Musil v. Hendrich, 51933

• Decision Date: 01 May 1981
• Docket Number: No. 51933,51933
• Parties: , 31 UCC Rep.Serv. 432 Ron MUSIL, Appellant, v. John HENDRICH, Appellee.
• Court: Kansas Court of Appeals

Page 367

627 P.2d 367

6 Kan.App.2d 196, 31 UCC Rep.Serv. 432

Ron MUSIL, Appellant, v. John HENDRICH, Appellee.

No. 51933.

Court of Appeals of Kansas.

May 1, 1981.

Syllabus by the Court

1. Based on the facts stated herein, the sale of feeder pigs was for agricultural purposes as defined by K.S.A. 50-624(a ); the farmer-buyer was a consumer under K.S.A. 50-624(b ); the farmer-seller was a supplier under K.S.A. 50-624(i ); and the transaction was a consumer transaction under K.S.A. 50-624(c ).

2. A merchant is (1) a dealer who deals in the goods of the kind involved, or (2) one who by his occupation holds himself out as having knowledge or skills peculiar to the practice or goods involved in the transaction, or (3) a principal who employs an agent, broker or other intermediary who by his occupation holds himself out as having knowledge or skills peculiar to the practice or goods involved in the transaction. Professionalism, special knowledge and commercial experience are to be used in determining whether a person in a particular situation is to be held to the standards of a merchant as defined in K.S.A. 84-2-104. Decatur Cooperative Association v. Urban, 219 Kan. 171, 547 P.2d 323 (1976).

3. An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict. State v. Stafford, 223 Kan. 62, 573 P.2d 970 (1977).

4. In an action under the Kansas Consumer Protection Act and the Uniform Commercial Code, it is held : The trial court did not err in finding as a matter of law (1) that plaintiff failed to produce sufficient evidence to support a claim of deceptive practice or of an unconscionable act; and (2) that plaintiff failed to meet his burden of proving that the pigs were not merchantable.

Paul R. Shepherd, of Deines & Wagner, Wakeeney, for appellant.

Selby S. Soward, Goodland, for appellee.

Before PRAGER, Justice Presiding, ABBOTT, J., and J. PATRICK BRAZIL, District Judge, Assigned.

J. PATRICK BRAZIL, District Judge, Assigned:

This is an appeal from a jury verdict for the defendant, John Hendrich. Plaintiff, Ron Musil, filed suit claiming a violation of the Kansas Consumer Protection Act, a breach of implied warranty of merchantability under the Uniform Commercial Code, and fraud due to the suppression of material facts relating to the sale of feeder pigs. At the close of plaintiff's case, the court ruled on a motion for directed verdict that as a matter of law, the Kansas Consumer Protection Act (KCPA) did not apply to the facts of this case. At the end of all the evidence, the court directed a verdict against plaintiff on the basis that the Uniform Commercial Code (UCC) also did not apply. The case was submitted to the jury on the fraud theory; the verdict was for defendant Hendrich, and plaintiff Musil appeals.

This case involves the sale of feeder pigs by defendant Hendrich to Musil. Both men were hog farmers, raising the hogs for sale as well as fattening some for slaughter. They both raised pigs and both also purchased pigs. Hendrich had been in the business, off and on, for from 30 to 40 years; Musil had been in the business for approximately 13 years. Musil lived in Goodland, Kansas, and Hendrich lived one and a half miles north of Goodland.

On September 21, 1977, Hendrich approached Musil at the sale barn in Burlington, Colorado, and told him that he had some feeder pigs for sale. Musil agreed to look at the pigs. The two men had not met prior to this, but Hendrich had observed Musil buying feeder pigs at the sale. On September 22 or 23, Musil came to Hendrich's place, and after looking at the feeder pigs he bought 60 head of them. The pigs weighed approximately 30 pounds per head.

The pigs appeared healthy, although a few did have dysentery. Musil noticed this, but he seemed unconcerned. Hendrich told Musil during the inspection that he fed the pigs a medicated feed. Musil told Hendrich that he had been a hog feeder for a long time and knew what to do with hogs.

After two weeks, Musil noticed that some of the feeder pigs appeared wobbly. Soon, several of them died. A veterinarian was consulted and medication prescribed. In the next month, Musil lost nearly 60 hogs, some from the feeder pigs purchased from Hendrich and the rest from his general hog population. A post-mortem examination done at Kansas State University revealed that the pigs were infected with swine dysentery, pneumonia, atrophic rhinitis and whipworm parasitism, all fairly common swine ailments. Experts testified that all these ailments, in successfully treated, would not affect the merchantability of the hogs. After the post-mortem, Musil contacted Hendrich about the sick hogs and asked him to make reparation. Hendrich refused and this suit followed.

Musil first contends that under K.S.A. 50-626 Hendrich committed a deceptive act by intentionally concealing the fact that the hogs were diseased. He also alleges a violation of K.S.A. 50-627 in that Hendrich committed an unconscionable act under that section.

The pertinent portion of K.S.A. 50-626 states:

"(a ) No supplier shall engage in any deceptive act or practice in connection with a consumer transaction.

"(b ) Deceptive acts and practices include, but are not limited to, the following, each of which is hereby declared to be a violation of this act:

....

"(3) The intentional failure to state a material fact or the intentional concealment, suppression or omission of a material fact, whether or not any person has in fact been misled."

The pertinent portion of K.S.A. 50-627 states:

"(a ) No supplier shall engage in any unconscionable act or practice in connection with a consumer transaction. An unconscionable act or practice violates this act whether it occurs before, during or after the transaction.

"(b ) The unconscionability of an act or practice is a question for the court. In determining whether an act or practice is unconscionable, the court shall consider circumstances of which the supplier knew or had reason to know, such as, but not limited to the following:

....

"(3) (T)hat when the consumer transaction was entered into, the consumer was unable to receive a material benefit from the subject of the transaction."

The trial court ruled that the transaction was not covered by the KCPA, apparently for the reason it felt that the plaintiff would not be considered a consumer under the definition included in that act. The judge further commented that both parties here were people who had been in the business of raising hogs; and that he considered the KCPA to be designed to protect those persons dealing in products, services and things for which they are not accountable for any knowledge.

Based upon the trial court's holding, we first look at some of the definitions and comments in the KCPA. The relevant definitions seem to be "agricultural purposes," "consumer," "consumer transaction," and "supplier."

According to K.S.A. 50-624, the definition section of the KCPA, those terms are defined as follows:

"(a ) 'Agricultural purpose' means a purpose related to the production, harvest, exhibition, marketing, transportation, processing or manufacture of agricultural products by a natural person who cultivates, plants, propagates or nurtures the agricultural products. 'Agricultural products' includes agricultural, horticultural viticultural, and dairy products, livestock, wildlife, poultry, bees, forest products, fish and shellfish, and any products thereof, including processed and manufactured products, and any and all products raised or produced on farms and any processed or manufactured products thereof.

"(b ) 'Consumer' means an individual who seeks or acquires property or services for personal, family, household, business or agricultural purposes.

"(c ) 'Consumer transaction' means a sale, lease, assignment or other disposition for value of property or services within this state ... to a consumer or a solicitation by a supplier with respect to any of these dispositions.

....

"(i ) 'Supplier' means a manufacturer, distributor, dealer, seller, lessor, assignor, or other person who, in the ordinary course of business, solicits, engages in, or enforces consumer transactions, whether or not he or she deals directly with the consumer." (Emphasis added.)

The Kansas comments to K.S.A. 50-624 are useful in understanding the scope of these definitions. For instance, the comment to subsection (a ) says:

"Though the definition of 'agricultural products' is broad, the operative definition is 'agricultural purpose' and this is narrowed by the requirement that the person dealing with the agricultural products be one who cultivates, plants, propagates, or nurtures the agricultural products. Agricultural transactions are generally covered by this act, except with respect to home solicitation sales." (Emphasis added.)

The comment to subsection (b ) is even more instructive:

"This definition of 'consumer' is intentionally broad. It covers not only individuals who seek or acquire goods, services or real estate for personal, family or household purposes, but also sole proprietors such as farmers and business people." (Emphasis added.)

A reading of the above definitions and comments makes it clear, in our opinion, that the sale of these pigs was a transaction covered by the KCPA. Ron Musil, as the buyer, was clearly buying pigs for "agricultural purposes" as that term is defined in K.S.A. 50-624(a ). For purposes of the act, Musil does seem to be a "consumer" as that term is defined by K.S.A. 50-624(b ) and the comment to (b ). And Hendrich, as the seller, seems to fit the definition of "supplier" in K.S.A. 50-624(i ). And the whole transaction can be characterized as a "consumer transaction" under K.S.A. 50-624(c).

Notwithstanding our finding that the trial court erred in ruling that the KCPA did not cover this transaction,...