33 P.2d 974 (Colo. 1934), 13012, Otis Elevator Co. v. Maryland Cas. Co.

Docket Nº:13012.
Citation:33 P.2d 974, 95 Colo. 99
Opinion Judge:[95 Colo. 101] HOLLAND, Justice. PER CURIAM.
Party Name:OTIS ELEVATOR CO. v. MARYLAND CASUALTY CO.
Attorney:[95 Colo. 100] Edgar McComb, Milton D. Green, and Walter E. Schwed, all of Denver (Sims, Stransky, Brewer & Poust and James P. Carey, Jr., all of Chicago, Ill., of counsel), for plaintiff in error. Blount, Silverstein & Rosner, of Denver, for defendant in error.
Judge Panel:BURKE, HOLLAND, HILLIARD, and BOUCK, JJ., dissenting in part. ADAMS, C.J., and CAMPBELL, J., not participating.
Case Date:May 21, 1934
Court:Supreme Court of Colorado

Page 974

33 P.2d 974 (Colo. 1934)

95 Colo. 99

OTIS ELEVATOR CO.

v.

MARYLAND CASUALTY CO.

No. 13012.

Supreme Court of Colorado

May 21, 1934

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 186 F.Supp. 660

Casemaker Note: Portions of this opinion were specifically rejected by a higher court in 325 F.3d 924

Rehearing Denied June 12, 1934.

Error to District Court, City and County of Denver; S.W. Johnson, Judge.

Action by the Maryland Casualty Company against the Otis Elevator Company. Judgment for plaintiff, and defendant brings error.

Modified and affirmed.

BURKE, HOLLAND, HILLIARD, and BOUCK, JJ., dissenting in part.

On Petition for Rehearing.

[95 Colo. 100] Edgar McComb, Milton D. Green, and Walter E. Schwed, all of Denver (Sims, Stransky, Brewer & Poust and James P. Carey, Jr., all of Chicago, Ill., of counsel), for plaintiff in error.

Blount, Silverstein & Rosner, of Denver, for defendant in error.

[95 Colo. 101] HOLLAND, Justice.

The Maryland Casualty Company, defendant in error, was plaintiff in the trial court, and will be herein referred to as the casualty company. It obtained judgment against the Otis Elevator Company for $52,253.86. Reversal of this judgment is sought by the Otis Elevator Company, which will be referred to as the Otis Company.

The Oil Exchange Building, Inc., of Casper, Wyo., erected a five-story office building about 1918. Otis Company, through employment by the Oil Exchange Building, installed a passenger elevator in said building, and since said installation Otis Company, by a

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continuation of employment, has been under agreement with the Oil Exchange Building to repair, inspect, examine, clean, and lubricate the elevator twice each month, and keep it in a safe condition for use as a passenger elevator. On November 24, 1925, the evevator, while loaded with passengers, fell from near the third floor of said building, or a distance of about 35 feet into the basement. The fall was caused by the hoisting cables pulling out of their connection to the cage. A number of persons were injured. Otis Company, or its insurer, settled about ten minor claims. Maurine Deakin and Inga Guysland were more seriously injured, and filed separate suits in the Wyoming court against the Oil Exchange Building, Inc., for damages.

Casualty company was the insurer of the Oil Exchange Building, Inc., and was called upon to defend these suits. It claims that it notified Otis Company, and demanded that it settle these claims or defend the suits, and that, if it did not do so, the casualty company would hold it, the Otis Company, liable for all loss or damage sustained in taking care of the claims. The Otis Company refused to enter its appearance or take responsibility for the defense, but did, through its attorneys and [95 Colo. 102] officers, attend the trial, furnish evidence, and provide witnesses for depositions, and gave assistance at the trial.

Trial of these suits was had to the court and judgment entered in the Deakin case for $33,395.85, which judgment was compromised for $30,000. The judgment for Guysland was settled for $2,000. The difference between the total of these judgments, and the judgment of $52,253.86, in the case now Before this court, represents various expenses incurred by the casualty company in defending and handling these two cases, including attorney's fees, court costs, witness fees, traveling expenses and interest, which the casualty company charged to the Otis Company, and for a recovery of which this suit was filed.

In its complaint against Otis Company, the casualty company made the following material allegations:

In 1917 and 1918, Oil Exchange Building, Inc., constructed, and has since owned, a five-story office building in Casper. Otis planned, designed, constructed, and installed the passenger elevator in that building, pursuant to employment by Oil Exchange Building, Inc. At all times since the building was constructed, Otis Company was employed by Oil Exchange Building, Inc., to inspect, examine, clean, and lubricate the elevator, 'which services defendant agreed to perform twice each month, and impliedly warranted to perform in a careful, skillful, workmanlike and efficient manner, and, in addition thereto, defendant was employed from time to time, during said period by said corporation, Oil Exchange Building, to, and it did, make all repairs and replacements on said elevator which defendant deemed necessary to maintain said elevator in a safe condition for the use for which it was constructed and for which it was used, and defendant impliedly warranted that it would make such repairs and replacements in a careful, skillful, workmanlike and efficient manner.'

A part of the elevator machinery consisted of two [95 Colo. 103] hoisting cables, each of which was anchored in a cone (sometimes called a shackle or thimble) in a cross-bar on the top of the elevator cage, and a safety device, which consisted, in part, of a governor located in the pent house at the top of the elevator shaft and brake shoes attached to the side of the elevator cage.

While the elevator, loaded with passengers, was descending at noon on November 24, 1925, the hoisting cables pulled out from their anchors in the top of the cage as it reached a point immediately below the third floor. The safety device failed to work, and the elevator fell a distance of about thirty-five feet to the bottom of the elevator shaft, thereby injuring some of the passengers, including Mrs. Deakin and Miss Guysland. That the falling of the elevator was caused by the negligence of Otis in the following particulars:

(1) Otis Company failed to adjust and regulate the safety device so that it would stop the elevator within 9 feet, or a reasonable distance, after it started falling and gained excessive speed.

(2) Otis Company, in installing on May 29, 1925, the hoisting cables which pulled out of their anchors, not only failed to use the zinc method of anchoring cables, which is the only safe and secure method, but 'carelessly and negligently failed to unwind or separate the ends of the wires from one another, failed to clean the wires with kerosene, or at all, failed to dry them, failed to straighten the ends of the wires, failed to keep them straight and unbent near their ends, * * * and failed to make thoroughly amalgamated, fused or solidified anchors on the ends of the hoisting cables, * * * without cleaning or cleansing the strands, which were greasy, and without separating, cleaning or cleansing the wires in the strands (defendant), poured molten babbitt on the bent ends of the

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strands in said cones for the purpose of amaigamating the ends of the strands and anchoring the end of each of the hoisting cables in the cone, and, in so doing, used a preparation of babbitt of insufficient strength [95 Colo. 104] and poured into each cone an insufficient amount of babbitt to fill the spaces and interstices between the strands in the cones and between the wires in the strands and to cause the strands and wires to solidify into one metallic mass in each cone, or to thoroughly amalgamate and fuse with the babbitt.'

After its demurrer to the complaint was overruled, Otis Company answered, specifically admitting and denying the allegations of the complaint. It denied that it was employed to maintain said elevator in a safe condition or that it impliedly warranted to perform its services in a careful and skillful manner, denied that it was employed to make repairs and replacements which it deemed necessary to keep said elevator in a safe condition or that it impliedly warranted to make same in a careful and skillful manner; denied that the...

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