Augustine v. Hinnen, 45120
| Decision Date | 13 July 1968 |
| Docket Number | No. 45120,45120 |
| Citation | 443 P.2d 354,201 Kan. 710 |
| Parties | Minnie Wilson AUGUSTINE, Katherine Goebel and James Wilson Augustine, Appellees, v. Ralph L. HINNEN, James E. Hinnen, Allen H. Poe and R. P. Baker, Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The cause of action under K.S.A. 60-513-subject to the limitation contained therein-shall not be deemed to have accrued until the act giving rise to such cause of action first causes substantial injury.
2. Generally speaking, punitive damages are by way of punishment to a defendant for his malicious, vindictive and wanton invasion of the rights of another-the purpose being to restrain him and deter others from the commission of like wrongs-and are allowable when a defendant's conduct has been such as to show a reckless indifference and disregard of the rights of another.
3. The mere fact an act is unlawful and subjects a person to criminal prosecution is not in itself sufficient to support an award of punitive damages.
4. In an action to recover actual and punitive damages for the alleged pollution of fresh water wells on plaintiffs' land by defendant oil and gas leasehold ownrs and operators, the record is examined and it is held: (1) The verdict for actual damages is within the range of and supported by the evidence and as to it the judgment is affirmed, and (2) the verdict for punitive damages is not supported by the evidence and as to it the judgment is reversed.
J. B. McKay and James B. McKay, Jr., El Dorado, argued the cause and were on the brief for appellants.
O. J. Connell, Jr., El Dorado, argued the cause and was on the brief for appellees.
This was an action to recover actual and punitive damages for the alleged pollution of fresh water wells on plaintiffs' land by defendant oil and gas leasehold owners and operators.
A jury awarded both actual and punitive damages, and judgment was entered on the verdict. Defendants have appealed.
For many years plaintiffs and their immediate ancestors had owned the 200 acres in question and had carried on successful farming and cattle operations.
In August 1955 defendants acquired from Vickers Petroleum Co. certain oil and gas leases on land adjacent to that of plaintiffs. Vickers had been disposing of the salt water produced from the leases by either storing it in ponds or running it through a pipe line into the Whitewater River. After acquiring the leases from Vickers, defendants, from 1956 to 1960, under permits issued by the State Corporation Commission, installed salt water disposal wells and no longer used the storage ponds. The pipe line into the river was used only in rare emergency situations up until 1961.
In 1959 defendants' leases were producing 750 barrels of salt water daily-all of which, from 1961 on-was disposed of underground. From time to time tests were made by the State Board of Health of plaintiffs' fresh water supply and they showed rapidly increasing salt content. In the meantime, defendants had installed a 'braden head' on the casing in one of their salt water disposal wells (McCraner B-2) so as to prevent salt water from any leaks in the innermost pipe from coming to the surface.
Be that as it may-matters with respect to plaintiffs' farming and cattle operations became progressively worse due to the extremely high salt content in their fresh water supply-finally coming to a head in the fall of 1962. On December 1, 1962, defendants sold the leases in question.
This action was filed on March 17, 1964. The petition sought actual damages in the amount of $30,000.00 and punitive damages in the amount of $20,000.00. At pretrial hearings plaintiffs elected to pursue their case on the theory of temporary damages for the two-year period beginning in the fall of 1962. It was ordered that the questions of fact for determination were (1) whether defendants allowed the escape of deleterious substances to the damage of plaintiffs, (2) whether the escape was within the time provided by the statute of limitations, (3) was the escape beyond the control of defendants as provided by K.S.A. 55-121, and (4) the amount of actual and punitive damages, if any.
Following a lengthy trial the jury returned a verdict for plaintiffs for $12,651.55 actual damages and $18,000.00 punitive damages.
In this appeal defendants allege 15 grounds for reversal, among which are questions concerning instructions given and refused, the statute of limitations, the size of the verdict, alleged passion and prejudice of the jury, and the sufficiency of the evidence to support the verdict as to both actual and punitive damages.
In the instruction concerning the two-year statute of limitations the jury was told that the cause of action did not arise until plaintiffs were injured by the discharge of salt water, and that if their injury occurred more than two years prior to the date of filing suit they could not recover. We see nothing wrong with the instruction (Gardenhire v. Sinclair-Prairie Oil Co., 141 Kan. 865, Syl. 1, 44 P.2d 280; McComb v. Stanolind Oil & Gas Co., 164 Kan. 1, 7, 186 P.2d 574). And see K.S.A. 60-513 in which it is stated that a cause of action under such section shall not be deemed to have accrued until the act giving rise to such cause of action first causes substantial injury.
And on the question of 'temporary-permanent' damages-neither do we believe the jury was misdirected when instructed as to what items of damage it was entitled to consider.
Nothing would be gained by narrating in detail the voluminous evidence with respect to the cause of this salt water pollution or the resulting damage and injury to plaintiffs. It is sufficient to say that we have carefully examined the record and it fully supports the proposition that salt water had escaped from a hole in the pipe in the McCraner B-2 disposal well about 40 feet below the surface, resulting in the pollution of plaintiffs' fresh water wells.
As stated-the jury returned a verdict of $12,651.55 for actual damages. It is contended such amount is greatly in excess of what is shown by the evidence. In so contending, however, defendants concede plaintiffs' evidence enumerated specific items of damage totaling $5,905.00. Those items will not be mentioned in detail. They do not, however, include injury to cattle-and the loss of a 'calf crop'-concerning which there was much evidence-although no specific 'dollars and cents' figures were mentioned. And neither did those items include the rental value of pasture shown to be $17.00 to $20.00 per acre annually. In Albin v. Munsell, 189 Kan. 304, 369 P.2d 323, it was said--
'The fact that the damages disclosed by the evidence cannot be calculated with absolute mathematical or financial exactness does not render them so uncertain as to preclude their assessment.' (p. 312, 369 P.2d p. 329)
And so here. The mere fact that plaintiffs' evidence did not place an exact dollar amount on some of their damage and injury did not preclude the jury-under proper instructions-from considering it.
Considering the entire situation disclosed by the record-we cannot say that the verdict for actual damages is not within the range of and is unsupported by the evidence.
This brings us to the question of the $18,000.00 verdict for punitive damages which defendants contend is wholly unsupported by the evidence.
In the recent case of Atkinson v. Herington Cattle Co., Inc., 200 Kan. 298, 310, 311, 312, 436 P.2d 816, which was an action to recover damages for the pollution of a dairy farm water supply by runoff from cattle feed-lots, rules relating to the allowance of punitive damages were discussed. Generally speaking, they are allowable not because of any special merit in a plaintiff's case, but are imposed by way of punishing a defendant for malicious, vindictive or a willful and wanton invasion of a plaintiff's rights-the purpose being to restrain him and deter others from the commission of like wrongs. It often has been said that punitive damages are allowable when a defendant's conduct has been such as to show a reckless indifference and disregard of the rights of others. The mere fact-if it be a fact-that defendants here may have violated the provisions of K.S.A. 55-121 relating to the escape of salt water-thus subjecting them to criminal prosecution (55-122)-is not of itself sufficient to support an award of punitive damages (Donley v. Amerada Petroleum Corp., 152 Kan. 518, 523, 524, Syl. 5, 106 P.2d 652; Watkins v. Layton, 182 Kan. 702, 707, 324 P.2d 130). Something more is required-such as the intentional doing of a wrongful act with full knowledge and realization of its character without cause or excuse.
Plaintiffs make some point of the fact the evidence tends to show that defendants' application to the State Corporation Commission to convert the McCraner B-2 to a disposal well contained inaccurate information as to the presence and depth of pipe then in the hole. Conceding such to be the fact-we think it falls short of bringing the matter within the rules relating to the allowance of punitive damages.
Considering the totality of the entire situation disclosed by the record-we find a complete absence of evidence to establish that defendants' conduct throughout their operations was willful, malicious or wanton, or that it showed a reckless indifference and disregard of the rights of plaintiffs. Accordingly-the verdict and judgment for punitive damages cannot stand.
Other matters discussed by the parties have not been ignored, but are considered either to be without substantial merit or, in view of the decision reached, immaterial.
With respect to actual damages the judgment is affirmed. With respect to punitive damages the judgment is reversed with directions to set it aside.
In my opinion the evidence presented by the record in the instant case is sufficient to warrant a verdict for punitive damages, and I must...
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