Kiser v. Gilmore, 48850

Decision Date01 December 1978
Docket NumberNo. 48850,48850
Citation2 Kan.App.2d 683,587 P.2d 911
Parties, 25 UCC Rep.Serv. 746 Luella KISER, as Administrator C. T. A. of the Estate of Wayne F. Kiser a/k/a Wayne Frederick Kiser, and Luella Kiser, Appellees, v. William GILMORE, d/b/a Gilmore Cattle Company, Appellant.
CourtKansas Court of Appeals

Syllabus by the Court

1. An unjustified breach of contract does not entitle a party to punitive damages; in order to collect punitive damages, the injured party must also show the existence of an independent tort amounting to malice, fraud or willful and wanton disregard for the rights of others.

2. Under K.S.A. 60-215(B ), when an issue not raised in the pleadings is tried by express or implied consent of the parties, the issue is treated as if it had been raised in the pleadings, and the failure to formally amend the pleadings to conform to the evidence does not affect the outcome of the litigation.

3. Introduction of or failure to object to the introduction of evidence tending to prove an issue not raised in the pleading constitutes implied consent to try that issue.

4. It was not error to instruct the jury that it could award the plaintiffs punitive damages if it found that the defendant had acted willfully, wantonly and maliciously, even though the plaintiffs had only pled fraud as a ground for recovery of punitive damages. The defendant impliedly consented to trying the issue, and so the pleadings should be treated as amended to include the issue of willful, wanton and malicious disregard of the plaintiffs' rights as grounds for awarding punitive damages.

5. In order to predicate reversible error upon the failure of the trial court to give proposed instructions to the jury, the party proposing the instructions must comply with the requirements of K.S.A. 60-251 by (1) making an objection to the court's failure to give the instruction and specifically stating the grounds for his objection before the jury retires to consider the verdict; and (2) including both the proposed instructions and the instructions actually given in the record on appeal. The only exception to this rule is when the failure to give the proposed instruction was "clearly erroneous."

6. The trial court's refusal to instruct the jury on the defendant's theory of release was not "clearly erroneous," because the court may well have based its refusal on the Kansas Consumer Protection Act, which provides in part that a settlement or release is invalid if it is found by the court to be unconscionable. K.S.A. 50-625(C ) and 50-627(B ).

7. The decision of whether to submit special interrogatories to the jury rests within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of abuse of discretion.

8. When determining whether an award of punitive damages is excessive, many factors should be considered, such as the nature, extent and enormity of the wrong, the intent of the person committing it, and all of the circumstances surrounding the transaction.

9. The court did not err in refusing to grant a remittitur of a portion of the $15,000 in punitive damages awarded to the plaintiffs, even though the amount of actual damages was quite small by comparison ($3,888.99), because of the gravity of the defendant's act (selling cattle quarantined for brucellosis) in regard to the plaintiffs and the public, and the necessity of deterring this defendant and others similarly situated from committing a wrong of this nature in the future.

Charles K. Hyter, of Branine, Chalfant, Hyter & Hill, Hutchinson, for appellant.

Gaylord I. Maples, of Maples & Egan, Peabody, for appellees.

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

SWINEHART, Judge:

The defendant appeals from a jury verdict awarding actual damages in the amount of $3,888.99 and punitive damages in the amount of $15,000 to the plaintiffs in an action arising out of the sale of cattle infected with brucellosis.

The plaintiffs are husband and wife. Mr. Kiser died soon after the conclusion of the trial in district court and his wife was substituted as administrator of his estate in the appeal.

In late 1973, the plaintiff, Mr. Kiser, decided to go into the dairy business. He was retired and in ill health at the time. He made arrangements with Mr. Gordon Gaede to go into partnership with him. The basic agreement was that Mr. Kiser would furnish the cattle and Mr. Gaede would furnish the labor. Mr. Kiser made arrangements for a bank loan which he used to purchase the dairy herd. Between December 1, 1973, and February 26, 1974, the plaintiffs made six different purchases of dairy cattle, totaling twenty-two cattle, from the defendant Mr. Gilmore. They also purchased two dairy cows from another seller.

On March 22, 1974, plaintiffs' entire dairy herd was quarantined for brucellosis. Brucellosis is a contagious disease in livestock. State law requires that any animal which is found to have brucellosis must be slaughtered. K.S.A. 47-658b. In spite of small government subsidy payments to stockmen whose animals must be slaughtered, the discovery of brucellosis in a herd generally means financial hardship. It is especially serious for dairymen, for it is prohibited to sell milk from cattle possibly infected with the disease because it can cause a dangerous disease in humans undulent fever.

The evidence presented at trial shows overwhelmingly that the disease originated in the defendant's herd. Mr. Kiser bought all of the cows except two from the defendant. The two that were purchased from the other source did not have the disease. A bull which the plaintiffs rented from a third party did have brucellosis. However, the bull's owner testified that none of his cattle had brucellosis, and that the bull was clean before being put with the plaintiffs' herd. An expert witness for the plaintiffs testified that bulls often catch brucellosis from cows but that cows very rarely are infected with brucellosis by a bull. The most significant evidence presented which tends to show the defendant's liability, however, is the fact that the defendant's entire herd was under quarantine at the time that he sold the animals. Under K.A.R. 9-2-23, animals under quarantine for brucellosis may not be sold, except for slaughter.

The defendant excuses the sale of the animals under quarantine by claiming that he erroneously believed that the quarantine had been released. Two quarantines were issued to the defendant in September of 1973 because of his failure to meet import requirements of the state of Kansas. Pursuant to K.A.R. 1977 Supp. 9-7-1 and 9-7-4, livestock imported into the state must be tested for brucellosis before being brought into the state. If they have not been tested or if they come from an area which has a particularly high incidence of brucellosis, the animals are segregated and quarantined inside the state and tested for the disease. The two quarantines issued to the defendant in September, 1973, were for failure to meet import requirements, not because of suspected brucellosis. On October 11, 1973, the defendant received a release of these two quarantines. However, on October 4, 1973, the defendant had received a quarantine for all of his cattle within the state of Kansas except steers and heifers less than six months old. This quarantine was issued because brucellosis had been discovered in his herd. It was not released until April 14, 1975. Therefore, the defendant's sale of cattle to the plaintiffs during the period from December, 1973, until February 26, 1974, was in contravention of Kansas law which forbids the sale of animals quarantined for suspected brucellosis.

When the plaintiffs learned that a number of their dairy cattle would have to be slaughtered for brucellosis, they decided to abandon their faltering business venture. Kiser first went to the defendant asking him to repurchase the cattle for what they had paid for them, and to pay various incidental damages such as pasture rent, interest on the loan, etc. The defendant refused this settlement.

Mr. Gaede then offered to buy sixteen of the cattle from the plaintiffs. The defendant cosigned a bank note with Gaede to help him raise enough money to purchase sixteen of the cows. Mr. Kiser met with Mr. Gaede at a bank in April, 1974. The defendant was not present at the time the bill of sale was signed. At the trial he testified that he had no knowledge of what was contained in the bill of sale, and did not participate in the transaction in any way except to furnish money to Mr. Gaede.

In spite of the fact that the plaintiffs were able to dispose of sixteen of their cattle in this manner, they suffered some financial loss from the transactions. Accordingly, they filed suit against the defendant, alleging that the defendant had breached express warranties, implied warranties of merchantability and fitness for particular purpose; that the defendant had violated the Kansas Consumer Protection Act; and that the defendant had committed fraud.

The defendant's brief sets out five allegations of error. At oral argument, he abandoned his contention that the appeal should be dismissed because Mrs. Kiser is not a real party in interest as required by K.S.A. 60-217(A ). The remaining allegations of error are: (1) that the trial court erred in instructing the jury on "willful, wanton and malicious" conduct because the plaintiffs' petition did not set forth such conduct as a potential ground for recovery; (2) that the trial court should have instructed on the defendant's theory of release; (3) that the trial court should have submitted written interrogatories to the jury; and (4) that the trial court should have granted a remittitur as to all or a part of the $15,000 punitive damages assessed against the defendant.

Briefly summarized, the jury was instructed that the plaintiffs sought to recover damages on two alternate theories. One theory was that the defendant's acts...

To continue reading

Request your trial
13 cases
  • Nordstrom v. Miller
    • United States
    • Kansas Supreme Court
    • 19 Enero 1980
    ...v. National Bank, et al., 117 Kan. 638, 232 P. 1062 (1925); Miles v. Love, 1 Kan.App.2d 630, 573 P.2d 622 (1977); Kiser v. Gilmore, 2 Kan.App.2d 683, 587 P.2d 911 (1978); Goff v. American Savings Association, 1 Kan.App.2d 75, 561 P.2d 897 (1977); 37 Am.Jur.2d, Fraud and Deceit § We have hel......
  • Barkley v. Freeman
    • United States
    • Kansas Court of Appeals
    • 28 Febrero 1992
    ...These issues were tried with the implied consent of both parties, and we will consider the contested instruction on appeal. See Kiser v. Gilmore, 2 Kan.App.2d 683, Syl. p 3, 587 P.2d 911 (1978), rev. denied 225 Kan. 844 The standard of review of jury instructions was enunciated in Trout v. ......
  • Atkinson v. Orkin Exterminating Co., Inc.
    • United States
    • Kansas Court of Appeals
    • 6 Marzo 1981
    ...45, 605 P.2d 95 (1980); Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 596 P.2d 816 (1979); Kiser v. Gilmore, 2 Kan.App.2d 683, 587 P.2d 911 (1979); Dold v. Sherow, 220 Kan. 350, 552 P.2d 945 (1976); and Service Oil Co. v. White, 218 Kan. 87, 542 P.2d 652 The independ......
  • State v. Wilson
    • United States
    • Kansas Court of Appeals
    • 8 Mayo 1981
    ...There was no trial objection. The question is whether the giving of the instruction was clearly erroneous. Kiser v. Gilmore, 2 Kan.App.2d 683, 691, 587 P.2d 911 (1978), rev. denied 225 Kan. 844 (1979). Although there are old and recent cases finding error in the giving of an Allen -type ins......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT