Miller v. Braun, 44323

• Decision Date: 05 March 1966
• Docket Number: No. 44323,44323
• Citation: 411 P.2d 621,196 Kan. 313
• Parties: Paul S. MILLER and Janet L. Miller, Appellees, v. Frank C. BRAUN, Appellant.
• Court: Kansas Supreme Court

Page 621

411 P.2d 621

196 Kan. 313

Paul S. MILLER and Janet L. Miller, Appellees, v. Frank C. BRAUN, Appellant.

No. 44323.

Supreme Court of Kansas.

March 5, 1966.

Syllabus by the Court

1. Generally speaking, statements by counsel in an opening statement to the jury that certain evidence will be introduced are not improper is made in good faith and with reasonable grounds to believe that the evidence is admissible, even though the intended proof referred to is afterward excluded.

2. Counsel should be allowed considerable latitude in his opening statement and its general nature rests largely within the discretion of the district court, which must necessarily rely upon the good faith of counsel properly to confine his remarks within the bounds of propriety and the issues formed by the pleadings.

3. A district court is in a better position than an appellate court to determine whether a verdict resulted from the asserted misconduct of counsel or from passion and prejudice, and, ordinarily, its conclusion in the matter will not be disturbed unless, under all the circumstances, it is plainly in error. (Following Collins v. City Cab Co., 192 Kan. 394, 388 P.2d 597.)

4. The record in an action to recover damages for fraudulent misrepresentations, is examined, and it is held: Reference made by plaintiffs' counsel in his opening statement to the jury of the overall price received by the defendant for the sale of an easement across Lot 5 and another lot owned by the defendant, evidence of which was later excluded by the district court, did not prejudicially affect the substantial rights of the defendant.

Stuart D. Mitchelson, Mission, argued the cause and was on the briefs for appellant.

Wilson E. Speer, Olathe, argued the cause and was on the briefs for appellees.

FATZER, Justice.

This was an action to recover damages for fraudulent misrepresentation of the nature of an electrical power transmission easement across the backyard of a dwelling property the defendant sold to the plaintiffs. The case was tried to a jury which returned its verdict in favor of the plaintiffs for $3,000. The district court overruled the defendant's motion for a new trial, and he has appealed.

The defendant developed a tract of real estate in Johnson County upon which he built new residence dwellings for sale. He first advertised the tri-level home on Lot 5 which the plaintiffs subsequently purchased, in a metropolitan newpaper on May 23, 1963. The original asking price for the residence was $19,950. On June 5, 1963, the defendant orally agreed with the Kansas City Power and Light Company to sell an easement across the backyard of Lot 5 and other lots. On June 21, 1963, he and his wife executed a formal easement grant to the power company for which they received the sum of $2,500. The easement was duly filed of record in Johnson County.

A few days later, the plaintiffs came to the defendant's subdivision and were attracted to the tri-level home on Lot 5. It was the type home they were looking for and they were attracted to the trees on the lot, especially those in the backyard. The lot was deep, relatively level, and there were about 50 tall trees in the backyard. No prior parties had negotiated for the premises, and the defendant's asking price was $19,950. During the plaintiffs' negotiations for property, the defendant disclosed the granting of the easement to the power company, the approximate boundaries of the easement, but represented that it would be for single wires and single poles involving the removal of one or two trees and the trimming of a few others. Relying upon the defendant's representations, the plaintiffs purchased the property. After purchasing the property, the plaintiffs discovered the easement was to be used for high voltage lines, supported by 'H' poles, with the right to remove virtually all of the approximately 50 tall trees standing in the backyard.

The sole question presented is whether the district court erred in overruling the defendant's motion to declare a mistrial made at the close of the plaintiffs' opening statement and out of the presence of the jury.

In his opening statement to the jury, plaintiffs' counsel referred to the defendant's sale of the easement to the power company and that it was a single transaction which included easement rights across the lot purchased by the plaintiffs and another lot owned by the defendant, and stated:

'* * * And so they negotiated and Mr. Braun, the, I think, on June 9th it was, that Mr. Braun and representatives of the Kansas City Power & Light Company came to an understanding or an agreement that he would sell them their easement rights across Lot 5 in particular, I believe also Lot 13, up to the other end of the lots that the Power Company bought was also involved in the same transaction, and they needed part of Lot 13 for their high line easements, too. And they agreed then on June 5th that is, Mr. Braun and his wife who was also record owner, would sell to the Kansas City Power & Light Company these wide easements across Lot 5 which is our lot in question here and Lot 13, and for the two of them, Mr. Braun was to be paid the sum of $2500, I believe. And so on June the 21st, I believe, it was that the Kansas City Power & Light Company and Mr. and Mrs. Braun signed a formal easement grant, that is, they drew up an easement agreement in writing and they all signed it on or about June 21st, and it was recorded of record here in the courthouse in the Register of Deeds office, setting out what the easement rights were and what the limitations of it were as far as distance is concerned. * * *'

The defendant did not move to strike the opening statement, or ask the court to admonish the jury to disregard the objectional portion.

During the trial, plaintiffs offered evidence of the exact consideration the defendant received for the easement across Lot 5 as allocated by the defendant and the power company in their negotiations. The defendant's objection to the testimony was sustained by the district court.

In seeking reversal, the defendant argues the action was primarily for the difference in the value of real estate with the easement as it actually existed and the value of real estate with the easement as it was represented; that the amount he received for the easement was of no concern to the jury, and the facts as disclosed to the jury in plaintiffs' opening statement were highly prejudicial. He urges his objection was timely made and that the only statement made by the district court to remove the matter from the minds of the jury was Instruction No. 2 given at the conclusion of all of the evidence, to the effect it should disregard statements and arguments of counsel as they were not evidence but were intended to help the jury in understanding the evidence and applying the law.

The plaintiffs argue the opening statement made reference only to a group price for the sale of the easement across two lots in defendant's development, and that the jury never did hear the amount actually paid for the easement across Lot 5; that the issue was the fair market value of the property encumbered with the easement as it actually existed; that where such value is at issue, evidence of the price paid for the easement at a bona fide, voluntary sale close in time, as was the sale between the defendant and the power company, would be competent, but not conclusive evidence, of its value, citing Reeser v. Hammond, 122 Kan. 695, 253 P. 233, a comparable fraud case, and that reference to the consideration received by the defendant was made in good faith and...