Tillotson v. Abbott
| Decision Date | 17 July 1970 |
| Docket Number | No. 45754,45754 |
| Citation | 472 P.2d 240,205 Kan. 706 |
| Parties | Betty TILLOTSON and Clarence Stiger, Jr., heirs at law of the decesaed, Beverly jean Stiger, and Betty Tillotson, as Administratrix of the estate of the deceased, Beverly Jean Stiger, Appellants, v. Thelma ABBOTT, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A pre-trial order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. (K.S.A. 60-216)
2. Judicial discretion is granted to the trial court in permitting or refusing modification and amendment of the issues outlined in a pre-trial order. Absent a manifest abuse of discretion the trial court's order refusing modification should be upheld on appeal.
3. In a case of landlord and tenant there is a duty on the landlord to disclose to the tenant all hidden and latent defects in the premises within his actual knowledge, and his failure to do so will make the landlord liable in damages to the tenant, or a member of the tenant's family, for injuries directly resulting from the undisclosed defects. On the other hand, a landlord is not required to be an insurer of his tenant and the other members of the tenant's family. (Following Branstetter v. Robbins, 178 Kan. 8, Syl. 1, 283 P.2d 455.)
4. Where a defect complained of is as discernible, upon reasonable investigation, to the tenant as it is to the landlord, there is no duty of disclosure owed by the landlord to the tenant. (Following Branstetter v. Robbins, 178 Kan. 8, Syl. 2, 283 P.2d 455.)
5. The living quarters furnished without charge to an employee (such as the maid, chauffeur, cook and yardman) living on the premises of the owner-employer are not rooms or suites held out to the public for rent within the meaning and intent expressed in K.S.A. 36-104.
6. In an action to recover for injuries and death resulting from burns received when a tenant's clothing was ignited by an open-faced gas burning radiant heater the record is examined and it is held judgment for the defendant-landlord was properly entered at the colse of plaintiff's evidence.
Ron Heck, of Michaud & Cranmer, Wichita, argued the cause and was on the brief for appellants.
Jerry G. Elliott, of Foulston, Siefkin, Powers, Smith & Eberhardt, Wichita, argued the cause and was on the brief for appellee.
This action was brought to recover for injuries to and death of Beverly Jean Stiger resulting from burns received in an apartment rented by her from the defendant. Her clothing was ignited by contact with an open-faced radiant gas heater located in the living room of her apartment. She had lived there from August 1965 to March 1966 when this tragedy occurred.
The trial court sustained defendant's motion for judgment at the close of plaintiff's evidence.
The particular heater is described in the record as an open-faced radiant gas heater. When put in operation it is connected with a gas source and a small valve on the side opens the burner to gas. The gas is lighted with a match in the front at the base of the radiants. The burner orifices are at the base of a series of ceramic waffled radiants. When the gas from the orifices is lighted the flame causes these radiants to heat and they become almost incandescent. The heat from the radiants is directed outward and upward from the fact of the heater. The flame stays within and behind the radiants. Such a heater is not designed to be attached to a vent pipe. It has a metal guard in front five inches away from the radiants and five and a half inches high from the base.
The testimony established that this particular heater was not defective and that it was operating in a proper manner. It was installed in the apartment prior to the time Miss Stiger rented the same from defendant. The heater was first installed in a bedroom and later in 1959 or 1960 it was moved into the living room at the suggestion of someone in the Wichita fire inspection department. The Wichita fire department had inspected the heating units in this building one month before the tragedy occurred. Nothing was said concerning this particular installation. A member of the Wichita fire rescue squad who was called to the scene said that the installation and use of the heater was not inviolation of the city ordinances at that particular time.
A deputy state fire marshal investigated the tragedy within an hour after it occurred. He testified this type of heater is a 'death trap'. It is dangerous because people stand too close and their clothing catches fire. He talked with Beverly Jean Stiger in the emergency room of the hospital. Miss Stiger told him that on arriving home she felt cold. She lighted the hearter and then went into the kitchen to put a frozen food dinner in the oven. She then returned to the living room and backed up to the heater to get warm. Her dress caught fire. With her clothing on fire she first ran into the bathroom and then downstairs where the flames were finally extinguished.
She died as a result of the burns received.
The deputy state fire marshall further testified the heater was properly installed when he saw it. The flame remained within the radiants. The heater was located with sufficient distance between the heater and the wall. It was connected with the gas source by a rigid iron pipe. The heater had the American Gas Association sticker attached to the back of the appliance. This indicated it had been approved by the association as a safe appliance.
Negligence was alleged in the petition as follows:
The pre-trial conference order provided:
'Plaintiffs claim the defendant was guilty of the following acts of negligence:
'B Violation of the Wichita City Code 21.16.060, 21.16.070 and 21.16.080 in that the room was smaller than the City Code provides and the heater was located in a sleeping room in violation of the City Code.
A jury was called to try the case. Immediately preceding the trial the plaintiffs moved for permission to amend the pretrial order to permit evidence that the openfaced gas radiant heater was being used for a purpose and in a manner other than that for which it was originally designed. Plaintiffs for the first time insisted that the heater was designed solely for use in fireplaces or in other similar places where the heater would be recessed and vented.
The defendant resisted this request saying she had not previously been advised this would be an issue. She advised the court she had no evidence to counter such a contention. If permission to amend was granted she would insist upon a continuance in order to obtain evidence against this new contention.
None of the plaintiffs' witnesses were permitted to testify that this heater was originally designed solely use in fireplaces or in other similar places where the heater would be recessed and vented because neither the petition nor the pre-trial order disclosed such an issue would be presented.
The plaintiffs predicate error on this refusal to allow amendment of the pre-trial order.
A pre-trial order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. (K.S.A. 60-216.)
The pre-trial conference and the order entered thereon are an important part of the procedural process. They are provided to acquaint each party in advance of trial with the factual contentions of the opposite parties as to matters in dispute. The opportunity for maneuver and surprise during the trial is reduced. As a result of the pre-trial conference all parties are better able to prepart their testimony on the issues to be tried. (Brown v. Hardin, 197 Kan. 517, 519, 419 P.2d 912; Evangelist v. Bellern Research Corporation, 199 Kan. 638, 641, 433 P.2d 380; Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 358, 437 P.2d 219.)
Judicial discretion is granted to the trial court in permitting or refusing modification and amendment of the issues outlined in a pre-trial order. Absent a manifest abuse of discretion the trial court's order refusing modification should be upheld on appeal. (K.S.A. 60-216; Trimble, Administrator v. Coleman Co., Inc., supra.)
The amendment of the pre-trial order sought by plaintiffs in this case would have injected a new issue into the trial. The issue would have had to be resolved by testimony concerning the design and purpose of this particular heater. The issue was of a nature that expert testimony might well have been necessary. It was admitted the defendant had no knowledge of such facts. The right to amend was sought the morning of the trial. Under these circumstances the trial court did not abuse its discretion in refusing to permit amendment of the pre-trial order.
In sustaining defendant's motion for judgment at the close of plaintiffs' evidence the court reasoned that the dangerous characteristic of the heater (open flame) was obvious and...
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