Kiser v. Skelly Oil Co.

• Decision Date: 28 January 1933
• Docket Number: 30880.
• Citation: 136 Kan. 812,18 P.2d 181
• Parties: KISER v. SKELLY OIL CO. [*]
• Court: Kansas Supreme Court

18 P.2d 181

136 Kan. 812

KISER v. SKELLY OIL CO. ^[*]

No. 30880.

Supreme Court of Kansas

January 28, 1933

Syllabus by the Court.

Where glass in door slammed by employee broke, injuring customer leaving after friendly scuffle with employee, employer's negligence and liability held for jury.

Where glass in door slammed by employee broke, injuring customer leaving after friendly scuffle with employee, evidence held not to disclose customer's contributory negligence.

Employee's act in slamming filling station door, causing glass panel to break and injure customer leaving station, held within employment.

Where glass in door slammed by employee broke, injuring customer leaving after friendly scuffle with employee, refusing to submit issues regarding connection between scuffling and employment held not prejudicial error.

Refusing to submit issues as to what business or duties employee was performing when engaged in scuffling was not prejudicial error, since the issues could only tend to divert jury's attention from the pertinent issues of fact, and the jury's special finding that the scuffling had nothing to do with the customer's injury demonstrated that the exclusion of the interrogatory was not prejudicial.

Business man must keep premises in condition so that customers may come into them for purposes of trade without hazard of injury.

When instructions define issues and accurately state pertinent law, failure to emphasize particular point does not constitute error (Rev. St. 1923, 60--2909, 60--3004).

When only error committed at trial inhered exclusively in irregular quotient verdict, whether new trial should be limited to issue on damages is within court's discretion.

1. In an action for damages caused by the slamming of a door whereby its glass panel was broken and plaintiff's wrist and fingers were cut and injured, defendant's contention that the undisputed evidence exculpated defendant from liability for negligence cannot be sustained.

2. Under the evidence to which the jury gave credence plaintiff's contributory negligence was not established.

3. The record does not sustain the contention that defendant's employee was acting for a purpose outside the scope of his employment when he negligently slammed the door which caused the plaintiff's injuries.

4. The trial court's refusal to submit certain interrogatories to the jury was not erroneous.

5. Defendant's motion to set aside certain special findings of the jury was properly denied.

6. When the instructions to the jury define the issues and state the pertinent law with accuracy, the failure of the court to emphasize some particular point of law deemed important by a litigant does not constitute error, especially when he does not object to the instructions as given nor ask for a further instruction to supplement them.

7. When the only error committed at the trial of an action for damages inhered exclusively in the irregular quotient verdict returned by the jury, the problem whether a new trial shall be granted on all the issues, or limited to one for the proper ascertainment of plaintiff's damages, is addressed to the trial court's discretion.

Appeal from District Court, Cowley County; Oliver P. Fuller, Judge.

Action by Hugh Kiser against the Skelly Oil Company. Verdict for plaintiff. From an order granting a new trial on the single issue of the amount of damages, defendant appeals.

S. C Bloss, Geo. T. McNeish, and Stewart S. Bloss, all of Winfield, and W. P. Z. German, Alvin F. Molony, Robert M. Turpin, and Geo. W. Cunningham, all of Tulsa Okl., for appellant.

W. L. Cunningham, D. Arthur Walker, Fred G. Leach, and Wm. E. Cunningham, all of Arkansas City, for appellee.

DAWSON J.

This was an action for damages sustained by plaintiff at defendant's filling station when the door slammed shut as he was passing outward across the threshold. The door struck his arm, the glass panel broke, and plaintiff's left wrist and fingers were severely cut and injured.

It appears that plaintiff was a customer who frequently bought oil and gasoline for his automobile from defendant. One of defendant's employees, Dale Nye, was a lively lad of sixteen years, who was endowed with a surplus of energy which he expended in frolicsome pleasantry with patrons of the filling station. He would engage in scuffling, pull a customer's necktie, stick a thumb in his ribs, push him about, and practice various sorts of "horseplay."

On the afternoon of December 24, 1930, plaintiff came to the filling station, leaving his automobile either at the gasoline pump outside or parked near by. Whether he came into the filling station merely to use its toilet facilities or on business was a matter of dispute. The sixteen year old attendant, Dale Nye, got into a friendly scuffle with plaintiff, and as the latter was leaving Nye slammed the door after him, with the consequences stated above.

Plaintiff brought this action for damages charging negligence on the part of defendant in employing such a youthful, heedless, and irresponsible employee to wait on its customers. He also alleged that the door was defective in various respects--that its glass panel was insufficient in strength, insecurely set in its frame, lacking a screen or guard to keep it from breaking, and that the door lacked any sort of device to keep it from closing in a sudden and violent manner.

Defendant's answer contained a general denial, and alleged that the accident occurred while Dale Nye and plaintiff were engaged in a friendly scuffle in the course of which plaintiff struck the glass panel of the door with his fist, thereby causing it to break and causing whatever injuries plaintiff sustained.

Defendant further alleged that plaintiff did not come to the filling station for the purpose of buying supplies for his automobile nor to avail himself of the services offered by defendant, but on a purely private errand wholly disassociated with defendant's business. The answer also alleged that defendant's employee, Dale Nye, was not authorized to engage in scuffling or frolicking with its customers, and that any such conduct on Nye's part was outside the scope of his employment and a merely private enterprise in no way connected with his attendance at defendant's filling station.

Defendant also pleaded plaintiff's contributory negligence which culminated in his injuries.

The cause was tried before a jury, which returned a general verdict for plaintiff and answered special questions as follows:

"1. When Hugh Kiser drove into the Skelly filling station the afternoon of December 24, 1930, where did he first stop and park his car? Ans. At the pump.

"2. On that trip did plaintiff Kiser obtain and pay for any gasoline or oil? Ans. Yes.

"3. Do you find any defect or defects in the door or glass at the Skelly filling station mentioned in the evidence? Ans. Glass of insufficient strength.

"4. Did the Skelly Company fail to exercise due and reasonable care in not having equipped the door with accessories? Ans. Yes.

"5. If the plaintiff Kiser was injured from broken glass, what caused the glass to break? Ans. Slamming door.

"6. Did the suffle cause or directly contribute to the injuries now complained of by the plaintiff Kiser? Ans. No."

"9. If you find for the plaintiff, state upon what negligent conduct or acts of the defendant you base your verdict? Ans. By maintaining incompetent help and insufficient door equipment."

Defendant's motion to set aside the special findings was overruled. It then filed a motion for a new trial on various grounds, one of which was that in the course of their deliberations the jurors had agreed to add together the amounts each of them believed plaintiff was entitled to and divide the sum by twelve and that the quotient should be their verdict. The trial court overruled all other grounds urged in the motion for a new trial, but sustained it on the ground of the "quotient verdict," and granted a new trial on the single issue of the amount of damages.

Defendant appeals, urging various points on which it seeks to predicate reversible error.

1. Defendant first contends that the undisputed evidence shows that the injury complained of was the accidental, unintentional, and unexpected result of a mutual friendly scuffle, for which no right of action existed. While defendant's evidence was mainly to that effect, the testimony in plaintiff's behalf was explicit that the scuffling between plaintiff and defendant's employee had terminated before plaintiff started to leave, and that he had no reason to anticipate that the door would be slammed after him before he had crossed the threshold.

2. It is next urged that plaintiff's contributory negligence should bar his recovery. Defendant had the burden of establishing contributory negligence on the part of plaintiff, and this it sought to maintain on the theory that plaintiff himself had precipitated the scuffle by playfully tipping Nye's cap over his eyes while the lad was reading a magazine. However that may be, since the scuffling had terminated ere the accident happened, there was nothing in that incident which showed contributory negligence; and no contributory negligence is otherwise shown in the record.

3. The next point urged is that Dale Nye was acting for a purpose exclusively his own, wholly outside the scope of his employment when he slammed the door and...