Thurman v. Cundiff

• Decision Date: 30 June 1978
• Docket Number: No. 49038,49038
• Parties: Veryl L. THURMAN, Appellee-Cross-Appellant, v. Margaret CUNDIFF and Robert Cundiff, Appellants-Cross-Appellees.
• Court: Kansas Court of Appeals

Page 893

580 P.2d 893

2 Kan.App.2d 406

Veryl L. THURMAN, Appellee-Cross-Appellant, v. Margaret CUNDIFF and Robert Cundiff, Appellants-Cross-Appellees.

No. 49038.

Court of Appeals of Kansas.

June 30, 1978.

Syllabus by the Court

1. On review of a ruling on a motion for a directed verdict, the appellate court is governed by the same standards applicable to the trial court.

2. One seeking to recover for false arrest must prove he was unlawfully caused to be arrested by the defendant and, though it is not necessary that the arrest be directly ordered by the defendant, it must appear that the defendant either instigated it, assisted in it, or by some means directed or encouraged it.

3. What is direction or instigation sufficient to impose liability on a private citizen for a wrongful arrest made by an officer without a warrant depends on the facts of each case. It is not necessary, to impose liability, that the defendant expressly direct the arrest. Nor need he be present when the arrest is actually made. However, he must take some active part in bringing the arrest about; that is, there must be some affirmative act on his part which induces the officer to make the arrest.

4. The fact that a defendant instigated a false arrest may be established by circumstantial evidence.

5. A defendant is not liable for false arrest if he merely informs officers of circumstances and leaves it to the officers to take such action as the officers deem proper.

6. As a general rule, a defendant is not liable for false arrest where legal cause or justification existed for the restraint. Ordinarily, the owner of property, in the exercise of his inherent right to protect it, is justified in restraining another who seeks to interfere with or injure it where the restraint is reasonable in time and manner.

7. Agency may be shown by circumstantial evidence.

8. As a general rule, amendments to pleadings are favored in law and shall be allowed liberally in the furtherance of justice to the end that every case may be presented on its real facts and determined on its merits.

9. Trial courts are given broad discretionary powers concerning the amendment of pleadings, before or after judgment, when the amendment does not change substantially the claim or defense.

10. The allowance or denial of an amendment of a pleading will not constitute ground for reversal unless it affirmatively appears that the substantial rights of the adverse party were affected by the trial court ruling, and, further, that the ruling was an abuse of discretion.

11. Punitive damages are recoverable in an action for personal injury based on tortious conduct involving malice, willfulness or wanton disregard of the plaintiff's rights.

12. A court is powerless to reduce the verdict of the jury in an action for unliquidated damages and render judgment for a less amount unless the party in whose favor the verdict was rendered consents to the reduction. The proper course if a remittitur is refused is to set aside the verdict and grant a new trial. (Following Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 553 P.2d 254 (1976).)

13. Upon review of the record in an action for false arrest, it is held: (1) the trial court did not err in its denial of defendants' motions for directed verdict; (2) the allowance of amendment of plaintiff's damages prayer did not constitute reversible error; (3) trial court refusal to submit to the jury the issue of punitive damages was not error; and (4) the order of remittitur without consent of the plaintiff was erroneous.

Larry Winn, III, and Lyle D. Pishny of Lytle, Wetzler, Winn & Martin, Prairie Village, for appellants-cross-appellees.

John Anderson, Jr., of Anderson, Granger, Nagels & Lastelic, Chartered, Overland Park, for appellee-cross-appellant.

Before SWINEHART, P. J., and REES and SPENCER, JJ.

REES, Judge:

This is an action for false arrest. A jury verdict in favor of plaintiff was returned in the amount of $25,000 for compensatory damages. The trial court reduced the award by $10,000 and entered judgment for $15,000. Both sides appeal.

1. Defendants first contend the trial court erred in failing to grant them a directed verdict. They argue there was no evidence that either of them directed, requested, commanded or otherwise caused the plaintiff's arrest. We disagree.

On review of a ruling on a motion for a directed verdict, this court is governed by the same standards applicable to the trial court. Apperson v. Security State Bank, 215 Kan. 724, 528 P.2d 1211 (1974). The question here presented is whether there was any substantial evidence to support the jury finding that the defendants were liable for false arrest. Bishop v. Capitol Life Ins. Co., 218 Kan. 590, 592, 545 P.2d 1125 (1976); Fisher v. Sears, Roebuck & Co., 207 Kan. 493, 485 P.2d 1309 (1971).

One seeking to recover for false arrest must prove he was unlawfully caused to be arrested by the defendant and, though it is not necessary that the arrest be directly ordered by the defendant, it must appear that the defendant either instigated it, assisted in it, or by some means directed or encouraged it. Thompson v. General Finance Co., Inc., 205 Kan. 76, 88, 468 P.2d 269 (1970); Hammargren v. Montgomery Ward & Co., 172 Kan. 484, 494, 241 P.2d 1192 (1952). As to what constitutes direction or instigation of an arrest so as to render a defendant liable for false arrest, 32 Am.Jur.2d, False Imprisonment, § 35, says in part:

"What is direction or instigation sufficient to impose liability on a private citizen for a wrongful arrest made by an officer, within the rule imposing liability on a citizen at whose request or instigation an arrest is made without a warrant, depends on the facts of each case. It is not necessary, to impose liability, that the defendant expressly direct the arrest. Nor need he be present when the arrest is actually made. However, he must take some active part in bringing the arrest about that is, there must be some affirmative act on his part which induces the officer to make the arrest. . . ." (pp. 98-99.)

The record discloses that defendant Mrs. Cundiff was a Johnson County landowner. Plaintiff was the lessee of 320 acres which included most of the land surrounding her residence. Excluded from the lease was that land "which Lessor is now using for her private residence yard, driveway, private lake (immediately east of the residence), an area of approximately five (5) acres." Plaintiff grazed cattle on the leased acreage. Since 1971, he had used a driveway which runs by Mrs. Cundiff's residence to gain access to the leased pasture. The evidence at trial was conflicting as to whether the driveway used by plaintiff was the particular driveway excluded by the lease. The driveway appears to have been plaintiff's only means of access to the pasture other than by driving across hay and brome fields. Plaintiff or his employee used the driveway at least every two or three days to enter the pasture to feed the cattle.

In late 1972 or early 1973, a dispute arose between plaintiff and Mrs. Cundiff concerning damage to the driveway allegedly caused by plaintiff's truck. Mrs. Cundiff informed either plaintiff or his employee that further use of the driveway would not be permitted.

Defendant Bob Cundiff frequently visited his mother Mrs. Cundiff, on weekends and performed maintenance duties around the farm. On the morning of February 3, 1973, he was present at his mother's residence. Mrs. Cundiff had left the farm that morning to go to her other residence in Kansas City. Before leaving, she instructed her son to keep the gate to the driveway locked and to deny plaintiff access.

Plaintiff and his employee drove up to the gate and asked Bob Cundiff to unlock it. He refused and threatened to call the sheriff if plaintiff attempted to enter. Plaintiff and his employee drove away. They returned approximately twenty minutes later and placed some railroad ties across a ditch next to the locked gate. Plaintiff unfastened the strands of barbed wire from one fencepost and pulled the wire back to permit entry. Plaintiff then drove his truck across the ditch, through the fence, and down the driveway to the pasture. As he proceeded along the driveway, plaintiff either swerved to avoid Bob Cundiff, who was standing in the middle of the driveway, or intentionally drove at him. Which occurred depends upon whose testimony is believed.

Bob Cundiff twice telephoned his mother in Kansas City that morning and informed her of the events transpiring at the farm. She twice advised him to call the sheriff. Taking that advice, he called the sheriff's department and summoned them to the scene.

Ultimately, three sheriff's cars arrived. The deputies talked briefly with both Bob Cundiff and the plaintiff. There is evidence that Bob Cundiff told one deputy the plaintiff had taken down or cut "our fence" and had driven down "our private drive" after being told to stay out. Bob Cundiff testified he told a deputy, "That man came right at me and veered off" and he asked the deputy, "What can we do about it . . ." A deputy testified that he was told by Bob Cundiff that plaintiff had destroyed Bob Cundiff's wire. Plaintiff observed Bob Cundiff engaging in an animated conversation with a deputy and pointing at the plaintiff just prior to the arrest. After talking with Bob Cundiff, one of the deputies accused plaintiff of having cut the fence and intruding. There is no evidence in the record that Bob Cundiff at any time attempted to explain to the sheriff's deputies that plaintiff was his mother's lessee.

Plaintiff was handcuffed by a deputy. He was driven to the Johnson County courthouse in Olathe where he was briefly interrogated and then detained in the jail area prior to release less than two hours later. The sheriff's report of the incident listed the offense as "destruction of property." No formal charges were filed and no warrant ever issued.

Although the foregoing...