Traylor v. Wachter

• Decision Date: 01 March 1980
• Docket Number: No. 49160,49160
• Citation: 607 P.2d 1094,227 Kan. 221
• Parties: Marcia A. TRAYLOR, Appellee, v. Millard A. WACHTER and Emcasco Insurance Company, Appellants.
• Court: Kansas Supreme Court

Page 1094

607 P.2d 1094

227 Kan. 221

Marcia A. TRAYLOR, Appellee, v. Millard A. WACHTER and Emcasco Insurance Company, Appellants.

No. 49160.

Supreme Court of Kansas.

March 1, 1980.

Syllabus by the Court

1. Errors in the form of a verdict may be corrected pursuant to K.S.A. 60-248(g ) prior to discharge of the jury and with its assent.

2. To impeach a verdict pursuant to K.S.A. 60-441 is to invalidate a verdict, thereby gaining a new trial, and amendment, correction, or reformation of a verdict may not be accomplished through impeachment.

3. Punitive damages are imposed by way of punishing a party for malicious or vindicative invasion of another party's rights, the purpose being to restrain him and deter others from the commission of like wrongs.

4. Before punitive damages may be awarded, a plaintiff must establish a right to recovery of actual or compensatory damages.

5. The conduct giving rise to the punitive damages claim must be the same conduct for which actual or compensatory damages were allowed. Where two separate causes of action are tried, arising from different factual situations and different theories, recovery of actual damages in one cause of action is insufficient to permit recovery of punitive damages in the second cause of action.

6. Obtaining or attempting to obtain a settlement or release contrary to K.S.A. 60-2801(a ) does not give rise to a separate cause of action.

7. In an action where (1) plaintiff recovered $55,000 actual damages against defendant driver for negligent operation of his automobile; (2) plaintiff recovered $50,000 punitive damages against defendant driver and $100,000 punitive damages against defendant's insurance carrier; and (3) all punitive damages were awarded for the conduct of the insurance carrier in its handling of settlement negotiations with plaintiff, the record is examined and it is held : (1) The trial court did not err in overruling the motion of defendant driver to convert the jury's punitive damage award against him to an actual damage award against his insurance carrier; (2) the trial court erred in determining that the recovery of actual damages on the automobile negligence claim was a sufficient foundation for the allowance of punitive damages against both defendants on the claim arising from the insurance carrier's handling of settlement negotiations; and (3) the trial court erred in overruling the motions of both defendants for directed verdicts on the claims arising from the settlement negotiations, all as is more fully set forth in the opinion.

Jack H. Greene, of Greene & Kennedy, Wichita, argued the cause and David W. Kennedy, Wichita, was with him on the brief for appellant Millard A. Wachter.

Mark F. Anderson, of Kidwell & Williamson, Chartered, Wichita, argued the cause, and Daniel C. Bachmann, of Bachmann, Arnold & Graybill, Wichita, was with him on the brief for appellant Emcasco Insurance Company.

Gerald W. Scott, of Matlack, Foote, Scott, Joseph & Wilkinson, P. A., Wichita, argued the cause and was on the brief for the appellee.

McFARLAND, Justice:

On December 20, 1973, automobiles owned and driven by plaintiff Marcia A. Traylor and defendant Millard A. Wachter collided in Wichita, Kansas. Defendant Emcasco Insurance Company is the insurer of Mr. Wachter. In April, 1975, plaintiff filed suit seeking:

Count 1 compensatory damages against Wachter for the collision; and

Count 2 compensatory and punitive damages against both Wachter and Emcasco for alleged tortious conduct in the handling of her claim.

On trial the jury awarded plaintiff the following: Count 1 $55,000 compensatory damages against Wachter; and Count 2 $50,000 punitive damages against Wachter and $100,000 punitive damages against Emcasco. The jury was polled and discharged.

Both defendants appeal. The issues relate solely to Count 2. The verdict reached in Count 1 is unchallenged and is not before us for appellate review.

ISSUE NO. 1: Did the trial court err in denying Wachter's motion to alter, amend or reform the verdict?

Defendant Wachter contends the $50,000 punitive damage award against him in Count 2 was a mistake and that the jury intended said award to be a $50,000 compensatory damage award against defendant Emcasco. The trial court overruled Wachter's motion to amend the verdict. The Court of Appeals, in its opinion (Traylor v. Wachter, 3 Kan.App.2d 536, 540-41, 598 P.2d 1061 (1979)), summarized the situation as follows:

"Wachter first contends the trial court erred in denying his post-trial motion to amend, the recognized purpose of which was to correct the written verdicts to reflect what is claimed to have been the true verdicts of the jury. Wachter does not attack the actual damages verdict against him on plaintiff's first claim. Although within its other arguments the insurer attacks that verdict obliquely, Wachter's individual interests were separately represented by personal counsel at trial. Under the circumstances of this case, the insurer has no standing to challenge that verdict.

"The events of post-trial contacts and communications between the jury and the court, counsel for Wachter, counsel for the insurer, and a representative of the insurer need not be detailed. In support of his motion to amend, Wachter presented the affidavits of nine of the jurors and the live testimony of the other three jurors. The twelve jurors unanimously stated that their true verdicts were that plaintiff recover $55,000 actual damages against Wachter on her first claim, plaintiff recover no damages against Wachter on her second claim, plaintiff recover $50,000 actual damages against the insurer on her second claim, and plaintiff recover $100,000 punitive damages against the insurer on her second claim. The jurors agreed their verdicts were mistakenly recorded on the verdicts form.

"As the motion to amend was brought before and presented to the court, it was in the nature of a request by a party, Wachter, for a verdict correction and not a change sought by one or more jurors.

"Without abandoning alternative arguments, plaintiff agrees with Wachter that judgments should have been entered, not according to the verdicts form, but according to the true verdicts as established by the jurors' affidavits and testimony.

"The trial court confirmed its entry of judgments in accord with the verdicts form. Change was declined on the ground the motion to amend and the presentation of the jurors' affidavits and testimony constituted an impermissible attempt to impeach the written jury verdicts."

The Court of Appeals then concluded the trial court erred in overruling Wachter's motion to amend. We do not agree.

K.S.A. 60-248(g )(amended in 1978, but amendments not relevant herein) provides:

"(g ) Form of verdict; correction. The verdict shall be written, signed by the foreman, and read by the clerk to the jury, and the inquiry made whether it is their verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement be expressed, and no party requires the jurors to be polled individually, the verdict is complete, and the jury discharged from the case. If, however, the verdict be defective in form only, the same may, with the assent of the jury, before they are discharged, be corrected by the court."

The statute provides the means for correcting errors in the form of a verdict. Wachter characterizes the verdict against him as the result of a scrivener's error. The correction of such an error must occur before the jury is discharged and with the assent of the jury. After discharge the jury no longer exists. Individuals who served on the jury are former jurors not a jury. The trial court reached the right result for the wrong reason when it overruled the motion on the ground that it was an attempt to impeach the jury's verdict contrary to K.S.A. 60-441. To impeach a verdict is to invalidate a verdict and thereby gain a new trial, as no valid verdict had been reached. Amendment, correction, or reformation of a verdict may not be accomplished by impeachment. We must conclude that the trial court did not err in overruling Wachter's motion to alter, amend, or reform the verdict.

ISSUE NO. 2: Did the trial court err in concluding that the compensatory damages awarded against Wachter in Count 1 were a sufficient foundation for the award of punitive damages against both Wachter and Emcasco in Count 2?

The cause of action stated in Count 1 was personal injury and property damage suffered by plaintiff as a result of Wachter's negligent operation of his automobile. The cause of action stated in Count 2 was aptly described by the Court of Appeals as a "mixed bag claim" mingling negligence, malice, and fraud; but the cause of action does not include Wachter's negligent operation of his automobile. This court relates solely to alleged wrongdoings of Emcasco in its handling of the matter. We note that the separation into counts of the various allegations is not found in the petition, but evolved through pretrial order, trial and instructions. For our purposes it is sufficient to consider the causes of action as having been clearly separated and defined throughout the proceedings.

Before punitive damages may be awarded, a plaintiff must establish a right to recovery of actual damages. Webber v. Patton, 221 Kan. 79, 81, 558 P.2d 130 (1976). Punitive damages are imposed by way of punishing a party for malicious or vindicative acts or for a willful and wanton invasion of another party's rights, the purpose being to restrain him and to deter others from the commission of like wrongs. Henderson v. Hassur, 225 Kan. 678, Syl. P 9, 594 P.2d 650 (1979). The conduct giving rise to the punitive damages claim must be the same conduct for which actual or compensatory damages were allowed. Where two separate causes of action are tried, arising from different factual situations and different theories, recovery of actual damages in one cause of action is insufficient to...