Ultimate Chemical Co. v. Surface Transportation International, Inc. , 232 Kan. 727 ( 1983 )

The opinion of the court wa$ delivered by

Prager, J.:

This is an action to recover damages for trespass brought by the plaintiff, Ultimate Chemical Company (UCC), against the defendant, Surface Transportation International, Inc. (STI). Briefly stated, plaintiff alleged, and the jury in its verdict found, that employees of STI came upon certain land in Kansas City, Kansas, which was under lease to UCC, and destroyed equipment owned by UCC. UCC had leased the property at 2300 State Line Road from Patek Enterprises. The lease continued in existence through December 1, 1978. STI, which was in the business of renovating railroad cars, became interested in using the property for that purpose. In October of 1978, Patek leased a large tract, which included the property previously leased by Patek to UCC. Prior to entering into the lease, Robert Patek explained to the president of STI that Patek had previously leased a part of the land to UCC and that UCC would be given 30 days’ notice so as to vacate the premises by December 1, 1978.

The evidence established that, while the plaintiff s lease was still effective, employees of STI entered on the land to construct a railroad track. In clearing the land, STI employees used bulldozers in pushing certain items of plaintiff s equipment out of the area of work and plaintiff s equipment was damaged and destroyed. Thus, the evidence was overwhelming, if not undisputed, that STI trespassed on plaintiff s leased property and caused damage to plaintiff s property. Plaintiff sued seeking both compensatory and punitive damages. The amount of damages, which was based on the value of plaintiffs equipment, was highly disputed. The case was tried to a jury. It awarded plaintiff UCC $102,000 actual damages and $227,000 punitive damages. Defendant STI appealed.

The defendant’s first point on the appeal is that the trial court erred in refusing to allow STI to conduct a cross-examination of Thomas Williams, President of Ultimate Chemical Company, concerning UCC’s past profit and loss record and its financial statement. We find this point to be without merit. The trial court had previously ruled that the measure of damages to be applied for the items of equipment of personal property damaged was the difference in value of the equipment before and after the damage occurred. At one time, the plaintiff had asserted a claim for lost profits, but the trial court excluded any such claim on the basis that UCC was engaged both in the sale of equipment and of chemicals from two separate places of operation and that, therefore, evidence of the prior financial record of the company was irrelevant. As noted above, the trial court restricted the plaintiff s evidence to a measure of damages based upon the value of the property destroyed at the time and place of its destruction. At the trial UCC president Williams took the witness stand and testified as to each item of personal property which had been damaged by the defendant’s employees. He testified as to the items of equipment damaged, the date of acquisition and cost of each item, and then gave his opinion as owner as to the fair market value of the property at the time the loss occurred based on a certain percentage of markup. Williams testified that none of the items of personal property had any value to UCC after the damage occurred. On cross-examination, defense counsel was allowed a full scope of examination on the issue of value. The trial court refused, however, to permit defense counsel to cross-examine the witness as to the overall profit and loss record of UCC in past years. We have concluded that, under the circumstances set forth above, the trial court correctly excluded evidence of UCC’s profit and loss record in past years. Since UCC was limited by the trial court to proof of the fair market value of the equipment destroyed by STI, evidence of the profit and loss record of UCC in past years was not material.

The next two points raised on the appeal are somewhat overlapping and, in substance, take the position that the compensatory and punitive damages awarded by the jury were excessive to a degree that the trial court should have granted either a new trial or a remittitur. As to the compensatory damages the measure of damages submitted to the jury in the case was the fair market value of the plaintiff s property at the time the property was damaged. Mr. Williams, as owner, testified that the value of the property prior to its loss was $128,856 and that the property was worthless after it was damaged. The rule of damages generally followed in this state is that when personal property cannot economically be restored to its former condition, the measure of damages is the difference between its fair and reasonable market value immediately before and immediately after the damage. See PIK Civ. 2d 9.11 (1977); Foster v. Humburg, 180 Kan. 64, 299 P.2d 46 (1956); Lester v. Doyle, 165 Kan. 354, 356, 194 P.2d 917 (1948). In an action for trespass, the plaintiff may be awarded damages which are the immediate consequence of the trespass. The wrongdoer should compensate for all the injury naturally and fairly resulting from his wrong. Mackey v. Board of County Commissioners, 185 Kan. 139, 147, 341 P.2d 1050 (1959).

The fair market value of the damaged equipment in this case, according to Williams, the owner of UCC, was in the amount of $128,856. The rule is well established that the owner of property is presumed to know its value and his opinion of its value is competent, and may be considered by the jury. Fox v. Wilson, 211 Kan. 563, 582, 507 P.2d 252 (1973); Geselle v. American Home Fire Assur. Co., 146 Kan. 138, 68 P.2d 1097 (1937); Brenneisen v. Phillips, 142 Kan. 98, 100, 45 P.2d 867 (1935). The defendant STI introduced testimony of witnesses who said the property was worthless and had no value before the damage occurred. This is not surprising, for one man’s treasure is often another man’s junk. In this case, it was up to the jury to determine the damages suffered by the plaintiff. The plaintiff s witness Williams, as noted above, testified that the property was worth in excess of $128,000. The jury awarded actual damages in the amount of $102,000. We are not inclined to second-guess the jury, as there is competent evidence in the record to support compensatory damages in that amount, nor can we say as a matter of law that the award was excessive.

We now turn to the issue of punitive damages. It has long been the law of Kansas that exemplary or punitive damages may be recovered in an action for trespass when the trespasser has been guilty of malice, wantonness, or oppression. Hefley v. Baker, 19 Kan. 9 (1877). See also Garcia v. Southwestern Bell Tel. Co., 216 Kan. 591, 533 P.2d 1242 (1975). We have no hesitancy in holding that the evidence in the record in this case justified an award of punitive damages by the jury. The evidence showed clearly that, prior to the execution of the lease between Patek and STI, Patek told the president of STI that UCC had a lease on a portion of the land included in the lease. Patek went to the property on two separate occasions with STI employees and pointed out to them the specific property which was under lease to UCC. Thus, STI had complete and actual knowledge of the UCC lease before STI entered into its lease with . Patek and before STI employees trespassed on UCC’s leased premises. In late October or early November of 1978, STI started clearing the leased property to make room for a railroad track. In so doing, “it just happened to go right through UCC’s junk’” as STI’s president described it. A number of witnesses testified that they saw STI employees bulldoze UCC’s equipment during the month of November, 1978. Mr. Williams testified that he wrote STI a letter on November 14, 1978, asking STI to stop its bulldozing. He also telephoned STTs president three or four times. The letter and telephone calls were never answered or returned, and the trespassing continued. Under these circumstances there was sufficient evidence of actual knowledge and of a willful and wanton destruction of property to justify a substantial award of punitive damages.

We next turn to the question of whether the award of punitive damages in the amount of $227,000 was excessive. Punitive damages are imposed by way of punishing a party for malicious or vindictive 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. In assessing punitive damages, the nature, extent, and enormity of the wrong, the intent of the party committing it, and all circumstances attending the transaction involved should be considered. A jury may also consider the amount of actual damages recovered, defendant’s financial condition, and the probable litigation expenses. Generally, the trial court will not be reversed for refusing a new trial because of the size of the verdict unless the amount of the verdict in the light of the evidence shocks the conscience of the court. Henderson v. Hassur, 225 Kan. 678, 594 P.2d 650 (1979). Under all the factual circumstances in this case, we cannot say that the amount of the punitive damages awarded by the jury in this case was so excessive as to shock the conscience of the court.

The defendant next maintains that the trial court erred in admitting into evidence certain photographs of the UCC leased property taken in 1977, approximately one year before the trespass occurred. A witness testified that the photographs accurately portrayed the condition of the property before the defendant’s employees entered on the land in mid-November of 1978. This testimony was the only foundation required for their admission into evidence. Landrum v. Taylor, 217 Kan. 113, 535 P.2d 406 (1975).

The defendant next complains that the trial court erred in refusing to give an instruction concerning defendant’s claim that it had a privilege to enter upon the premises. There was no evidence to show that defendant had any privilege to trespass on the UCC leased property. In our judgment, the trial court properly refused the requested instruction.

We have considered the other points raised by the defendant STI on appeal and find them to be without merit.

The judgment of the district court is affirmed.