Walker v. Fleming Motor Co., 43991

• Decision Date: 17 August 1965
• Docket Number: No. 43991,43991
• Citation: 195 Kan. 328,404 P.2d 929
• Parties: Ray S. WALKER, Appellant, v. FLEMING MOTOR COMPANY, Inc., Appellee.
• Court: Kansas Supreme Court

Page 929

404 P.2d 929

195 Kan. 328

Ray S. WALKER, Appellant, v. FLEMING MOTOR COMPANY, Inc., Appellee.

No. 43991.

Supreme Court of Kansas.

Aug. 17, 1965.

Syllabus by the Court

In an appeal from the trial court's orders and judgments set forth in the opinion, in an action to recover damages resulting from alleged fraud and deceit in the sale of a purported 1959 Diamond-T truck by defendant to plaintiff, all as more fully reflected in the opinion, the record is examined and it is held: that the trial court erred in its denial of permission to plaintiff to amend his pleadings to conform to the evidence and proof by pleading exemplary and punitive damages, accepting and approving the jury's verdict in the second trial and entering judgment thereon and its order overruling plaintiff's motion for new trial in the second case.

Evart Mills, McPherson, argued the cause, Michael T. Mills, McPherson, with him on the brief, for appellant.

James P. Mize, Salina, argued the cause, C. L. Clark, Thomas Lillard, Jr., and James T. Graves, Salina, with him on the brief, for appellee.

The following opinion was prepared by Mr. Justice ROBB and approved by the court during his lifetime.

This is an appeal from the trial court's following orders and judgments:

1. The order setting aside the general verdict in the first case for $3,800.00 in plaintiff's favor and the jury's answers to special questions and granting defendant a new trial;

2. The order denying permission to plaintiff to file his second amended petition including $7,500.00 exemplary and punitive damages and ruling that plaintiff might file the amended petition if he made no claim for exemplary and punitive damages;

3. The order overruling and denying plaintiff's motion to conform the pleadings to the evidence and include the $7,500.00 exemplary and punitive damages;

4. Accepting and adopting the second jury's verdict of $989.00 for plaintiff and entering judgment for that amount; and

5. The order overruling plaintiff's motion for new trial in the second case; all being entered in an action to recover damages resulting from alleged fraud and deceit in the sale of a purported 1959 Diamond-T truck by defendant to plaintiff.

There have been two jury trials. The first trial resulted in a $3,800.00 verdict. This verdict was set aside and a new trial granted by the trial court's order. On retrial, a verdict and judgment was entered for $989.00.

In April 1961, the defendant sold plaintiff a used 1959 Diamond-T truck or tractor for $10,000.00, of which $7,000.00 was paid in cash, and the balance paid by a trade-in of plaintiff's 1957 truck. It developed, however, that the engine, transmission and differential were not parts of that or any 1959 Diamond-T truck, nor were they even of 1959 vintage. They had been taken from a 1950 model White truck which the defendant had repossessed in 1957, and were comingled by the defendant with body parts of the 1959 Diamond-T in rebuilding or reconstructing the previously wrecked truck sold to plaintiff. A certificate of title was then obtained for the finished product as a 1959 Diamond-T tractor, and this certificate was assigned to the plaintiff at the time of his purchase.

The first jury found that plaintiff 'was deceived by the defendant as to the truck he purchased', while at the second trial, the jury found that the defendant had 'knowingly concealed * * * material facts for the purpose of deceiving or cheating' the plaintiff.

The case was originally tried in January 1963 and resulted in a verdict in plaintiff's favor. On February 4, 1963, the trial court set this verdict aside and granted a new trial. In March 1963, the plaintiff filed a motion for leave to file his second amended petition containing, for the first time, a separate count for exemplary damages. This motion was overruled for the reasons that plaintiff's first two petitions had not contained such allegation, that his claim was substantially changed thereby, and that it conformed neither to the facts proved in the first trial nor to those which plaintiff indicated he would present at the subsequent trial.

The trial court did, however, permit plaintiff to file a third amended petition spelling out in some detail the facts which he alleged the defendant had knowingly concealed from him for the purpose of deceiving and cheating him, and to induce him to purchase the truck.

The case proceeded to a second trial wherein the plaintiff moved to amend his pleadings to conform to the evidence by adding allegations that, because of defendant's willful and intentional deception plaintiff was entitled to exemplary damages of $7,500.00. This motion was overruled.

As a general rule, amendments to pleadings are favored in law and should be allowed liberally in the furtherance of justice to the end that every case may be presented on its real facts and determined on its merits. (41 Am.Jur., Pleading, § 291, p. 490.) This principle has been followed in Kansas under both the old and the new codes of civil procedure. In Woods v. Nicholas, 92 Kan. 258, 140 P. 862, it was held:

'Amendments for the purpose of correcting mistakes or defects in pleadings that would promote justice and not substantially change the claims or defenses of parties should be liberally allowed.' (Syl. p1.)

Motions for leave to amend are addressed to the sound discretion of the court, but its discretion is not to be exercised arbitrarily or used to defeat the ends of justice. (41 Am.Jur., Pleading, § 293, p. 491.) In Rockey v. Runft, 191 Kan. 117, 379 P.2d 285, we said:

'The power of discretion conferred by the provisions of G.S.1949, 60-759, upon the trial court, is not an absolute or an arbitrary power, but a power of judicial discretion. Such discretionary power is granted under the statute in the furtherance of justice relative to the substantive rights of the parties, and not to impede justice with respect to such rights. * * *' (p. 126, 379 P.2d p. 291.)

Under the circumstances of this case, we believe the trial court erred in refusing to permit plaintiff to file his second amended petition asserting a claim for punitive damages. The addition of such a claim would not, in our judgment, substantially change the cause of action. In Foster v. Humburg, 180 Kan. 64, 299 P.2d 46, it is pointed out:

'While allegations of damages are essential in a petition, they do not constitute the 'cause of action'. The 'cause of action' is the wrong done, not the measure of compensation for it, or the character of relief sought. A 'cause of action' arises from a manifestation of a right or violation of an obligation or duty. * * * Damage is not the cause of action. It is merely a part of the remedy which the law allows for the injury resulting from a breach or wrong. * * *' (p. 67, 299 P.2d p. 50.)

The Foster case was cited with approval in Jefferson v. Clark, 190 Kan. 520, 376 P.2d 923, wherein this court said:

'Plaintiff argues strongly that the trial court committed error in not allowing him to amend his petition to add the cost of the damages to his automobile. We feel that the court erred in that decision. The case of Foster v. Humburg, 180 Kan. 64, 299 P.2d 46, appears to be almost a 'bay horse' case on the point. There is no change of cause of action in the proffered amendment * * *.' (p. 524, 376 P.2d p. 926.)

Plaintiff's lawsuit, from its inception, was based on one of the worst kind of admitted frauds. The amended petition on which the case was first tried alleged that the defendant had made false representations, intending that plaintiff rely thereon, which he did to his damage, and that fraud was thereby perpetrated upon the plaintiff. Evidence was introduced at the first trial which justified the jury in finding that plaintiff had been deceived by the defendant.

In Watkins v. Layton, 182 Kan. 702, 324 P.2d 130, the court said:

'The earliest Kansas cases indicate that damages, sometimes called exemplary, vindictive or punitive, are permitted whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy. Malone v. Murphy, 2 Kan. 250; [Albert] Wiley v. Keokuk, 6 Kan. 94; and Cady v. Case, 45 Kan. 733, 26 Pac. 448. Such damages are allowed not because of any special merit in the injured party's case, but are imposed by way of punishing the wrongdoer for malicious, vindictive or a willful and wanton invasion of the injured party's rights, the purpose being to restrain and deter others from the commission of like wrongs. * * *' (p. 705, 324 P.2d p. 133.)

See also McWilliams v. Barnes, 172 Kan. 701, 242 P.2d 1063, in which a recovery on punitive damage was allowed because of affirmative concealment.

In view of the facts shown here, we are of the opinion plaintiff should have been permitted to file his second amended petition containing the claim for exemplary damages, even though his motion for leave to do so was not filed until after the first trial. No surprise would have been involved, for the transaction remained the same. Nor can it be said the defendant would not have had ample time to meet the issue, for the second trial was not held until nine months after plaintiff's motion to amend was overruled. We conclude that, in overruling plaintiff's motion for leave to file his second amended petition, the trial court erred.

We believe that the plaintiff's position on the admission of evidence relating to damages likewise has merit and requires our consideration.

The questions arise in this fashion: witnesses for the plaintiff testified...