was the natural one and that the course adopted by Swan was as safe as to have attempted the rescue unaided. The case was submitted to a jury, who found against the railway company, and the following among other findings of fact were made upon disputed Questions: “(6) Ques. Did Swan know that anything had happened to deceased until he got off the engine and went to south side of the ash-pit ? Ans. We think he did. “(7) Q. Was Colliati dead when Swan found him? A. No.” “(16) Q. Was Colliati’s head stuck between the drive wheels over the step ? A. Yes. “(17) Q. Was he crushed down on the step by the side-rod as the engine backed? A. No.” “(19) Q. Could one see under the rails and stringers on the south side of the ash-pit? A. No.” “(45) Q. Was Colliati in a place of safety when he directed Swan to back up his engine a little ? A. Yes.” “(48) Q. Was the engine over the ash-pit moved a second time after Colliati directed Swan to back the same up a little? A. Yes. “(49) Q. If you answer the last question in the affirmative, was the second movement of said engine made without directions from Colliati? A. Yes; “(50) Q. If you answer the 48th question in the affirmative, then was Colliati in a position of safety at the time of the second movement of the said engine? A. No; “(51) Q. If you answer the 48th question in the affirmative, was it the second movement of said engine that injured Colliati? A. Yes. “(52) Q. Did the injury to Colliati .consist of having the breath pressed out of him so that he could not breathe and from which he died? A. Yes. “(53) Q. If Colliati had been released from the position on the step of said engine in which Swan found him, at the time that Swan found him, could he have been saved? A. We think so.” The contention is that the evidence in the case did not warrant the court in submitting questions 48, 49, 50 and 51, nor the jury in making the answers to those questions, and, further, that it did not show any negligence by the company. It is especially insisted that there was no evidence of a second movement of the engine after the direction to back was given, nor that Colliati was injured by a forward movement. If no testimony should be considered except that of Swan, who was the only one within view when the accident occurred, there would be strong reasons for the contention of the railway company. The case, however, does not rest alone upon the positive testimony of Swan. There are circumstances in the evidence strongly tending to show that Colliati was not injured by a backward movement of the engine, but must have been caught and killed by a forward movement, and circumstantial evidence sometimes outweighs positive testimony. Men have been convicted of the gravest offenses upon circumstantial evidence, and it is equally as cogent and effective in a civil case. Swan asserts positively that he backed the engine as directed; that when he started to do so Colliati was in a place of safety, and that the engine was not after ward moved. But the jury may not have believed him, and the physical facts and existing circumstances were such that the jury were justified in finding that there was a second movement of the engine. The fact that it was necessary to back the engine in order to release Colliati’s body tells a convincing story — one which is incompatible with the testimony of Swan. No other conclusion can be drawn from the circumstances than that there was a second and forward movement of the engine. Swan admits that but one signal' was given and that Colliati was then in a place of safety, and the forward movement was necessarily made without a signal. It was a reasonable’ inference that after the backward movement Colliati should feel safe in approaching the engine for the purpose of cleaning it and that he should believe that it would not be moved again until he so directed. The jury had a right to infer from all the circumstances that Swan moved the engine forward without direction or warning, and that Colliati lost his life by this negligent act. Of course there can be no recovery without proof of negligence, but direct proof is not essential. It has been held that a verdict may rest on circumstantial evidence alone. (Culbertson v. Hill, 87 Mo. 553.) If within the opinion of the jury the circumstantial evidence was more convincing than the testimony of Swan, they were justified in accepting it and basing their findings and verdict upon it. In Hill v. Scott, 38 Mo. App. 370, Judge Thompson said: “While negligence must be proven, it may be inferred, when the thing causing an accident is in the management of the defendant or his servants, and the accident is such as in the. ordinary course of matters does not happen, if those having the management use proper care.” (Syllabus.) In the same case the effect of positive testimony was considered,, and it was held that a jury are not bound to credit the testimony of unimpeached witnesses, even though not denied by any other witness, if there be circúmstantial evidence inconsistent with such testimony. In Coles v. Perry, 7 Tex. 109, it was said: “There are cases, every day occurring, where the testimony of a witness testifying positively to an asserted fact as transpiring within his view, and honestly testifying too, is disproved and falsified by proof of facts and circumstances known to exist, and the existence of which is wholly incompatible with the fact deposed to. In such .cases, circumstantial evidence outweighs positive testimony.” (Page 168. See, also, Simpson’s Adm’r v. Barnard, Adams & Co., 5 Fla. 528; 17 Cyc. 817.) ■ There is a contention that Colliati did not choose the safest way of approaching the engine for the purpose of cleaning it, but under the circumstances whether he exercised, due care in the performance of his duty was a fair question for the jury. The judgment is affirmed.

The opinion of the court was delivered by ' Porter, J.: Can one who performs labor in drilling an oil- or gas-well on lands in which the owner of the well has no interest, except as holder of the ordinary oil-and-gas lease authorizing entry for the purpose of exploring for oil and gas, obtain a mechanic’s lien upon the leasehold interest or upon personal property belonging to the lessee which remains upon the land? In some states there are statutory provisions extending mechanics’ liens to leasehold estates, but regardless of such provisions it seems to be settled that the word “owner” is not limited in its meaning to an owner of the fee. It has been held that a person in possession of real estate under a verbal promise of a conveyance to him in fee simple is an “owner.” (Drug Co. v. Brown, 46 Kan. 543, 26 Pac. 1019.) The term also includes an owner of a leasehold estate. In Hathaway v. Davis & Rankin, 32 Kan. 693, 5 Pac. 29, it was held that a lien for materials and labor may attach to a leasehold estate, and that such a lien attached to the buildings, fixtures and materials placed thereon by the tenant. (See, also, Choteau et al. v. Thompson & Campbell, 2 Ohio St. 114; Lyon v. McGuffey, 4 Pa. St. 126, 45 Am. Dec. 675.) The lessee may create a lien to the extent of his right and interest in the land, but no further. (McCarty et al. v. Carter, 49 Ill. 53, 95 Am. Dec. 572.) A mechanic’s lien attaching to a leasehold estate is subject to all the terms of the lease. (Coburn v. Stephens et al., 137 Ind. 683, 36 N. E. 132, 45 Am. St. Rep. 218.) The record does not contain a copy of the lease in question, but the answer set up an ordinary oil-and-gas lease granting to the lessee the right to drill on the lands for oil and gas. The owner of such a lease has no interest in the lands except that of a mere licensee. The lease grants no estate in the land. It creates an incorporeal hereditament only — a license to enter and explore for oil and gas. (Dickey v. Brick Co., 69 Kan. 106, 76 Pac. 398; Rawlings v. Armel, 70 Kan. 778, 79 Pac. 683; Gas Co. v. Neosho County, ante, p. 335.) The lien must be measured by the extent of the owner’s interest. (Getto v. Friend, 46 Kan. 24, 26 Pac. 473; Drug Co. v. Brown, 46 Kan. 543, 26 Pac. 1019.) We have not been cited to any cases in point, but the conclusion we have reached is that the interest of the holder of such a lease will not support a mechanic’s lien under our statute. While the rule in this state is that the mechanic’s lien law must be construed liberally, it is nevertheless true that it will not be extended by the courts to cases which do not fall within its provisions. (Conroy v. Perry, 26 Kan. 472; Williams v. Vanderbilt, 145 Ill. 238, 34 N. E. 476, 21 L. R. A. 489, 36 Am. St. Rep. 486.) The demurrer to the petition should have been sustained. The judgment is therefore reversed and the case remanded, with directions to sustain the demurrer.

The opinion of the court was delivered by Johnston, C. J.: The question involved in this proceeding is the validity of the act creating the thirty-eighth judicial district. It purports to take Crawford county from the sixth judicial district and to make that county the new district. (Laws 1905, ch. 199.) After the passage and publication of the bill the governor appointed the Honorable Arthur Fuller to be judge of the new district, and he has since acted in that capacity, disposing of a large volume of business and rendering judgments in a great many cases, both civil and criminal. The plaintiff, assuming that the act was invalid and that Crawford county was still a part of the sixth judicial district, brought this proceeding against the Honorable Walter L. Simons, as judge of that district, to compel him to take cognizance of its appeal from a judgment of a justice of the peace of Crawford county. Judge Simons took the position that the act of 1905 was valid, and that Crawford county was no longer a part of the sixth judicial district, and therefore declined to take jurisdiction of the appeal. It is claimed that the statute in question has no legal existence because the legislature did not fully comply with the constitutional requirements in its passage. The particular defect pointed out is that according to the house journal the act did not receive a constitutional majority of the members of the house of representatives. The act was designated as “House Bill No. 979,” and the entry in the journal, after giving the number and title of the bill, is that it “was read the third time, and the question being, Shall the bill pass? the roll was called, with the following result: Yeas 83, nays 2; absent or not voting, 40.” Then follows the entry, “a constitutional majority having voted in favor of the passage of the bill, the bill passed, and the title, as above, was agreed to.” Immediately following this is a list of eighty-three names purporting to be the affirmative vote on the bill; then follows a list of two names purporting to be the negative vote, and that is followed by a list of forty names of members reported to have been absent or not voting. (House Jour. 1905, pp. 935, 936.) It is conceded that the act passed the senate by an unquestionable majority, was duly approved by the governor, and properly deposited with the secretary of state. The act on its face as it is enrolled and printed is in all respects regular, and it is authenticated as the constitution requires. It is signed by the presiding officer of each branch of the legislature, the approving signature of the governor is affixed, and it has been duly published in the statute-book as the act itself provides. Although the act has been so certified by the officers having charge of legislation, and bears all the marks of authenticity, it is contended that the recitals in the journal of the house overcome this evidence and show that the act .never received the requisite number of votes and therefore never became a law. The constitution provides that the legislature may “increase . . . the number of judicial districts whenever two-thirds of the members of each house shall concur” (Const., art. 3, § 14; Gen. Stat. 19.01, § 161), and if we assume, as counsel on both sides do, that this means two-thirds of all members elected to each house, and that only eighty-three of the one hundred and twenty-five members of the house of representatives voted in favor of the bill, it is plain that it did not receive the requisite number of votes. We have, then, an enrolled bill duly certified and authenticated, an entry in the house journal that it received á constitutional majority and had been passed, and another entry in the journal that only eighty-three members voted for the measure, which is less than a constitutional majority. Two theories obtain as to the method of determining whether what purports to be an act of the legislature was constitutionally enacted. One, designated as the common-law rule, is that an enrolled bill authenticated and * promulgated by the legislature as having been duly enacted is conclusive evidence of the existence and contents of the act. The other is that when a question arises as to whether an act was constitutionally passed courts may look beyond the enrolled bill and examine the journals of the legislature in which are preserved the record of its proceedings to determine the existence and validity of the enrolled bill. There is a great diversity and some fluctuation of judicial opinion upon the question, but the rule that resort may be had to the legislative journals was early announced in Kansas and has been consistently followed from the first. (Division of Howard Co., 15 Kan. 194; Comm’rs of Leavenworth Co. v. Higginbotham, 17 Kan. 62; Prohibitory-amendment Cases, 24 Kan. 700; The State, ex rel., v. Francis, Treas’r, 26 Kan. 724; In re Vanderberg, Petitioner, &c., 28 Kan. 243; Weyand v. Stover, Treas., 35 Kan. 545, 11 Pac. 355; Ayers v. Comm’rs of Trego Co., 37 Kan. 240, 15 Pac. 229; The State, ex rel., v. Robertson, 41 Kan. 200, 21 Pac; 382; C. K. & N. Rly. Co. v. City of Manhattan, 45 Kan. 419, 25 Pac. 879; In re Gunn, Petitioner, 50 Kan. 155, 32 Pac. 470, 948, 19 L. R. A. 519; Homrighausen v. Knoche, 58 Kan. 646, 50 Pac. 879; In re Taylor, 60 Kan. 87, 55 Pac. 340; Chesney v. McClintock, 61 Kan. 94, 58 Pac. 993; The State v. Andrews, 64 Kan. 474, 67 Pac. 870.) We are asked to reopen and reconsider the question, but we see no good reason to disturb a rule declared shortly after the constitution was framed and from which there has been no departure or deviation. It is not deemed necessary to consider which rule affords the greater safety to the public, nor to set forth the positions now held by the several courts of the country. It may safely be said, however, that the weight of authority favors the theory that courts may look to the journals of the legislature when the existence of an authenticated act is challenged. In Kansas the enrolled bill is regarded as record evidence of the highest character, but not as conclusive evidence. The constitution provides the manner in which a law shall be authenticated, and when it bears these marks of authenticity it should not be lightly overthrown. The constitútion, which provides how a bill shall be passed, approved and authenticated, also provides that-.each house of the legislature shall keep a journal of its proceedings while passing such bill, and hence these journals are constitutional evidence of the principal steps taken by the legislature during the progress of a bill from introduction to enrolment. The enrolled bills and 'journals together constitute the evidence of the acts passed bythe legislature and are the only evidence to which courts may look to ascertain whether the legislature has observed the constitutional requirements in their enactment. The relative dignity and force of the two kinds of evidence have frequently been considered. The rule was tersely expressed by Mr. Justice Valentine in The State, ex rel., v. Francis, Treas’r, 26 Kan. 724, where he said: “The enrolled statute is very strong presumptive evidence of the regularity of the passage of the act and of its validity, and that it is conclusive evidence of such regularity and validity, unless the journals of the legislature show, clearly, conclusively and beyond all doubt that the act was not passed regularly and legally. ... If there is any room-to doubt as to what the journals of the legislature show, if they are merely silent or ambiguous, or if it is possible to explain them upon the hypothesis that the enrolled statute is correct and valid, then it is the duty of the courts to hold that the enrolled statute is valid.” (Page 731.) In Homrighausen v. Knoche, 58 Kan. 646, 50 Pac. 879, the validity of an act was challenged upon the ground that a constitutional majority of the house did not vote in favor of the measure. Some of the entries in the journal indicated that a constitutional majority had voted for the bill, while others indicated the contrary, and it was held that the journal did not make that clear and conclusive showing of invalidity which would overthrow the evidence furnished by the en rolled bill. In the case of In re Taylor, 60 Kan. 87, 55 Pac. 340, the following language was used: “While the journals of the two houses may be examined for the purpose of ascertaining whether the legislative branch has expressed its will in accordance with constitutional requirements, yet. a legislative measure which has taken upon itself all the forms and appearances of verity which are. involved in its enrolment in the office of the secretary of state, its certification by the president of the senate and speaker of the house and its approval by the governor, may not be impeached by the legislative journals except when the proof furnished by them is of the clearest, strongest and most undoubted character.” (Page 92.) In The State v. Andrews, 64 Kan. 474, 67 Pac. 870, the rule was stated in about the same form, except that it was intensified by an additional adverb: “An enrolled statute imports absolute verity and is conclusive evidence of the passage of the act and of its validity, unless the journals of the legislature show affirmatively, clearly, conclusively and beyond all doubt that the act was not passed regularly and legally.” (Syllabus.) The application of this rule sustains the validity of the statute in question. The presumption of validity which goes with an enrolled bill can never be overthrown by entries in a journal which are themselves inconsistent and contradictory. The journal does not show “affirmatively, clearly, conclusively and beyond all doubt” that the bill failed to receive a constitutional majority. It is true that the entry of the yeas and nays on the roll-call shows but eighty-three affirmative votes, but there is a later entry in the same journal that a constitutional majority did vote for the measure and that the bill passed. The duty devolved upon the speaker, with the assistance of the clerk, to ascertain how many votes were cast for and against the bill, and to decide whether a constitutional majority had voted for its passage. The votes were counted and a decision was made by the presiding officer that a suffi cient number of the members had voted for the bill to pass it, and this decision was entered upon the journal. As the constitution requires each house to keep a journal of its proceedings, a determination and declaration by the house that a constitutional majority of the votes had been cast for the bill was an important proceeding of that body and one properly recorded in its journal. It is suggested that the record of the yea-and-nay vote is a more detailed statement of the proceedings and necessarily better evidence of the legislative action than the statement of the count and decision made by the presiding officer. Each is required to be ■entered upon the journal, and there is nothing in the language of the constitution indicating that one is paramount to the other. If it be granted that, in its nature, the entry of the yea-and-nay vote is more convincing than the entry of the decision that the requisite votes had been cast, the repugnancy and contradiction in the journal remain. The fact that the journal contains entries directly opposed to each other — entries which cannot be reconciled, so that to accept one would be to disregard the other — gives rise to a doubt of the accuracy of the journal itself and makes it clear that under the rule such evidence cannot be used to impeach and overthrow a duly authenticated statute. The rule was applied to a somewhat similar state of facts in the case of In re Vanderberg, Petitioner, &c., 28 Kan. 243, where it was claimed that an act creating a judicial district did not receive a constitutional majority of the house of representatives. Some entries in the journal indicated that a majority voted for the bill, while other entries were to the effect that the legal votes cast for the bill lacked one of making the needed majority. After pointing out the repugnant statements in the journal, and showing that upon its face it was conflicting and ambiguous, the court remarked that “the enrolled statute is not to be set aside upon mere guesses or surmises, nor upon a doubtful interpretation of a journal seemingly contradictory upon its face.” (Page 257.) In explanation of defects and inconsistencies found in-the journals of the legislature it has been said that they are “hurriedly and sometimes carelessly made. The reading of the same for correction and approval from day to day is frequently dispensed with, and therefore it is not difficult to account for ambiguities and inaccuracies that may be found therein.” (Homrighausen v. Knoche, 58 Kan. 646, 649, 50 Pac. 879.) Under the methods used in taking and recording the votes of the members mistakes may readily be made. As all familiar with legislative proceedings know, the clerk uses a printed roll of the members’ names, with a column for the yeas on one side and a column for the nays on the other, and as the members answer to the roll-call a check-mark or figure is placed in the yea or nay column, opposite the names. Sometimes there is a second call of those absent or not voting on the first call, and if they respond other marks are made to designate their presence and the votes cast. Occasionally, members change their votes on a measure, and t&is requires a change of the marks already made on the roll; and all must be made amid the hurry and distraction of a busy legislature. The journal is made up at a later time from this and like memoranda, and it is easy to see how errors might creep into a record made in this way. In speaking of the manner in which the proceedings of the legislature are recorded, and the weight to be given journal evidence, this court has said: “It is no reflection upon legislative integrity, no criticism of legislative methods, to say that the journals of the houses are often carelessly, inaccurately and partially kept. They , are often hurriedly made up, written by clerks having little aptitude for the work and slight sense of responsibility in its performance. Upon many days, especially as the session ad- vanees,- the business accumulates, the saving- of time becomes important, and the reading of the journal of the preceding day is dispensed with, so that mistakes fail of - correction and unfortunately pass into forms of legislative history. It is also a notorious fact that in many cases, to a great extent in all cases, the journals are not made up until after the législative session has closed. They are then put into such methodical shape as can be done, made up of the loose and disconnected memoranda noted from day to day as the legislative session progressed. These facts justify courts in attaching less weight to journals of legislative proceedings as evidence of the non-enactment of laws than they would otherwise possess.” (In re Taylor, 60 Kan. 87, 93, 55 Pac. 340.) It appears that on the morning following the passage of the bill in question the house dispensed with the reading of the journal, and that may account in some measure for the failure of the house to notice or correct the inconsistency of the entries in the journal. However that may be, it is clear that these entries involve too much of inconsistency and doubt to impeach or overthrow a properly authenticated statute. Judgment is therefore rendered in favor of the defendants. Greene, Burch, Smith, Graves, JJ., concurring.

Per Curiam: The question in this case is whether a tax deed is valid on its face. If so, the judgment of the district court was correct. The point made against the deed that it does not show the land was bid off by the county treasurer for the county was decided adversely to the plaintiff in error in Penrose v. Cooper, on rehearing, 71 Kan. 725, 84 Pac. 115. The other point — that the deed does not show the consideration for the sale — is covered by the principle applied in Penrose v. Cooper, supra, Robbins v. Brower, 74 Kan. 113, 85 Pac. 815, and John v. Young, 74 Kan. 865, 86 Pac. 295. There being nothing in the deed showing the contrary, the recital that $11.38 was the cost of redemption on October 18, 1894, must be accepted as true. The sum stated could, under the law, be made up of nothing but the sale price and simple statutory interest from September 4, the day of the sale. The sale price can therefore be made out unerringly from other recitals in the deed. The judgment of the district court is affirmed. .

The opinion of the court was delivered by Smith, J.: Grant filed his petition in the court below claiming treble damages against the defendant, and set forth two causes of action. In the first, after alleging his ownership of the land and other pertinent facts, he alleged the digging and carrying away of gravel, mold, soil, etc., by the company from his land, and made this claim for damages: “That the lands of plaintiff and his said farm have been thereby injured by the digging up of said soil, clay and mold and the carrying away of the same and unfitting said lands for agricultural purposes, in the sum of $100. That plaintiff is entitled to treble damages for said injury, and demands payment of defendant therefor in the sum of $300.” These allegations are sufficient to set forth a cause of action for treble damages. The following' is the second cause of action as set forth: . “Plaintiff refers to his first cause of action and makes the first twenty-two lines of the same a part of this cause of action to the same extent as if copied in full herein. “Plaintiff further avers that the defendant, on or about the 17th day of March, 1904, the exact time of which plaintiff is unable to give, and for several weeks prior thereto, did unlawfully and with force break and enter the premises of plaintiff, along the said right of way of said company, on the southeast quarter of said section thirty-five (85), and did then and there dig up the soil and gravel underlying the same and the clay and mold on said premises, and carried away the same onto the said right of way of said company, and did then and there construct on said right of way a dam or dike of the width of twelve to fifteen feet, and about six to eight feet high, and that said dike was continued across the said right of way of said company, on the east side of said road, the entire width of their right of way, except the space occupied by the rails and ties, and onto the premises of plaintiff, a distance of about 100 feet; and that said dam or dike has changed the regular course of said stream and one of its small tributaries, and greatly damaged and destroyed the value of a large tract of land north and south of said dike, to wit, an area of about ten to fifteen acres. “That plaintiff’s said lands and his said farm has been damaged thereby in the sum of $300. “That all of said acts of said company were committed without the consent of plaintiff, .and against his positive orders and instructions to defendant. “That said acts of defendant were completed on the said 17th day of March, 1904, and that all of the acts of defendant in entering said premises prior to said time were a part of the one act and intention of defendant in constructing said dike or dam. “That the plaintiff is entitled to treble damages for said injury, and demands payment of defendant therefor in the sum of $900. “Wherefore, plaintiff prays judgment against the . defendant for the sum of $1200, and for the costs of this suit.” These facts constitute no additional cause of action for treble damages. Upon the trial, after the introduction of the evidence, in relation to which no claim of error is made, the court instructed the jury, and the seventh instruction is challenged as erroneous. It reads: “If the' jury believe from the evidence that the defendant entered upon plaintiff’s land and without his consent wilfully dug up the soil, gravel under the same and the clay and mold constituting the same and carried the same or a part of the same away from such premises onto the defendant’s right of way, and changed or attempted to change the channel of any watercourse thereon, and constructed such dam or dike substántially as alleged in said petition, then in that event you are instructed that such conduct on the part of the defendant would amount to wilful trespass, and the plaintiif is entitled to recover treble the amount of actual damages caused thereby to his real estate. In case you determine from a preponderance of the evidence that plaintiif is entitled to recover such damages you should ascertain the amount of his actual damages, if any, by determining the difference, if any, in the market value of his real- estate immediately before the injury occurred and the market value thereof immediately after the injury occurred, and your verdict should be treble súch amount.” The jury returned a general verdict in favor of plaintiif for $270, and also made the following special findings of fact: . “ (1) Ques. Did the defendant railway company attempt to change the natural channel of the creek or stream upon the premises mentioned in plaintiff’s petition?' Ans. Yes, on the northeast quarter. “(2) Q. If you answer the first question in the affirmative, then please state whether defendant company succeeded in changing the natural channel of said creek or stream. A. No. “(3) Q. If you answer the first question in the affirmative, then please state how much damage was occasioned to the land of plaintiif by such attempt to change the channel of said stream. A. No damage. “(4) Q. Did the defendant railway company dig out soil, gravel, clay and mold upon the said premises for the purpose of building a dike upon part of defendant’s right of way, and part on the land of the plaintiff? A. Yes. “(5) Q. If you answer the fourth question in the affirmative, then please state how much of said soil, gravel, clay and mold was so taken from plaintiff’s said premises by the defendant. A. We do not know. “(6) Q. If you answer the fourth question in the affirmative, then please state what was the value of the soil, gravel, clay and mold so taken and received by said defendant. A. We do not know. ■ “(7) Q. Has plaintiff’s land been damaged by the defendant railway company in attempting to change the channel of said stream or in building said dike? A. Yes. “(8) Q. If you answer the seventh question in the affirmative, then please state in what said damage consists. A. In using and flooding said land. “(9) Q. If you answer the seventh question in the affirmative, then please state the amount of damage to plaintiff’s said land occasioned by the acts of the defendant in attempting to change the channel of said stream and to build said dike. A. $90. “(10) Q. If you answer the first and seventh questions in the affirmative, then please state what was the reasonable market value of the land affected by the acts of said defendant before the change was made in said stream and in the building of the dike, and what is the reasonable market value since said change. A. $8000 before and $7910 after.” It will be observed from the answer to question No. 2 that the company did not succeed in changing the channel of the stream, and from the answer to No. 3 that Grant suffered no damage by the attempt so to-do. Harmonizing these two findings with Nos. 7, 8- and 9, it will also be observed that the damages assessed are entirely for the building of the dike, and the damage is found under the second cause of action in the petition and not under the first cause set forth therein. The dike was built in part upon the company’s right of way and in part upon Grant’s land, and earth was taken from Grant’s land to build the same. Now is the damage caused by the building of this dike within the contemplation of the statute which imposes treble damages? We are constrained to answer in the negative. The statute reads: “If any person shall cut down, injure or destroy or carry away any tree placed or growing for use, shade or ornament, or any timber, rails or wood standing, being or growing on the land of any other person; or shall dig up, quarry or carry away any stones, ore or mineral, gravel, clay or mold, roots, fruits or plants; or cut down or carry away grass, grain, corn, flax or hemp in which he has no interest or right, standing, lying or being on land not his own; or shall knowingly break the glass or any part of it in any building not his own, the party so offending shall pay to the party injured treble the value of the thing so injured, broken, destroyed or carried away, with costs, and shall be deemed guilty of a misdemeanor, and shall be subject to a fine not exceeding five hundred dollars.” (Gen. Stat. 1901, § 7862.) The company contends that the statute, applied to this case, provides that damages allowed should be treble the value of the thing so injured, broken, destroyed or carried away; that is, that Grant was entitled to treble the value of the gravel, mold, etc., dug up and carried away from his land, and no amount of such damages was found by the jury. On the other hand Grant contends that he is entitled to treble the value of the thing injured or destroyed, and that the thing injured is his entire tract of land. This also was evidently the theory of the court in giving the seventh instruction, swpra. The ordinary measure of damages for a trespass is compensation for the wrong or injury inflicted, and by imposing treble damages upon the wrong-doer the statute becomes penal and should be strictly construed. The wording of the statute leaves nothing, for construction as to the objects sought to be protected from ‘“cutting down,” “taking up,” “carrying away” or ■“breaking.” The “thing” for the injury to which treble damages are recoverable from the trespasser is one of these objects, and is not a farm. The things enumerated are any tree, any lumber, rails or wood, any stones, ore or mineral, gravel, clay or mold, roots, fruits or plants, grass, flax or hemp, or glass. These things are all, or nearly all, appurtenant to the land, and are a part of the real estate, and probably their value should be determined as such appurtenants -and not after severance; still none of these things is a farm. (89 Pac. 660.) However, if the farm should be regarded as the thing injured, the injury contemplated by the statute as applied to this case should be the direct injury resulting from the taking up, quarrying or carrying away of the gravel, mold, etc., and not the indirect injury which may result from any use thereafter made of the substance taken. Injurious effects to the farm resulting from the building of the dike are not within the contemplation of the statute. Instruction No. 7 and the general verdict rendered thereunder are therefore erroneous. That Grant is entitled to the actual damages found is not questioned. The case is remanded, with instructions to reduce the amount of the judgment to $90 and costs. The costs in this court are to be equally divided.

The opinion of the court was delivered by Porter, J.: Before considering the errors assigned some additional facts in the history of the case should be noted. From the transcript of the proceedings in Illinois it appears that the petition there was filed on May 26, 1905. At that time the child, Edith, was fifteen months old. It also appears that the Barclays, who were temporarily residing in St. Louis during the exposition in 1904, where James G. Barclay was in charge of an exhibit, first saw the child at the baby-incubator concession. They learned that it had been placed in charge of the incubator people in the month of April, 1904, under the name of Edith Brown, by a midwife in St. Louis. They were informed by this midwife that Charlotte E. Bleakley, who resided in Lawrence, Kan., was the mother of the child, and that it was born February 15, 1904. They procured the assistance of an attorney to secure adoption papers. The following excerpt from the opinion of Judge Graves, based upon the evidence in the Illinois case, is also pertinent: “In this case the testimony shows that the mother, driven desperate by the attempts of her husband to destroy the life of the unborn child, which conduct had been persisted in and was still being persisted in to the extent that the mother feared that her own life would pay the penalty of such unnatural opposition on the part of the father to the birth of an heir, left her home in Lawrence, Kan., made her way to the city of St. Louis, where after the lapse of a short time she gave premature birth to a child. Whether the premature birth was in fact the result of the means adopted by her husband to destroy it at an earlier date the evidence does not disclose; but, in any event, the child was born prematurely, and when coming out from under the influence of chloroform administered to the mother at that time a child, was placed across her arm, and she was told that it was her child and that it was dead. She paid for its funeral expenses, including coffin and grave. She afterward heard rumors that the midwife had said that her child was alive, and on investigation into the rumors by her brother the midwife again reiterated the fact that the child was dead; and, believing that statement to be true, after a lingering illness the mother returned to her home in Lawrence, Kan. Months afterward, and while she still believed her child was dead, she was approached and requested to sign a deed of adoption, which she was finally prevailed upon to do, upon the condition only that it should be placed in the hands of her father-in-law, to be taken by him to St. Louis, and not to be delivered by him until he had made full investigation, and, as she testifies, was not to be given up if the child sought to be adopted was in fact her child; and according to the testimony of the father-in-law it was not to be given up unless he was satisfied that it was not her child. Whether or not the father-in-law acted in good faith there is nothing in this record to show; in any event, he delivered up the deed of, adoption to Mrs. Barclay, and returned to Lawrence, Kan., and reported to the mother, the relator in this case, that it was not her child but that the adop tion papers were merely a means by which Mr. and Mrs. Barclay were to be aided in rescuing from the hands of the midwife some child of unknown parentage. . . . She afterward became satisfied that the child in question was hers, and seeks to reclaim it and to revoke all such part as she took in the means by which the custody of that child was surrendered to the Barclays. Nobody has challenged the fact that at the time she wrote those letters and signed this so-called deed of adoption she honestly and bona fide believed that her child was dead, and truly believed the statement she swore to as to the reason why she signed that paper and wrote those letters. “It seems to me if there ever was a case in which the terms of the contract ought not to be enforced against a natural parent this is the case, and that, too, even though the authorities- were' believed to support the making of enforceable contracts of that character. . . . The relator, I am satisfied, is the mother of the child. Her child was born on the 15th day of February, in the house of the midwife, Mrs. Merri-field, in St. Louis, Mo. This child was born on that day in that house. The daughter of the relator was tiny and blonde; this child was the same. Her child was of premature birth; so was this child. Some expert testimony was offered in this case on the question whether a child of six months’ gestation could live outside of an incubator; and it has been urged from that testimony that this is not the child of the relator, but it must be borne in mind that there is no evidence whether the child of the relator was of six months’ gestation or more. Mrs. Merrifield told the relator her child was dead; she told Dr. Burford' it was alive; she told Mr. Thompson it was dead. She put this child in charge of the managers of the incubator company at the World’s Fair, and told those people it was the child of the relator; she told Mrs. Barclay the child was the relator’s, and where the relator lived.” The various assignments of error are all predicated upon the force and effect of the Illinois judgment. If that judgment is res judicata the motion to quash should have been allowed, provided it sufficiently appeared by the petition for the writ that a court of competent jurisdiction had decided the cause of action adversely to the petitioners. Obviously the petition was drawn upon the theory that the averments to the effect that the Illinois judgment was obtained by means of perjured testimony permitted a collateral attack upon the judgment. It recites the name of the Illinois court and declares that it is a court of competent jurisdiction; it alleges that the respondent obtained a judgment of that court awarding her the custody of the child, and the only excuse alleged for invoking the aid of the Kansas court is that the respondent procured the judgment by false and perjured testimony. But fraud only inheres in the judgment when it affects the jurisdiction; no other fraud can be relied upon in a collateral attack. It is conceded that the Illinois court had jurisdiction of the parties and'of the subject-matter. Fraud is no ground for an attack by a party to the judgment. This is elementary. Third parties may impeach a judgment collaterally, because they are not bound by it. “Judgments of any court can be impeached by strangers to them for fraud or collusion; but no judgment can be impeached for fraud by a party or privy to it.” (2 Freeman, Judg. § 334. See, also, Field et al. v. Sanderson’s Adm’x, 34 Mo. 542, 86 Am. Dec. 124; Greene v. Greene, 68 Mass. 361, 61 Am. Dec. 454; El Capitan Land & Cattle Co. v. Lees [N. M.], 86 Pac. 924.) In Peck v. Woodbridge, 3 Day (Conn.) 30, false testimony and forgery were alleged as grounds to impeach the former judgment, but the foregoing rule was enforced because it was said to be necessary to the administration of justice that when a case is once finally decided it must be held to end the litigation between the parties. The consequences of permitting such an attack are apparent when we consider that if the Barclays could, in this proceeding, set aside the former judgment for the reason that it was obtained by means of perjured testimony, it must follow that the respondent would be entitled in still another proceeding to set up the same, grounds to defeat the judgment in this. “The parties to an action cannot impeach or set at naught the judgment in any collateral proceeding on the ground that it was obtained through fraud or collusion. It is their business to see that it is not so obtained.” (2 Freeman, Judg., § 334. See, also, Dilling v. Murray, 6 Ind. 324, 63 Am. Dec. 385; Boston and Worcester Railroad Corporation v. Sparhawk & Wife, 83 Mass. 448, 79 Am. Dec. 751; Pico v. Cohn, 91 Cal. 129, 25 Pac. 970, 27 Pac. 537, 13 L. R. A. 336, 25 Am. St. Rep. 159; United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93.) All courts are likely to be deceived by perjured testimony, and to permit a defeated party to go to another court — foreign or domestic — and procure a retrial of the same issues on the ground that the successful party had fraudulently procured the former judgment upon false testimony would make litigation endless and judgments as unsubstantial as the stuff that dreams are made. of. The respondent objected to the introduction of any testimony under the pleadings, on the ground that all the issues had been determined by the Illinois judgment. This was overruled, the court holding that the question of motherhood was not an issue in the former proceeding and that the only question involved was the validity of the deed of adoption. It is one of the principal contentions of the petitioners that the motherhood of the child was not an issue in the former proceeding, but was excluded therefrom by a ruling of the court in Illinois. It appears that the Barclays, after setting up the deed of adoption executed by Mrs. Bleakley as the mother, attempted in another allegation of the return to deny that she is the child’s mother, and a motion to strike out the latter allegation as inconsistent with the former was allowed. It therefore becomes necessary to inquire whether the motherhood of this child was determined by the Illinois court. It is elementary that the judgment ren dered-and not the opinion must be looked to in order to find the thing adjudged. The reasoning of the court forms no part of the judgment. (Hopper v. Arnold, 74 Kan. 250, 86 Pac. 469.) At the same time, the inquiry is not always confined to the formal issues as defined by the pleadings, nor to the formal parts of the judgment. In Redden v. Metzger, 46 Kan. 285, 289, 26 Pac. 689, 26 Am. St. Rep. 97, the following language from Burlen v. Shannon, 99 Mass. 200, 96 Am. Dec. 733, is quoted with approval: “The estoppel is not confined to the judgment, but extends to all facts involved in it as necessary steps or the groundwork upon which it must have been founded. It is allowable to reason back from a judgment to the basis on which it stands, ‘upon the obvious principle that, where a conclusion is indisputable and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion.’ ” (See, also, Bank v. Rude, Adm’x, 23 Kan. 143; Whitaker v. Hawley, 30 Kan. 317, 1 Pac. 508; Shepard v. Stockham, 45 Kan. 244, 25 Pac. 559.) Mrs. Bleakley’s petition for the writ alleged that she was the child’s mother. The return and answer alleged that as the mother she had executed a deed of adoption. The court, by striking out as inconsistent the allegation that she was not the mother, held that the other allegations admitted the contrary to be true. At the close of the evidence the Barclays filed'a motion for judgment, on the ground, among others, that “it is not shown that the said infant is the child of the relator,” recognizing clearly that the motherhood of the child was involved as a primary fact. The court denied this motion, and after holding the deed of adoption void for the reason that it did not conform to the laws in relation to the adoption of children in force in Illinois, where the Barclays resided when they executed it, nor to those in force in Missouri, where the child was at the time, nor to the laws of Kansas, where the mother of the child resided when she exe cuted it, also made as a part of the judgment the following: “The court further finds that the said Edith Bleak-ley is the daughter of the said Charlotte E. Bleakley and J. J. Bleakley, .and that she was born on the 15th day of February, A. D. 1904.” It is said in volume 2 of the second edition of Black on Judgments, section 614: “The doctrine of res judicata does not rest upon the fact that a particular proposition has been affirmed and denied in the pleadings, but upon the fact that it has been fully and fairly investigated and tried —that the parties have had an adequate opportunity to say and prove all that they can in relation to it, that the minds of court and jury have been brought to bear upon it, and so it has been solemnly and finally adjudicated. . . . For these reasons, the more correct doctrine is that the estoppel covers the point which was actually litigated, and which actually determined the verdict or finding, whether it was sta-tedly and technically in issue or not.” How can it be said that the fact that respondent is the mother was not essential to that part of the judgment holding the deed of adoption void because it failed to comply with the laws of Kansas, where the mother of the child resided, or that, in determining the invalidity of the deed, the mind of the court was not brought to bear upon it so that it has been judicially decided? In addition, there is the adjudication in the judgment itself that Mrs. Bleakley is the child’s mother. True, it was not presented by the pleadings as an issue in the sense of being affirmed on the one side and denied on the other, for the Barclays admitted it by seeking to establish their claims upon the basis of its truth. They claimed through and under Mrs. Bleakley as the mother, and cannot now, after submitting their claims upon that theory, be permitted to set up the contrary. “It is not necessary to the conclusiveness of the former judgment that issue should have been taken upon the precise point which it is proposed to controvert in the collateral action. It is sufficient if that point was essential to the former judgment.” (Lee v. Kingsbury, 13 Tex. 68, 71, 62 Am. Dec. 546.) The contention of the Barclays that the deed of adoption was valid could only have been sustained upon the theory that it was executed by the mother. On the other hand, the judgment in favor of Mrs. Bleakley could not have been rested upon any other ground than that her claim to be the child’s mother was found by the court to be true. Within the rule approved in Redden v. Metzger, 46 Kan. 285, 26 Pac. 689, 26 Am. St. Rep. 97, it is apparent that by reasoning back from the judgment to the basis on which it stands we find the judgment could only be based upon the premise of motherhood, and this premise is as much a thing adjudicated as the conclusion itself. We have no hesitation in reaching the conclusion that the question of motherhood was inseparably interwoven with the proceedings in Illinois and was judicially determined therein. The action of that court in allowing the motion to strike out inconsistent allegations in the return did not have the effect which is now claimed. The ground upon which relief is sought in this proceeding is that Mrs. Bleakley procured that judgment by falsely swearing to a fact which it is how said was never in issue. The petitioners contend that the decree of the Illinois court did not deprive the Kansas court of jurisdiction to hear and determine another habeas corpus proceeding, for the reason that the record discloses a change in the situation and conditions surrounding the child from what was disclosed to the Illinois court. The changed conditions which it is argued are sufficient to warrant the interference of the Kansas court are said to consist of certain facts which it is urged are disclosed for the first time upon the trial of this case, and which it is claimed establish beyond question that the respondent is a perjurer and an abortionist, and therefore morally unfit to have the custody of the child. These facts, it is argued, make it the solemn duty of the Kansas courts to take the child from her and give it to the petitioners. The charge of perjury is based upon the claim that she is not the child’s mother, and that therefore her testimony in Illinois was false. The respondent brings up none of the evidence, and, while it is true that the petitioners are entitled to every presumption that the evidence was sufficient to support the judgment, that presumption only goes to the extent of covering such facts as the pleadings would warrant evidence upon. There is no inference from the judgment that there was evidence that Mrs. Bleakley is or ever was an abortionist. We would have as much right to infer from the judgment that she was an ex-convict or a shoplifter; for there is no word or charge in the pleadings intimating that she is or ever has been guilty of any immoral conduct, except the allegation that on the former trial she committed perjury. It must be observed that even this charge was not made for the purpose of showing a change in the conditions surrounding the child, but solely for the purpose of furnishing grounds upon which to attack the validity of the former judgment. If Mrs. Bleakley is the mother, then she was not guilty of perjury or abortion; so that the charges of immorality are interwoven with the question whether in fact she is the mother, which we have seen was decided in her favor. But there is a stronger reason why this contention of petitioners must fail. The petition is not predicated in any sense upon a change in the situation or conditions surrounding the infant. It is silent with respect to all such matters. To permit the petitioners to bring an action of this character, based upon one theory, and, failing thereon, tb obtain a decree awarding them the custody upon a finding of the court that the welfare and best interests of the child require it, .lacks the elements of fairness and equity and encourages suits in the nature of reprisals. In awarding the custody of this child to the woman he believed from the evidence to be its mother the learned judge who presided in the Illinois case was not unmindful of the grave responsibilities which always rest upon the chancellor in deciding questions of this character. It requires no reading between the lines to discover that the welfare and best interests of the little child were held above the rights of the conflicting claimants, and kept constantly in view. The opinion itself sparkles with feeling and with expression of paternal affection and tenderness for helpless children. At one place the judge observed that if it were possible he would take the child from both contestants and keep it himself. We quote further from the opinion: “In determining this case I am not unmindful that whatever may be said or done in the performance of-this duty must of necessity entail upon one side or the other the deepest anguish. The love of children is one of the few divine attributes possessed by the human race; the man or woman who is without it is abnormal; those who have once known it have been made partakers to a degree of the joys of the world to come, and those who have had the object of that love torn from their arms by the bony hand of fate have truly felt the fire unquenchable. It.is only those who have never experienced the love of children who can perform a duty like the one here presented without the deepest regret, appreciating how sore the wound will be that of necessity must be inflicted. “But this case cannot be decided upon sympathy. The law, as applied to the facts, as I am able to understand both, must govern. . . . Believing as I do that the deed of adoption has no legal binding force ■or effect, either in this or any other state, and that ■contracts for the surrender by the natural parents to strangers of the custody of minor children are not sanctioned by the weight of authority in this country, and that in this particular case the contract itself ought not, as a matter of right, to be enforced, there remains but one thing to determine, and that is: What is for the best interest of this child? Should it be allowed to remain in the custody of the respondents? Or, should it be turned over to the custody of the mother? ... So far as is shown by the evidence, there is no considerable difference between the relator and the respondents, either in the matter of morals, education or social or financial standing; each express, and I have no doubt entertain, great affection for the child.” The judgment finds that Mrs. Bleakley is a fit and proper person to have the care of the child and as its mother is entitled thereto, and awards her its custody. Having determined that the former judgment cannot be attacked on the ground of fraud in obtaining it by means of false testimony, that the question of the motherhood of the child was determined by that judgment, and that the judgment also found Mrs. Bleakley to be a suitable person to have, and that she is entitled to, the child’s custody, there remains the single qüestion, What effect shall be given here to that judgment? This question can have but one answer. Section 1 of article 4 of the constitution of the United States requires that full faith and credit be given to the judgments of sister states. This court will take judicial notice that the circuit court of Illinois is a superior court of general original jurisdiction. (Butcher v. The Bank of Brownsville, 2 Kan. 70, 83 Am. Dec. 446; Dodge v. Coffin, 15 Kan. 277; Poll v. Hicks, 67 Kan. 191, 72 Pac. 847.) A judgment of a superior court of one state must be given the same effect in all respects in another state as in the state where it was rendered. (Barnes & Drake v. Gibbs et al., 31 N. J. Law, 317, 86 Am. Dec. 210; Cook v. Thornhill, 13 Tex. 293, 65 Am. Dec. 63; Bank of North America v. Wheeler, 28 Conn. 433, 73 Am. Dec. 683; Ambler v. Whipple, 139 Ill. 311, 28 N. E. 841, 32 Am. St. Rep. 202, and note; Welch et al. v. Sykes, 8 Ill. 197, 44 Am. Dec. 689; Renaud v. Abbott, 116 U. S. 277, 6 Sup. Ct. 1194, 29 L. Ed. 629.) The full faith and credit which must be given is the same faith and credit accorded the judgment in the state where it was recorded. In the recent case of Haddock v. Haddock, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867, it was said: “The requirement of the constitution is not that some, but that full, faith and credit shall be given by states to the judicial decrees of other states. That is to say, where a decree rendered in one state is embraced by the full faith and credit clause that constitutional provision commands that the other states shall give to the decree the force and effect to which it was entitled in the state where rendered. Harding v. Harding, 198 U. S. 317, 25 Sup. Ct. 679, 49 L. Ed. 1066.” (Page 567.) A judgment of a sister state rendered by a court of competent jurisdiction having jurisdiction of the parties and the subject-matter will be given in this state the same force and effect to which it is entitled in the state where it was rendered. In the absence of proof as to the force and effect which the former judgment would be entitled to receive in the courts of Illinois we assume that the law there is the same as here. Here the judgment would be res judicata. When this case was before the court in Bleakley v. Smart, 74 Kan. 476, 87 Pac. 76, the question was whether a judgment in habeas corpus for the custody of a child is appealable; and it was held that an appeal will lie, and incidentally that a judgment in a proceeding of this kind is res judicata. The petitioners contend, however, that a judgment in habeas corpus for the custody of a child is not res judicata, and rely upon the case of In re King, 66 Kan. 695, 72 Pac. 263, 67 L. R. A. 783, 97 Am. St. Rep. 399. In Bleakley v. Smart, supra, it was said, however, that the decision in In re King is not in conflict with the doctrine declared in the case of In re Hamilton, 66 Kan. 754, 71 Pac. 817, nor opposed to the following statement of the law in volume 1 of the fourth edition of Freeman on Judgments, section 324: “The principle of res judicata is also applicable to proceedings on habeas corpus, so far at least as they involve an inquiry into and a determination of the rights, of conflicting claimants to the custody of minor children.” We are satisfied that the weight of authority and sound reasoning supports the doctrine that where the rights of conflicting claimants to the custody of a child are involved and determined in habeas corpus proceedings the judgment is binding and conclusive, and bars subsequent proceedings by the same parties upon the same -state of facts. (To the same effect see Cormack v. Marshall, 211 Ill. 519, 71 N. E. 1077, 67 L. R. A. 787, and Mahon v. The People, 218 Ill. 171, 75 N. E. 768.) The trial court erred in refusing to give to the Illinois judgment the faith and credit required by the constitution and the laws made in pursuance thereof. Two minor contentions of petitioners will be noticed. The first is that after issues have been fully joined and judgment has been rendered on a trial a party cannot be heard to urge in this court on appeal error in denying a motion to quash. A motion to quash amounts to the same thing as a demurrer to the petition. The first two authorities cited by petitioners, U. P. Rly. Co. v. Estes, 37 Kan. 229, 15 Pac. 157, and Goodrich v. Comm’rs of Atchison Co., 47 Kan. 355, 27 Pac. 1006, 18 L. R. A. 113, expressly decide that where a demurrer to a petition is overruled the defendant may save his exceptions, answer, raise the same defense by objection to the reception of evidence, and, if this be overruled, except, and, in this court on appeal, question the error in either ruling. The other case cited, Bank of Santa Fe v. Haskell Co. Bank, 54 Kan. 375, 38 Pac. 485, is not in point., It is also urged that since the record does not contain the evidence error cannot be predicated on the overruling of the demurrer to the evidence. This is of no consequence, because respondent raised all the questions of law involved herein by the motion to quash and the objection to any evidence. The other assignment is merely stating in a different form that no evidence should have been received. It follows, therefore, that the respondent was entitled to judgment upon the motion to quash, and that no evidence was proper under the pleadings. The judgment is reversed and the cause remanded, with directions to enter judgment for the respondent for costs.

The opinion of the court was delivered by Johnston, C. J.: H. W. Allen shipped two car-loads of cattle from Burns, Kan., to St. Joseph, Mo., over the Atchison, Topeka & Santa Fe railway, and accompanied the cattle on the train as a caretaker. When the train reached Emporia the cattle were unloaded and placed in the stock-yards for rest and to be fed and watered. The stock-yards are adjacent to the railroad, and were then operated by Hatcher & Hatcher, under a contract with the railway company. The yards were enclosed and partitioned with fencing about five feet high, and on the top of the fence around, the pens in which the Allen cattle were placed two planks were laid on crosspieces which were fastened to the posts and secured by brackets. The planks so placed were used as a walk, and also as a feed-board. Shortly before the time fixed for reloading the cattle Allen climbed upon the top of the fence and proceeded to walk around on the planks to inspect the cattle and learn if they had eaten the feed given them, and whether they needed more feed and water, and, while so walking around, one of the planks, which was rest ing on a decayed and defective support, gave way and he fell to the ground and was severely injured. He brought this action against the railway cqmpany to recover damages, and afterward the Hatchers, who were in the management of the stock-yards, were made defendants. The negligence charged against the defendants was in permitting the walk around the top of the pens to become and remain in a dangerous condition, in that an end of one of the crosspieces supporting the walk was rotten and had broken off, leaving no support for the plank upon which Allen stepped and from which he fell. On the trial the jury awarded Allen damages in the sum of $1750. It is contended that the evidence did not warrant the verdict. First, it is said that after Allen had turned the cattle over to the manager of the stockyards and given orders to feed and water them he had no further business in the yard until the cattle were reloaded; that he was not required to climb the fence or use the walk from which he fell; that there were no steps leading from the ground to the top of the fence, nor was there any invitation to use the planks as a walk; and that if inspection of the cattle in the pens was necessary for any purpose it could have been made by looking over the fence or through the cracks between the boards. There was testimony, however, that the planks placed on the top of the fence around the pens were designed and used' as a walk, so that the owners and caretakers of cattle could inspect them, and from that position ascertain if they had been given sufficient feed and water, and that it would have been difficult to have seen whether there was feed in the boxes and water in the troughs without a view from the top of the pen. It was incumbent upon the railway company to provide necessary and suitable yards and facilities for the care of stock entrusted to it for shipment, in which stock in transit might be unloaded for rest, feed and water. (Kansas Pacific Rly. Co. v. Reynolds, 8 Kan. 623.) It was the duty of the company and those in charge of the stock-yards to keep such yards in a reasonably safe condition, not only for the cattle enclosed, in the yards but also for the persons who accompanied .the cattle and who in the exercise of their rights and duties as caretakers might find it necessary to pass about and through the yards. The trial court rightly advised the jury that after Allen left the train and went into the yards he was not entitled to that high degree of care which is due to a passenger upon a train, but that the company was held to exercise ordinary care and prudence to see that persons who rightly visited the yards for any purpose were not injured. Caretakers who follow cattle which have been unloaded into the yards to be fed, watered and rested are not to be regarded as mere volunteers or as trespassers. Although the yards are owned by the company, and its agents and managers are charged with the duty of feeding, watering and caring for the cattle while in the yards, the accompanying owners or caretakers have a right to follow and inspect the cattle and see that they are receiving proper care. Allen was at least entitled to the protection and care due to a customer or patron of a business establishment. The protection which an owner or occupant of premises should take of customers coming upon the premises in the course of business, or of other persons who come by his invitation, express or implied, was discussed in the leading English case of Indermaur v. Dames, L. R. 1 C. P. 274, where it was said: “This protection does not depend upon the fact of a contract being entered into in the way of the shopkeeper’s business during the stay of the customer, but upon the fact that the customer has come into the shop in pursuance of a tacit invitation given by the shopkeeper, with a view to business which concerns himself. And, if a customer were, after buying goods, to go back to the shop in order to complain of the quality, or that the change was not right, he would be just as much there upon business Which concerned the shopkeeper, and as much entitled to protection during this accessory-visit, though it might not be for the shopkeeper’s bene•fit, as during the principal visit, which was. And if, instead of going himself, the customer were to send his servant, the servant would be entitled to the same, consideration as the master. “The class to which the customer belongs includes persons who come not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied.” (Page 286.) In the case of True v. Creamery, 72 N. H. 154, 55 Atl. 893, it was held that a patron.of a creamery who was waiting about a building in the ordinary course of the business was to be regarded as present at the invitation of the proprietor, who was bound to exercise ordinary care to protect his patron against the dangers of the place. The court approved the rule stated in volume 2 of the fifth edition of Shearman & Redfield on the Law of Negligence, section 704, as follows: “The occupant of land is bound to use ordinary care and diligence to keep the premises in a safe condition for the access- of persons who come thereon by his- invitation, express or implied, for the transaction of business, or for any other purpose beneficial to him; or, if his premises are in any respect dangerous, he must give such visitors sufficient warning of the danger to enable them, by the use of ordinary care, to avoid it. The extent, however, of his obligation is to use ordinary care and prudence to keep his premises in such condition that visitors may not be unnecessarily or unreasonably exposed to danger.” (See, also, 21 A. & E. Encycl. of L. 471.) Allen had business in the yards — to inspect and look after his cattle, and it was a business of common interest and mutual advantage to shipper and carrier. The plank walks on the fences were intended for the use of those inspecting and caring for stock placed in the yards. Allen was using the walk for that purpose when he was injured. It is said that another and safer method of inspection would have been to have looked through the fence, or, if that was impracticable, to have gone into the pens. It appears that a full view of the feed-boxes and water-troughs could not be had from the outside, and it can hardly be said that it would have been a safer or a better plan to have gone inside of the pens among the cattle, some of which were wild, and where the bottom of the pens was covered with filth. An inspection from the plank walk was a comr mon practice and a convenient method, and would have been a safe one if the walk, .provided in part for the purpose, had been in good condition. The walk was adapted to, and commonly used for, that purpose, and Allen' and other caretakers of stock had a right to assume that it was in a reasonably safe condition for such use. The company having invited him to the yards as one of its patrons, and having provided walks for his use while inspecting and caring for his cattle, assumed the obligation to keep the yards and walks in a reasonably safe condition for such use, and its failure in this respect makes it liable for the resulting injuries. (Texas & Pacific Ry. Co. v. Hudman, 8 Tex. Civ. App. 309, 28 S. W. 388.) The court correctly advised the jury that the defendants would only be liable for the injuries caused by a defective walk where they had notice of its defective condition or where the defect was patent and had existed, so long that notice of it might reasonably be inferred. The responsibility is as great where the defendants in the exercise of the diligence which the law requires should have known the defect as where they had actual knowledge of it. The next contention is that answers of the jury to certain special questions were indefinite, unsupported by testimony, and fairly interpreted compel a judgment for defendants. The questions and answers were as follow: “Ques. Did the defendant railway company know of the defect complained of before the accident in question ? Ans. We do not know. “Q. Did defendants Hatcher know of the defect complained of before the accident in question ? A. We do not know.” These questions, together with a number of others, were submitted at the instance of the defendants. It is contended that under the testimony the jury should have given a definite, negative answer to each question. Interpreting those given as the equivalent of negative answers, as we may, they do not overthrow the general verdict of the jury. They are no more than findings that the defendants had no actual knowledge of the defect in the walk. The questions were, Did they know of the defect? and not whether the defect was so patent and had been so long in existence that they should have known of it. There was testimony, too, that the break in the support of the walk was an old one — one which those charged with the duty of keeping it in a safe condition should have observed and remedied. Whether the defect was so open to observation that defendants are to be charged with notice of it has been settled by the jury, and as there was testimony warranting an inference of notice or a duty to know of the defect, that element, in the absence of a special finding to the contrary, is presumed to be included in the general verdict. As was said by Mr. Justice Cunningham, in Seeds v. Bridge Co., 68 Kan. 522, 75 Pac. 480: “All the elements which go to make up a plaintiff’s right of recovery are found in his favor by a general verdict for him. And before special findings will avail to overthrow the general verdict they must have determined all those elements against his right of recovery.” (Syllabus.) The broken parts of the crosspiece upon which the plank rested were presented to the jurors, and they had an opportunity to see the nature of the defect and could determine about how long it had existed and whether it was observable upon reasonable inspection by those in charge of the yards. Aside from this, there was the testimony that one of the Hatchers, upon being informed of the fall and injury, remarked that he had been trying to get the Santa Fe to fix those planks for two or three years and that maybe they would do it now. We think the findings are not inconsistent with the general verdict, and that there is sufficient supporting testimony to uphold the verdict. There is nothing substantial in the claim that in its instructions the court assumed the existence of disputed facts, nor in some objections made to the admissions of testimony. Finding no prejudicial error in the record, the judgment is affirmed. Greene, Burch, Mason, Smith, Porter, JJ., concurring. Graves, J., not sitting.

The opinion of the court was delivered by Graves, J.: It appears quite clearly from the evidence that the plaintiff fully performed the conditions of the written contract on his part. It is admitted' by the defendant’s answer that an oral contract was made, as alleged, except that the request to hold the machinery at the well is denied. This allegation- of the petition, however, is established by the testimony. It seems, therefore, that the demurrer to the evidence should have been overruled. The ruling of the court is justified by the defendant upon the grounds: (1) That the action was prematurely brought as' to the first cause of action, which is founded upon the written contract ; and (2) that there is a fatal variance between the pleading and the proof as to the second cause of action. ' In support of defendant’s first proposition it is argued that the written contract when properly interpreted means that the plaintiff must complete the well before he is entitled to pay for the drilling; that the well was not completed until after the action was commenced, and therefore it was prematurely brought. The language of" the contract, as it is ordinarily understood, does not seem to justify this conclusion. It simply requires the plaintiff to do a certain amount of drilling in a good and workmanlike manner.' Nothing is said about casing, packing, tubing, or anything else which indicates the completion of the well. • If this language, when used in an .oil-and-gas contract, has the significance here contended for, that fact does not appear in the evidence. No reason appears for giving it any peculiar signification. The language used by Mr. Justice Mason in the case of Betterment Co. v. Blaes, ante, p. 69, seems quite pertinent here. In that case he said: “This argument ignores the distinction between completing a well and drilling a well. These phrases cannot be said, as a matter of law, to mean the same thing. There was evidence in this case from which it might be found that a well was drilled but not completed, if these words are to be given their ordinary meaning, and there is nothing in the contract itself or in the undisputed facts that requires any unusual significance to be attached to them.” (Page 75.) As we interpret this agreement, the contract price for the drilling became due and payable on October 12, 1904, when the work was completed. We are strengthened in this conclusion by the act of the parties when they mutually agreed that plaintiff should receive extra compensation for work done after the drilling was finished. This oral contract indicates that the parties then regarded the work provided for by. the written contract at an end. It is contended that the defendant’s answer avers a failure to complete the work, in that plaintiff did not •case out the water and had not put in the packer and tubing which were necessary to the proper completion •of the well; also, that the plaintiff in his testimony admitted these averments, which constituted the issues upon which the case was tried. This, however, amounts merely to an admission that the plaintiff neglected to do •a thing which by the provisions of his contract he was under no obligation to perform. Besides, it is not incumbent upon a plaintiff to meet all the issues made by the various pleadings in the case before he .can safely rest. When he produces some evidence tending to support the material allegations of his petition he is beyond the reach of a demurrer to his evidence. The issues made by the affirmative averments in the answer ■and the reply must be met in the later stages of the trial. If it was the duty of the plaintiff to case out the water and put in the packer and tubing, or do anything more than drill the well, such duty existed because of something outside and independent of the conditions •of the written contract, and the burden was upon the defendant to aver and prove such collateral facts. As ■against the demurrer we think the plaintiff was entitled to judgment on his first cause of action. As to the second cause of action, under the evidence the plaintiff is also entitled to judgment, unless cut off by the variance of which the defendant complains. The petition alleges that the oral contract upon which the plaintiff seeks to recover was made with the defendant, while the proof shows that it was made with 'Martin, who was the defendant’s agent. This difference between the pleading and the proof is claimed to be a fatal variance. This much-abused plea, once a formidable obstacle in the administration of justice, has been shorn of its old-time vigor and strength, so that it is now unavailing unless really meritorious. It is confined in its application to statutory limitations, as defined in the civil code, which reads: “No variance between the allegations in a pleading, and the proof, is to be deemed material, unless it have-actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the-court, and it must also be shown in what respect he-has been misled, and thereupon the court may order the pleading to be amended upon such terms as may be just.” (Gen. Stat. 1901, § 4567. See, also, Crane v. Ring, 48 Kan. 58, 60, 28 Pac. 1010; Railway Co. v. Green, ante, p. 504.) In this case the defendant, after executing the written contract, placed Martin in charge of the work on the well, and then left the state and was absent until after the oral contract was made. A part of the oral agreement is admitted by him in his answer, which shows that he was advised of its existence before the-, pleadings were filed. On the trial no objections were made to the evidence because at variance with the-pleadings, but objections were made on other grounds. If the question of variance was presented to the district court at all it was in the general demurrer to the-evidence. The objection seems to be without merit. The defendant could not have been surprised, misled or prejudiced in the slightest degree. He knew when he filed his answer to the petition that the oral contract had. been made with Martin, and also knew at that time what the averments of the petition were. Martin was agent for the defendant, with full authority to make-the contract. To sustain the demurrer would dispose-of the case upon a doubtful technicality, where the defendant is clearly liable. Such a practice cannot be encouraged. We regard the variance as immaterial. The demurrer should have been overruled. Several cases have been cited in support of the contention of the defendant on the question of variance,. but the facts involved in them differ materially from the facts in this case; and it does not appear that they were decided where a statute similar to ours was in force, and we do not therefore regard them as authority. The judgment is reversed, with direction to allow the motion for a new trial and proceed with the case in accordance with the views herein expressed.

.The opinion of the court was delivered by MASON, J.: Martin Dolan executed an instrument purporting to be a warranty deed conveying property to Joseph Otney, but containing these words immedi ately following the granting clause, which was in the usual form: “This deed is made with the understanding that the same is not to take effect or be in force until the death of the grantor, and upon the death of the grantor is to take effect and at said time to vest in the said grantee the absolute title in fee simple of the property above described. “And it is further understood that the said Joseph Otney is to take care of and maintain the said M. Do-lan, a single man, during the balance of his natural life.” The instrument was placed in the hands of a third person, to be delivered after the grantor’s death to the grantee. Dolan died and the delivery was made. The heirs brought a suit against Otney to have the deed-set aside. The court sustained a demurrer to their evidence, and they prosecute error. Some months before his death Dolan handed the deed to one John Grimes, with directions after his death to give it to Otney. On the same occasion, however, Dolan said to Grimes: “Of course, if I ask you for the deed you would give it to me.” Grimes answered that he certainly would, and Dolan responded: “Martin will never ask for it.” The day before he died, however, he gave Grimes instructions in the presence of Otney to deliver the deed after his death, provided Otney should haul some corn, pay a sum of money, and give a note for $100. These conditions were fully complied with, and, after the death of Dolan, Grimes handed the deed to Otney. The question which has been discussed by counsel is whether the language of the deed, in connection with the circumstances attending its delivery, shows the grantor to have intended that no title should pass until his death, in which case it would be testamentary in its character and therefore inoperative. [ The plaintiffs in error rely largely upon the first paragraph above quoted as having this effect, arguing that such explicit language admits of no other construction. If we as sume that the words employed were used with technical exactness it would be difficult or impossible to escape from this conclusion. Nevertheless we are persuaded that what the grantor intended was no more than that the possession and enjoyment of the property by the grantee should be postponed until his death. This view can be justified under the authorities by reason of the place in the deed in which the provision occurs. As it follows the granting clause it must be deemed not to overthrow it. (Durand v. Higgins, 67 Kan. 110, 72 Pac. 567.) We are not disposed, however, to attach controlling importance to this consideration. The real intent of the grantor being the object of our search, the inquiry is, not what do his words mean in strict legal contemplation, but in what sense did he use them —what idea did he employ them to convey. The decisions are not in harmony on the subject, but a well-defined tendency clearly appears in the more recent cases to uphold the deed if possible, and if necessary to that end to regard it as speaking with colloquial freedom rather than with formal accuracy. “In deeds the first clause prevails generally over the later, and surely a later clause of mere further assurance would not emasculate and predominate over the prior granting clause, but just the reverse. As to wills the rule has ever been that, regardless of form or orderly parts, we must look at the real intention; but this has not been the case in the construction of deeds. Deeds have orderly parts, technical words of precise legal signification, and in times gone by those parts and words, and the strict rule of construction of them, have been rigorously observed, often defeating the manifest intention. Modern construction, however, has leaned towards the intention, overriding mere form and technical words, and nowadays it may be said that the intention must rule the construction in deeds as well as in wills." (Uhl v. Railroad Co., 51 W. Va. 106, 114, 41 S. E. 340.) “There is a tendency, however, in the modern decisions to uphold conveyances when not clearly repugnant to some well-defined rule of law.” (Love v. Blauw, 61 Kan. 496, 501, 59 Pac. 1059, 48 L. R. A. 257, 78 Am. St. Rep. 334.) “The original tendency was toward holding that papers indicating an intention to postpone enjoyment by the persons claiming to be grantees till after the death of the persons executing the papers should be classed as wills. This tendency in time yielded to' another, namely, that it was the sounder policy in. a case of doubt to declare that the instrument was a deed and thus make it effectual, when holding it to be testamentary would, for want of the requisite number of witnesses, render it nugatory. The true test, of course, is the intention of the maker, which is to be gathered from the terms of the paper. . . . Why should even the most ignorant man adopt the form of a deed if he intended to make a will? Almost any person, however illiterate or uninformed, would, if he desired to execute a real will, adopt for expressing his purpose language altogether unsuited for a present conveyance. Where the form of a deed is actually employed, such phrases as, ‘after my death/ ‘vest at my death/ ‘take effect at my death/ and the like, may well be construed as merely designed to postpone possession or enjoyment by the grantee till after the death of the grantor.” (West v. Wright, 115 Ga. 277, 41 S. E. 602.) The syllabus of the case last cited reads: “An instrument attested as a deed, and in all respects in the form of a deed, should, though it contains the words ‘thip deed to take effect at my death/ be treated, not as a will, but as a conveyance passing title in prassenti, with right of possession postponed till the death of the maker.” The late case of Hunt v. Hunt (Ky.), 82 S. W. 998, 68 L. R. A. 180, after reviewing the authorities in some detail, concludes: “The object of all construction is to arrive at the intention of the maker of the instrument. In doing this all parts of the instrument must be considered, and in a deed, in case of doubt, it must .be resolved against the grantor, for he selects his own language. While the instrument in question contains the words that it is not to take effect until the death of the grantors, it also contains the words ‘do hereby sell and convey/ ‘to have and to hold,’ and ‘said party of the first part hereby covenants with the said party of the second part that he will warrant the title hereby conveyed.’ These words aptly convey a present estate, and it is not presumed that one part of the deed was intended to conflict with another. As it is clear that, as to S. E. Hunt, only the enjoyment of the property was postponed until her death, we conclude that, giving some effect to all parts of the deed, its proper construction is that the grantee takes a present estate vesting at the time of its delivery, but taking effect in possession at the death of the father and mother.” (68 L. R. A. 182.) The syllabus as printed in the Lawyers’ Reports Annotated reads: “A present estate vesting at the time of delivery of the deed, but taking effect in possession at the death of the father and mother, is conveyed by a grant by the owner of land and his wife to their child in an instrument authenticated as a deed and containing words of present grant and covenants of warranty, although it provides that ‘this deed, is not to take effect until the death of’ the grantors.” Applying the reasoning of these cases to the facts here presented, we are convinced that the real purpose of Dolan, so far as disclosed by the language of the deed now under consideration, notwithstanding his failure to express it .in correct terms, was to vest a title immediately in Otney, reserving only a life-interest in himself; that is to say, the deed should be taken to mean this in the same sense and for the same reasons that such meaning is imputed in the case of the deposit of an ordinary deed under the same circumstances — ' the words relied upon to change the usual rule do not have that effect. (See as to the general rule Young v. McWilliams, ante, p. 243.) A further question arises with respect to the paragraph of the deed relating to the obligation of the grantee to care for and maintain the grantor during the remainder of his life. A very similar provision was held, in Culy v. Upham, 135 Mich. 131, 97 N. W. 405, 106 Am. St. Rep. 388, to make the instrument testa mentary in character, and therefore invalid. The exact, language there interpreted was as follows: “It is expressly understood that my said daughter, Hannah M. Upham, shall live with me and care for me, that the expense thereof shall be derived from the use and income arising from said described lands, and also from any personal property I may have, and that she is to remain with me and care for me until my death, after which event this deed shall be delivered to her, and her title to said lands shall become absolute upon, the payment of the several amounts above stated.” (Page 132.) This was regarded as making the delivery depend upon the performance by the grantee of a condition precedent — the maintaining of the grantor so long as he should live. In response to the claim that the condition was waived by the giving of unqualified oral instructions to the depositary to deliver upon the grantor’s death, the court answered that this “was merely an attempted verbal modification of the written conditions of the deed, and therefore, under the statute of frauds, entirely ineffectual.” (Page 134.) Upon this interpretation the court concluded: “It is quite apparent that the grantor in this deed intended that title should remain in him until after he died, and that it should then pass to defendant, if she had performed the conditions.” (Page 134.) In the present case, although a part of the consideration of the deed was that the grantee should care for the grantor, the delivery to him was nowhere made to depend upon his doing so. The argument of the Michigan case has therefore no application to the provision referred to, and no reason appears for regarding such provision as fatal to the validity of the deed. Nevertheless the effect of imposing a condition upon the delivery by the custodian is here involved, for the last instructions given to Grimes included a direction to hold the deed until Otney should perform certain acts, including the giving of a note. Probably the question whether there was a valid delivery must be de termined by what took place at that time, for during the first conversation on the subject the understanding seemed to be that Dolan had not relinquished control, and such understanding was inconsistent with an effectual present delivery. (Cole v. Cole [Mich.], 108 N. W. 101.) In Taft v. Taft, 59 Mich. 185, 26 N. W. 426, 60 Am. Rep. 291, after an elaborate review of the authorities, the conclusion was reached that no valid delivery can be accomplished by the deposit of a deed with a custodian who is directed to hold it not only until the grantor dies but until the grantee does something on his part, and then deliver it- — at least that such is the rule unless the required act is one intended to be performed, or at all events capable of performance, while the grantor is yet alive. Otney did all the acts necessary to entitle him to the deed. Whether or not he in fact performed them before Dolan died, he might have done so, and his doing so may have been within the contemplation of the parties. But we do not care to rely upon this distinction. The view that no effect can be given a deed placed by the grantor in the hands of a third person to be delivered upon his death, if the performance of some act by the grantee is made a condition of such delivery, is supported only by artificial reasoning. It proceeds upon substantially this argument: A deed entrusted to a stranger for delivery at the grantor’s death can be upheld only upon the theory that it is not an escrow, but that the title passes when such deposit is made; and where the delivery to the grantee is made to depend upon some act of his, the instrument is an escrow, and conveys- no title until finally delivered, or at any rate until such act is performed. .But while it is true that ordinarily title is not changed by an escrow until it is rightfully delivered — or until conditions have arisen such that it of right ought to be delivered — to the grantee, it is often held that such delivery when made will be deemed to operate by relation as of the time the deposit was made. This is uniformly done when, as in Davis v. Clark, 58 Kan. 100, 48 Pac. 563, the death of the grantor makes an effective delivery thereafter theoretically impossible. (16 Cyc. 588; 11 A. & E. Encycl. of L. 346.) The fiction of an earlier delivery by relation is adoptéd in such cases to prevent a manifest hardship and wrong. No reason is apparent why it may not be invoked in such a case as .the present to effectuate the lawful intentions of the parties. The very conception that a deed deposited with a stranger to be delivered at the grantor’s death operates as a present conveyance is a fiction of like character adopted for a like purpose. (16 Cyc. 566.) In Craddock v. Barnes, 142 N. C. 89, 54 S. E. 1003, it was said: “Some courts hold that an escrow does not take effect as a fully executed deed until there has been a rightful delivery to the grantee; but the logical position approved in a number of authorities is that it is effective as a deed when the grantor relinquishes the possession and control of it by delivery to the depositary, and it passes the title to the grantee when the condition is fully performed, without the necessity of a second delivery by the depositary; and it may, by a fiction of the law, have relation back to the date of its original execution, or deposit, when necessary for the purpose of doing justice or of effectuating the intention of the parties . . ; and this we take to be the settled doctrine of this court. . . . In Hall v. Harris [5 Ired. Eq. (N. C.) 303], Pearson, J., thus states the true rule which he says is.deduced from the best authorities: ‘We are satisfied from principle and from a consideration of the authorities that, when a paper is signed and sealed and handed to a third person to be handed to another upon a condition which is afterward complied with, the paper becomes a deed by the act of parting with' possession and takes effect presently, without reference to the precise words used, unless it clearly appears to be the intention that it should not then become a deed, and this intention would be defeated by treating .it as a deed from that time.’ ” (Pages 96, 97.) It is true that in the case, of an ordinary escrow it is the expectation of the parties that the matter shall be fully closed up before any of them die, and where the death of one of them intervenes it occasions a situation that was never in their contemplation, while here an arrangement was deliberately made that the practical operation of the deed should begin after the death of the grantor, and after the fulfilment of the stated conditions. But we do not perceive in this fact any reason for resorting to a fiction to support one transaction rather than the other^j ; ’, ■ v To call the requirement. imposed on the grantee a condition precedent to the vesting of title is to beg the question; if the title is regarded as passing with the delivery of the instrument to the custodian it is a condition subsequent, upon the non-performance of which the title will revert. So far as the grantor and his heirs are concerned there is no possible hardship in considering that when he has placed the deed beyond his recall — when in spite of anything he can do it must ultimately become fully effective — it becomes operative in contemplation of law at once. No difficulty is presented with respect to the intervening rights of creditors, because as against them no resort could be had to the fiction. The situation in this respect is not affected by the conditions attached to the final delivery, for the same distinction is made where none is imposed. Such a case was presented in Rathmell, Exr., v. Shirey et al., 60 Ohio St. 187, 53 N. E. 1098, although the instrument is there spoken of and treated as an escrow. The syllabus reads: “An instrument for the conveyance of lands without substantial valuable consideration, deposited with a third person as an escrow to be by him delivered to the grantee on the death of the grantor, does not, by relation, vest the title in the grantpe at the date of the first delivery to the prejudice of persons who thereafter, without knowledge of the instrument, extend credit to the grantor.” In the opinion it was said: “Whatever terms may be employed in stating the exception, the relation back to the first delivery is always to accomplish, and never to defeat, justice. Bearing in mind the purpose of this exception, and the fact that the deed before us was without any substantial consideration, it is quite apparent that the conclusion of the circuit court that the relation back should be allowed to cut off the claims of those who gave credit to the testator between the first and second deliveries, and without knowledge of the instrument, is erroneous. That conclusion derives no support from Crooks v. Crooks, 84 Ohio St. 610, or Ball v. Foreman, 37 Ohio St. 132, where the title was held to pass as of the date of the first delivery for purposes clearly within the exception as above stated.” (Page 198.) The theoretical difficulties regarding the location of the title prior to the performance of the conditions, if the principle of relation is applied in this case, are really no greater than in any other where resort to the fiction is had; for instance, in those cases where there is no actual acceptance until after the grantor’s death. Acceptance is of course essential to the validity of any deed, yet it is common for deeds to be upheld of the existence of which the grantee never heard in the lifetime of the grantor, his acceptance being permitted to be operative by relation as to the time the grantor surrendered control. Where its terms are purely beneficial to the grantee his acceptance is presumed, but this is only a matter of evidence. “As stated by Justice Ventris in Thomson v. Leach, 2 Vent. 198, a man ‘cannot have'an estate put into him in spite of his teeth.’ But the presumption that a person will accept a pure, unqualified gift is so strong that the courts have quite generally manifested a disposition to act upon such presumption in the interim as a working rule for the operation of conveyances.” (Emmons v. Harding, 162 Ind. 154, 159, 70 N. E. 142.) If under such circumstances the beneficiary should finally from any whim or caprice refuse to accept the deed, when after the death of the grantor he learns of its existence, the situation would not be greatly different from that presented by his failure to perform an affirmative act where one is required of him as a condition for its final delivery. The question is not free from doubt, but our conclusion is that the deed here involved may be upheld upon the theory suggested. By such research as has been practicable in the time available for the purpose we have found, but two modern cases other than those already cited in which the grantor placed a deed with a third person for delivery after his death upon conditions to be performed by the grantee. They are Gammon v. Bunnell, 22 Utah, 421, 64 Pac. 958, and McCurry v. McCurry [Tex. Civ. App.], 95 S. W. 35. In each of these the deed was upheld, but in neither was there any extended discussion of the effect of the conditions. The judgment is affirmed. Greene,. Burch, Smith, Porter, Graves, JJ., concurring. Johnston, C. J., concurs in the judgment, but not in all said in the opinion.

The opinion of the court was delivered by Mason, J.: In 1887 the Interstate Railroad Company acquired by condemnation a right of way across a farm owned by H. B. Stone. When the road was built a trestle bridge was put in over a low place, leaving an opening connecting the two* portions into which the tract was divided. This opening was used for an undergrade farm crossing until 1901, when the Missouri Pacific Railway Company, the successor of the Interstate Railroad Company, sought to replace the bridge by an embankment. Stone brought a suit to enjoin the filling up of the passage, claiming that prior to the condemnation proceedings an agreement had been made with him by the agent of the railroad company that it should be kept open perpetually for his benefit, and that the damages awarded and paid were estimated in view of this arrangement. Upon a hearing on the merits he was defeated, and he now prosecutes error. Considerable oral testimony was given in behalf of the plaintiff. This must be disregarded here, inasmuch as it does not appear what credence the trial court gave it, no findings of fact having been made. We think, however, that the uncontradicted written evidence required the granting of the injunction. The defendant maintains that the suit is in effect one to enforce an agreement for an interest in real estate, and must fail because of the lack of any written memorandum of such agreement sufficient to satisfy the statute of frauds. The plaintiff’s claim, however, is that the railroad company never acquired the right to construct an embankment at the place in question; that what it obtained by the condemnation proceedings, and what it paid for, was the privilege of constructing its road in such a way as not' to interfere with the plaintiff’s free passage back and forth at this point. The question is not what the company gave, but what it received. The court was not called upon to inquire whether an oral contract had been made which could be enforced, but. to determine the effect of the condemnation proceedings. The express agreement to maintain the passage is of importance only as it may serve to interpret the award of damages. So far as. relates to the statute of frauds the case is controlled by Railway Co. v. Wynkoop, 73 Kan. 590, 85 Pac. 595. There the landowner was held to be entitled to an injunction under similar circumstances, although the same objection was made. The scope and ground pf the decision appears from this excerpt- from the opinion: “There is a contention that under the evidence Wynkoop was not entitled to an undergrade crossing. In that connection it is argued that the right of Wyn-koop to use the crossing is in the nature of an easement, and that it is worthless unless evidenced by writing. The case is not to be treated as an easement obtained by Wynkoop from the railroad company. The private ■ roadway passed over his own land, and he never parted with the right to it or to its use. The company acquired no more than it paid for, and according to the testimony the open passageway was excepted from the right of way, and that fact was taken into account in the allowance of damages by the commissioners. If the right to make a solid embankment had been sought and obtained, an award of damages for the obstruction and the resulting inconvenience of the owner in passing from one part of his farm to the other must have been allowed. The question whether the undergrade crossing was practicable and should be maintained was a proper consideration in the condemnation proceeding. If such a crossing is a part of the plan of the railroad company, and it is considered in awarding damages to the landowner, the company is bound to construct and maintain such crossing.” • (Page 594.) The only material difference between that case and this is that there the report of the right-of-way commissioners was acquiesced in, while here it was appealed from. There the rights of the parties were fixed by the report; here they were fixed by the verdict of the jury. There the question was, What damages were covered by the award? Here it is, What matters were concluded by the. judgment? In the present case the commissioners in their report made no reference to a reservation of a subway. They assessed the damages to the plaintiff’s tract at $462.40, of which $212.40 represented the value of the land taken. The plaintiff appealed, and in the district court the jury increased the total to $1000, which was duly paid. The question to be decided is, What rights did the railroad company acquire by this payment? And this turns upon the further question, What were the rights to be yielded by the landowner the value of which the court and jury fixed at $1000? This is in substance a question of what was adjudicated in that litigation, to be determined in the same way as any other question of former adjudication. (A. & N. R. Co. v. Boerner, 34 Neb. 240, 51 N. W. 842, 33 Am. St. Rep. 637.) The record is of course first to be looked to, and is decisive so far as it speaks. It may not be contradicted. But so far as is consistent with the record — with respect to matters concerning which it is silent, other evidence, including parol testimony, may be received to show what was in fact involved, considered and established. (2 Van Fleet’s For. Adjud. § 413; 24 A. & E. Encycl. of L. 835, 193-195.) The pleadings in the case heard on appeal were lost, but it was agreed that nothing was said in them regarding an undergrade passage; the verdict and judgment were likewise silent on the subject. If any map or profile prepared by the railroad company in connection with the condemnation proceedings had shown an undergrade crossing at this point, or if the report of the. commissioners had indicated one, there would of course be no difficulty in arriving at the conclusion that the award of damages was made upon the basis, of such a reservation in behalf of the landowner. In the absence of any such showing the presumption no doubt is against any limitation on the method of construction to be adopted, but the presumption is not conclusive, for there is no imperative requirement that such matters should be so indicated. . As was said in Packard v. Bergen Neck Ry. Co., 54 N. J. Law, 553, 25 Atl. 506: “It is to be regretted . . . that the law does not require the party condemning lands for public use to set out in the proceedings the mode in which the land condemned is to be used, so that it will become matter of record. The condemning party may designate the mode of use in its petition for the appointment of commissioners, and if it does the award should include damages predicated upon the'use of the land in the designated mode. If the mode is not designated in the petition or when called on before the commissioners or jury, then the award should include damages predicated upon the use of the land in any lawful mode for the purposes of the party. National Docks, &c., Co. v. United &c., Cos., 24 Vroom. 217, 21 Atl. 570, 26 Am. St. Rep. 421. And if, when called upon to declare before the commissioners or jury the mode in which the land is to be used, the party announces its plan, the award may be made on the basis of the most injurious use within such plan, and equity will restrain from a more injurious use. Carpenter v. E. & A. R. R. Co., 9 C. E. Gr. 249. When a plan for the use of the condemned land is announced upon the trial of an appeal, the trial judge may properly require it to be entered upon the record by amendment of the issue or otherwise.” (Page 563.) A paragraph of the syllabus in the case last cited reads: “Where, at the time of making an award for damages for lands taken by a railroad company, the representatives of the company stated to the commissioners that they would cross certain low lands by an iron bridge, resting upon posts, and would protect and keep clear a lane — the only convenient means of communication between different parts of a farm — but subsequently the company determined to construct a high embankment and have commenced it, and intend to fill in and cut off the lane entirely, it clearly appearing that the commissioners did not consider the embankment in the estimate of damages, equity will restrain the company from filling up the lane until compensation is made to the owner of the lands.” (Carpenter v. Easton and Amboy R. R. Co., 24 N. J. Eq. 249.) In DuPont v. Sanitary District, 203 Ill. 170, 67 N. E. 815, it was said that a stipulation filed by the plaintiff in an action for the condemnation of a right of way and providing that the intended improvements should be made according to a specified method would not protect the defendant unless incorporated in the pleadings or judgment or otherwise made a matter of record. The question arose, however, upon a review of the instructions given by the trial court, and the means for determining the effect of a judgment were not discussed. The record in any case ought of course to show affirmatively what was litigated. But an omission in this respect in a right-of-way case is no more significant than in any other. Indeed it should be thought less so under our statute, by reason of the fact that no formal pleadings are required. In the present instance the record was not so specific as to cut off all inquiry into the effect of .the judgment. It was merely negative. It did not show that a right of passage beneath the track was reserved to the plaintiff, and it did not conclusively show the contrary; it left him free to establish that fact later if he could do so by competent evidence. Whether he succeeded in doing so is the question to be decided. On the trial of the injunction suit the plaintiff introduced in evidence an affidavit which had been filed in the right-of-way case. It purported to be a verified showing in behalf of the railroad company in support of a motion for a continuance. It was not authenticated by the signature of an attorney, but the fact (which was shown by the record) that a week after it was filed the company’s motion for a continuance was granted seems to warrant the belief, in the absence of any countervailing reason, that it was used or prepared as evidence, or at all events was filed by authority of the company. It is not to be presumed that such a document would have found its way into the official custody of the clerk of the court as a paper in the case except by the act of the party in whose interest it professed to speak. The affidavit reads: “U. W. Weston on oath says that he is manager of the construction company constructing the Interstate railroad, and also right-of-way commissioner. After the right of way for said railroad had been duly condemned and appropriated for said road and said road had been graded through the plaintiff’s farm affiant says that he saw plaintiff with a view of adjusting his claim of damages against said company; that said plaintiff told this affiant that if his company would construct for him an underway passage under their railroad track, so as to give him easy passage from one part to the other of his farm divided by said road, •it would greatly reduce the amount of his damages. Affiant says that his company agreed to construct said passageway under said road at a point designated by said plaintiff, and have already .pursuant to said agreement expended about $200 in the construction of said underground crossing. Affiant says that owing to the short space of time in which said company had to complete their road to Gridley it was expressly stipulated as a part of said agreement with said plaintiff and this affiant for said company that said company were not required to complete said crossing until the completion of said road to Gridley. Affiant further says that it was agreed at said time that the question of damages to plaintiff on account of said road passing through his said farm was to be held in abeyance until the said crossing was completed, and then if said plaintiff and said company could not agree upon the amount of damages to be paid by said company the case now pending in court on appeal from the award of the commissioners appointed to condemn the right of way should be tried. Affiant says that they have not yet completed said road to Gridley, and have not completed said crossing, and that relying on said agreement of said plaintiff have, made no preparation for the trial of this cause and cannot safely at this time go to trial therein, and are now completely taken by surprise in said plaintiff at this time insisting upon a trial of this action.” The allegations of fact set out in the affidavit may not be binding upon the Interstate Railroad Company, or upon its successor, the defendant here, but the presence of the document in the files is some evidence that pending the trial of the appeal from the commissioners’ award the company acted upon the theory that the question to be determined in that proceeding was the amount of the plaintiff’s damages on the supposition that the undergrade passage then left was to remain open permanently. Moreover, the plaintiff introduced in the injunction suit a transcript of the entire evidence given in behalf of the railroad company in the right-of-way case. This transcript was incorporated in the deposition of the official stenographer, and being uncontradicted in any way must be accepted as accurate. It shows that the company’s witnesses, under the directions of the company’s attorneys, gave their opinion as to the amount of damage resulting to the plaintiff from the taking of his land explicitly assuming the existence and maintenance of the subway. Their testimony was manifestly directed to that issue, and no other. This clearly shows the attitude of the railroad company at that time. Moreover, it is plain from the cross-examination of these witnesses that there was no difference between the parties as to what was involved — each side proceeded upon the theory that the damages were to be estimated on the hypothesis that the opening left under the track should not be closed. That the jury so understood the matter is evidenced by the fact that in answer to a special question they stated that they allowed no damages on account of the inconvenience in the use of the plaintiff’s farm. In view of the matters already mentioned this answer can hardly be interpreted otherwise than as an indication that the jury regarded the crossing below grade as doing away entirely with one of the most obvious elements of damage where a farm is cut in two by a railroad — the necessity of passing over the-track in getting from one side to the other. We think the uncontradicted evidence, excluding that given orally, established the fact that the right acquired by the railroad company to operate its line across the plaintiff’s farm was subject to his right of passage by means of the opening left when the road was built, and that the injunction against its obstruction should have been granted. The judgment is reversed and the cause remanded for a new trial.

The opinion of the court was delivered by Burch, J.: The plaintiff is the assignee of an oil- and-gas lease of land in Neosho county. The county officials undertook to tax separately from the land it self whatever mineral rights the lease created. Upon non-payment of the tax the treasurer was about to enforce collection by a sale of so much of the “mineral reserve” of the land described in the lease as might be necessary for the purpose, when the plaintiff brought suit to enjoin the sale and to annul the tax. The instrument in question provides that in consideration of one dollar and the covenants of the parties the lessor leases to the lessee the exclusive right for ten years “to enter upon, operate for and procure oil and gas” upon the land described. The lessee agrees to deliver to the lessor one-tenth of the oil realized, or, at the lessor’s option, to pay cash for it. On the discovery of gas the lessor is to have enough for domestic purposes free of charge. The lessee takes the remainder, including gas from oil-wells, and agrees to pay fifty dollars per year if gas is marketed from wells producing gas only. Wells are to be located in a way that will interfere as little as possible with the cultivation of the surface of the land. Provision is made for terminating the lessee’s rights and for continuing them in force, and the terms of the contract are made binding upon the heirs, executors and assigns of the parties to it. No oil- or gas-well has been drilled, and the mineral resources of the land, if any exist, are as yet entirely undeveloped. The county officials proceeded under chapter 244 of the Laws of 1897, which in part reads: “An act to provide for the assessment and taxing of mineral reserves, or leases, or separately owned mineral or mineral rights, to the owner thereof, separately from the land, and providing penalties for its violation. “Be it enacted by the Legislature of the State of Kansas: “Section 1. That where the fee to the surface of any tract, parcel or lot of land is in any person or persons, natural or artificial, and the right or title to any minerals therein is in another, or in others, the right to such minerals shall be valued and listed separately from the fee of said land, in separate entries and descriptions, and such land itself, and said right to the minerals therein, shall be separately taxed to the owners thereof respectively. The register of deeds shall furnish to the county clerk, who shall furnish on the 1st day of March each year to each assessor where such mineral reserves exist and are a matter of record, a certified description of all such reserves; provided, that when such reserves or leases are not recorded within ninety days after execution they shall become void if not listed for taxation.” (Gen. Stat. 1901, § 7583.) The district court, ruling upon a demurrer to the petition, which disclosed fully all the facts, upheld the tax and refused an injunction against the proposed proceedings to enforce its collection. The plaintiff prosecutes error to this court. The question involved depends for its solution upon the proper interpretation to be given the statute. The confusion of thought and inaccuracy of expression so frequently exhibited in legislative enactments are quite apparent in this one, and the precise purpose to be accomplished is somewhat difficult of discernment. Land, of course, is an all-comprehensive term, and includes everything the elementary law-books say it includes. It may be composed in part of minerals, using the term “minerals” in the popular sense of those inorganic constituents of the earth’s crust which are commonly obtained by mining, or other process for bringing them to the surface, for profit. The mineral and non-mineral portions of land are distinguishable and severable, both in legal theory and in fact, and separate property rights in each may coexist. Minerals in place are a part of the land itself, and while they are unsevered are treated as real estate. The substantive provisions of the law are contained in that part of section 1 which ends with the first period. They clearly relate to land with the minerals of which it is in part composed in place. The “minerals therein” can mean none other than minerals imbedded in the earth as nature deposited them. On the other hand, the act as clearly deals with severed titles. In common speech the non-mineral portion of land, the portion which covers and envelopes the minerals, is called “the surface” or “the land,” and the proprietor of land who devests himself of title to the minerals which it contains is still spoken of as the owner of “the fee” or of “the surface” or of “the land.” Minerals themselves are usually called by that name, and' the person having a separate property in them alone is spoken of as owning the mineral or having the mineral rights in the land. So in the statute the “fee to the surface” and the “fee of said land” are set in opposition to “the right or title to any minerals therein.” It is .contemplated that there shall be an estate consisting of what is left after the mineral rights have been carved out, and that there shall be an estate consisting of the mineral rights which have been segregated. The statute further contemplates that each estate must vest in a separate person. The respective proprietors are called “owners,” and the estate in the minerals is nothing short of the right or title to the minerals themselves as they lie in the ground. When such' a state of affairs, exists the statute regards the owner of the mineral rights as the proprietor of a distinct item of property which is taxable to him apart from that which is taxable to the owner of the tract,- parcel or lot in which the minerals are located, and it makes provision for separate lists, entries, descriptions, valuations, etc. The right or title to the minerals, as the statute expresses it, is taxed as realty. The owner is charged with taxes according to the value of his interest, and the owner of the overlying strata is taxed .according to the value of the remaining interest in the land. But there must be a severance of the right to the mineral and the non-mineral portions of the land, respectively, before there can be a division in taxation. Minerals in place being real estate, the act assumes that instruments creating separate interests in them will be placed of record, but it provides that if such instruments are not recorded within ninety days after execution they shall become void, unless they are brought to the attention of the tax officials so that the purpose of the first part of the section may be accomplished. As before noted, the opening sentences of the body of the act tell just what it proposes to tax and how that subject of taxation shall be listed and valued and taxed. The phraseology employed conclusively shows that the law was not framed for the simple purpose of placing leases of mineral land in the same category with mortgages and tax-sale certificates, and the proviso of the law has no other office than that already assigned it. The words “reserves” and “leases” in the title and in the body of the act mean at one time reserved or leased mineral, and at another written instruments evidencing mineral rights. Such being the scope and purpose of the law, the lease in question brought into existence no state of facts to which it might apply. The lease grants no estate in the land or in the oil or gas which it may contain. It creates an incorporeal hereditament only — a license to enter and explore for oil and gas, and if they are discovered to produce and sever them. (Rawlings v. Armel, 70 Kan. 778, 79 Pac. 683; Dickey v. Brick Co., 69 Kan. 106, 76 Pac. 398.) Until discovered and brought to the surface no severance of title occurs. The minerals not only remain a constituent part of the land but they belong to the owner of the surface-soil beneath which they lie. The lessee has no “right or title” to them (see Zinc Co. v. Freeman, 68 Kan. 691, 75 Pac. 995), and they are hot separately taxable to him. There is no standard form for an oil-and-gas “lease.” (Betterment Co. v. Blaes, ante, p. 69.) Each instrument must be interpreted in the light of its own peculiar provisions. (Ringle v. Quigg, 74 Kan. 581, 87 Pac. 724.) In the following cases decided by this court, though not “lease” cases, the instruments in question were held to sever the title to the mineral portions of the land: Kurt v. Lanyon, 72 Kan. 60, 82 Pac. 459; Moore v. Griffin, 72 Kan. 164, 83 Pac. 395, 4 L. R. A., n. s., 477; Barrett v. Coal Co., 70 Kan, 649, 79 Pac. 150. These cases are similar to that of In re Major, 134 Ill. 19, 24 N. E. 973, in which the tax law of Illinois was applied. The syllabus reads: “Where there is a grant of mineral land, with a reservation of the mining right to the grantor, this will amount to a separation of the rights of property as between the land and mines or mining rights, and each must be listed separately for taxation. “Where the ownership of coal is severed from the ownership of the soil, the fee in the coal is property, and, as such, is liable to its just share of taxation.” The case of Sanderson v. Scranton, 105 Pa. St. 469, illustrates the difference between a license to enter and mine and the grant of an estate in the minerals themselves, as bearing upon the question of taxation under the Pennsylvania statute. The syllabus reads: “Where the surface of lands and the minerals in place thereunder have been severed by the agreement or conveyance of the owner, and the respective divisions have become vested in different owners, the municipal authorities are bound to levy their taxes according to the ownership and value of these divisions. And each owner can be made responsible only for the tax on his interest, whether underlying strata or surface. “A. made an agreement with B., leasing to him all the coal beneath the surface of a certain tract of land, of which A. was the owner. The lessee was to mine .and remove in each year at least a certain number of tons, which he was to pay for monthly, at a certain rate per ton, whether mined or not, unless mining should be prevented by certain specified contingencies. In case of neglect for thirty days to pay the said royalty, it might be distrained for. And for continued default the lease might be forfeited. The letting, however, was not for a term certain with reversion to the grantor, but without reversion and to be perpetual, until all the coal under the surface had been mined. And the rights and privileges therein conferred were extended to the heirs, executors, administrators and assigns of the respective parties. Held, that this agreement was not merely a license or lease to mine coal to become the lessee’s when mined, but that it operated as such a severance of the surface and subjacent strata, and a sale or assignment of the coal in place, as would relieve the owner of the surface from responsibility for taxes levied upon the coal.” (See, also, Peterson v. Hall, 57 W. Va. 535, 50 S. E. 603, and Barnes v. Bee, 138 Fed. 476, interpreting the West Virginia tax law.) In the case of Mining Co. v. Crawford County, 71 Kan. 276, 80 Pac. 601, this court held the statute under consideration to be valid, and applying it said: “Minerals in the earth are real estate, and when the owner of them has not the fee to the surface of such land they should be separately assessed and taxed.” (Syllabus.) From all the foregoing it appears that the judgment of the district court in case No. 14,916 must be reversed and the cause remanded, with direction to overrule the demurrer to the petition, and it is so ordered. Case No. 14,915 is in all respects similar to the one just decided, except that gas-wells have been drilled and the lessee is producing gas from them. The development of the property, however, did not change the title to the mineral in place. The lessee, having nothing but the right to enter, operate for and procure gas, obtained no right to any specific quantity of it, and until gas is actually produced and severed so that it becomes personalty the legal title to, and the possession of, the entire volume remain in the owner of the strata in which it is confined. (Stockbridge Iron Company v. Hudson Iron Company, 107 Mass. 290, 322; Kelly v. Keys, Appellant, 213 Pa. St. 295, 62 Atl. 911, 110 Am. St. Rep. 547; Knight v. The Indiana, etc., Co. et al., 47 Ind. 105, 17 Am. Rep. 692, opinion of the court; Barnhart et al.. Appellants, v. Lockwood et al., 152 Pa. St. 82, 25 Atl. 237.) Therefore the judgment of the district court in case No. 14,915 is reversed and the cause is remanded, with, direction to overrule the demurrer to the petition.

The opinion of the court was delivered by Graves, J.: It is claimed that the district court erred in overruling the demurrer to the petition, and also in finding for the plaintiffs upon the trial. The petition contained averments of fact-as to the conditions of the lease not in the written instrument, which would be admitted by a demurrer but could not be proved if proper objections were made to the evidence when offered. Many of these allegations were not established at the trial, and therefore the petition may be said to present a stronger case for the plaintiffs than is shown by the testimony given. We think the court was clearly right in its ruling on the demurrer. As to the findings of the court on the trial, it does not appear what particular point controlled its decision, but from' the discussion of counsel it seems probable that it was based upon the conclusion that the lease had expired. The two-year term provided for in the first clause had passed more than two months before suit was commenced, and the only provision under which it might have been continued is the third clause, which reads: “If oil or gas be found on these premises all rights, benefits and obligations secured hereby shall continue as long as either can be procured in paying quantities and party of the second part shall diligently market and utilize the same for the joint benefit of the parties hereto.” From this it will be seen that two things must concur to extend the life of the lease beyond the period of two years: First, oil or gas must be found in paying quantities; second, the lessee must be diligent in placing the product found upon the market. Gas was found in paying quantities. Whether the lessee used proper diligence or not is a question of fact. This question was decided by the trial court against the plaintiff in error. In the absence of special findings of fact this court will assume that the trial court regarded as established all the facts shown by the evidence which were favorable to the successful party! The claim of the plaintiff in error that it used due diligence in developing the lands covered by the Jones lease is not sustained by the evidence, when construed as above stated. The only effort made by it to develop these lands was to drill one well in the southwest corner of the tract. For nearly two years thereafter it diligently developed the territory embraced in the White lease, and sunk eight wells thereon adjacent to the one well on the Jones land. All of these weils produced a good flow of gas. The efforts to procure a market for the product of these wells were made when the only gas which the company could furnish was that which came from the wells on the.land owned by White. The gas which has been and is now being furnished to the city of Yates Center comes exclusively from the White wells, and he gets the royalty therefor. If any of this gas comes from the Jones tract it is because, of drainage therefrom into the White wells. Whatever Jones loses in this way, if anything, is beneficial to White. The cessation of all work under the Jones lease for two years, and the failure to pay any of the accrued rental for that time, while conducting developments on adjoining property, looks very .much like an abandonment of all rights claimed under such lease. It may at least be said that the plaintiff in error has failed to do the acts which in its contract with Jones it expressly agreed to perform for the purpose of continuing the life of the leáse. These acts — necessary to the existence of the lease — not having been done, it is at an end. This is the result of the plaintiff in error’s admitted unfaithfulness to Jones, and it is not in a position to complain. The district court segregated the land occupied by the well from the other land of the Jones tract, and canceled the lease as to such other land, leaving the lessee to hold and enjoy the limited fruit of the labor performed and expense incurred' by it thereunder. None of the parties objects to this segregation, and we have no occasion to consider it. ' The judgment as a whole is eminently fair and just, and is affirmed.

The opinion of the court was delivered by Johnston, C. J.: On the evening of November 13, 1904, I. Frogley delivered fifty-three head of cattle to the Missouri, Kansas & Texas Railway. Company, at Chetopa, Kan., for shipment to Kansas City. They should have been delivered in Kansas City on the next morning, for the market of that day, but did not reach there until the evening of November 14, after the market had closed. He was unable to sell all of them until the morning of November 16, and in the meantime there had been a decline in the market. For the loss of market, the shrinkage of the cattle before a sale could be effected, the extra feed required, and for the death of one steer during transportation, caused by the negligence of the railway company, all amounting to the sum of $147.93, Frogley asked a recovery. The testimony showing negligence of the company in transporting the cattle to market was sufficient, and hence judgment was given against the company for the amount claimed. The only defense, or rather the only contention here, is that Frogley failed to give the notice of loss provided for in the shipping contract. Frogley-did not base his action on any written contract^ nor offer one in evidence, but it was brought out on-his cross-examination that he signed a contract containing conditions regulating and limiting his right to bring and maintain an action in order to recover damages for loss or injury to the cattle while they were in charge of the company. This was an irregular way of making a defense, but, assuming that the contract is fairly in the case, it did not preclude a recovery by Frogley. It provided: “The shipper further expressly agrees that as a condition precedent to his right to recover any damages for any loss or injury to said cattle resulting from car rier’s negligence as aforesaid, including delays, he will give notice in writing to the conductor in charge of the train or the nearest station- or freight-agent of the carrier on whose line the injuries occur before said cars leave that carrier’s line or before the live stock are mingled with other live stock or removed from pens at destination. In his notice he shall state place and nature of the injuries, to the end that they may be fully and fairly investigated, and said shipper shall, within thirty days after the happening of the injuries complained of, file with some freight- or station-agent of the carrier on whose line the injuries occurred his claim therefor, giving the amount.” Under a contract with the same company, and identical in terms, it was held that the provision as to notice did not cover damages like loss of market or other losses occasioned by the carrier’s negligent delay which arise after transportation has ended. (Railway Co. v. Fry, 74 Kan. 546, 87 Pac. 754. See, also, Railway Co. v. Poole, 73 Kan. 466, 87 Pac. 465; Cornelius v. Railway Co., 74 Kan. 599, 87 Pac. 751.) The only loss or injury occasioned during transportation and included in the recovery by Frogley is for the animal which was killed on the way to Kansas City, valued at $23.97. Is this loss included in the contract? The court instructed the jury that the contract was not binding upon the parties, because the statute prohibits railroad companies from changing or limiting their common-law liability except by regulation or order of the board of railroad commissioners, and no such order or regulation was shown. Counsel for the railway company make a very strong and plausible argument that the provisions of the contract requiring notice before bringing an action for damages and the like do not limit the common-law liability of the carrier, and they cite Sprague v. Mo. Pac. Rly. Co., 34 Kan. 347, 8 Pac. 465; Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438; Express Company v. Caldwell, 88 U. S. 264, 22 L. Ed. 556; Rice v. The K. P. Rly., 63 Mo. 314; Oxley v. St. Louis, Kansas City & Northern Railway, 65 Mo. 629; Dawson v. The St. Louis, Kansas City & Northern Railway Company, 76 Mo. 514. However that may be, we are satisfied that the animal killed during transportation did not come within the stipulation requiring notice of the loss. The evidence shows that the death of the animal was due to the negligence of the company, and of course no contract can be made which will relieve the company from liability for loss occurring through its misconduct or negligence. If the purpose or effect of the stipulation as to notice was to exempt the company from that kind of liability it would be contrary to public policy, and invalid. The purpose of the stipulation was to give the carrier an opportunity to inspect the injured animals before they were removed from the custody of the carrier and mingled with other animals. The stipulation is upheld upon the ground that after the stock pass from its possession and are mingled with other stock of a similar kind or are sent to the slaughter-house it would be well-nigh impossible for the company to obtain satisfactory proof of the nature and extent of the injuries, and therefore the provision which gives the opportunity to ascertain the damages actually sustained is deemed to be reasonable. Contracts of this kind are viewed with considerable strictness by the law, and unless they are practicable and reasonable they cannot be sustained. (Railway Co. v. Poole, 73 Kan. 466, 87 Pac. 465.) As to the dead animal there was no room for the operation of the provision nor any useful purpose to be subserved by a notice. The steer died while it was in charge of the company and the duty of removing the carcass from the car devolved upon the company. It therefore had the opportunity to ascertain the extent of the loss resulting from its negligence. The removal of the dead steer brought the loss to the attention of the company, and the purpose of the notice was then fully accomplished. In Baker v. Mo. Pac. Ry. Co., 34 Mo. App. 98, it was held that a stipulation in a shipping contract that the shipper should give notice of any claim for damages before the stock were removed from the place of their destination had no application to a removal by the carrier or its servants, but covered only a removal by the shipper or owner. In Kansas & Ark. Valley R. Co. v. Ayers, 63 Ark. 331, 38 S. W. 515, the supreme court of Arkansas had before it a shipping contract like the one in question, involving the matter of notice where some of the animals died before they reached their destination. It decided that a notice was not essential to a recovery, and in doing so said: “The cattle that were dead in the car before the stock were removed and mingled with other cattle are not within this provision of the contract as to notice. The object in requiring the notice by the shipper of his intention to claim damages to be given before the cattle' were removed and mingled with other cattle was to afford the railway company a fair opportunity to examine the cattle before they were removed and mingled with other cattle. As to these that were dead, the company had all the opportunity it could have had to examine them.” (Page 336.) As the dead animal was not within the intention of the parties nor the provisions of the contract the instruction of the court with respect to the stipulation,as to notice is immaterial. We find no error in any of the rulings, and therefore the judgment is affirmed.

The opinion of the court was delivered by Graves, J.: This is a suit to recover property or the value thereof alleged to have been mortgaged in violation of the United States bankruptcy law. The defendants recovered judgment for costs, and the plaintiff brings the case here for review. The mortgagor, J. H. Shirfey,-was on and prior to December 11, 1902, engaged in the mercantile business at Stafford, in Stafford county. On that date he executed a chattel mortgage upon his entire stock of goods to J. P. H. Dykes and J. N. Rose, who in consideration thereof agreed to satisfy a debt due from the mortgagor to the Farmers Bank of Stafford, for which they were sureties. At the time this mortgage was given the mortgagor was indebted to other parties, some of whom joined in a petition to the district court of the United States to have the mortgagor adjudged to be a bankrupt. The execution of the mortgage above mentioned constituted the act of bankruptcy charged against the bankrupt in the petition. The averments of the petition were in substance that the mortgage was given by the mortgagor with the intent to hinder, delay and defraud his creditors, all of which was well known to the mortgagees when the mortgage was taken. • Upon this application the mortgagor was adjudged to be a bankrupt, January 10, 1903. . Afterward the plaintiff was duly appointed trustee of the estate of the bankrupt, and as such commenced this suit in the district court of Stafford county to cancel the mortgage and recover the value of the mortgaged property from the defendants. The petition contained the usual and proper recitals, and stated fully the proceedings had in the court of bankruptcy, and also alleged that the effect of the act of bankruptcy complained of was to prefer the mortgagees over other creditors. On the trial the plaintiff introduced in evidence the proceedings and adjudication in bankruptcy, and rested. The defendants were then permitted to show that they received the mortgage in good faith, without any knowledge or notice of the insolvency of the mortgagor or of his fraudulent purpose or his intent to give them a preference over other creditors. This was error. An adjudication of bankruptcy upon the ground that the bankrupt sold or encumbered his property with intent to hinder, delay and defraud his creditors is conclusive. (Sherman v. Luckhardt, 67 Kan. 682, 74 Pac. 277.) This is conceded to be the law of this state, but the admission of the evidence is justified upon the ground that the petition in the court of bankruptcy alleged two acts of bankruptcy against the bankrupt, the first being a violation of clause “e” of section 67 and the other of clause “b” of section 60 of the national bankruptcy act (3 U. S. Comp. Stat. 1901, pp. 3449, 3445), and that as the decree of the court does not specify'the ground upon which the adjudication was placed it is not conclusive against these defendants, who were not parties thereto. However, after a careful examination of that petition we are unable to find more than one act of bankruptcy alleged therein, and that is the one first above mentioned. What is stated' concerning a preference does not constitute a violation of the bankruptcy act, and evidently was not intended by the pleader to charge an act of bankruptcy under clause “b” of section 60, and the court could not have regarded the petition as containing more than the one charge. It follows, therefore, that the evidence presented concerning the good faith of the defendants was immaterial, and was erroneously admitted. The judgment of the district court must have been founded wholly upon this evidence, and it is also erroneous. The judgment is reversed, with direction to enter judgment for the plaintiff in such sum as the evidence shows the mortgaged property to be worth.

The opinion of the court was delivered by Mason, J.: J. P. Bauman & Sons, wholesale merchants, sued McManus Brothers upon an account for goods sold and delivered upon special order. A demurrer was sustained to the evidence of the plaintiffs and they prosecute error. The evidence tended to show that the defendants gave an order to a traveling salesman of the plaintiffs; that correspondence followed between the parties concerning the matter; and that the goods were shipped but not accepted. The ruling of the trial court was probably based upon.the theory that' the plaintiffs’ evidence conclusively established that the order taken by their agent required acceptance by his principals before a binding contract could result, and that before it was so accepted the defendants countermanded it. The soundness of this theory is the chief, if not the only, question involved. There is nothing in the record to suggest that the agent who took the order had or assumed to have any authority to bind the house which he represented beyond that implied from his being a commercial traveler in its employ. Therefore the court was justified in assuming that the order taken by him required acceptance by the plaintiffs before any enforceable agreement could result from it. (6 A. & E. Encycl. of L. 227; 8 Cyc. 834.). It follows that the defendants had a right to recall the order at any time before it was accepted. (9 Cyc. 284; L. A. Becker Co. v. Alvey [Ky.], 86 S. W. 974.) Therefore the inquiry narrows down to this: When did the plaintiffs accept it, and when, if ever, did the defendants undertake to withdraw it? The order was given November 11, 1903. Two days later the plaintiffs wrote to the defendants as follows: “Your kind order through Mr. Schütz is duly to hand and will receive our prompt and careful attention. With thanks we are, Very truly, J. P. Bauman & Sons.” as one asking that the order be canceled. The remainder of the correspondence was as follows: If this constitutes an acceptance the trial court’s ruling was wrong, for up to this time no withdrawal had been attempted. If the letter does not by itself show an acceptance of the order it may be that it is open to interpretation as such in the light of the subsequent conduct of the parties, or it possibly may be deemed one of a number of circumstances which collectively amounted'to acceptance. Before undertaking to determine any of these questions it is expedient to exhibit the succeeding steps in the transaction. Nothing further was done until about January 22, 1904, when the’defendants wrote a letter-to the plaintiffs. Its exact contents are not shown, but a witness described it (February 1, 190k; plaintiffs to defendants.) “Referring to your letter of the 22d ult., beg to say that we have communicated with our Mr. Schütz since the receipt of your letter and we have his assurance that the goods were sold to you without any privilege to cancel. We received the order early in November and have made up the same, the goods being about completed ; and we will ship them by March 1, as per your original instructions.” (February 3,190k;'defendants to plaintiffs.) “Yours to hand. All goods are bought under guaranteed price; if certain lines can be bettered we reserve the right to do so. If you ship you do so at your own risk.” (February 8, 190k; plaintiffs to defendants.) “Replying- to your letter of the 3d inst., beg to say, we must refer you again to our previous communication. Our goods are not sold under a price guaranty. We venture to say there -is no garment concern in this country would do business that way. Our representative, Mr. Schütz, reports that he devoted considerable of his time to you when you made your purchase, and we manufactured your order exactly as given, and will ship the goods March 1, as per your original instructions.” (March k; 190k; defendants to plaintiffs.) “We herewith return bill of goods you are sending us contrary to our instructions. In shipping these goods you are doing so, as we notified you, at your own peril. We will not accept them now under any conditions. You may do just as you please about them, and besides this we do not wish any further correspondence in the matter.” (March 17, 190k; plaintiffs to defendants.) “We have your letter of the 4th inst. returning our invoice, and in reply to same beg to say that when our invoice is due and payable we shall expect payment therefor. We want to state that we. cannot afford to take an order to be made up specially for anybody, and accept cancelation over two months after the order is given, when the goods are practically ready for shipment. . . . We beg to reenclose invoice, and trust you will reconsider the matter.” Recurring now to the question of the legal effect of the letter of November 13, it may be said that while no express statement was therein made that the order would be filled the phraseology was such as would naturally lead the recipient to suppose that to be what the writer meant. In Rees v. Warwick, 2 B. & Ald. (Eng.) 113, it was held that where one was notified that a bill of exchange had been drawn upon him, and replied that it should “have attention,” the phrase did not as a matter of law import the acceptance of the bill. But the ruling was based, as appears from the quotation from the opinion made in Bank v. Bank, 74 Kan. 606, 87 Pac. 746, largely upon considerations growing out of the fact that the transaction- had to do with negotiable paper, on which account especial exactness of language was necessary and a strict construction of it proper, More nearly in point is Manier & Co. v. Appling, 112 Ala. 663, 20 South. 978, where it was held that no acceptance of an order such as was given in the present case resulted from an acknowledgment of its receipt coupled with the words “the same shall have prompt attention.” On this matter the court said: “Unless the words ‘the same shall have prompt attention’ are deflected from their natural, ordinary meaning, they cannot be construed into an acceptance of the proposal of the plaintiff, converting the two into a concluded or completed contract. The operative words are attention and prompt. The latter, when .read in connection with the term of the proposal that the shoes should be shipped on the succeeding 15th of June, signifies, and was intended to signify, no more than that attention would be given in time to meet this term. If given within that time, it was as speedy as the nature or necessities of the transaction required. Promise to give the proposal attention was not a promise of acceptance; it was not an assent to it. It was no more than a courteous promise to give it consideration, and this we do not doubt is the sense, in which it is generally, if not universally, employed in transactions of this character. Attention, according to Webster, signifies ‘the act or state of attending or heeding,’ and, further, ‘notice; exclusive or special consideration.’ And of the meanings attached to it in the Century Dictionary are.: ‘Consideration; observant care; notice; as your letter has just arrived, and will receive early attention.’ In the interpretation of all writings, whether contractual or not, the relation of the parties and the subject-matter must be considered. “The words and phrases of the writing must be referred to the subject-matter and these relations, for they give rise to the occasion for their use or employment. The plaintiff was negotiating for the purchase of the shoes, stating the terms upon which he was willing to purchase. There was no legal duty resting upon the defendants to . enter into the negotiation; they could have been silent, and silence would have been refusal to become parties to it. They could have become parties to it, and converted it into a contract, by an absolute, unconditional acceptance of the proposal of the plaintiff. But it was by such an acceptance only the proposal could have passed the stage of negotiation; there could have been no change or variation of-the terms of the proposal; such change or variation would have involved further negotiation. Considering that the parties were standing in these relations, and the subject-matter of the proposal of the plaintiff, referring the words of the response of the defendants to them, it would contravene the intention of the defendants, drawing them into legal relations they did not intend to assume, if those words were rendered contractual, and not as indicating that the proposal of the plaintiff would receive consideration; that it would not pass unheeded.” (Page 668.) 0 On the other hand, in Jordan, Marsh & Co. v. Patterson et al., 67 Conn. 473, 35 Atl. 521, the trial court was reversed for submitting to the jury the question whether a letter acknowledging the receipt of several orders for goods amounted to an acceptance, the reviewing court holding that it had that effect as a matter of law. The letter merely contained the words “we are in receipt of the following contracts, for which we thank you,” (page 477) followed by a description of the orders by numbers and amounts. A portion of the syllabus in Parlin & Orendorff Co. v. Boatman, 84 Mo. App. 67, reads as follows: “A contract between a traveling salesman and a merchant provided for the principal’s acceptance to make it binding. His letter to the merchant expressing appreciation of the order and wishing him a nice trade in the goods was a sufficient acceptance.” In the opinion it was said: “The plaintiff’s letter of January 31 discloses, in effect, an approval by it of the contracts as made by defendant, for else why did it enclose the guarantee bond for execution and express its appreciation of defendant’s order, and hope that the latter would ‘have a nice trade on our line of goods.’ The language of this letter clearly indicates that the plaintiff approved the contracts as made by defendant and its traveling salesman. The contract was thereby completed.” (Page 73.) The logic of the portion of the opinion in Manier & Co. v. Appling, 112 Ala. 663, 20 South. 978, above quoted, from the standpoint of the grammarian and verbal precisian, is unassailable; but it may be questioned whether so literal, narrow and technical a construction ought to be put upon such an ordinary business communication as the response to a solicited order for goods. The letter of the plaintiffs in this case is very similar to that considered by the Alabama court, yet such differences as exist are of a kind to give the one here involved more the character of an acceptance. The promise that the order shall receive prompt and careful attention seems to imply something more than that the manufacturers will quickly and cautiously investigate the advisability of accepting it. The care they might expend in that direction — in looking up the defendants’ financial standing, for instance —is not presumably a matter in which any one but themselves would be greatly interested. The engagement to use care seems more naturally to relate to the manner of filling the order than to the settling of a doubt whether to fill it at all. The expression of thanks for the favor has some tendency in the same direction. We incline strongly to the opinion that the letter, standing by itself, was as effectual to close a contract as though in set phrase it had said that the goods would be shipped; that to permit any other construction to be placed upon it would be to countenance the studied use of equivocal expressions, with a set purpose, if an advantage may thereby be derived, to keep the word of promise to the ear and break it to the hope. It is not necessary at this time, however, to pass upon this question, for the present case is affected by other considerations. The goods were ordered for delivery March 1. From the time the receipt of the order was acknowledged, November. 13, 1903, until January 22, 1904, a period of seventy days, extending to within thirty-eight days of the time fixed for shipment, no communication on the subject passed between the parties. If on January 21 the plaintiffs had undertaken to reject the order, could they have been heard to say that their letter and their long silence had not already accomplished its acceptance? The’relations of the parties were reciprocal. If one was bound the other was. It was at least a fair matter for the consideration of the jury whether the delay was not so great, under all the circumstances, as to be inconsistent with the theory of non-acceptance. Further than this, the exact purport of the defendants’ letter of January 22 is not shown, but from the references to it in other writings the inference may be drawn that it was not a specific countermand of the order for the goods. When the plaintiffs wrote their letter of February 1 they unquestionably committed themselves to the acceptance of the order, if they had not previously done so. Then, if not before, a contract was completed. No subsequent countermand could be effective, and no earlier one is disclosed by the record. Moreover, the letters of the plaintiffs and the defendants gave unmistakable evidence that upon each side it was considered that the order had been accepted when its receipt was acknowledged. The plaintiffs showed this by their repeated denials of the defendants’ right to withdraw it, and the defendants by ba sing their claim to such right, not upon any theory that they had exercised it before their order had been accepted, but upon the sole and specific contention that in virtue of a special arrangement with the salesman they had reserved the privilege of canceling it even after its acceptance. In their letter of February 3 they say that the goods were bought under a guaranteed price and that if certain lines- could be bettered they reserved the right to do so; that if the plaintiffs shipped the goods they would do so at their own risk! This is inconsistent with the position now taken. It was not even a specific direction not to ship; nor was any such direction given before the actual shipment. (See, in this connection, Pitcher & Manda v. Lowe, 95 Ga. 423, 22 S. E. 678, and Single Paper Co. v. Hammermill Paper Co., 96 N. Y. Supr. Ct., App. Div., 89 N. Y. Supp. 116.) Under these circumstances it is clear that the evidence of plaintiffs made a prima facie case, and that the sustaining' of the demurrer on the theory that the order had been withdrawn before it was accepted was erroneous for at least three reasons: First, because, if the letter of the plaintiffs of November 13 was not a definite acceptance, it at all events, when coupled with the fact of entire silence .for over two months, afforded some evidence from which acceptance could be inferred; second, becáuse the plaintiffs’ next letter was an unmistakable acceptance, and so far as the record shows was sent before any explicit countermand was given; and, third, because the letter thanking the defendant for the order and promising to give it careful attention was either an acceptance on its face or was open to that interpretation in view of the subsequent conduct of the parties. The justice of this conclusion is further apparent from the fact that the answer pleaded a special agreement with the agent who took the order that it should be subject to change and can-celation, and the preliminary statement to the jury on behalf of the defendants included a proposal to intro duce evidence of a general custom to allow such orders to be canceled at any time before shipment; in neither was there anything to suggest reliance upon a revocation of the order before' it was accepted. (89 Pac. 19.) The judgment is therefore reversed and the cause remanded for further proceedings in accordance herewith.

The opinion of the court was delivered by Mason, J;: In 1900 J. R. Young executed a deed for lands in Allen county, naming as grantee his daughter, Docia A. Northrup. It was placed in the hands of George A. Bowlus, a banker. In 1902 Young died intestate, leaving as his heirs, besides this daughter, his widow (Frances V. Young, the mother of Mrs. Northrup), and several children and grandchildren by a former marriage. After his death the deed came into the hands of Mrs. Northrup, who took possession of the property. Several of the heirs began a suit in Allen county to set aside the deed and partition the property. A change of venue was taken to Neosho county. There by amendment the petition was made to cover'ejectment as well. Upon a trial in which no oral testimony was given, the case being submitted upon depositions supplemented by an agreed statement of facts, judgment was rendered setting aside the deed and dividing the property, from which the grantee prosecutes error. Several complaints are made of rulings relating to the pleadings. None of these is found to be well taken, and only one is thought to require special mention. It is claimed that because ejectment is a local action the court of the county to- which the change of venue was taken had no jurisdiction to permit the petition to be so amended as to make it one for the possession as well as for the partition of the property. The case of Fields v. Maloney, 78 Mo. 172, supports this contention: This court, however, has already held, in Hazen v. Webb, 65 Kan. 38, 68 Pac. 1096, 93 Am. St. Rep. 276, that “a court to which a cause is properly removed by change of venue acquires jurisdiction of the cause and subject-matter coextensive with that of the court from which the venue was removed, and may inquire into anything connected with the subject-matter of the action and render any judgment which might have been rendered by the court in which the case originated.” (Syllabus.) Here the matter pertinent to ejectment was incorporated in the petition by amendment expressly in order that the statement of a cause of action for partition might be complete, and the case is therefore fully within the rule quoted. The only remaining question is whether the evidence sustained the judgment. This depends upon whether it showed a sufficient delivery of the deed. Where one who has executed a deed retains it in his own possession, with the intention that it shall become operative upon his death, no conveyance is effected. He dies in the full ownership of the property and the title passes to his heirs or devisees. (Stone v. French, 37 Kan. 145, 14 Pac. 530, 1 Am. St. Rep. 237; 13 Cyc. 569, ¶ 4a.) But where he deposits it with a third person, to be turned over upon his death to the grantee, this is a good delivery if he thereby surrenders all control over it, but not otherwise. (13 Cyc. 569; 9 A. & E. Encycl. of L. 157; 2 A. & E. Encycl. of L. [Supp.] 394; Grilley v. Atkins, 78 Conn. 380, 62 Atl. 337, 4 L. R. A., n. s., 816, and note.) In such a case the title is deemed to vest at once in the grantee, only the enjoyment of the property being postponed, a condition which the grantor is competent to create and which arises whenever a purpose on his part to establish it is sufficiently manifested, whether by express instructions to the depositary or otherwise. The important inquiry here, therefore, is whether J. R. Young gave the deed to Bowlus, the custodian, intending thereby to part with the title to the property. If he retained control of the deed the situation was substantially the same as though he had held it in his own possession. The learned trial judge probably concluded from the deposition of Bowlus that such was the case. All the evidence being in writing, we are not permitted to accept that conclusion without an independent examination, and upon such examination we find ourselves unable to agree to it. Bowlus did indeed say that the only instructions he had with reference to the matter were general, covering any papers of J. R. Young that might be in his hands when death should overtake their owner, and were to the effect that he should deliver all such documents to the widow. Standing alone this would indicate that he held the deed merely for safe-keeping, and would justify, and indeed compel, the decision that was made. But its force is so far impaired by other statements of the witness that in the judgment of this court it is completely nullified. He said later that other instructions might have been given which he had forgotten, and that he was unable to say whether or not he had received any special instructions with regard to this deed. Ordinarily such qualifications would affect only the weight to be given to the prior testimony, and might be of little importance even in that aspect, for in such a matter no witness can do more than give his best recollection, and the positiveness with which this is expressed is by no means a fair measure of its accuracy. But we are compelled to believe from a careful consideration of the whole of Bowlus’s evidence that he had absolutely forgotten all about the deed. In his examination in chief, as a witness of the plaintiffs, he testified that he believed that he had never seen the deed until he found it among the other papers in his charge after the death of J. R. Young; that if he had ever seen it before that time the circumstance had escaped his recollection. Upon cross-examination his at tention was called to the fact that the deed itself, and the envelope in which it had been enclosed, were indorsed in his own handwriting, with memoranda indicating its character, and he then stated that he believed these indorsements to have been made at the time it was left with him. This statement, however, appears to have been based upon an inference drawn from the known facts rather than to have been the result of his memory of the transaction being refreshed by his inspection of the document. The condition of his mind is illustrated by these extracts, the first and second from his cross-examination, and the third from the redirect : (1) “Ques. Then this deed, and envelope enclosing it deposited were left here under a little different circumstances from what his other, general, ordinary run of papers were? Ans. Since seeing this address on here — but, gentlemen, this is , not positive, but my recollection is that when the deed was left — I don’t know who drew that deed any more or anything about it, but it seems to me it was Mr. Campbell, I will not be sure — that whoever it was came in with him, but that is not absolute, and asked me to make an indorsement of what it contained. But of course I am not absolutely positive. There must have been some reason why I would put that on there. “Q. Now, as a matter of fact, you had forgotten that this deed was among those papers at the time after his death you were looking at them? A. I certainly had forgotten.” (2) “Ques. Would not the manner in which this was enclosed in an envelope and indorsements made on it as to what it was, and the parties and all that, knowing his manner of transacting business, I will ask you to state whether or not it would not indicate to your mind that there were some special instructions connected with that deed when it was left there? Ans. That would just have to be by inference. “Q. That is just what I am asking? A. I would not want to say positively about that because it seems to me that all the instructions' I had, and those were simply verbal, at his death I should deliver all papers to Mrs. Young. “Q. He never asked you to indorse any other papers particularly, did he? A. I don’t know as he asked me to indorse that. “Q. You did indorse it? A. I did undoubtedly. That is my writing. “Q. Here is the idea. I take it that the procedure being pursued then from that in leaving other papers generally that it was a special matter, and the circumstances surrounding it at that time, it would indicate to you that there were some special instructions other than these general oral instructions? A. I know what you mean, but I am unable to say whether he gave any special instructions or not. I am unable to say. “Q. You don’t know whether he did or not? A. No, sir; I don’t. “Q. And from the indorsement and so on there is nothing to indicate to you whether or not there is a likelihood that there were? A. I could not tell from the in-dorsement. It is not explicit if he made any.” (3) “Ques. You may state, Mr. Bowlus, if you remember positively when this writing, reading as follows ‘J. R. Young, deed enclosed, Docia A. Northrup,’ written on an envelope attached to the stipulation filed in this case, marked ‘Exhibit B,’ was put on this envelope. Ans. I presume it was put there at the time he enclosed the deed and left it here. “Q. Do you remember that as a positive fact? A. No, sir; that is my presumption. _ “Q. You may state if you remember as a positive fact that this deed was deposited with any different circumstances or instructions than any other paper deposited with you by J. R. Young, deceased. A. Well, if it was I cannot call to mind now. “Q. You may state if you remember positively if. there was a request of any kind by J. R. Young, deceased, that an indorsement should be made on the envelope. A. Not that I can call to mind. “Q. You may state if you remember if the deed was enclosed in .an envelope when it was brought to the bank by J. R. Young, deceased. A. From that inscription on there I presume I just enclosed it and sealed it up and .made that indorsement. I see it is the register of deeds’ — Fowler’s—envelope. “Q. Do you remember positively of your own knowledge, and you may state how this deed was brought to you by J. R. Young, deceased? A. I am unable to say positively, but I presume he brought it along with this envelope. Of course, I often had envelopes here of Fowler’s myself — often had, and instead of taking up one of ours, which was generally stamped, I may have just gone in there — you probably will find some there now of those old envelopes — and taken it out and put the deed in. I am unable to estate positively. “Q. You may state, if you remember, whether this deed was brought alone or with other papers belonging to J. R. Young, deceased. 'A. Well, I am unable to state absolutely how it was brought, whether he just brought it separately and then put it in with his other papers, or whether he brought it along with other papers — I could not say.” We interpret the testimony of Bowlus as that of a conscientious witness who has no actual recollection of what took place when the deed was left with him, but who in a natural desire to aid in arriving at the truth of the matter gives an opinion regarding it which is founded on his understanding of what was to be done with the decedent’s papers generally. So interpreted it is without probative effect, and leaves the situation precisely as though he had not been called to the stand. The character of the transaction must therefore be determined from the other evidence and from the attendant circumstances. Mrs. Young testified in substance that at the time of the execution of the deed her husband stated that it was to be placed in the bank to be delivered after his death to the grantee by the custodian. The agreed statement shows- that it was immediately deposited with Bowlus, who after the death of Young handed it to Mrs. Northrup. Mrs. Young said that he gave it to her and told her to hand it to her daughter, which is the same thing in effect. Bowlus himself merely said that he delivered it to Mrs. Young, but if this is to be regarded as a contradiction of her statement it is not important, for the stipulation as to the fact made by the parties of course controls. “The transaction was in the nature of a yoluntary settlement, and much more is presumed in favor of the delivery of a deed as a voluntary settlement than in an ordinary case of bargain and sale. . . . This be cause the relationship of the parties and the confidence and affectionate regard that exist between them are motives which reasonably induce such conveyances to be made.” (Thompson v. Calhoun, 216 Ill. 161, 164, 74 N. E. 775. See, to the same effect, 12 A. & E. Encycl. of L. 877; St. Clair v. Marquell, 161 Ind. 56, 67 N. E. 693; Colee v. Colee et al., 122 Ind. 109, 23 N. E. 687, 17 Am. St. Rep. 345; Rumsey v. Otis, 133 Mo. 85, 34 S. W. 551.) It was shown that Young conveyed other property to other heirs, a circumstance which sheds some light upon his probable intentions with respect to this. His purpose is still further illuminated by the fact that the deed in terms reserved to the grantor the right to the use and income of the .property during his life. As was said of a similar situation in Ball v. Foreman, 37 Ohio St. 132: “Again, in each of the deeds, he was careful to reserve a life-estate in himself, postponing the enjoyment in possession of the interest conveyed until after his decease. If the grantor intended no present interest to vest in the grantees, why make this reservation ? If the right of property was not to vest until the right of possession attached, and both were intended to be postponed until after his death, the reservation in the deed of the right of occupancy during the life of the grantor was an act wholly without efficacy or effect. How can a reservation be made where no estate is granted? How can a life-estate be reserved by the grantor if the grant does not take effect until he dies ? “On the other hand, the act of reserving a life-estate admits of a very reasonable explanation on the theory that the grantor intended the delivery to operate as a conveyance of a present estate to be enjoyed in the future, as in such case it is held that where the grantee obtains the deed from the trustee before the event occurs upon which the second delivery was to be made the grantor cannot avoid the deed by a plea of non est factum, whether generally or specially pleaded. Wheelwright v. Wheelwright, 2 Mass. 452, 3 Am. Dec. 66. “Hence the reservation in the deeds of the right to control the possession and to receive the rents and profits was a safe-guard against any controversy con cerning the use, in case the deeds fell into the hands of the grantees prior to the death of the grantor.” (Page 140.) So in Nuckols v. Stone (Ky.), 87 S. W. 799, it was said: “The reservation of a life-estate by the grantor was meaningless, unless he intended a present interest to vest in the grantees: He thereby necessarily recognized the grantees as the owners of the property, subject to the life-estate.” And in Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244: “In our opinion the form and language of the instrument clearly indicate the intention of the grantor to convey the legal title in priesenli. It contains apt words of conveyance usually employed in a deed of conveyance, and the reservation to the grantor of the use during his life and the right to direct a conveyance to be made by the trustee to other parties and to recall or revoke the trust all, instead of showing an intention to make the instrument a testamentary paper to take effect only at his death, imply an immediate passage of the title. If Cribbs intended the paper to be a will, and retained it in his possession as such, why the necessity of incorporating those reservations in the instrument? If it was not to take effect until his death, the reservation of the life-estate and right to direct a sale and to revoke the trust were useless, as under a will he possessed those rights and powers, and more, without such express reservation.” (Page 118.) We find no difficulty in reaching the conclusion that there was an effective delivery of the deed. There was a physical delivery to the depositary and to the beneficiary. There is no evidence, at least no convincing evidence, of any retention of control by the grantor. All of the circumstances tend to show a purpose on his part that there should be an immediate vesting of title in the grantee, the enjoyment alone being postponed until his death, and the intention of the grantor is recognized as the determining factor where the situation admits of doubt. “The question is to be determined largely by the intention of the grantor, which may be ascertained by his acts and declarations, and by the circumstances attending the execution of the deed and its delivery to a third party.” (Latimer v. Latimer, 174 Ill. 418, 428, 51 N. E. 548.) “The whole matter, as we view it, is one of intent on the part of the grantor.” (Albrecht v. Albrecht, 121 Iowa, 521, 524, 96 N. W. 1087.) “The real test of delivery is this: Did the grantor by his acts or words, or both, intend to devest himself of title? If so, the deed is delivered.” (9 A. & E. Encycl. of L. 154.) The mere fact that a deed is found in the possession of the grantee is often said to afford a presumption of a delivery. (13 Cyc. 733, 749; 9 A. & E. Encycl. of L. 159; 2 A. & E. Encycl. of L. [Supp.] 394.) in most but not all of the cases cited in support of this proposition the deed passed directly from the grantor to the grantee, and many of them are affected by the consideration that in such a case it is natural to suppose that a benefit to the grantee is intended — a consideration which fails where, as in the present instance, it passed through the hands of' an intermediary. (Thomas v. Sullivan, 138 Mich. 528, 101 N. W. 528.) But here all the known facts are consistent with the theory of a valid delivery. There is direct evidence that just before placing the deed with the banker the grantor declared his purpose that when he died it should be handed over to the grantee, and that upon his death the depositary did so deliver it. All that is lacking fully to establish delivery is a showing of the instructions given to Bowlus — a gap caused by his lapse of memory — and this may be supplied by presumption or inference from the attendant circumstances, including his own conduct. The judgment is reversed and a new trial ordered.

Per Curiam: The defendant was arrested, tried, and convicted of the offense of disturbing the peace and quiet of the prosecuting witness, and appeals to this court. The sufficiency of the complaint was put in issue by a motion to quash. It is conceded that the offense is charged in the language of the statute defining the offense, but it is contended that this is not sufficient— that the particular facts and illegal acts should be charged, that the defendant may be the better enabled to prepare his defense. In some jurisdictions this has been held requisite, but in this state, especially since the decision in 1890 of The State v. Craddock. 44 Kan. 489, 24 Pac. 949, the practice of charging misdemeanors in the language of the statute which defines the offense has been recognized, and no considerable complaint thereof has been made. There may be cases in which the defendant might really be in doubt what act or acts of his were claimed to be in violation of law. Certainly this is not such a case, and herein, at least, we see no reason to depart from the practice approved in the Craddock case. The only other question which seems to merit attention is the alleged misconduct of the county attorney in his argument. We cannot consider this question, as it was not presented on the motion for a new trial as the statute requires, there being no affidavit as to the facts. (Gen. Stat. 1901, §§ 4754, 4757; Parrish v. Parrish, 67 Kan. 823, 72 Pac. 844.) The judgment of the district court is affirmed.

The opinion of the court was delivered by Mason, J.: In a suit brought to foreclose a real-estate mortgage Peter Robidoux, who had possession of the land under a tax deed, was made a defendant. His deed was set aside and he prosecutes error. He first complains of the refusal of the trial court to permit him to interpose the statute of limitations as a defense to the mortgage. It has been repeatedly decided by this court that one not in privity with the maker of a mortgage cannot avail himself of that plea against it. (Ordway v. Cowles, 45 Kan. 447, 25 Pac. 862; Trust Co. v. Parker, 65 Kan. 819, 70 Pac. 892; Bare v. Ford, 74 Kan. 593, 598, 87 Pac. 731.) The reasons urged against this doctrine are not regarded as sufficient to require a reexamination of it. The only remaining question is whether the tax deed was invalid upon its face. It omitted to state the amount for which the property was bid off by the county treasurer. This rendered it void, unless the omission could be supplied by inference reasonably to be drawn from some other recital. The amount paid to the county treasurer for an assignment is stated, and if this had been made up only of the selling price, and interest, as in Fullington v. Jobling, post, the deed could have been upheld. But an interval of more than two years elapsed after the sale before the certificate was assigned to an individual. The amount paid for the assignment necessarily included taxes that accrued after the property was sold. How much of it was made up of the selling price and how much of the subsequent taxes is not stated, and cannot be ascertained from the face of the instrument. The defect noted therefore remained unremedied and the deed was properly set aside. The judgment is affirmed.

Per Curiam: The court has carefully canvassed the record in this case and is of the opinion that the judgment of the district court ought not to be disturbed. It is not necessary to pass upon the title to the land involved. The rights of the two tenants, as against each other, do not depend upon the legal rights of Haish and Hobson. It makes no difference whether Bousman was an agent of Haish, whether a binding contract to sell was effected, whether Hobson was rightfully in possession, or whether Haish could recover of Miller. It may be conceded that Miller took possession without a title legally sufficient to support it. Admitting that Minks had the right to occupy the land, he discovered that Miller actually had taken possession under a claim of right and was at work preparing the land for sowing wheat. Minks questioned him concerning the basis of his claim to possession and Miller truthfully replied he had rented the land from Hobson. This was the extent of Miller’s representation to Minks. It then devolved upon Minks to determine what he would do. He could contest with Miller or yield to him. Hobson might or might not have the right to lease to Miller, and whatever Hobson’s or Miller’s technical rights might be Minks might conclude that it was not wise to bring on a lawsuit. Minks was free to ascertain the facts in any way he chose. He could take the assertion of Hobson if he saw fit to do so, or make a full investigation of the status of affairs if he so desired ; but it was his duty to assert his right of possession against Miller if he intended to do so. He chose to acquiesce, and allowed Miller to expend time, labor and money, and to raise a crop, upon the faith of his acquiescence.- It is not necessary to go further into the case. Between the parties to this suit the principle of equitable estoppel clearly applies. It would now be unconscionable to allow Minks to reap where he did not sow. All the claims of error have been examined, and none of them is sufficient to affect this conclusion. It is not necessary to discuss them in detail, and the judgment of the district court is affirmed.

The opinion of the court was delivered by Greene, J.: The plaintiffs in this action sought to recover on a benefit certificate, issued January 2, 1897, by the Modern Woodmen of America to Thomas E. Kelly. ^The case was tried to the court and judgment rendered in favor of the plaintiffs. The defendant prosecutes this proceeding in error. Kelly died February 6, 1905, a member in good standing upon the records of Iola Camp No. 961 of the Modern Woodmen of America, located at Iola, Kan., the camp of which he originally became a member. Kelly’s certificate contained the following conditions: “If the member holding this certificate shall be expelled by his local camp, or become so far intemperate in the use of alcoholic drinks, or the use of drugs, to such an extent as to permanently impair his health, or to produce delirium tremens, . . . then this certificate shall be null and void and of no effect, and all moneys which shall have been paid, and all rights and benefits which may have accrued on account of this certificate shall be absolutely forfeited.” The by-laws of the association contained similar provisions. The evidence shows that at least two years before his death Kelly was an habitual and excessive user of intoxicating liquors, to such an extent as to impair his health and produce delirium tremens, and that he died of alcoholic dementia. The question to be determined arises upon the pleading of the forfeiture proviso in the certificate and the reply thereto that the corporation by its conduct had waived the forfeiture. A mutual benefit association may impose prohibitive conditions in its benefit certificate upon the future conduct of its members, the indulgence of which would impair the health or- endanger the life of such members, and we find that the dangers most generally apprehended and guarded against are engaging.in the sale of intoxicating liquors, the intemperate use of alcoholic drinks, and the use of drugs to such an extent as permanently to impair the health. Where such restrictions are inserted in the certificate under conditions that if violated by the member the certificate shall become null and void, and all rights and benefits which may have accrued on account of such certificate shall be forfeited, the provision is self-executing. Courts should construe the plain, unam biguous provisions of a benefit certificate the same as they would an agreement between other contracting parties, and give to it the effect intended by the parties. It is evident that it was the intention of both parties to the certificate that the forfeiture clause should have the effect its language plainly indicates; that if the member violated his contract against impairing his health by the continued excessive use of drugs or inducing delirium tremens by a continued excessive use of alcoholic drinks he should forfeit all benefits under the certificate. (Hogins v. Supreme Council, 76 Cal. 109, 18 Pac. 125, 9 Am. St. Rep. 173; Smith v. Knights of Father Mathew, 36 Mo. App. 184; Newman v. The Cov. Mut. Ins. Ass’n, 76 Iowa, 56, 40 N. W. 87, 1 L. R. A. 659, 14 Am. St. Rep. 196; Supreme Council Royal League v. Moerschbaecher, 88 Ill. App. 89; Northwestern, etc., Assn. v. Bodurtha, Gdn., 23 Ind. App. 121, 53 N. E. 787, 77 Am. St. Rep. 414.) In this connection it is well to observe that there is a notable distinction between certificates in which the member agrees that he will not engage in a designated prohibited business or will not impair his health by the use of drugs or intoxicating liquors and those where the provision is that if he does violate such conditions he shall forfeit all benefits under the certificate. In the first instance a forfeiture follows only after trial and expulsion, while in the latter the forfeiture follows a violation of the conditions. (Independent Order of Foresters v. Zak, 136 Ill, 185, 26 N. E. 593, 29 Am. St. Rep. 318; Steinert v. United Brotherhood of Carpenters & Joiners, 91 Minn. 189, 97 N. W. 668; 2 Bacon, Ben. Soc. & Life Ins., 3d ed., § 326a.) While the cases do not agree as to the violation of what conditions in the certificate will ipso facto forfeit all benefits, largely because of the different wordings of the provisions in different certificates, which have not in all cases been closely observed and distinguished, it may be said that if the certificate itself provides that the violation of some particular provision works a forfeiture the courts have generally held that upon the violation of such condition no recovery can be had. A more difficult question is the claimed waiver on the part of the association to rely on the forfeiture in this case. The by-laws of the association provide that the local camp or executive council shall have original jurisdiction for the disciplining and expulsion of members for misconduct. Among the offenses for the commission of which a member may be tried and expelled by the local camp is the excessive use of intoxicating liquors. The by-laws provide: “The consul shall preside at all meetings of the local camp and shall call all special meetings when necessary or legally requested so to do. He shall communicate the regular and semiannual passwords, appoint all committees not otherwise provided for, decide all questions of law and order, subject to appeal to the head consul. He shall act as judge of all elections. He shall sign all orders on the banker before payment shall be made thereof, and shall perform all other duties reasonably necessary and required by the laws of this society. “Any member of the society having personal knowledge of, or who shall be reliably informed of, the commission of any offense or violation of the laws of the society by a member thereof, shall make complaint in writing to the consul of the camp having jurisdiction thereof, as provided in the preceding section, which complaint shall be subscribed by the person making the accusation, and shall set forth with reasonable, certainty the wrongful acts of which the accused is charged. The complaint shall be immediately referred to the inquiry committee; provided, however, that if the complaint is against the consul it shall be made to the adviser, who shall refer it to the inquiry committee.” It is further provided that the consul, adviser, and banker, or two of them, shall immediately, upon the presentation of a complaint to the consul, appoint an inquiry committee of three beneficiary members of the camp, who shall proceed without delay to investigate the matter, and if they find just grounds therefor they shall prefer charges against the accused. The claimed waiver is based upon the knowledge of the local camp that Thomas E. Kelly was addicted to the habitual and excessive use of intoxicating liquors to such an extent as to impair his health, and that notwithstanding such knowledge the camp continued to accept from him his dues and remitted them to the head camp until his death. The evidence tending to show that the local camp had knowledge of Kelly’s habits was that given by C. C. McCarty, who testified that he was consul of Iola camp from January, 1905, to the following June; that he became acquainted with Kelly’s habits about two years before the date of the trial of this cause, which commenced February 14, 1906, and that during the last year of Kelly’s life he had seen him intoxicated about a dozen times. This covered all the time that McCarty was consul. The by-laws do not require that the notice to the consul of the improper conduct of a member shall be presented to the camp or to the consul at a meeting of the camp. It may be presented to the consul at any place or time. Its purpose is to bring to the knowledge of the camp, through the consul, the fact that some member is violating the conditions of his certificate or the by-laws of the association, that the consul may take the necessary steps to subject him to discipline, and, if necessary, expel him from membership. The consul being the presiding officer of the camp and the person designated by the by-law to whom such notice shall be given for the association, notice to him is notice to the camp over which he presides. No special importance should be attached to the manner in which notice shall be conveyed to the consul. When it comes to his knowledge that one of the members has committed an offense it is made his duty to act for the camp in the manner directed by the by laws. If while consul he was present and saw a member commit an offense or violate the provisions of the by-laws his own observation would be as effective to convey knowledge to him of such acts as the written statement of another member based upon observation or information, and his duty to act would be equally imperative. The personal knowledge of the consul, from observation, that the member was habitually and continuously using intoxicating liquors as a beverage to such an extent as to impair his health must be held to be the knowledge of the camp which he represents. The local camp is the agent of the association to receive applications for membership, to pass upon the qualifications of the applicants, to admit.or reject them, to receive and remit dues, to investigate the conduct of a member, and, if it be found that he has violated any of the by-laws or the conditions of his certificate, to expel him from the order. For the offense committed by Kelly he subjected himself to expulsion at the option of the camp. Instead, however, of applying the remedy which might have been invoked, and expelling the member, the camp, through its proper officer, continued to accept and remit the member’s dues. These acts were a waiver of the de-lict of the member by the camp, and an estoppel on the part of the association to plead such delict. In Order of Foresters v. Schweitzer, 171 Ill. 325, 49 N. E. 506, it was held: “The relation between a subordinate lodge of a benefit society and the principal lodge is that of agency, and where forfeiture of the certificate of a member of the subordinate lodge is sought it may be shown in defense that the subordinate lodge, with knowledge of the alleged cause of forfeiture, treated the insurance as in force, receiving dues and paying them over to the principal lodge.” (Syllabus.) In the case of the Supreme Lodge K. of H. v. Davis, 26 Colo. 252, 58 Pac. 595, is was said: “In a mutual benevolent order composed of a su preme lodge and subordinate lodges, an officer of a subordinate lodge charged with the duty of notifying the members of assessments made by the supreme lodge for the purpose of paying insurance certificates of deceased members, and of collecting and forwarding to the supreme lodge such assessments, is an agent of the supreme lodge, notwithstanding a rule or by-law of the order recites that such officer in collecting and •forwarding assessments shall be the agent of the members of the subordinate lodge, and the supreme lodge is charged with all knowledge possessed by the agent in making the collection.” (Syllabus.) In the case of Modern Woodmen of America v. Lane, 62 Neb. 89, 86 N. W. 948, it was held: “The recognition of the continued validity of a certificate or policy, with knowledge of facts entailing a forfeiture, is a waiver of the forfeiture as a matter of law, and it is not necessary that there be a new agreement or the elements of an estoppel.” (Syllabus.) In the case of Modern Woodmen of America v. Colman, 68 Neb. 660, 94 N. W. 814, 96 N. W. 154, it was held: “A forfeiture incurred by the holder of a life-insurance policy or contract is waived if the company, with knowledge of the facts, subsequently collects premiums, dues or assessments on account of the contract, and retains them without objection until after the death of the insured.” (Syllabus.) To the same effect are Hoffman v. Supreme Council of American Legion of Honor, 35 Fed. 252, and McDonald v. Chosen Friends, 78 Cal. 49, 20 Pac. 41. It is contended, however, that the following by-law prohibits the local camp from waiving any of the provisions of the by-laws: “No local camp nor any of the officers thereof shall have the right or power to Waive any of the provisions •of the by-laws of this society.” This has reference only to contractual waivers, and has no application to a waiver by operation of law resulting from the subsequent acts of the camp. Forfeitures are not favored in law, and certainly a semi-benevolent association, such as defendant claims to be, should not be encouraged, to rely upon a forfeiture, and the court is justified in laying its hand upon any act of' the association showing an intention to waive a forfeiture. The camp, with knowledge of Kelly’s misconduct, continued for more than a year to receive and remit his dues, and should not now be heard to say,' after his death, and after it has collected and appropriated to itself all that it was possible to get from him, that the benefit certificate had been forfeited. The judgment is affirmed.

The opinion of the court was delivered by Johnston, C. J.: The Puritan Manufacturing Company, a partnership, brought this action against A. Shook to recover $324, the price of a lot of jewelry alleged to have been purchased by Shook. The petition contained a part of the written order for the jewelry signed by Shook, and an averment that the order was accepted and the goods shipped by the company and that by the terms of the order the bill be came due and payable within fifteen days, but that payment had been refused. In addition to a general denial, Shook alleged in his answer: “That he signed the pretended contract set up in plaintiffs’ petition, but that his signature thereto was procured by the fraud and misrepresentation of the plaintiffs’ agent,' one Lightner; that the said plaintiffs through their, agent agreed to ship this defendant a consignment of jewelry, to be sold by defendant on commission; that this defendant never agreed to purchase or ever did'purchase said jewelry or any jewelry of plaintiffs; that the plaintiffs’ agent presented to defendant a printed paper and represented to defendant that it contained their agreement, and was a contract to sell said jewelry on commission; that defendant was not to be liable to plaintiffs for any of said jewelry except such as he might sell on commission. “That defendant is unable to read without his spectacles, which were not at hand; that it was dark in the room at the time, and plaintiffs’ said agent was urging haste, as he had to catch a train, and defendant was very busy at the time; that plaintiffs’ said agent represented the contract to be as stated and as they had verbally agreed, and relying upon the statements of plaintiffs’ agent and believing the same to be true defendant signed said contract without reading the same. “That on the day after signing said contract defendant examined the same and found it was not as represented, and immediately wrote to the plaintiffs, canceling said pretended order, stating the facts herein, and refusing to receive or accept said goods. “That defendant never has accepted or received said goods, and is in nowise liable therefor.” A demurrer to this answer was sustained. As Shook did not desire to amend, judgment was rendered in favor of the plaintiffs for the amount of their claim, and this ruling is assigned as error. It was contended by the plaintiffs, and apparently held by the court, that Shook, having signed the order, Was bound to know what it contained, and the fact that misrepresentations were made by which his signature was obtained did not excuse his failure to read the or der nor relieve him from the obligation of the contract closed by the acceptance of the .order. Evidently the rule governing a case where a contract is signed in ignorance of its contents and where there is an absence of fraud, deceit or misrepresentation was applied in the determination of this case. Of course a party who recklessly signs a contract without reading it or asking to have it read to him cannot throw off its obligations by the mere assertion or proof that he was ignorant of its character or contents. The law contemplates that all persons will exercise reasonable prudence for their own protection in the business affairs of life, and in the absence of fraud or mistake one who signs or accepts a written contract is presumed to know its character and to assent to its stipulations. A different rule obtains, however, where one party is induced to sign an agreement through the misrepresentation and fraud of another. A person who obtains a signature by fraudulent representations which are material and are relied on by another, to the effect that an instrument expresses a previous agreement of the parties, when in fact it contains a wholly different stipulation, has no right to insist that the victim of his fraud shall be bound, although the latter had the opportunity to read the instrument and discover the fraud but failed to do so. In such a case the signing of the paper without reading it involves more than the negligence of the signer, since the signature itself was procured by the fraud of the other. “It is immaterial, in the latter aspect of the case, that the party signing had an opportunity to read the paper, for he may have been prevented from doing so by the very fact that he trusted to the truth of the representation made by the other- party with whom he was dealing.” (Burroughs v. Pacific Guano Co., 81 Ala. 255, 258, 1 South. 212.) The case of Warden v. Reser, 38 Kan. 86, 16 Pac. 60, was one where a woman signed a mortgage on her home without reading it, on the fraudulent representa tion that it was only the renewal of a chattel mortgage on property of her husband. It was contended there that one who can read and write and has the opportunity to know the contents of a paper which he signs without-reading cannot rely on the representations of any one as to what it contains and afterward avoid liability on the ground that the representations were false and fraudulent. The court, however, ruled that as the signature was obtained by fraud the instrument was void, although the defendant did not attempt to read or have some one else read it to her. In Brook v. Teague, 52 Kan. 119, 34 Pac. 347, a controversy arose over a promissory note, the execution of which was induced by fraud. It was insisted that parol proof was not admissible because it tended to contradict and vary the terms of a written instrument, but it was held that the rule invoked did not apply where the instrument was obtained by fraud or duress. It was decided that a note so procured was void as between the original parties, and as to third parties with notice of the infirmity. A like,question was before the court in Deming v. Wallace, 73 Kan. 291, 85 Pac. 139, where the defendants alleged that they were induced to sign two notes by the false and fraudulent représentations of the plaintiff’s agent. On an objection to the admission of parol testimony the court said: “It is always competent to show by parol evidence that a contract was obtained by fraud, where fraud or misrepresentation is pleaded as a defense. The rule that oral representations and inducements preceding or contemporaneous with the agreement are merged in the writing is subject to the exception that if the representations amount to fraud which avoids the written contract they are not merged therein, and parol evidence is admissible to show the fraud.” (Page 293.) It was also held that if a signature is procured by fraud or misrepresentation the party defrauded is not barred from relief by the fact that he failed to read or have it read before signing it. The same rule was an nounced in the recent case of Insurance Co. v. Johnson, 73 Kan. 567, 85 Pac. 597. (See, also, Buchanan v. Gibbs, 26 Kan. 277; Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496; Freedley v. French, 154 Mass. 339, 28 N. E. 272.) The case of Munkres v. McCaskill, 64 Kan. 516, 68 Pac. 42, cited by the plaintiffs, cannot be regarded as an opposing authority. There the agreement to exchange land contained a stipulation that the contract should not be binding until McCaskill had investigated the property of Munkres, and McCaskill assumed the responsibility to make a full, fair and complete examination of the property to satisfy himself as to the truth or falsity of the representations made by Munkres and of the advisability of making the exchange, and it was held that when one of the parties, after making the examination for that purpose, had signified his satisfaction and closed the trade by exchanging title papers he could not rescind the contract upon the ground that he was induced to make it in reliance upon false representations made by the other party to induce the trade, unless fraud was practiced upon him by the other party which prevented him from making a full, fair and complete examination of the property. It will be observed that the truth or falsity of the representations was challenged in advance of the execution of the contract, and the complaining party, instead of relying upon the representations of the other as to the property, chose to investigate for himself and to act as his own judge as to the representations made to him, and therefore could not say that he made the trade in reliance upon the statements of the other party. It was said that a different result would follow if the plaintiff had been prevented from making a full and fair investigation through the fraud of the other, and so a different result must follow where a party is prevented from reading a contract or is induced to sign it without reading it through the fraud and deceit of the other. Where a • person is fraudulently induced to sign commercial paper without reading it and the same passes into the hands of a bona fide holder for value before maturity other considerations control, and the general rule is that where one of two parties must suffer through the fraud of a third party that one must suffer who made it possible for the fraud to be committed. (Roach v. Karr, 18 Kan. 529, 26 Am. Rep. 778; Ort v. Fowler, 31 Kan. 478, 2 Pac. 580, 47 Am. Rep. 501.) This rule, as has already been noted, does not apply as between the original parties or those taking the paper with notice of the fraud. (Brook v. Teague, 52 Kan. 119, 84 Pac. 347.) The answer in this case sufficiently alleges the fraud of the plaintiffs in the execution of the contract, and under the authorities it is not binding upon Shook unless subsequently to the fraud he has ratified it with knowledge of the facts or has otherwise precluded himself from rescinding the contract. The judgment is therefore reversed and the cause remanded for further proceedings.

The opinion of the court was delivered by Greene, J.: The plaintiff brought this action to recover damages for injuries sustained by him by the overturning of his wagon, caused by its coming in contact with an obstruction in one of the public alleys in the city of Topeka. A demurrer was sustained to his petition, and the sufficiency of the petition, as against a demurrer, is the only question for our consideration. The alleged defect in the petition is that it shows that the plaintiff had not within four months after the injury and before bringing the action filed with the city clerk a written statement giving the time when, and a description of the place where, the accident happened, and the circumstances relating thereto, as provided for in section 7 of chapter 122 of the Laws of 1903. The petition shows that such a statement was filed with the city clerk within the time required. With respect thereto the petition states: “Plaintiff further avers that within four months immediately following the receiving of such injuries, as aforesaid, he filed with the city clerk of the defendant city of Topeka a written statement, a copy of which is hereto attached, marked ‘Exhibit A’ and made a part hereof, and thereby presented to the mayor and council of said city his claim for damages on account of said injuries in the sum of $1000, which claim was, prior to the commencement of this suit, rejected by said mayor and council of defendant city of Topeka. “But plaintiff further avers that he is an ignorant and illiterate man, and was not at that time acquainted with the names of the streets in the locality where said injuries were received, and that in making out said written statement to be filed with said city clerk he erroneously described the place where said injuries were received as being in an alley on the east side of College avenue, about 100 feet north of Huntoon street, when in truth and in fact said injuries were received in the alley next east of Washburn avenue, about 100 feet north of Twelfth street; that immediately after the happening of said injuries the defendant city of Topeka, through one of its sanitary policemen, to wit, William Core, removed from said alley the obstruction which had caused said injuries; that when said written statement was filed by plaintiff and considered by said mayor and council, through the judiciary committee of said council, the defendant city was fully aware and advised as to the exact place where said in juries, occurred and was not misled by the erroneous location given in said written átatement; that the defendant city, through said judiciary committee, took up said claim so filed by the plaintiff and gave the same full consideration as a claim for injuries occurring to, and received by, the plaintiff at a point about 100 feet north of Twelfth street, in the alley next east of Washburn avenue, in said city of Topeka, and after said full consideration said claim was rejected by the defendant city of Topeka, as hereinbefore alleged; that said error in describing the place where said injuries were received arose from the ignorance and misunderstanding of plaintiff of the names of the streets in that part of the city of Topeka where said injuries occurred; but the defendant city was not misled thereby, but in fact passed upon said claim as a claim on account of injuries received by this plaintiff and occurring to him at the place herein correctly described, as above alleged.” The object of filing this statement is to inform the city of the accident, and the place in the street where it occurred, that the city may remove the obstruction from the street or alley or mend the place causing the accident, and also to give the city an opportunity to ascertain the extent of the complainant’s injuries and the incidents attending the happening of the accident while the occurrence is fresh in the minds of those who possess information on the subject. The statement filed in this case was defective in its description of the place where the accident happened, but in that respect it was sufficient to challenge the attention of the city, for it immediately instituted an investigation, which resulted in definitely locating the place where the accident happened, and it removed from the alley the obstruction which caused the plaintiff’s wagon to overturn. After having definitely located the place and removed the obstruction the city considered and rejected the plaintiff’s claim as for an injury sustained by his wagon’s having been overturned by coming in contact with an obstruction in the alley next east of Washburn avenue, about 100 feet from Twelfth street. This is where the accident occurred. The statute requiring a statement to be filed with the clerk is mandatory; that is, no action can be maintained until such statement is filed; but with respect to the details of the statement precise exactness is not absolutely essential. If it reasonably complies with the' statute, and the city is not misled to its prejudice by any defects of description of the place where the accident happened, the city has no reason to complain. The statement filed in the present case accomplished the object of the statute. We are aware that other courts have construed similar statutes more strictly. Under many of such decisions the ruling of the trial court could be upheld, but we are not inclined to follow a strict and technical construction where the object of the statute has been accomplished by the statement filed, notwithstanding a misdescription of the place. It follows that the cause must be reversed, with instructions to overrule the demurrer.

The opinion of the court was delivered by Graves, J.: Where an officer takes personal property •from the owner by virtue of a writ issued in void legal proceedings, can such owner maintain replevin therefor against the officer? This is the sole question involved in this controversy. The plaintiff, William A. Karr, was a druggist and pharmacist in the city of Topeka. The defendant, Frank M. Stahl, was chief of police in that city. On July 31, 1904, a warrant was duly issued by the police court for the arrest of Karr, and for the search of his premises and the seizure of all intoxicating liquors found thereon. The warrant was issued under the provisions of ordinance No. 2211 of the city of Topeka, which was held by this court, in June, 1905, to be void. (In re Van Tuyl, 71 Kan. 659, 81 Pac. 181.) By virtue of this warrant Stahl seized and took into his possession the property in controversy, which was immediately retaken by Karr in this action of replevin, and as Stahl failed to give a redelivery bond the property was retained by the plaintiff. The case was tried upon an agreed statement of facts in the district court of Shawnee county, where it was held that the property when taken in this action was in custodia legis, notwithstanding the invalidity of the ordinance under which it was seized. Judgment was accordingly entered for the defendant, Stahl, and the plaintiff brings the case here for review. Plaintiff has made a clear and forcible presentation of his contention. He insists that replevin can be maintained because the ordinance, being void, conferred no rights, and the complaint, warrant and all proceedings had thereunder were without force or effect. As a general proposition the position appears to be sound and is sustained by many authorities. We think, however, that under our statute the action of .replevin is to some extent exceptional, and not controlled by these general legal considerations. Section 177 of the code requires that before an action of re-plevin can be commenced an affidavit must be filed showing that the property sought to be replevied “was not taken in execution on any order or judgment against the plaintiff, . . . or any other mesne or final process issued against said plaintiff.” (Gen. Stat. 1901, § 4611.) In the case of Westenberger v. Wheaton, 8 Kan. 169, Mr. Chief Justice Kingman said: “All these facts must be sworn to exist before the order of delivery can be made; a fortiori they must exist as facts. But the clause does not confine the facts to a valid judgment. A valid judgment cannot be successfully contested in any way except by proceedings to set it aside. So that the object of this clause of the section is not solely to protect the process of the court when issued on a valid judgment. The' object of the clause, as drawn from its language, and from other parts of the section, as well as from the history of the action known as replevin, is to compel a party who desires to contest the validity of any judgment or order of a court, or any tax, fine, or amercement, or any other mesne or final process, so to do in some other way than by seizing property already in the custody of the law. An order of attachment is most frequently issued by the clerk under the law. If improvidently issued, and property is seized, the remedy is not tolerated of taking it out of the possession of the law, and by such a proceeding trying the validity of the order, or writ. A safer and more reasonable remedy exists. . . . The wisdom of our code on this subject, as we construe it, is vindicated by the following observations, showing the utter confusion that would result from the code if the construction should be given to it claimed by the plaintiff in error: Tf a defendant in the execution, after judgment had been legally entered against him upon a full and fair trial, were tolerated in bringing his action of replevin, and by it to replevy the goods taken in execution, there might be no end to the delays which the defendant might thus create. Justice and the end of the law would be effectually subdued, for although the defendant in the execution and plaintiff in the action of replevin would fail upon the trial, and judgment would be rendered in favor of the officer for the restoration of the property, yet the action might be again and again renewed, and delay without end effected. To prevent such abuses, and such contempts of the authority of courts, to prevent the monstrous absurdity of rendering the remedies afforded by law with a view to redress wrongs the means of defeating the very end to be accomplished, the defendant in an execution, who should thus pervert the action of replevin, might and ought to be severely punished for contempt.’ ” (Pages 176, 178.) This decision has been approved in the following cases: McGlothlin v. Madden, 16 Kan. 466; Gross v. Bogard, 18 Kan. 288; Hoisington v. Armstrong, 22 Kan. 110; Blair v. Shew, 24 Kan. 280. These cases do not go to the extent contended for by the defendant, as the court in each case had jurisdiction of the subject-matter involved in the action. In the cases of McGlothlin v. Madden and Blair v. Shew it was said, however, that replevin will not lie to recover property taken by attachment or execution, whether the same be valid or void. The same reason urged against the use of the writ of replevin for the purpose of testing the validity of judgments or process when they are voidable only seems to apply where they are void. As illustrated by this case, the ordinance in question had been in force and acted upon for a long time as valid. The writ in question was duly issued in appropriate proceedings had under the ordinance. The officer was bound either to obey the writ or review the proceedings of the mayor and council of the city who had enacted the ordinance and the action of the police court issuing the writ, and at his peril decide the legality of the ordinance for himself. Such a rule would leave the validity of writs open to question to such an extent as, in a large measure, to defeat the object of the statute. We think the orderly administration of the law will be better subserved if full effect be given to the language of the statute, by holding that the words “any order or judgment, . . . any tax, fine or amercement . . . or any other mesne or final process” (Gen. Stat. 1901, § 4611) were used advisedly and in their ordinary meaning, and not in the limited sense which results from the interpolation of the word “valid” after the word “any” — an interpretation that would destroy the manifest intent of the law and materially weaken its efficacy. Ample remedy has been given for testing the validity of any law, process or judgment without recourse to an action of replevin. Cases from other states have been cited by the plaintiff that are contrary to the view here expressed. Whether the statutes .of such states are the same as ours we do not know. If not, the cases are inapplicable. If the statutes are the same, we are not inclined to follow the decisions. We think the district court was correct, and the judgment is affirmed.

Per Curiam: Appellant was convicted of an assault and battery upon W. H. MeCamish, and sentenced to be confined in the county jail for a term of nine months and to pay the costs of the prosecution. From this judgment he appeals. None of the assignments of error requires extended comment. The matter referred to by the prosecutor when stating what he expected to prove was not collateral but was proper to show motive. The statement was made in good faith, and the objection to it was properly overruled. The evidence offered under the statement having fallen short, and having been stricken out for the very reason it did not reach the defendant, could not have prejudiced him. The court had the right, upon its own initiative, to recall the jury and give them further instructions. Cautionary instructions of the kind given are proper. The one complained of is sound, and there is nothing in the record to show that its effect was otherwise than wholesome. The answer of the court to the inquiry of a juror did not contain any independent statement of a rule of law, but in effect merely referred the jury to the instructions already given. The judgment is affirmed.

Per Curiam: This is an appeal from a conviction in the district court upon the charge of maintaining a nuisance in violation of the prohibitory liquor law. The proceedings were commenced before a justice of the peace, where defendant was convicted, and he appealed to the district court. In sending up the transcript the justice failed to attach his certificate to the original complaint and warrant, and a motion was made by defendant to strike these papers from the files. The trial court denied the motion, and adjourned the cause from September 6 to September 10 to enable the justice properly to certify the papers. When this was done the trial proceeded. There was no error in these rulings. It has been held error to proceed to try a defendant in a criminal action where the original complaint and warrant are not properly certified by the justice. (The State v. Anderson, 34 Kan. 116, 8 Pac. 275; The State v. Durein, 65 Kan. 700, 70 Pac. 601.) But here, before the trial com menced, the court postponed the proceedings in order that the justice before whom the first trial was had could attach his certificate and thus complete his transcript. This is the proper practice. (The State v. Geary, 58 Kan. 502, 49 Pac. 596.) The original complaint was sworn to by three persons. It is urged that appellant could not be tried lawfully upon a warrant issued upon a complaint thus verified ; that the fact that three persons subscribed to it warrants the inference that its verification required the combined knowledge of all of them, and that neither possessed sufficient knowledge or information to authorize him alone to verify it. There is no merit in the contention. The affidavit is the affidavit of each of the three persons who subscribed to it. It would have been sufficient with the signature and oath of either one, and was no stronger nor any less efficient because the others joined in making it. We find no error in the admission of testimony or the remarks of the court in ruling thereon. It was proper to permit appellant to be asked on cross-examination whether he had not been previously charged with, and pleaded guilty to, a violation of the prohibitory lav/. The court protected appellant’s rights by instructing the jury in reference to the effect of such testimony. Complaint is made of certain instructions which are not set out in the brief in compliance with rule 10 and need not be considered. The judgment is affirmed.

The opinion of the court was delivered by Thiele, J.: This is an appeal from an order overruling a demurrer to evidence offered by the proponent in a proceeding to admit a will to probate, and from a judgment admitting the will to probate. Under date of April 13, 1945, John W. Randall executed the will involved. Under its terms he gave his wife Ella, a life estate in all of his property, and made specific devises to his two sons Leonard and Glenn, and to his daughter Eva, and specific bequests to his son Glenn and to his daughter Eva. He gave the residue of his estate to his three children, Leonard, Glenn and Eva, and appointed Glenn as sole executor. The witnessing clause of the will was as follows: “Signed and acknowledged by the said John W. Randall, testator, as and for his last will and testament, in our presence, and we, at his request, in his sight and presence, and in the presence of each other, have hereunto subscribed our names as witnesses, this 13th day of April, 1945. (Signed) Beatrice Ashley, (Signed) Harry C. Blaker.” There is no dispute of fact involv.ed. John W. Randall died August 11,1947, being survived by his widow Ella, three sons, Leonard, Glenn and Elmer J., and his daughter Eva. On September 12, 1947, the widow filed a petition for the admission to probate of the last will of John W. Randall, and for the appointment of the executor therein named. This petition did not contain any allegation as to those persons who would have been his heirs at law had he died intestate, but it did contain a list of those persons who were legatees and devisees under his will (G. S. 1947 Supp. 59-2219, 2220). The son Elmer J. Randall was not named as he was not a legatee or devisee under the will. Publication notice of the hearing on the petition was given, and at the time fixed an order was made by the probate court admitting the will to probate and appointing Glenn Randall, so designated in the will, as the executor. In due time Elmer J. Randall filed notice of appeal to the district court. In that court it was then stipulated and on June 15, 1948, ordered that the appeal should be dismissed and the proceeding remanded to the probate court where there would be a new hearing on the matter of the admission to probate of the will. Thereafter and on June 16, 1948, an amended petition was filed for the admsision to probate of the will. On June 17, 1948, Elmer J. Randall filed his answer and defenses, alleging only that the decedent died intestate, and also that decedent .died intestate as to the right, title and interest of Elmer J. Randall in the estate of the deceased. The probate court heard the petition and the defense of Elmer J. Randall, and admitted the will to probate. In due time Elmer J. Randall appealed to the district court and in that court he filed his separate answer and defense, raising: the same issues as were presented in the probate court. On the hearing in the district court, and at the conclusion of the proponent’s evidence, Elmer J. Randall moved for judgment denying the instrument (will) to probate as the last will of John W. Randall for the asserted reason the proponent had not sustained her burden in the matter, which motion was denied. He then demurred to the proponent’s evidence and this demurrer was overruled. Elmer J. Randall then stated he would stand on his demurrer and the court thereupon on August 11, 1948, rendered judgment admitting the will to probate and appointing Glenn Randall as executor under its terms and further ordered that the proceedings be duly certified to the probate court with instructions that it proceed with the administration. Before taking up the appellant’s contentions, we note that in his defenses to the probate of the will there was no objection to the testamentary capacity of John W. Randall, nor that the will offered for probate had not been executed with all the formality required by statute, although both are presented in his brief as part of his argument which is presented under two main divisions: (1) That the testator died intestate, and (2) that the testator died intestate insofar as appellant was concerned. In his argument on the first division, appellant places stress on the manner in which the first petition for probate was prepared, but in view of what later happened there, is and can be no contention he was not afforded a full opportunity to present his defenses to the will’s being probated. Stripped of all extraneous matter, his first contention is that there was no testimony the instrument signed by John W. Randall was a will, or more especially no testimony that he, in the presence of two witnesses, published and declared the document to be his last will and testament, and that there was no request by John W. Randall that the witnesses sign and attest the will. We need not review the oral testimony and appellant’s critical comment thereon. There is no contention there was any failure to prove that John W. Randall signed the instrument in question. The only question argued is that the proof did not disclose full compliance with statutory requirements for the execution of a will (G. S. 1947 Supp. 59-606). Appellant’s demurrer admitted the testimony of two witnesses that John W. Randall signed the instrument in their presence and that they signed the attestation clause in his presence. Appellant first contends that the testimony of the witnesses to the will that the testator was of sound mind and memory at the time of its execution and that he was under ho restraint or undue influence, was incompetent. The witnesses were necessary witnesses under the statute (G. S. 1947 Supp. 59-2224). Without detailing the testimony we think it showed the qualification of those witnesses to testify. Had the defenses to the will included as part thereof any claim that the testator lacked testamentary capacity, possibly the proof would have been more extended, but we are satisfied that a prima facie showing was made. Appellant’s contention that there was no publication of the will by the testator needs no comment. Our statute does not require publication. (In re Estate of Koellen, 162 Kan. 395, syl. ¶ 7, 176 P. 2d 544.) Appellant’s contention that the proponent of the will did not make the requisite proof as to its execution cannot be sustained. The general rule is that the proponent has the burden of proof to make a prima facie showing of due execution of a will, but when he has made such a showing the burden shifts to the contestant to overcome that showing by competent evidence. A further rule is that the recitals of an attestation clause • of a will, the execution of which is admitted, are prima facie evidence of the facts stated in it. See In re Estate of Wallace, 158 Kan. 633, syl. ¶¶ 1, 2, 149 P. 2d 595, and authorities cited in the opinion. The attestation clause of the will in question discloses fully an execution and attestation as required by our statute (G. S. 1947 Supp. 59-606). Appellant’s contention the proof did not show that John W. Randall knew the contents of the will or that he knew he was executing a will cannot be sustained. In In re Estate of Koellen, supra, syl. ¶ 8, this court held that while it is indispensable to the validity of a will that the testator knew its contends when it was executed, such knowledge will ordinarily be presumed from the execution of the instrument, although the presumption may be rebutted. Here no effort was made to rebut the presumption. The matter need not rest there, however, for one of the witnesses to the will testified he had prepared wills for the testator and prepared the one in question, that he was present when the testator signed and that he signed the attestation clause at the request of the testator. In the absence of contradictory testimony no other conclusion could be made than that John W. Randall knew the contents of the will and that he was executing a will. In his argument on the second division above noted, appellant says there was no evidence that John W. Randall intended to disinherit him, and that while the testator could have disinherited him without specifically so stating in the will, it could be done by his express words and by directions to the scrivener for the preparation of his will, and in effect, he argues because there was no such proof, the presumption is that no disinheritance was intended, and therefore the testator died intestate as to him. Assuming, without deciding, that where the only question before the probate court in the first instance, and the district court on appeal, was whether the will should be admitted to probate, appellant could raise the question, it is to be observed it was not clearly raised by his objections, nor did he at any stage offer any proof on the question. He relies solely upon some more or less isolated statements that a testator is presumed not to have intended to disinherit his heirs. In addition to 57 Am. Jur. 757; 28 R. C. L. 229; 1 Page on Wills (2d ed.), p. 1388; Thompson on Construction of Wills, pp. 110, 114, 363; he directs our attention to Morton v. Flanagan, 143 Kan. 413, 55 P. 2d 373. In that case an ambiguous will set forth in the opinion was involved. It was there held: “A testator is presumed not to have intended to disinherit his heirs at law, but this is a presumption which will yield to the manifest intention of the testator gathered from the express words of the will, if such words are used.” (SyU2.) Without recital therefrom the authorities cited by appellant recognize .the rule relied upon by him is applicable only in doubtful cases, and that the language of the will of the testator, if expressed in clear and unambiguous language, must prevail even though it disinherits an heir. ’ See, also, 57 Am. Jur. 758. The will under consideration is not ambiguous. Under clear language the testator by his will gave his wife- Ella a life estate and upon her death, a devise to his son Leonard, a devise to his son Glenn and his daughter Eva, share and share alike, a devise to his son Glenn, a devise to his daughter Eva, specific bequests to his daughter Eva and his son Glenn, and “subject to the exception hereinafter noted as to Leonard” gave all the residue to “my three children, Leonard, Glenn and Eva, share and share alike.” The exception pertained to an advancement to Leonard and that it was to be charged against his share of the residuary estate. The explicit language used by the testator disclosed a clear intention to dispose of his entire estate to his widow and children to the exclusion of Elmer, and to say that he did not intend to disinherit him would be in contradiction of his wishes and intention as expressed in a will which is entirely free from ambiguity. The judgment of the trial court is affirmed.

The opinion of the court was delivered by Arn, J.: This is a workmen’s compensation case. An award was made by the compensation commissioner in favor of claimant and against the respondents and the insurance carrier for medical and hospital expense and for temporary total and permanent partial disability. On appeal to the district court the commissioner’s award was adopted by and made the judgment of that court. From that judgment respondents and their insurance carrier appeal. The claimant, Robert Dressier, is the minor son of respondents and worked during the summer delivering ice for respondents on their city ice route. On September 5, 1947, he fell out of the ice truck and was injured when the truck wheels ran over his body. Robert was fifteen years old in June, 1947, and was scheduled to quit his summer employment with his parents, the respondent employers, and return to high school as a sophomore on September 8, 1947. His parents and employers had not obtained a work permit for Robert as required by section 38-604, G. S. 1935. Robert’s duties on the ice truck required him to ride with another of respondents’ employees who drove the truck, and to deliver 25- and 50-pound cakes of ice to the city customers. The delivery truck upon which he worked was-a 1%-ton Chevrolet from which both doors of the cab had been removed to facilitate delivery of ice. The seat next to the driver was removable to permit filling of the gasoline tank. The cushion on the right seat was apt to “scoot” out if the truck stopped suddenly, or struck a hole, etc. At about 3:15 p. m. on September 5, 1947, the truck had just turned a corner and was traveling ten to fifteen miles per hour when the right seat cushion slipped out and Robert went with it. There was nothing for him to grab hold of, and he fell out and the truck’s rear wheel ran over him. Robert was severely injured and was admitted to the hospital. Respondent employers had notice of the injury and paid claimant’s hospital and medical bills for the period from September 5, 1947, to March 5, 1948, out of the company’s bank account. No salary was paid during this period and the insurance carrier paid none of the.hospital or medical bills. On March 25, 1948, claim for compensation was made. It was stipulated that the insurance carrier had a contract of workmen’s compensation insurance coverage with respondent employers. The record shows that respondent employers withheld income tax on Robert’s wages of $30 per week and paid social security tax thereon and treated him as any regular employee. He lived at home without paying room and board, was permitted to retain all his earnings and maintained a separate bank account. The nature and extent of Robert’s injury and disability are not questioned in this appeal. Respondent insurance carrier contends on appeal here that— (1) The minor claimant was unlawfully employed in violation of the child labor law, particularly sections 38-602 [G. S. 1947 Supp.], 38-603 and 38-604, G. S. 1935, and therefore cannot recover under the workmen’s compensation act. (2) The furnishing of medical aid and hospitalization by the employers was due to their love and affection as parents of claimant rather than because of any employer-employee relationship, and therefore such payments do not' extend the time for filing of claim for compensation as provided by G. S. 1947 Supp. 44-520a. (3) That there was collusion between claimant and his parent-employers, and the award and judgment are not supported by the evidence. These contentions of appellant will be discussed in order. Section 38-602, G. S. 1947 Supp., provides: “That no child under sixteen years of age shall be at any time employed, permitted, or suffered to work in or about any mine or quarry; or at any occupation at any place dangerous or injurious to life, limb, health or morals. . . .” Is the work of delivering 25- and 50-pound cakes of ice on a city route and riding in an ice truck such as the one involved here an occupation that is dangerous or injurious to life, limb, health or morals? Ordinarily the question of whether a particular occupation is dangerous within the meaning of the statute is a question of fact to be determined in each case. (Casteel v. Brick Co., 83 Kan. 533, 112 Pac. 145.) In the instant case the trial court found that claimant’s occupation was not such as to anticipate injury to claimant, and that the inherent character of his work and the manner in which it was carried on created no particular risk. This determination by the trial court is conclusive on appeal. (Neal v. Boeing Airplane Co., 161 Kan. 322, 167 P. 2d 643; Cooper v. Helmerick & Payne, 162 Kan. 547, 178 P. 2d 242.) A situation might exist which is so patently dangerous that a court could hold it so as a matter of law — but the instant case does not present that situation. This court will not examine 'the evidence for the sole purpose of attempting to draw therefrom different inferences than those of the trial court. The evidence sustains the trial court’s finding that claimant’s occupation was not dangerous within the meaning of the statute. Section 38-603, G. S. 1935, provides: “That no child under sixteen years of age, who is employed in the several vocations mentioned in this act, or in the transmission of merchandise or messages, or any hotel, restaurant or mercantile establishment, shall be employed before 7 a. m., or after 6 p. m., nor more than eight hours in any one calendar day, nor more than forty-eight hours in any one week.” The trial court found from the evidence that this section was not violated. Respondent insurance company produced a signed statement to the effect that claimant started to work at about 6:30 a. m. However, both claimant and his father testified that claimant’s starting hour was 8 or 9 a. m., and this supports the finding made by both the compensation commissioner and the trial court. This finding by the trier of the facts that' section 38-603 was not violated is also conclusive on appeal. Section 38-604, G. S. 1935, provides: “That all persons, firms, or corporations employing children under sixteen years of age in any of the vocations mentioned in this act, shall be required to first obtain and keep on file and accessible to any inspector or officer charged with the enforcement of this act, the work permit as hereinafter provided for.” It is admitted that the respondent employers did not obtain a work permit as provided for by this section of the statutes. Section 38-605 requires posting of a notice stating the maximum hours of work required of such child upon a form provided by the commissioner of labor and industry. Section 38-606 indicates that one of the purposes of this act, at least, is to prevent children under sixteen years of age from working when-they should be in the elementary schools. In this respect we make merely a passing note of the fact that claimant in the instant case was engaged in summer work; that he had finished the elementary school, and in three days more, had this accident not occurred, would have begun his sophomore year of high school. Nevertheless, respondent employers should have complied with the child labor law, by obtaining such a permit and posting the required notice. A failure to do so makes any employer liable to the penalties provided in Section 38-612, G. S. 1935. But these are duties, obligations and penalties imposed upon the employer — not the employee. Appellant urges this court to say that a fifteen-year-old employee, engaged in otherwise lawful employment, should be deprived of the benefits of the workmen’s compensation act merely because the employer failed to do some act which the statute required of the employer. We cannot do that. The employer’s failure to comply with G. S. 1935, 38-604, cannot be used as a shield to protect the employer or his insurance carrier. For the reasons stated, there is no merit to appellants’ contention that claimant was precluded from an award under the workmen’s compensation act because of any violation of or failure to comply with the child labor law. The briefs of the parties discuss the effect that a violation of sections 38-602 and 38-603 by claimant might have upon his claim. But since there was no violation of those provisions of the child labor law as a matter of fact, it would be unavailing to labor the question further. Next, appellants contend there was no compliance with G. S. 1947 Supp. 44-520a, requiring notice of claim for compensation to be filed within 120 days. It is conceded that such notice was not filed until March 25, 1948, i.e., six months and twenty days after claimant’s injury. The first subsection of section 44-520a provides: “No proceedings for compensation shall be maintainable hereunder unless a written claim for compensation shall be served upon the employer by delivering such written claim to him or to his duly authorized agent, or by delivering such written claim to him by registered mail within one hundred twenty days after the accident, or in cases where compensation payments have been suspended within one hundred twenty days after the date of the last payment of compensation.” (Emphasis supplied.) It is not disputed here that the respondent employers furnished medical aid and hospitalization to claimant until as late as March 5, 1948 — and the furnishing of such services by an employer to an employee is the payment of compensation (Larrick v. Hercules Powder Co., 164 .Kan. 328, 188 P. 2d 639). But appellants also contend in this connection that since the respondent employers are the parents of claimant, they must have furnished such medical and hospital services by reason of parental love and affection and not because of any employer-employee relationship. True, the father and coemployer of claimant testified, that payment of the doctor and hospital bills was prompted partly by his parental obligation to care for his son. The mother and other coemployer of claimant testified that she paid the doctor and hospital bills both as a mother and as an employer; that she paid these bills with a “Joe Dressier Transfer Co.” check. She also said, however, that the household bills were paid in the same manner. There was testimony that Robert was treated as any other employee. There was no testimony or inference that the same care would not have been given another employee. This testimony certainly is not sufficient as a matter of law to establish that respondent employers did not furnish these services as employers. The evidence supported the finding of the trial court (and the previous finding by the commissioner) that the written claim for compensation was made as required by law. Finally, appellants contend that all of the facts show conclusively' there was collusion between claimant and respondent-employers which amounts to fraud against the insurance carrier. It is urged also that the findings generally, and the judgment based thereon, are not supported by the evidence. There is no evidence of fraud or collusion and the trial court so found. The findings, award and judgment are supported by substantial, competent evidence. The judgment of the court below is affirmed.