Masson v. Kansas City Power & Light Co.

• Decision Date: 05 March 1982
• Docket Number: 52188,Nos. 52167,s. 52167
• Citation: 7 Kan.App.2d 344,642 P.2d 113
• Court: Kansas Court of Appeals
• Parties: James B. MASSON, II, et al., Appellees, v. KANSAS CITY POWER & LIGHT COMPANY, Appellant. Fred A. FREY, et al., Appellees, v. KANSAS CITY POWER & LIGHT COMPANY, Appellant.

Page 113

642 P.2d 113

7 Kan.App.2d 344

James B. MASSON, II, et al., Appellees, v. KANSAS CITY POWER & LIGHT COMPANY, Appellant.

Fred A. FREY, et al., Appellees, v. KANSAS CITY POWER & LIGHT COMPANY, Appellant.

Nos. 52167, 52188.

Court of Appeals of Kansas.

March 5, 1982.

Review Denied May 24, 1982.

Syllabus by the Court

1. Mere personal fears of the owner or other witnesses of the presence of a transmission line cannot be made the basis upon which to predicate damages in a condemnation action. (Following Willsey v. Kansas City Power & Light Co., 6 Kan.App.2d 599, Syl. P 5, 631 P.2d 268, rev. denied 230 Kan. --- (1981).)

2. While neither the owner nor anyone else may base an opinion of value on personal fear of power lines, an opinion of value of a qualified witness based on the existence of fear in the buying public in general which affects market value is admissible. (Following Willsey v. Kansas City Power & Light Co., 6 Kan.App.2d 599, Syl. P 6, 631 P.2d 268.)

3. A condemnation trial is a sober inquiry into values, designed to strike a just balance between the economic interests of the public and those of the landowner. In striking that balance there is no room for appeals to prejudice against the condemnor or sympathy for the landowner. Neither the relative financial positions of the parties nor the landowners' unwillingness to sell is relevant to the issues of value and damages.

4. A deliberate attempt by counsel to appeal to social or economic prejudices of the jury, including the wealth or poverty of the litigants, is misconduct where the asserted wealth or poverty is not relevant to the issues of the case.

5. An argument that a condemnation is a forceful taking of land which the owners do not wish to sell is prejudicial since it tends to inflame the minds of the jurors, to arouse their sympathy for the landowner and prejudice against the condemnor, and to produce a verdict in a larger amount than warranted by an impartial consideration of the evidence.

6. In assessing whether improper argument amounts to reversible error great weight is given to the presence or absence of an objection and the curative effect of a well-phrased admonition to the jury.

7. In two separate condemnation cases it is held: (a) In the first case evidence of the landowners' personal fear of electricity was erroneously admitted as an element of damages; the claim of error was properly preserved for appellate review; and the error was not harmless.

(b) In the second case improper argument was permitted which (i) contrasted the financial positions of the parties, and (ii) called for punishing the condemnor for the taking and the procedure employed; the claim of error was properly preserved for appellate review; and the error was not harmless.

Lowell L. Smithson, Kansas City, Mo., and John H. Murray of Murray & Tillotson, Chartered, Leavenworth, for appellant.

L. D. McDonald, Jr., and Kathleen M. Rhoades of McDonald & Dykes, Overland Park, and Edward J. Chapman, Jr., Leavenworth, for appellees.

Before FOTH, C. J., and REES and SPENCER, JJ.

FOTH, Chief Judge:

These are separate appeals by Kansas City Power and Light Co. from jury verdicts in two condemnation proceedings. In each KCP&L acquired a 160-foot easement across a rural tract for a 345 KV overhead transmission line. The two cases were consolidated because a primary issue in each was the extent to which fear of high voltage transmission lines could properly enter into the computation of damages for the taking of an easement for such a line. That issue was resolved to this court's satisfaction in Willsey v. Kansas City Power & Light Co., 6 Kan.App.2d 599, 631 P.2d 268, rev. denied 230 Kan. --- (1981). It will not be re-examined here. The appeals will be separately analyzed in the light of Willsey and the other issues raised. We reverse in each case for different reasons.

1. The Masson case. The record in this case reveals a consistent effort by the landowners to bring home to the jury the impact of the easement on the personal life of the landowners as opposed to its impact on the market value of their land. Examples are many, but they are epitomized by the extensive testimony of first Mrs. Masson and then Mr. Masson as to their personal fear of electricity and the unknown dangers from high voltage lines. Both testified to their concern after reading a Reader's Digest article on the dangers of electrical "smog" and seeing a television movie "Ohms" on the same subject. They described Mr. Masson's going out along the easement with "neon" light bulbs and seeing them glow. Both found the experience "scary," and Mr. Masson worried about possible leukemia. Mrs. Masson thought $30,000 in damages was not enough because she would have to either live with the danger or move.

This is precisely the type of speculative evidence said to be inadmissible in Willsey, 6 Kan.App.2d 599, Syl. P 5, 631 P.2d 268: "Mere personal fears of the owner or other witnesses of the presence of a transmission line cannot be made the basis upon which to predicate damages in a condemnation action."

The impact on the jury is apparent. KCP&L's expert put the damages at $4,150, the landowners' expert at $30,640. The jury verdict was $30,640, the exact amount asked for. Although the trial record is silent on the incident, in counsel's affidavit attached to KCP&L's motion for new trial a juror is reported to have said that the jury asked the bailiff whether it could assess punitive damages. If this did happen it would only demonstrate further the passion and prejudice amply evidenced by the size of the verdict.

The landowners' only argument in response to KCP&L's claim of error on this point is to say that its contemporaneous objections were inadequate to preserve the issue for appeal. We find that at the outset of Mrs. Masson's testimony as to her personal fears KCP&L made an unsuccessful objection to that line of testimony as incompetent and immaterial. There was also an unsuccessful objection to the light bulbs. In the light of what was said in Willsey the objections were good and should have been sustained. In our opinion they were sufficient to preserve the point.

The evidence, once in, provided a steppingstone to the landowners' closing arguments designed to appeal to the sympathy of the jury. Since the argument was based on evidence, albeit admitted over objection, further objection would have been unavailing and was unnecessary. See Federal Deposit Ins. Corp. v. Cloonan, 165 Kan. 68, 92, 193 P.2d 656 (1948); State v. Powell, 120 Kan. 772, 800-802, 245 P. 128 (1926). The improper evidence and the improper argument based thereon were all of a piece, and require reversal for a new trial.

There was also in this case a good deal of evidence and argument on the themes of "small individual versus big business" and "punish the utility for its conduct." Because of our disposition above we need not consider whether these points were adequately preserved. The impropriety of both approaches is discussed in connection with the Frey case below.

2. The Frey case. In this case the landowner did not testify as to personal fear. The only evidence of fear came in through the testimony of the landowners' expert appraiser and, while pushing the boundaries at times, it generally stayed within the confines delineated in Willsey, 6 Kan.App.2d 599, Syl. P 6, 631 P.2d 268: "While neither the owner nor anyone else may base an opinion of value on personal fear of power lines, an opinion of value of a qualified witness based on the existence of fear in the buying public in general which affects market value is admissible."

The reversible error in this case was the landowners' strategy at trial of depicting the landowners as helpless individuals fighting a rich and ruthless corporation, which should be penalized for its wrongful conduct both in taking an easement which the landowners did not wish to sell and in the manner of taking.

KCP&L, fresh from trying the Masson case, attempted to forestall this approach in the Frey case by motion in limine. The motion sought to preclude counsel during voir dire from, among other things, making the "individual versus corporation" argument or suggesting that there was some impropriety in the taking. The trial court declined to rule on the motion, although it did indicate an expectation that the voir dire not be argumentative.

The result was a question to the jury by landowners' counsel asking if, as a result of seeing the movie "Ohms" or reading the Reader's Digest article, both of which had stressed the dangers of power lines, any juror had "a preconceived bias that Kansas City Power & Light should be penalized more than the evidence supports." While ostensibly designed to discover bias, the question clearly planted the idea that the condemner should be penalized for its conduct, and there would be evidence as to how much the penalty should be.

In closing argument the theme was amplified. First, the utility's wealth: After referring to the absence of testimony from KCP&L's experts about people building next to existing powerline easements, counsel commented, "Believe me with the size and the money behind Kansas City Power and Light in preparing this case, if it had been there you would have heard it."

Later, after argument from the utility attacking the landowner's value figures, counsel complained to the jury:

"I'm almost over. You know trying a condemnation case against Kansas City Power and Light is an unbelievable experience and I have just witnessed it. The figures I have given are incorrect, pictures are not exchanged but introduced, and then don't worry about fighting big business, but if you give that twenty-five thousand two hundred dollars it's going to increase operating costs and we are going to slip it right to the rate payers, and I don't really think they want me to get into the justice of their rates, but that's what they would like you to do...