Motor Equipment Co. v. McLaughlin

Decision Date23 January 1943
Docket Number35450.
Citation133 P.2d 149,156 Kan. 258
PartiesMOTOR EQUIPMENT CO. v. McLAUGHLIN et al.
CourtKansas Supreme Court

Rehearing Denied March 12, 1943.

Syllabus by the Court.

Appellant could not complain that trial court erred in sustaining appellee's demurrer to appellant's amended cross-petition for damages, where appellant amended its amended petition after sustaining of demurrer so as to ask only for a set-off against any amount which appellee might recover against it for damages, and jury allowed appellant the full amount it claimed by way of set-off.

The two-year statute of limitations did not commence to run against an action for relief from written instruments allegedly executed under duress, nor against an action for damages based upon alleged wrongful taking of property under guise of such instruments so long as duress existed and aggrieved party continued to be dominated thereby. Gen.St.1935, 60-306, subd. 3.

Criminal laws are designed for protection of society and are not intended to be used for collection of debts.

Although state might successfully prosecute a person for commission of an unlawful act, such fact does not destroy coercive character and compelling force of threats of imprisonment which result in threatener obtaining an advantage.

"Duress" may be occasioned by threats of criminal prosecution and directed to one who has committed an unlawful act, as well as against one who has not committed an unlawful act, and the test is not whether there was ground for threatened criminal prosecution, but whether person threatened was deprived of exercise of his free will and as a probable result thereof was induced to act to his detriment.

Although question of actual "duress" is always a question for jury, it is not sufficient that there be merely some evidence of duress, but the evidence must substantially measure up to the required standard of proof before trial court is obliged to submit question to jury.

To constitute "duress" by threats, actor's manifestation must be made for purpose of coercing the other must have for its object the securing of undue advantage with respect to the other, must be of such character that it is adapted to overpower will of the other, and is reasonably adequate for the purpose, must in fact deprive the other of free exercise of will, and must cause the other to act to his detriment.

In determining whether evidence of duress was substantial, so as to authorize submission of question of duress to jury, trial court was required to take into consideration all the circumstances together with reasonable inferences which properly might be drawn therefrom.

For purpose of testing sufficiency of evidence on demurrer, trial court was required to consider only evidence favorable to demurree.

Evidence was sufficient to present question for jury as to whether chattel mortgages were invalid on ground that they were obtained by "duress", in that instruments were obtained from mortgagor as result of mortgagee's threats that if mortgagor did not execute instruments he would be sent to penitentiary.

Conduct in apparent recognition of contract made under duress did not constitute "ratification" of such instrument, where acts allegedly constituting the ratification occurred during period duress continued to operate.

Under clause in chattel mortgage authorizing mortgagee to take possession of property if he deems himself insecure, it is immaterial whether mortgagee has good cause to believe himself insecure, if he in fact deems himself to be so.

Under clause in chattel mortgages authorizing mortgagee to take possession of property if he deemed himself insecure mortgagee was not authorized to remove mortgaged chattels from mortgagor's place of business by actual force.

The statute providing that in absence of stipulation to contrary the mortgagee of personal property shall have legal title thereto and right of possession does not authorize a mortgagee to take law into his own hands and enforce his claim by breach of peace when his right to take possession is resisted by mortgagor. Gen.St.1935, 58-307.

Reviewing court is concerned only with question whether there is substantial evidence to support findings made, and not with evidence which, if believed, would support contrary finding.

If a trial judge permits a verdict to stand, he must approve it upon his own independent judgment, and not upon that of jurors.

Where a general and special verdict is rendered, trial court must consider, interpret and harmonize the verdicts if it is reasonably possible to do so.

An award of exemplary damages will not be entirely set aside unless it is so large as to satisfy court that it was not the result of an honest judgment.

An award for punitive damages is subject to revision if it is grossly excessive.

"Punitive damages" are imposed by way of punishing a defendant for malicious or vindictive acts or for a willful and wanton invasion of plaintiff's right, the purpose being to restrain defendant and deter others from commission of like wrong.

Where a verdict manifestly is rendered under influence of passion and prejudice, it cannot be cured by remittitur, but where verdict is not based thereon, the vice in an excessive verdict can be cured by remittitur consented to by prevailing party.

Verdict awarding $8,000 punitive damages, in addition to actual damages of $1,996.32, for conversion of property, was excessive, in view of evidence, and new trial would be ordered unless prevailing party would consent to a remittitur of $4,000 of the punitive damages.

1. To constitute duress by threats the actor's manifestation must be made for the purpose of coercing the other; must have for its object the securing of undue advantage with respect to the other; must be of such a character that it is adapted to overpower the will of the other and is reasonably adequate for the purpose; must in fact deprive the other of free exercise of will; and must cause the other to act to his detriment.

2. Duress may be occasioned by threats of criminal prosecution and imprisonment directed to one who has committed an unlawful act as well as against one who has not committed an unlawful act. The test is not whether there was ground for threatened criminal prosecution or imprisonment but whether the person threatened was deprived of the exercise of his free will and as a result thereof was induced to act to his detriment.

3. While the question of actual duress is always a question for the determination of the jury, it is not sufficient that there be merely some evidence of duress but the evidence must substantially measure up to the required standard of proof before a court is obliged to submit the question of duress to the jury.

4. The statute of limitations does not commence to run against an action for relief from written instruments executed under duress nor against an action for damages based upon the wrongful taking of property under the guise of such instruments so long as the duress exists and the aggrieved party continues to be dominated thereby.

5. As long as duress actually endures, conduct in apparent recognition of instruments executed under duress does not constitute ratification of such instruments.

6. Under a clause in a chattel mortgage providing that the mortgagee may take possession of the property if he deems himself insecure it is immaterial, in this state, whether the mortgagee has good cause to believe himself insecure, if he in fact deems himself to be so.

7. A mortgagee who deems himself insecure may take possession of the mortgaged chattels if he acts in an orderly manner and without creating a breach of the peace. If, however, the mortgagor protests, the mortgagee may not take the law into his own hands and remove the property by force, threats or violence without being liable in damages for conversion.

8. Where a general and special verdict is rendered it is the duty of the trial court to consider, interpret and harmonize the verdicts if it is reasonably possible to do so.

9. If a trial judge permits a verdict to stand he must approve it upon his own independent judgment and not upon that of the jurors.

10. Punitive damages are imposed by way of punishing a defendant for malicious or vindictive acts or for a willful and wanton invasion of plaintiff's rights, the purpose being to restrain him and deter others from the commission of like wrongs.

11. Where a verdict manifestly is rendered under the influence of passion and prejudice it cannot be cured by a remittitur but where it is not based thereon the vice in an excessive verdict for punitive damages, like a verdict for compensatory damages, may be cured by a remittitur consented to by the prevailing party.

12. A judgment for $8,000 for punitive damages considered and, in view of facts and circumstances narrated in the opinion, held to be excessive. Appellee given option of accepting a remittitur in the sum of $4,000 on that portion of the judgment or a new trial on all issues.

13. Other complaints considered and held no reversible error shown.

Appeal from District Court, Sedgwick County, Division No. 3; Grover Pierpont, Judge.

Action by the Motor Equipment Company against L. R. McLaughlin to recover a money judgment for merchandise sold to defendant wherein the Interstate Securities Company was joined as a party defendant and the action was expanded into cross-actions for damages between the defendants. From a judgment in favor of the defendant McLaughlin, the defendant Interstate Securities Company appeals.

Case remanded with instructions.

L. M Kagey, of Wichita, and Harry B. Jenkins, of Kansas City, Mo for appellant.

Roy H Wasson, Vincent F. Hiebsch, both of Wichita (William J. Wertz, and...

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    ...Prior cases permitted a mortgagee to use self-help to gain possession if done without a breach of the peace. (Motor Equipment Co. v. McLaughlin, 156 Kan. 258, 133 P.2d 149; and Kaufman v. Kansas Power & Light Co., 144 Kan. 283, 58 P.2d 1055.) Therefore, K.S.A. 84-9-503 injects no new elemen......
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