Lakeview Gardens, Inc. v. State ex rel. Schneider

• Decision Date: 11 December 1976
• Docket Number: No. 48416,48416
• Citation: 221 Kan. 211,557 P.2d 1286
• Parties: LAKEVIEW GARDENS, INC., Appellant, v. STATE of Kansas ex rel. Curt SCHNEIDER, Attorney General, and Keith Sanborn, District Attorney for the 18th Judicial District of Kansas, Appellees.
• Court: Kansas Supreme Court

Page 1286

557 P.2d 1286

221 Kan. 211

LAKEVIEW GARDENS, INC., Appellant, v. STATE of Kansas ex rel. Curt SCHNEIDER, Attorney General and Keith Sanborn, District Attorney for the 18th Judicial District of Kansas, Appellees.

No. 48416.

Supreme Court of Kansas.

Dec. 11, 1976.

Syllabus by the Court

1. In determining whether K.S.A. 16-301 applies to particlar contracts under facts stipulated by the parties, this court must ascertain and give effect to the intent of the legislature. In so doing we must consider the language of the statute; its words are to be understood in their plain and ordinary sense.

2. When a statute is plain and unambiguous this court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be.

3. The acts and facts which will constitute delivery of property vary in different classes of cases and depend upon the character, quantity and condition of the property, as well as the circumstances of the particular case.

4. Delivery may be either actual or constructive.

5. Constructive delivery is a general term comprehending all those acts which, although not truly conferring a real possession on the vendee, have been held by construction of law equivalent to acts of real delivery.

6. A constructive delivery is effectuated when, without actual transfer of the goods or their symbol, the conduct of the parties is such as to be inconsistent with any supposition other than that there has been a change in the nature of the holding.

7. There may be a completed delivery although the goods remain in the possession of the seller if the seller's possession is as an agent or at the request of the buyer under an agreement to store or care for the property, and nothing further remains to be done by either party to complete the sale.

8. The record is examined in a declaratory judgment action brought to obtain a judicial interpretation of K.S.A. 16-301 and it is held, under the contracts and the facts stipulated by the parties delivery of the caskets is immediately required by the contracts and constructive delivery is legally effectuated when the contracts are executed and the caskets are segregated, identified by numbers correlated with the names of the purchasers, and placed in storage at the warehouse. It is further held the provisions of K.S.A. 16-301, et seq., do not apply to the sale of caskets by Lakeview Gardens, Inc., under the facts stipulated in this case.

W. A. Kahrs, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, argued the cause, and Larry A. Withers, Wichita, was with him on the brief for the appellant.

Robert J. Hornung, Asst. Dist. Atty., argued the cause, and Curt Schneider, Atty. Gen., Jon P. Small, Asst. Atty. Gen., Keith Sanborn, Dist. Atty., and Jack N. Williams and Georgia A. Staton, Asst. Dist. Attys., were with him on the brief for the appellees.

FROMME, Justice:

This is a declaratory judgment action brought by Lakeview Gardens, Inc., a cemetery corporation, to obtain judicial interpretation of K.S.A. 16-301 as it may apply to Lakeview's preneed funeral contracts for the sale of caskets. Lakeview unsuccessfully sought to obtain an order of the trial court declaring its contracts for the sale of caskets to be outside the provisions of the statute. The trial court declared the contracts to be covered by the statute and ordered all monies received by Lakeview from such sales to be placed in trust in accordance with K.S.A. 16-301, et seq. Lakeview appeals.

The statute provides:

'Any agreement, contract or plan requiring the payment of money in a lump sum or installments which is made or entered into with any person, association, partnership, firm or corporation for the final disposition of a dead human body or for funeral or burial services, or for the furnishing of personal property or funeral or burial merchandise, wherein the delivery of the personal property or the funeral or burial merchandise or the furnishing of professional services by a funeral director or embalmer is not immediately required, is hereby declared to be against public policy and void, unless all money paid thereunder shall be deposited in a bank or trust company which is authorized to do business in this state and insured by a federal agency, all as herein provided, and subject to the terms of an agreement for the benefit of the purchaser of said agreement, contract or plan. For the purposes of this act, personal property or funeral or burial merchandise shall include caskets, vaults and all other articles of merchandise incidental to a funeral service, but shall not include grave lots, grave spaces, grave memorials, tombstones, crypts, niches and mausoleums.' (K.S.A. 16-301. Emphasis supplied.)

The facts set forth in the following paragraphs of the petition were stipulated by the parties:

'4. Plaintiff offers for sale caskets (i. e., 'Eternal Rest Crypt Beds') which are burial merchandise within the meaning of K.S.A. 16-301, and plaintiff has entered into sales contracts whereby plaintiff has sold to purchasers a substantial number of caskets. A copy of the sales contract is attached hereto, marked as Exhibit 'A' and by reference made a part hereof.

'5. Pursuant to the terms of the sales contract, plaintiff immediately tenders delivery of the casket to the purchaser. The purchaser has the option of removing the casket to such place as he desires or he may direct plaintiff to store it on plaintiff's premises at no charge. However, by electing to have plaintiff store the casket, the purchaser does not waive his right under the contract to take possession of the casket at any time.

'6. Plaintiff has sold a substantial number of caskets pursuant to this contract, having a total retail value of approximately $322,000.00. Each casket is identified with a number. An index book is maintained with the purchasers' name correlated to numbers so that any purchaser's casket can be readily identified.'

The contracts for the sale of caskets did not include the cost of mortuary professional services or the expense of opening and closing burial spaces. The sample form of contract attached to the petition is in such form that it can be made to cover the sale of cemetery lots (interment spaces), caskets (burial vaults), bronze memorials, lawn crypts or mausoleum crypts. However, the parties by stipulation have limited the court's consideration of the contracts to an interpretation of the statute as applied to the sale of Lakeview caskets.

The parties agree that the court's interpretation of the statute will necessarily depend in large part upon the efficacy of the following paragraph in the contracts:

'Purchaser hereby acknowledges receipt of the above described burial vault(s) or Eternal Rest Crypt Bed(s) specified above, delivered to Purchaser by Lakeview. Purchaser authorizes and directs lakeview to store said burial vault(s) or Eternal Rest Crypt Bed(s) free of charge. Purchaser has the right at any time to remove said burial vault(s) or Eternal Rest Crypt Bed(s) from storage.'

Our consideration of the contracts is restricted by facts stipulated to caskets which have been purchased at wholesale by Lakeview and then resold. Upon execution of each sale contract a casket is immediately tendered to the purchaser. The purchaser then, under terms of the contract, directs Lakeview to store the casket in a warehouse. Each casket when stored is identified by a number affixed thereto. An index book is maintained by Lakeview with the purchaser's name correlated with the number on the casket. The purchaser's casket can be identified in the warehouse by its number, and under the contract he may take possession of the casket at any time, although taking actual possession of a casket prior to death would appear some-what implausible to a normal individual.

In determining whether K.S.A. 16-301 applies to particular contracts under facts stipulated by the parties, this court must ascertain and give effect to the intent of the legislature. In so doing we must consider the language of the statute; its words are to be understood in their plain and ordinary sense. (Hunter v. Haun, 210 Kan. 11, 13, 499 P.2d 1087; Roda v. Williams, 195 Kan. 507, 511, 407 P.2d 471.) When a statute is plain and unambiguous this court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. (Amoco Production Co. v. Armold, Director of Taxation, 213 Kan. 636, 647, 518 P.2d 453; Jolly v. Kansas Public Employees Retirement System, 214 Kan. 200, 204, 519 P.2d 1391.)

In the present case both parties insist the statute is clear and unambiguous. The words of the statute to which our attention is called are: 'Any . . . contract . . . wherein the delivery of the personal property . . . is not immediately required, is hereby declared to be against public policy and void, unless all money paid thereunder shall be deposited in a bank or trust company . . .'

The appellant, Lakeview, contends its contracts are not those contemplated and covered by K.S.A. 16-301, since the contracts require delivery of a casket at the time each sale is completed.

The appellee contends the words 'immediately required' should be interpreted to mean 'when needed by reason of the death of the person for whom the casket is purchased.' Appellee argues a casket cannot be 'immediately required' until a person dies. Therefore all monies paid for caskets must be deposited in trust unless they are purchased on the death of the person whose body will occupy the same.

Both parties rely heavily on quoted portions of our opinion in State, ex rel., v. Anderson, 195 Kan. 649, 408 P.2d 864. Our discussion in that opinion was not limited to the sale of caskets, as it must be in the present opinion. In Anderson the provisions of the cemetery corporation contracts examined by this court covered the sale of cemetery lots, the sale of caskets and memorial...