Will v. Hughes

• Decision Date: 08 December 1951
• Docket Number: No. 38402,38402
• Citation: 172 Kan. 45,238 P.2d 478
• Parties: WILL v. HUGHES et al.
• Court: Kansas Supreme Court

Page 478

238 P.2d 478

172 Kan. 45

WILL v. HUGHES et al.

No. 38402.

Supreme Court of Kansas.

Dec. 8, 1951.

Syllabus by the Court.

1. On demurrer courts consider only testimony favorable to the party adducing it and accept it as true without regard to conflict in the testimony on direct and cross-examination.

2. A general verdict is one by which a jury pronounces generally on all issues of fact submitted to it for determination and on review this court must assume the jury resolved all controverted issues of fact in favor of the prevailing party.

3. 'Ratification in agency is an adoption or confirmation by one person of an act performed on his behalf by another without authority. The substance of the doctrine is confirmation after conduct, amounting to a substitute for prior authority.'

4. When a principal, expressly or impliedly, elects to ratify an unauthorized act he must, so far as it is entire, ratify the whole of it and he will not be permitted to accept its benefits and reject its burdens.

5. Where a trial court, in view of pertinent evidence, properly instructs the jury on the subject of ratification by a principal of an agent's unauthorized acts without an objection being interposed to the giving of an instruction on the subject of ratification the instruction becomes the law of the case on that subject.

6. A verdict for actual damages ordinarily will not be disturbed merely because the court cannot definitely ascertain the precise method by which the jury arrived at the exact amount of its verdict when such amount is reasonably within the range of the evidence.

7. 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 him and deter others from the commission of like wrongs.

8. It is difficult to lay down a precise rule by which to test the question of an excessive verdict for punitive or exemplary damages. Ordinarily such a verdict may be reduced in the same manner as excessive verdicts for actual damages.

9. The law establishes no fixed ratio by which the excessiveness of exemplary damages to the actual damages allowed is to be measured although the extent of the actual damage is sometimes considered in this connection.

10. In assessing exemplary damages the nature, extent and enormity of the wrong, the intent of the party committing it, and generally, all the circumstances attending the particular transaction involved, including any mitigating circumstances which may operate to reduce without wholly defeating such damages, may by considered.

11. There was no reversible error (a) in the exclusion of evidence (b) in the instructions or (c) in the order overruling the motion for a new trial.

John E. Wheeler, of Marion (Bruce C. Heath, of Abilene, on the briefs), for the appellants.

John M. Rugh and John F. Christner, both of Abilene, on the briefs, for the appellee.

WEDELL, Justice.

Defendants, a brother and sister, appeal from a judgment rendered against each of them for actual and punitive damages in an action instituted by a tenant of farm land.

The amended petition of Marvin Will, in substance, alleged: He was a tenant under an oral lease from August, 1947, to August 1949, of a forty acre tract of land in Morris county which was rented by the owner, Margaret Hughes; on or about July 5, 1949, James Hughes, a duly authorized agent of the defendant, Margaret Hughes, wrongfully entered, broke in upon and interrupted the quietude of his possession and directed the harvesting of wheat being grown on the land; James Hughes maliciously and oppressively refused to allow him to enter the premises; he motored to Council Grove and returned with the sheriff but was unsuccessful in his attempt to gain peaceful access to the property for himself, his crew and equipment; he was damaged in the sum of $129.36, the fair value of his portion of the crop severed and carried away, in the sum of $100 for the loss of one day's use of plaintiff's combine and was entitled to $2,500 exemplary damages and the costs of the action.

Defendants' verified answer admitted the plaintiff's tenancy. It specifically denied James was the duly authorized agent of Margaret and that Margaret did not herself or through any agent wrongfully enter upon the premises or interrupt plaintiff's quiet possession in an attempt to harvest his crop. The answer further alleged no agency existed between Margaret and James and that James was charged with the sole custody and control of the property.

Plaintiff's reply denied that there was no agency between Margaret and James and that James was charged with the sole custody and control of the property.

Upon the issues thus joined the action was tried and the jury returned a general verdict against each of the defendants as follows:

'For Actual Damages $179.36

'For Punitive Damages $500.00

'Total, $679.36'

The defendants appealed. Their common and their separate contentions of error will be stated later under separate headings.

The defendant James had not demurred to plaintiff's evidence but a demurrer was interposed on Margaret's behalf. The grounds thereof, in substance, were the evidence failed to show she was plaintiff's landlord and that although it disclosed she was the owner of the property it failed to show she exercised control over the property.

We thus start with defendants' admission Margaret was the owner of the leased land. A few other factors may be disposed of without a lengthy narrative of plaintiff's testimony. Defendants' contention that plaintiff's evidence showed Margaret exercised no control over the land is too broad. The evidence disclosed no disputes of any kind or character over the tenancy covering the years 1948 and 1949 ever arose except the dispute here involved concerning the alleged unlawful cutting of ten acres of wheat on Margaret's land by James in 1949. All other divisions of grain over the entire two year period were made entirely between the plaintiff and Margaret by the delivery of Margaret's share of the grain to the elevator she indicated, the delivery of plaintiff's share to the elevator of his choice and amicable settlements between them. Whether Margaret was involved in the alleged unlawful conduct of James in 1949 will be considered later.

It was defendants' theory that James had rented the land from Margaret and that James was plaintiff's landlord. Defendants' testimony supported that theory but on this demurrer the trial court was concerned only with plaintiff's testimony.

The well established rule is that on demurrer courts consider only testimony favorable to the party adducing it and accept it as true without regard to conflict in the testimony on direct and cross-examination. Burgin v. Newman, 160 Kan. 592, 593, 164 P.2d 119.

We need not unduly labor the question whether Margaret was plaintiff's landlord. The testimony was ample that she was. It is true that in 1947 the plaintiff first contacted James and inquired of him whether he had some land to rent and was advised he did not but that his sister Margaret might have. James later contacted the plaintiff and, in effect, advised him that he could rent the forty acres in question. James did not tell plaintiff he already had a lease from Margaret on the land. Plaintiff farmed it in 1948 and all crop settlements for that year were made with Margaret. After the 1948 harvest plaintiff inquired of Margaret whether he might have the land for the year 1949 and she informed him that she knew of no reason why he should not have it. These facts are all admitted by Margaret's demurrer. We are, therefore, forced to conclude Margaret's demurrer on the ground plaintiff's evidence did not disclose she was plaintiff's landlord was untenable and was properly overruled.

We now shall consider plaintiff's evidence touching the facts and circumstances surrounding the alleged unlawful interference with his harvesting of the 1949 crop. That testimony, in substance, was:

He had also rented ten additional acres of ground from James for the year 1949; in addition thereto he rented eighty acres just across the road and a quarter of a mile north from a man by the name of Parkins; he had rented the Parkins' land in 1948; neither Margaret nor James made any complaint about the manner in which he had farmed the forty acres in 1948; the 1949 wheat crop on Margaret's forty acres started to mature about the first part of July; on June 30 he started cutting the ten acres he had rented from James; one third of that wheat belonged to James and two thirds to him; from Margaret's land Margaret received two fifths and he received three fifths of the crop; he started cutting wheat about the same time other farmers in the neighborhood were cutting theirs, although some of them cut even later than he did; after cutting the wheat on the James' land he started cutting on Margaret's; there were several draws running through Margaret's land and there were a lot of weeds in the low places on her land as well as in law places on other lands; that was true about the Parkins' land; he, therefore, cut the wheat in the draws first in order to try to save as much of it as possible; he finished cutting the low weedy portion of Margaret's land on July 1 and 2; the wheat on Margaret's land which he did not cut at that time was not in immediate danger of being lost by reason of the weeds; he then moved his equipment onto the Parkins' land and cut wheat in the low places there during the latter part of July 2 and on July 3, 4, and 5; at about 3:30 p. m. on July 5 and after he had cut most of the weedy portion on the Parkins' land James came to see him and inquired whether he was going to finish the entire Parkins' field at that time; he advised James he was not but that he did want to make about six or seven additional rounds in the low weedy portion of the draw and that he would then return to...