Ward v. City Nat. Bank & Trust Co. of Kansas City

• Decision Date: 13 April 1964
• Docket Number: No. 2,MOLINE-MONTGOMERY,No. 50003,50003,2
• Citation: 379 S.W.2d 614
• Parties: John WARD, Plaintiff-Respondent, v. CITY NATIONAL BANK & TRUST COMPANY OF KANSAS CITY, Defendant and Third-Party Plaintiff-Appellant, v.ELEVATOR COMPANY, Third-Party Defendant-Appellant, and Floyd O. Calvert, Henry J. Schneck, Albert L. Darling, and Gordon A. Sparks, Trustees of Murphy Elevator and Service Company, Third-Party Defendants-Appellants
• Court: Missouri Supreme Court

Page 614

379 S.W.2d 614

John WARD, Plaintiff-Respondent, v. CITY NATIONAL BANK & TRUST COMPANY OF KANSAS CITY, Defendant and Third-Party Plaintiff-Appellant, v. MOLINE-MONTGOMERY ELEVATOR COMPANY, Third-Party Defendant-Appellant, and Floyd O. Calvert, Henry J. Schneck, Albert L. Darling, and Gordon A. Sparks, Trustees of Murphy Elevator and

Service Company, Third-Party

Defendants-Appellants.

No. 50003.

Supreme Court of Missouri, Division No. 2.

April 13, 1964.

Motion for Rehearing or to Transfer to Court En Banc Denied

June 8, 1964.

Robert A. Meyers, Kansas City, George V. Aylward, Jr., Kansas City, for plaintiff-respondent.

Paul E. Vardeman, Robert H. Kendrick, Kansas City, Johnson, Lucas, Bush & Vardeman, Kansas City, of counsel, for appellants, Floyd O. Calvert, Henry J. Schneck, Albert L. Darling and Gordon A. Sparks, trustees of Murphy Elevator & Service Co.

Don M. Jackson, Kansas City, Jackson & Wade Kansas City, of counsel, for appellant, Moline-Montgomery Elevator Co.

Thomas A. Sweeny, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for appellant City Nat. Bank & Trust Co., trustee.

HENRY J. WESTHUES, Special Commissioner.

John Ward, plaintiff-respondent, filed this suit, an action for damages, in the Circuit Court of Jackson County, Missouri, against the City National Bank & Trust Company of Kansas City for personal injuries sustained when a self-service elevator in which Ward was a passenger fell about two floors to the bottom of the elevator shaft.

The Bank filed an answer and also a third party petition naming the Moline-Montgomery Elevator Company and Floyd O. Calvert, Henry J. Schneck, Albert L. Darling, and Gordon A. Sparks, Trustees of the now defunct Murphy Elevator and Service Company, as third-party defendants.

In the course of the opinion, we shall refer to plaintiff-respondent as Ward; to the defendant and third-party plaintiff-appellant as the Bank; and to the third-party defendants-appellants as Moline and Murphy.

A trial resulted in a verdict for Ward against the defendant Bank in the sum of $20,000. The jury further found in favor of the Bank against Moline and Murphy for $20,000. The Bank appealed from the refusal of the trial court to assess attorneys' fees in the sum of $2,250 against the third-party defendants. Moline and Murphy appealed from the judgment in favor of the Bank.

At this stage, we deem it best to state briefly the facts and the theory of the parties during the trial of this case. On March 10, 1958, Ward, intending to go to the third floor of the Bank building on a matter of business, found the elevator at the first floor, pressed the 'UP' button, and the elevator door opened. Ward entered the elevator and when it was nearing the third floor, it suddenly began to descend repidly and fell to the bottom of the shaft. Ward sustained serious injuries. In his case against the Bank, he relied on the res ipsa loquitur doctrine. It is admitted that Ward was entitled to submit his case to a jury on that theory.

The Bank charged specific negligence against Moline. It claimed that on March 10, 1958, the day Ward was injured, the elevator could not be operated due to some defect; that Moline was notified and, in response to that call, a service man was sent to make the necessary repairs; that this service man was negligent in permitting the elevator to be used before it had been made safe. The Bank charged that Murphy had negligently installed the elevator in that a neoprene or rubber hose about 15 to 20 inches in length had been used in the supply line next to the piston; that this hose had broken; that this permitted the oil to escape, causing the elevator to drop.

It may be stated here that the elevator in question was an electrohydraulic self-operated elevator. It was equipped with an oil supply tank holding about 150 gallons of oil. When the button marked 'UP' was pressed, an electric pump would be put into operation, pumping oil from the tank through a pipe to a piston, and the elevator would thereby be pushed upward. When the 'DOWN' button was pressed, the mechanism would be put into motion, permitting the oil to return to the tank and the elevator to descend. Moline and Murphy each denied being guilty of any negligence.

Moline and Murphy each filed separate briefs. Each claimed that the evidence was insufficient to sustain a finding of negligence and therefore the trial court erred in submitting the case to a jury against them. Each claimed that the trial court erred in refusing their requests to impanel twenty-one veniremen and to permit them jointly to strike three names from the jury list. Moline and Murphy claimed that they as third-party defendants were not parties to the action between Ward and the Bank; that the Bank's action is one of indemnity against Moline and Murphy and therefore they were entitled to three separate peremptory challenges under Section 494.200, V.A.M.S. We shall dispose of this contention before considering other points briefed. We cannot agree with the contention concerning the jury challenges for the reason that the statute governs this question and it does not authorize more than three challenges to plaintiffs or defendants. The statute, Sec. 494.200, supra, reads as follows: 'In trials of civil causes each party shall be entitled to challenge, peremptorily, three jurors; but when there are several plaintiffs and defendants they shall join in their challenges, and the plaintiff shall, in all cases, announce his challenges first.' (Emphasis supplied.) In 50 C.J.S. Juries Sec. 280b, p. 1069 it is stated, 'At common law there is no right of peremptory challenge in civil actions. The right is, therefore, purely statutory and does not exist except where it is expressly so conferred, * * *.'

Moline and Murphy, in their briefs, cited the case of Sutton v. Otis Elevator Co. et al., 68 Utah 85, 249 P. 437, as authority in support of their contentions. It is important to note that the Utah statute is not worded as our statute. See 249 P. 1. c. 454, supra, where, in the course of the majority opinion in the Sutton case, the applicable Utah statutes are quoted. The Utah statute does not say that where there are several plaintiffs or defendants they must join in their challenges. It says that each party is entitled to challenge. Our Missouri courts have held that where there are several plaintiffs or defendants they must join even though their interests may be adverse to each other. White v. Teague, 353 Mo. 347, 182 S.W.2d 288, l. c. 291(4, 5); Clark v. St. Louis & S. Ry. Co., 234 Mo. 396, 137 S.W. 583, 1. c. 588 (2); Adair v. N. W. Electric Power Cooperative, Inc., Mo.App., 329 S.W.2d 33, 1. c. 36(3, 4); Kidd v. Chicago, R. I. & P. Ry. Co., 310 Mo. 1, 274 S.W. 1079, 1. c. 1093, 1094(25) (26, 27).

There is no uniform rule or practice governing the number of challenges where there are several parties plaintiffs or defendants. See 50 C.J.S. Juries Sec. 281a(3), p. 1073, and cases there cited. It is the court'd duty to follow the statutory provisions. The trial court complied with the statute and did not err in refusing additional peremptory challenges.

We shall now dispose of the contention that the evidence was insufficient to sustain a verdict against Moline. Murphy installed the elevator during the months of December, 1955, and January, 1956. Murphy had a contract to service and inspect the elevator regularly. The last inspection had been made eleven days prior to the day Ward was injured. The elevator had also been inspected regularly by a city inspector. On March 10, 1958, the elevator went 'out of commission.' Through a mistake, Moline was notified and requested to send someone to remedy the situation. Not knowing that Murphy had a service contract, Moline sent a service man named Greer to do the work. Greer spent some time in finding the cause of the trouble. After several hours, he found a screw loose on the 'UP' control which he replaced and the elevator was put back in operation. Greer and a helper ran the elevator up and down a number of times and it worked properly. While Greer was working to find the trouble, a 10-ampere fuse burned out. It was in evidence that for safety purposes a 10-ampere fuse was usually installed on each side of the shaft. If either burned out, the elevator would not operate. Greer did not have a 10-ampere fuse with him, so he used a 30-ampere fuse while he tested the elevator. After the elevator was tested and functioned properly, Greer left the elevator at the first floor and went to his truck to get a 10-ampere fuse to replace the 30-ampere fuse which he had used in the shaft. It was while he was away that Ward attempted to go to the third floor by way of the elevator and was injured.

It was discovered that a hose about 15 to 20 inches in length had been installed next to the piston as a part of the supply line. This hose had ruptured at one of the ends where it had been attached. A great quantity of oil had escaped and was found in the elevator pit. There was substantial evidence to the effect that the installation of a 15 to 20-inch hose next to the piston was not a proper installation and was considered unsafe.

The Bank, by an instruction given at its request, submitted its case to the jury as against Moline on the theory that Greer was negligent in failing to notify the Bank before placing the elevator in operation that the presence of the hose rendered the elevator unsafe. We are of the opinion that the evidence was insufficient to sustain a finding that Greer was guilty of any negligence. It was in evidence that there was some oil in the pit which Greer noticed before he began his search for the trouble which caused the elevator to be out of order. The evidence was that the movements of the piston up and down caused some oil to escape; that such leakage was normal. A circular pan surrounded the piston with a spout attached through which the oil flowed...