Smith v. Printup

• Citation: 938 P.2d 1261,262 Kan. 587
• Decision Date: 06 June 1997
• Docket Number: No. 76025,76025
• Parties: Barry L. SMITH, Administrator of the Estate of Glen C. Smith, deceased, et al., Appellants/Cross-appellees, v. Albert PRINTUP, Southwest Movers, Inc., The Hartford Accident & Indemnity Company, and American States Insurance Company, Appellees, and American Red Ball Transit Company, Inc., Appellee/Cross-appellant, and Kansas Turnpike Authority, Myers Construction Company, and Allied Laboratories, Defendants.
• Court: United States State Supreme Court of Kansas

Page 1261

938 P.2d 1261

262 Kan. 587

Barry L. SMITH, Administrator of the Estate of Glen C.

Smith, deceased, et al., Appellants/Cross-appellees, v. Albert PRINTUP, Southwest Movers, Inc., The Hartford

Accident & Indemnity Company, and American States

Insurance Company, Appellees,

and

American Red Ball Transit Company, Inc., Appellee/Cross-appellant,

and

Kansas Turnpike Authority, Myers Construction Company, and

Allied Laboratories, Defendants.

No. 76025.

Supreme Court of Kansas.

June 6, 1997.

Syllabus by the Court

1. The standard of review applied to questions involving the admissibility of evidence at trial is one of abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.

2. The qualifications of an expert witness and the admissibility of the expert's testimony are within the sound discretion of the trial court.

3. Subject to the provisions of K.S.A. 60-3701, the standard of review of a punitive damage award is one of abuse of discretion. We must first determine whether the provisions of K.S.A. 60-3701 have been applied by the trial court in the determination of the amount of punitive damages. Once that determination has been made, the amount awarded will be set aside only upon a showing that the trial court abused its discretion.

4. When determining the amount of punitive damages to be awarded under K.S.A. 60-3701, it is incumbent on the trial court to make sufficient findings of fact to afford meaningful appellate review.

5. Kansas law supports a conclusion that evidence of a victim's financial status or character is not relevant in a determination of the amount of punitive damages. While the relative financial positions of the plaintiff and the defendant may be considered, such consideration does not include adverse credit information or character evidence concerning the plaintiff.

6. Punitive damages are not given upon any theory that the plaintiff has any just right to recover them but are given only upon the theory that the defendant deserves punishment for his or her wrongful acts and that it is proper for the public to impose them upon the defendant.

7. In determining the sufficiency of an affidavit filed for the purpose of disqualification of a trial judge pursuant to K.S.A. 20-311d, we examine whether the affidavit provides facts and reasons pertaining to the party or his or her attorney which, if true, give fair support for a well-grounded belief that he or she will not obtain a fair trial. The question of sufficiency of the affidavit is one of law for the court to determine. Previous adverse rulings of a trial judge, although numerous and erroneous, are not ordinarily and alone sufficient to show such bias or prejudice as would disqualify him or her as a judge.

8. The standard to be applied to a charge of lack of impartiality is whether the charge is grounded in facts that would create reasonable doubt concerning the court's impartiality, not in the mind of the court itself, or even necessarily in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances.

Randall E. Fisher, of Law Offices of Randall E. Fisher, Wichita, argued the cause Stephen M. Kerwick, of Foulston & Siefkin, L.L.P., Wichita, argued the cause, and Jay F. Fowler, of the same firm, was with him, on the brief, for appellee/cross-appellant American Red Ball Transit Company, Inc.

and was on the briefs, for appellants/cross-appellees.

Randy J. Troutt, of Kahrs, Nelson, Fanning, Hite & Kellogg, L.L.P., Wichita, argued the cause, and Vince P. Wheeler, of the same firm, was on the brief, for appellees Southwest Movers, Inc., and American States Insurance Co.

DAVIS, Justice:

This is the second appeal involving punitive damages awarded to the estate of Glen C. Smith, deceased, brought by the administrator, plaintiff Barry L. Smith, et al. (Smith). In Smith v. Printup, 254 Kan. 315, 866 P.2d 985 (1993), we remanded this case with instructions. This appeal basically involves two questions: (1) whether reversible error occurred during the remand proceeding to determine if defendant Southwest Movers, Inc., (Southwest) authorized or ratified the wanton conduct of its employee, defendant Albert Printup; and (2) whether the trial court erred in reassessing punitive damages against defendants American Red Ball Transit Company, Inc., (Red Ball) and Printup. We conclude that no reversible error occurred and affirm.

The facts giving rise to the underlying claims in this action are set forth in Smith v. Printup:

"Near midnight on September 15, 1987, defendant Albert Printup was driving a moving van southeast in the right lane on the Kansas Turnpike near the Andover exit. He lost control of the van, jackknifed, crossed the median, and collided with a pickup truck operated by Carolyn S. Elliott. Glen C. Smith was a passenger in the pickup driven by Ms. Elliott. As a result of the collision, Ms. Elliott died instantly. Mr. Smith suffered massive chest and other severe injuries but had a pulse and was breathing and groaning after impact. He died at the scene. Albert Printup survived.

"Albert Printup was employed by Southwest Movers, Inc. (Southwest). He was paid a flat salary, with no bonuses for extra hours or miles. At the time of the accident, he had been 'leased out' to American Red Ball Transit Company, Inc., (Red Ball) for the last four to five years. He had not driven for anyone else during that period of time. Red Ball dispatched him, and he turned in his shipping documents and driving logs to Red Ball. He turned in his expense receipts to Southwest for reimbursement.

"Plaintiffs sued Printup, Southwest, and Red Ball for wrongful death and, with respect to Mr. Smith, for pain and suffering. The court allowed the Smith plaintiffs to amend their complaint to seek punitive damages in accordance with K.S.A.1992 Supp. 60-3703 against Southwest, Printup, and Red Ball in conjunction with their survivor action. The court ruled that punitive damages were not recoverable in the wrongful death actions.

"From the very beginning, plaintiffs challenged the constitutionality of K.S.A.1992 Supp. 60-3701. The trial court rejected this contention and found the statute to be constitutional. On summary judgment, the trial court rejected plaintiffs' claim that they were entitled to punitive damages based on the allegation that Southwest and Red Ball negligently hired, retained, supervised, and trained Albert Printup. The court allowed Smith to present punitive damage claims against the corporate defendants, but, in accordance with K.S.A.1992 Supp. 60-3701(d)(1), only to the extent that the corporate defendants authorized or ratified Printup's conduct. The jury determined that punitive damages should be awarded against Printup and Red Ball, but not against Southwest. The court awarded punitive damages in the amount of $20,000 against Printup and $100,000 against Red Ball." 254 Kan. at 318-19, 866 P.2d 985.

Additional facts from our first opinion and new facts developed upon remand are set forth in the discussion of the alleged errors raised in this second appeal. In the first appeal, a majority of this court reached the following conclusions and remanded the case for further proceedings:

"The judgment of the court is affirmed in the following particulars. K.S.A.1992 Supp. 60-3701 is constitutional. Punitive damages are not available in a wrongful death action in Kansas. After the enactment of K.S.A.1992 Supp. 60-3701 et seq., a plaintiff has no right to advance a separate claim for punitive damages against an employer or principal based upon negligent acts of the employer or principal in hiring, supervising, training, or retaining the employee/agent.

"The court's rulings regarding the admission of financial records to determine the amount of punitive damages are affirmed, and those rulings become the law of the case upon remand. Likewise, the court's rulings regarding the admission of evidence of remedial conduct together with evidence of settlement negotiations are affirmed and become the law of the case upon remand.

"The court's holding that joint and several liability is not available under the provisions of K.S.A.1992 Supp. 60-3701(b), (e), and (f) is affirmed. The court's holding that treble damages under K.S.A. 66-176 are unavailable in this case is affirmed and becomes the law of the case upon remand. Finally, the court correctly determined that there was sufficient evidence to submit to the jury the plaintiffs' claim of conscious pain and suffering on behalf of Smith and the issue of wantonness of Printup's conduct.

"The court erroneously excluded relevant evidence of authorization or ratification under the provisions of K.S.A.1992 Supp. 60-3701(d)(1) that affected the substantial rights of the plaintiffs. The court also committed clear error by failing to instruct the jury on authorization under 60-3701(d)(1). Accordingly, the decision regarding punitive damages is reversed, and the case is remanded with the following directions:

"(1) Upon remand, a jury will be required to determine, under the guidelines set forth in this opinion, whether punitive damages should be awarded against Southwest.

"(2) The jury determination that punitive damages should be awarded against Red Ball and Printup is affirmed, and the jury shall not consider this issue.

"(3) The court's determination of the amount of punitive damages against Red Ball and Printup is reversed.

"(4) After a jury has determined whether Southwest shall be assessed punitive damages, the court may be required to determine the amount, if any, of punitive damages to be awarded against Southwest consistent with this opinion.

"(5) The court will be required to determine the amount of punitive damages to be...