Appeal from Circuit Court, Jackson County; Brown Harris, Judge.
"Not to be published in State Reports."
Action by Earline Fenton, a minor, by her stepfather and next friend, Edward W. Case, against Creighton C. Hart, administrator of the estate of Lula B. Hart, deceased. Judgment for plaintiff, and defendant appeals.
Affirmed.
REYNOLDS, Commissioner.
This case arose in the circuit court of Jackson county. From an adverse judgment in the sum of $5,000 in an action against him for damages, the defendant appeals. Under rule 16 of this court, it became the duty of appellant to file a clear and concise statement of the case without argument, without reference to issues of law, and without repetition of the testimony of the witnesses. This, the appellant has failed to do. There is no statement of the material facts shown by the record, as contemplated by the rule; but, upon the other hand, such statement is a mere repetition of parts of the testimony of the witnesses. However, respondent makes no point upon such fact. If she should have done so, it might have been fatal to the appeal. Upon the other hand, the respondent has prepared a statement which, upon examination, we find to comply fairly with the requirements of the statement called for from appellant by the rules, which is adopted for the purposes of this opinion and is as follows:
"This cause originated on the 19th day of February, 1932, when plaintiff, a minor, by and through her next friend, Edward W. Case, filed her petition against defendant seeking to recover damages by reason of the alleged negligent act of defendant in installing a gas water heater without a vent pipe in an apartment owned by defendant and which was being occupied by plaintiff as a member of the family of one of defendant's tenants. The petition charged that by reason of defendant's negligence in failing to attach a vent pipe to the gas heater, gas and fumes from the heater were negligently permitted to escape and permeate the apartment building, including the apartment where plaintiff lived, to such an extent that plaintiff was overcome and asphyxiated by such escaping gas. The answer was a general denial coupled with a plea of contributory negligence and a further plea that the heater was installed by an independent contractor over whom defendant had no right of control.
"The record discloses that the defendant was the administrator of the estate of Lula B. Hart, who died in August, 1931, owning the property known as 1510-12 East 37th Street, Kansas City, Missouri; that as such administrator the defendant took charge of, managed and operated said apartment building from and after the death of Lula B. Hart up to and including the date of the alleged injury to plaintiff.
"The building contains six apartments, three east and three west. Shortly before the 11th day of January, 1932, defendant employed one Charles M. Hull, a plumber to install a hot water heater in the basement of the apartment building located at 1510-12 East 37th Street for the use of tenants in said building. Hull was either employed by defendant Hart or his superintendent, Gunn.
"At the time of the installation of said heater no vent pipe was installed. The work on the heater was completed and the gas turned on either Friday or Saturday before the 11th day of January. Plaintiff, with her mother and stepfather, was occupying the apartment known as the third floor east. On Saturday evening, January 9th, plaintiff with her mother and stepfather went to a show and returned to the apartment about 9 P. M. When they left home all members of the family were in a good state of health and when they returned it was noted that the apartment `felt stuffy'. By the time they were ready to retire everyone had a headache. When they awoke the next morning they were all ill. During Sunday plaintiff had violent spells of vomiting and about 4:30 or 5 o'clock she went into a spasm and became unconscious. She was put to bed and rubbed with alcohol and given such treatment as one usually receives at home.
"Prior to that time she had been a very active child and had not had any illness nor seen a doctor since her tonsils had been removed about four years previous. Following this experience she had headaches and dizzy spells. Her appetite was not good and when she would return home from school she would usually lie down. Her color was not good. Doctor Feist, the family physician, saw plaintiff frequently from January 11, 1932, until May, thereafter. Doctor Feist had had occasion to observe plaintiff some months prior when he had performed an operation upon her mother. At that time she was perfectly normal and healthy. The doctor was called to the apartment on the afternoon of January 11th by reason of the fact that plaintiff's mother had been overcome with gas and fallen down the stairway in the apartment. The mother's condition seemed to be much more serious than plaintiff's so his first and primary attention was directed to the mother. When he did examine plaintiff, however, he found her suffering from carbon monoxide gas poison. She finally became so listless and
weak that in May, 1932, plaintiff's mother took her to the doctor's office where he gave her a complete physical examination. The doctor found her color bad, low blood pressure and albumin in the urine. She appeared to be anemic. He prescribed some tonic in an effort to build her up. In October, 1933, the doctor examined plaintiff and found her suffering from anemia. It was the doctor's opinion that as a result of the gas poison she had some `insidious, slow, progressive damage done to her,' which in his opinion will be permanent. She had not improved and in fact seemed to be growing worse at the time of his last examination. It was admitted by Doctor Knappenberger, an expert offered by defendant, that one of the most common results of carbon monoxide poisoning is anemia. It was admitted by Mr. Gunn, defendant's agent in charge of the building, and by defendant himself that it was dangerous to install a hot water heater of the type and character used in the apartment building without installing a vent pipe therein.
"All the tenants in the apartment became ill, had nausea, vomiting, throbbing, headaches and ringing in the ears a few hours after the gas was turned on in the new heater. It was admitted that carbon monoxide is thrown off of the flame of gas heaters * * * and that the symptoms set out above are those which manifest themselves when persons inhale relatively small quantities of carbon monoxide gas. On the afternoon of the 11th of January complaint was made by the tenants in the apartment to the Gas Company and one, B. A. Stockton, foreman of the engineering department of the Kansas City Gas Company, went to the apartment building to inspect the gas fixtures for the purpose of determining from what point the gas was escaping. He found all of the fixtures from the City Gas Company in good order and upon further investigation discovered the gas heater with no vent pipe, poor combustion and the flame coming out of the top of the jacket of the heater."
Upon the trial before the court and a jury, the jury awarded respondent the sum of $5,000, and judgment was rendered in accordance therewith. After unsuccessful motions for a new trial and in arrest of judgment, an appeal was duly perfected to this court.
The appellant assigns the following errors:
"1. The court erred in refusing to give appellant's Instruction `A' in the nature of a demurrer to the evidence and for a directed verdict at the close of respondent's case.
"2. The court erred in refusing to give appellant's instruction `B' in the nature of a demurrer to the evidence and for a directed verdict at the close of the introduction of all the evidence and in submitting case to the jury.
"3. The court erred in overruling defendant's motion in arrest of judgment.
"4. The court erred in giving plaintiff's instructions No. 1 and No. 2.
"5. The court erred in refusing defendant's requested instruction lettered `C.'
"6. The court erred in refusing defendant's requested Instruction `D.'
"7. The court erred in permitting plaintiff, over objections of defendant, to adduce and in admitting incompetent, irrelevant, immaterial, highly improper and prejudicial testimony as to distress, alleged injury, or suffering of others than the immediate plaintiff.
"8. The court erred in rejecting competent, relevant and material evidence offered by the defendant, particularly in cross examination and impeachment of Helen E. Case, by deposition.
"9. The court erred in overruling and in failing to rule upon the defendant's objection to improper, inflammatory and highly prejudicial remarks, argument and misconduct of the plaintiff's counsel in commenting on the absence of one Jackson to the prejudice of the defendant.
"10. The verdict is so against the evidence and against the weight of the evidence and is so excessive that it shows on its face that it was the result of bias, prejudice, passion and sympathy on the part of the jury in favor of the thirteen year old plaintiff and against the defendant."
