Paul v. Western Distributing Co.

• Decision Date: 07 December 1935
• Docket Number: 32497.
• Parties: PAUL v. WESTERN DISTRIBUTING CO.
• Court: Kansas Supreme Court

52 P.2d 379

142 Kan. 816

PAUL v. WESTERN DISTRIBUTING CO.

No. 32497.

Supreme Court of Kansas

December 7, 1935

Syllabus by the Court.

In personal injury action, trial court may grant new trial on single issue of damages when jury has properly determined issue of defendant's negligence, since negligence and damages are separable issues (Rev.St. 1923, 60--3004).

Where jury allowed $443.40 in excess of all expenses incurred by plaintiff as result of injuries, consisting of burns on hands, wrists, ankles, and knee, neck, and face resulting in scars on face which caused eyelids to droop, denial of new trial on issue of damages alone held not error where it did not appear from entire record that verdict as to damages was wrong (Rev.St. 1923, 60--3004).

Where defendant delivered check to district court clerk covering judgment including interest and court costs with alleged understanding that if plaintiff declined to accept amount of judgment and appealed, defendant desired to withdraw money defendant held precluded from cross-appealing on judgment since its conduct indicated "acquiescence" in judgment.

"Acquiescence" is defined as passive compliance or satisfaction distinguished from avowed consent on the one hand, and, on the other, from opposition or open discontent.

1. Negligence and damages are separable issues and in a personal injury case the trial court may grant a new trial on the single issue of damages under the provisions of Rev. St 60--3004, when a jury has properly determined the issue of defendant's negligence.

2. Under circumstances related in the above syllabus, this court will not disturb the judgment of the trial court overruling plaintiff's motion for a new trial on the issue of damages alone, unless it appears from the entire record the verdict as to damages is wrong, or the trial court has abused its sound judicial discretion.

3. Where defendant delivers a check to the clerk of the district court, covering the full amount of judgment, including interest and court costs with directions as to its use and ultimate disposition and under circumstances indicating or savoring of acquiescence in the judgment, defendant is precluded from a cross-appeal on the judgment.

Appeal from District Court, Butler County, Division No. 1; Allison T. Ayres, Judge.

Action by C. D. Paul against the Western Distributing Company. Judgment for plaintiff. From a judgment of the trial court overruling plaintiff's motion for new trial on single issue of damages, plaintiff appeals and defendant cross-appeals from the judgment for plaintiff.

Affirmed on the appeal and cross-appeal dismissed.

Paul H. White, Robert C. Foulston, George Siefkin, Sidney L. Foulston, Lester L. Morris, George B. Powers, Carl T. Smith, and C. H. Morris, all of Wichita, and R. C. Woodward, of El Dorado, for appellant and cross-appellee.

A. M. Ebright, P. K. Smith, and Bernard Peterson, all of Wichita, and L. J. Bond, of El Dorado, for appellee and cross-appellant.

WEDELL Justice.

This was an action for damages resulting in personal injuries due to a gas explosion. Both parties have appealed.

Plaintiff obtained judgment in the sum of $1,313. He is dissatisfied with the amount and appeals from the judgment of the trial court overruling his motion for a new trial on the single and separate issue of damages only. Defendant appeals from judgment against it on assignments of error to be mentioned later. Plaintiff contends defendant is precluded from its cross-appeal for reasons to be stated hereafter.

The material evidence introduced by plaintiff was: Plaintiff was injured as a result of a gas explosion in the basement of the Methodist Church at Augusta, on the 27th day of February, 1934. Defendant owns a gas distributing system in Augusta, and the Methodist Church was one of its customers. Defendant's gas lines run to the property line of the church. It has two meters, one to the east of the church, and the other in the southeast corner of the church basement. The explosion occurred in the northwest corner of the basement. In this corner is a room used by the Men's Bible Class on Sundays, and by Boy Scouts during the week. A gas stove was located in the fireplace with a pipe which connected it to the flue. The basement had in it also a furnace and cooking stove. The explosion occurred on Tuesday, February 27th. On the previous Wednesday, February 21st, Ralston, the janitor, testified he went to the defendant gas company office and told Gillespey, its local manager, he had been smelling gas in the basement of the church for two or three months. He says he told the manager there was a leak and he would like to have it fixed. Gillespey says the janitor met him at a drug store and that the janitor asked him if the gas company would take care of it. At any rate Gillespey told the janitor the plumbers did not like to have the gas company do such work and he should get some one else to fix the leak. This conversation took place at about 2 o'clock in the afternoon of February 21st, and the janitor then went to the hardware store of Paul & Penley and talked to plaintiff, Paul, about the leak. Paul was a member of the church. Paul suggested to the janitor that he get a man by the name of Kelly to fix the leak. The janitor accepted plaintiff's suggestion to get Kelly to fix the leak and made arrangements with Kelly to fix the leak. The next day, February 22d, Kelly went to the church and the janitor took him to the northwest room in the basement and then left. Kelly was there about half an hour and afterwards told the janitor he had fixed the leak. (Defendant in its brief says Kelly told Gillespey that he had fixed the leak. We are unable to find evidence in the record concerning that conversation between Kelly and Gillespey). The church paid Kelly for his services.

Kelly was subp naed by the defendant, but was not found. His evidence of what he did is therefore lacking. Counsel for plaintiff in his opening statement said:

"Mr. Kelly went down to the church at the time he was called and found that there was evidently a loose coupling or union near the place where the stove connected on to the pipe, and he turned it and the gas made a sizzling noise and he got a wrench and tightened it."

On Friday, February 23d, Rev. Moore, the pastor of the church, called Gillespey and told him he had smelled gas in the basement of the church. Gillespey told Rev. Moore that Ralston had previously talked to him about it, and that he, Gillespey, had told the janitor to get some one to fix it. Later in the trial Gillespey was asked, "In your conversation with Dr. Moore, on Friday, did you say anything about Ralston having phoned you or what you had told him or what he had told you ?" Witness answered: "I don't remember whether I did or not." On Friday evening, Ralston, the janitor, talked with Rev. Moore, asked him if there was a leak in the basement, and he told Rev. Moore there was, but he had it fixed. The pastor said it must be a hold-over where the gas smelled.

On Sunday, February 25th, the church services were held as usual. About twenty men met and used the northwest basement room. The furnace and the gas stove in the northwest room were used that morning. There is no evidence in the record before us that there was any smell of gas in the church on that Sunday or in the class room. McCray, who was injured with the plaintiff, Paul, at the time of the explosion, is a trustee of the church. McCray testified that he attended the Men's Bible Class that Sunday morning, and did not detect any smell of gas.

On the following Tuesday, February 27th, the plaintiff and McCray went to the northwest basement room, according to their testimony, for the purpose of fixing the isinglass in the gas stove. The plaintiff, Paul, knew there had been a leak in this room, but believed Kelly, the man he recommended to the janitor, had fixed it. Plaintiff testified the janitor said he was going to get Kelly to fix it and that he relied on the fact that Kelly had fixed the pipes or whatever was wrong and for that reason did not think there was any gas there. The plaintiff further testified that he had heard, or Ralston the janitor had told him, that Kelly had been there and had done some work. Neither the plaintiff nor McCray smelled gas when they entered or while they were in the northwest room on February 27th, the morning of the explosion. They opened the door to the room, but did not turn on the electric lights. The electric lights were attached to the ceiling and were not sufficiently bright to disclose what they desired to examine on the inside of the stove door for the purpose of removing and replacing the isinglass in the stove door. They were examining the stove when plaintiff bent down and struck a match, after which an explosion occurred. The flames encircled them and burned much of their clothing. Plaintiff suffered burns on his hands, wrists, ankles, and on a knee. He also suffered burns on his face and neck. His hearing was affected and the scars on his face caused the eyelids to droop. An eye specialist testified his eyes moved normally, pupilary reflexes were normal, and he had normal vision in each eye, but that the primary trouble with his eyes was due to the fact the minute scars pulled the lower lids away from the eyeball, so the tear ducts did not come in contact with the eyeball, as they have to in order to function and drain the tears from the eyes. He further testified that an operation would be necessary to correct the condition. He said he had performed about fifty such operations and had never failed to get improvement, although he had failed in some instances to get an entire recovery and that the cost of such an operation and total expense would be about...