96 P.2d 666 | Kan. | 1939
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 Café. 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 café 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 isinglass. 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
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 storeroom 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 win
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 that the action of an infant must be brought by his guardian or next friend. The law does not deem it wise to grant to a minor unlimited license to sue, but prefers he should be guided and directed by the discretion of some adult. (Sutton v. Nichols, 20 Kan. 43.) When an action is so brought, if the court deems it to be for the best interest of the minor, it has power to dismiss the action, or to substitute another as next friend of the minor, or a guardian to represent the minor. (See statute, supra.) If the minor is a defendant, the court should appoint a guardian ad litem to represent him. (G. S. 1935, 60-408.)
“Such persons are considered as agents or officers of the court, their office being to represent the interest of the infant in the litigation.” (31 C. J. 1118.)
In Kistler v. Fitzpatrick Mortgage Co., 146 Kan. 467, 71 P. 2d 882, it was held:
“A minor defendant in a civil action, properly served with summons and represented at the hearing of the case by a guardian ad litem, duly appointed, is bound by the judgment to the same extent as an adult would be bound.”
The same rule applies to a minor plaintiff represented by a guardian or next friend. (See Note in 9 A. L. R. 1537.)
Railway Co. v. Lasca, 79 Kan. 311, 99 Pac. 616, cited by appellant, is not in point. With respect to it, compare Perry v. Umberger, 145 Kan. 367, 371, 65 P. 2d 280. We have examined all the authorities cited by appellant on this point, but find it unnecessary to analyze or distinguish them at great length.
The rule seems to be well settled that an infant, properly represented by a next friend, or a guardian ad litem, in an action at law, and with competent 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 as an adult litigant. In addition to the authorities previously cited, the following cases, which list is not designed to be complete, support this view: Richards v. Neault, 126 Me. 17, 135 Atl. 524; Harris v. Bigley, 136 Ia. 307, 111 N. W. 432; In re Estate of Kempthorne, 188 Ia. 70, 175 N. W. 857; Fort Worth & Denver City Ry. Co. v. Greathouse, (Tex. Civ. App.) 41 S. W. 2d 418; Kromer v. Friday, 10 Wash. 621, 39 Pac. 229; Burke v. Northern Pac. R. Co., 86 Wash. 37, 149 Pac. 335; Keller v. Ry. Co., 113 W. Va. 286, 167 S. E. 448; Byrnes v. Butte Brewing Co., 44 Mont. 328, 119 Pac. 788; Butler v. Winchester Home for Aged Women, 216 Mass. 567, 104 N. E. 451; Kingsbury v. Buckner, 134 U. S. 650, 10 Sup. Ct. Rep. 638, 34 L. Ed. 1047.
Appellant’s counsel argue that they were surprised at this testimony about the redness of the flame on February 8 because nothing had been said about that particular thing until in the opening statement of counsel, and hence they were not prepared to meet it, although all the witnesses whose affidavits were used on the motion for a new trial were known to plaintiff’s counsel and plaintiff’s parents, or one of them who had been assisting counsel in the conduct of the case. They all lived in or about Newton, could have been subpoenaed and produced as witnesses, and some of them did in fact testify with respect to other matters. We are not greatly im
At the trial, and before the instructions were given to the jury, the court submitted them to counsel and a recess was taken to enable counsel to examine them and to make suggestions or objections. Counsel for plaintiff made no objection to the instructions and no suggestions of amendments. Counsel for defendant objected to one or more of the instructions as prepared by the court and requested changes and additions. These objections were overruled and the requests denied. One of the grounds for plaintiff’s motion for a new trial was the giving of erroneous instructions. On the hearing of the motion for a new trial counsel for plaintiff argued that instruction No. 6 was erroneous. In this court their principal argument is that instruction No. 5 is erroneous. It is the general rule that instructions not objected to become the law of the case. (Thogmartin v. Koppel, 145 Kan. 347, 67 P. 2d 571; Stephenson v. W. R. Grimshaw Co., 147 Kan. 532, 77 P. 2d 981; Fisher v. Central Surety & Ins. Corp., 149 Kan. 38, 86 P. 2d 583.) Notwithstanding that, we have examined the instructions and considered the criticism now made of them and find nothing seriously wrong with the instructions as given.
■ In the course of the trial a witness called by defendant was permitted to testify that the gas heater in question was an appliance which had been approved as not being inherently dangerous, and
We find no error in the record. The judgment of the court below is affirmed.