Fotopoulos v. Gas Service Co.

• Decision Date: 09 December 1939
• Docket Number: 34341.
• Citation: 150 Kan. 738,96 P.2d 666
• Parties: FOTOPOULOS v. GAS SERVICE CO.
• Court: Kansas Supreme Court

96 P.2d 666

150 Kan. 738

FOTOPOULOS v. GAS SERVICE CO.

No. 34341.

Supreme Court of Kansas

December 9, 1939

Syllabus by the Court.

The credibility of witnesses and the weight to be given to their testimony were for jury and trial court.

An infant who is properly represented by next friend or guardian ad litem in action at law, and who has proper counsel, is bound by same rules of procedure in conduct of case as is an adult litigant, in absence of fraud or conduct amounting to fraud on part of next friend, guardian ad litem, or counsel. Gen.St.1935, 60-406, 60-408.

In action against gas company for injuries sustained when plaintiff's dress caught fire while plaintiff was standing in front of gas heater which was alleged to have been installed by company without mica in window thereof newly discovered evidence that burner of heater did not burn with red flame as testified by company's witnesses merely tended to impeach witnesses on a question incidental only to main issues in case as framed by pleadings and tried by court, and hence did not require granting of new trial.

In action against gas company for injuries sustained when plaintiff's dress caught fire while plaintiff was standing in front of gas heater, whether gas heater was inherently or imminently dangerous was a subject of expert testimony.

1. An infant, properly represented by a next friend or guardian ad litem in an action at law, and with proper counsel, in the absence of fraud or conduct amounting to fraud on the part of such next friend, guardian ad litem, or counsel, is bound by the same rules of procedure in the conduct of the case as is an adult litigant.

2. A complaint concerning instructions given is considered and held not to be well founded. Also a criticism of the ruling of the court on the admission of certain evidence is considered and held not to be well taken.

Appeal from District Court, Harvey County; John G. Somers, Judge.

Personal injury action by Irene Fotopoulos, a minor, by her mother and next friend, Theoni Fotopoulos, against the Gas Service Company. From a judgment for the defendant, the plaintiff appeals.

Ezra Branine, Alden E. Branine, and Fred Ice, all of Newton, and W. L. Cunningham, D. Arthur Walker, and W. E. Cunningham, all of Arkansas City, for appellant.

Robert D. Garver, of Kansas City, Mo., J. Rodney Stone, of Newton and A. M. Ebright, P. K. Smith, and R. A. Hickey, all of Wichita, for appellee.

HARVEY Justice.

This was an action for damages for personal injuries. A jury trial resulted in a general verdict for defendant. Plaintiff has appealed and contends the trial court erred in overruling her motion for a new trial, in the giving of certain instructions, and in the admission of certain evidence.

The general facts may be summarized as follows: Paul Fotopoulos, a native of Greece but a naturalized American citizen, has lived in Newton more than twenty years. He was engaged in the restaurant business, operating the Sunflower Cafe. His family consisted of his wife and three children, a daughter Constance, about twelve years of age, a son Taki, about ten, and the plaintiff about five. Their residence was in an apartment on the second floor above the cafe which he operated. Defendant is a utility company furnishing gas at Newton. In the fall of 1936 Fotopoulos leased from the defendant a gas heater suitable for the apartment, for a monthly rental, except for the summer months. This was installed by the defendant and used until the spring of 1937, when it was disconnected and stored for the summer in a storage room of the apartment. On October 15, 1937, Mr. Fotopoulos requested defendant to again connect the heater, and defendant did so. On the evening of January 25, 1938, plaintiff's mother took her to a beauty contest at a picture show. Her mother had her dressed nicely in a real light dress. She was selected as one of the little girls to come back the next night. After the show they went home. It was about eleven o'clock and a cold night. When they went into the apartment the little girl stood by the gas heater while her mother went in the next room to lay off her wraps. She heard the little girl scream. Her dress was on fire. She was quite severely burned. On the front of the heater was a door which had two rows of small windows fitted with mica or ising glass. On February 8, 1938, Mr. Fotopoulos notified defendant that one of the mica windows was broken in the door of the heater. Defendant sent its men and had it repaired.

The petition alleged the pertinent facts and charged defendant with negligence in this, that when the heater was reinstalled in October, 1937, the mica was out of one of the windows; that defendant's workmen installing the heater had their attention called to this and promised to repair it the next day, but failed to do so, and that plaintiff's dress was ignited by the heat or flame coming through the opening where the mica was out of the window. Defendant in its answer specifically denied that the mica was out of the window when the stove was reinstalled. This became the controverted issue in the trial. Witnesses called on behalf of plaintiff tended to support the allegation that the mica was out of the window of the heater when it was reinstalled. Testimony on behalf of defendant, mainly its two workmen, Pierce and Nicodemus, who installed the heater, was to the contrary. The record tends to show some matters in connection with the testimony of some of the witnesses on behalf of plaintiff which naturally would keep their testimony from being as forceful as it might otherwise have been. Perhaps the detailed explanation by defendant's workmen of the manner in which the heater was reinstalled was convincing to the jury. We need not detail these matters. The credibility of the witnesses and the weight to be given to their testimony was for the jury and the trial court. Upon the issue framed by the pleadings there was ample, substantial, competent evidence to support the verdict for defendant, and it has received the approval of the trial court.

Several hearings were had on plaintiff's motion for a new trial. After the first hearing the motion was sustained and a new trial granted. On defendant's motion to reconsider that ruling it was reconsidered, the order sustaining the motion for a new trial was set aside, and the motion was denied. Upon plaintiff's motion to reconsider that ruling the court adhered to its ruling denying the motion for a new trial and specifically approved the verdict returned by the jury, and rendered judgment for defendant.

While the motion for a new trial set out most of the statutory grounds, plaintiff relied largely on newly discovered evidence, which arose in this way: Defendant's witnesses, Pierce and Nicodemus, had testified that when the heater was reinstalled in October, 1937, and they took it from the store room to the sitting room, past a railing at the stairway and a piano, it was necessary to turn the heater on its side. To do that without breaking the radiants, which are fragile, they took the door off the heater which contains the two rows of small windows fitted with mica. This is not a door that opens and closes, but is fastened on with screws and fitted airtight around the edges. They testified they took off this door, took out the radiants, turned the heater on the side to get it into the room, carefully examined the burners of the heater, saw that they were in good condition, replaced the radiants, examined the mica in the windows of the door, found them in good condition and replaced the door, and connected the heater with the gas pipe; that they then tested it to regulate the flow of gas and saw to it that the burners and radiants were functioning properly, and that the heater was in good condition before they left it. They further testified that when they went to examine the heater on February 8, 1938, they found the mica broken from one of the windows and cracked in another one; that they noticed the flame of one of the burners was red, which indicated there was a small piece of mica over the gas jet of the burner; that they then took off the door, took out the radiants and found broken pieces of mica under the radiants and near the burner; that these pieces were collected and found to be of the quantity of one of the mica windows. They were produced at the trial. After the trial experiments were made on behalf of plaintiff by placing new pieces of mica over the burner, and it was noticed that the flame was very red. Witnesses then were called who had been about the heater and given it more or less attention between the dates of January 25 and February 8 and who testified that they had not noticed any red flame of the burner. At the first hearing of the motion for a new trial the court regarded this as newly discovered material evidence, but on the later hearing concluded that there had been no diligence shown, that the evidence was only cumulative, and impeaching in character, and did not warrant the granting of a new trial.

Appellant now argues that since plaintiff was a minor she should not be charged with want of diligence of her counsel or her next friend. It is argued correctly that courts always are solicitous of the rights of minor litigants, and that this is in harmony with the law. Our statute (G. S.1935, 60-406) provides...