Bollin v. Elevator Const. & Repair Co., Inc.

• Decision Date: 03 January 1949
• Citation: 361 Pa. 7,63 A.2d 19
• Court: Pennsylvania Supreme Court
• Parties: Bollin v. Elevator Construction & Repair Co., Inc., Appellant, et al

63 A.2d 19

361 Pa. 7

Bollin v. Elevator Construction & Repair Co., Inc., Appellant, et al

Supreme Court of Pennsylvania

January 3, 1949

Argued November 11, 1948

Appeal, No. 187, Jan. T., 1948, from judgment of Common Pleas No. 3, Philadelphia Co., Sept. T., 1947, No. 1055, in case of John B. Bollin v. Elevator Construction and Repair Company Inc. et al. Judgment reversed.

Same case below: 62 D. & C. 305.

Proceeding upon writ of defendant in action of trespass to bring additional defendant upon the record.

Additional defendant's preliminary objections sustained and judgment entered for additional defendant against original defendant before MacNEILLE, P.J., and MILNER, J., opinion by MacNEILLE P.J. Original defendant appealed.

The judgment is reversed. The record is remitted for further proceedings in accordance with this opinion.

Peter P. Liebert, 3rd, with him John J. McDevitt, 3rd, for appellant.

Daniel J. McCauley, Jr., for appellee.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.

OPINION

MR. MAXEY, CHIEF JUSTICE

This is an action in trespass brought by plaintiff against the Elevator Construction and Repair Company, Inc. (hereinafter called the Elevator Company), to recover for personal injuries sustained when an elevator he was operating in the building of his employer, Pennsylvania Warehousing and Safe Deposit Company of Philadelphia (hereinafter called the Pennsylvania Company), fell in its shaft. Plaintiff's complaint alleges that prior to the accident the Pennsylvania Company had contracted with the Elevator Company to repair the warehouse elevator and "restore it to proper and safe operating condition" and that the accident was due to the Elevator Company's negligence in making the repairs.

The Elevator Company joined the Pennsylvania Company and the Globe Indemnity Company (hereinafter called the Indemnity Company) as additional defendants. In its complaint against the Indemnity Company, the Elevator Company alleged that the "additional defendant Globe Indemnity Company did insure additional defendant Pennsylvania Warehousing & Safe Deposit Company of Philadelphia against loss from elevator accidents, and as such insurer, in accordance with the Act of May 2, 1929, P.L. 1518, as amended, of the Commonwealth of Pennsylvania, additional defendant, Globe Indemnity Company, did undertake to make periodic inspections of the said elevator of additional defendant Pennsylvania Warehousing & Safe Deposit Company of Philadelphia at its warehouse located at 16th and Callowhill Streets, Philadelphia."

It further averred that the alleged accident was due to the negligence of additional defendant Globe Indemnity Company... in that (a) it "ailed to make careful and proper inspections of said elevator;" (b) it "failed to give notice and warning of the unsafe and defective condition of said elevator;" (c) it "permitted the elevator to be operated and continued in use while in a state of disrepair and defective condition;" (d) "the employees of additional defendant inspecting said elevator were unqualified and incompetent to make such inspections;" (e) it "violated the laws of the Commonwealth of Pennsylvania and the laws and ordinances of the City and County of Philadelphia relating to elevator inspections;" (f) it "was otherwise careless and negligent."

In its preliminary objection the Indemnity Company says, inter alia: "The plaintiff's action being in trespass, as aforesaid, for damages resulting from the negligence of the original defendant, said Globe Indemnity Company cannot be joined therein as an additional defendant upon the basis of any alleged liability under a policy of insurance or any other contract."

These preliminary objections were sustained by the court below. This appeal followed.

The Act of May 2, 1929, P.L. 1518, 35 PS 1341 et seq. provides: "If an elevator is insured by a company authorized to insure elevators in this Commonwealth against loss from accident, the inspection may be made by an employe of such company,... Every inspector shall forward to the department a full report of each and every inspection made of any elevator, showing the exact condition of the said elevator. If this report indicates that the said elevator is in a safe condition to be operated, the department shall issue a certificate of operation... No elevator may be lawfully operated without having such a certificate conspicuously posted in the elevator car, cage or platform, or adjacent to one of the entrances to such elevator."

Appellant contends that under this Act a duty is owed by an insurance company inspecting machinery to members of the public. Apparently this case is in this state sui generis. We find no other case in Pennsylvania like it. In Anderson v. London Guarantee & Accident Company, 295 Pa. 368, 145 A. 431, the question arising in the instant case was not decided, but there is some dictum that is apposite. In that case the defendant insurance company inspected a steam boiler to determine whether or not it should insure the boiler owner. ^[*] The boiler exploded killing an employe at work some distance from the boiler. At the time the boiler had not been accepted by the purchaser. A few days preceding the accident the work on it was completed. The owner of the plant applied to a casualty company for insurance. The company sent an agent to pass upon the efficiency of the completed boiler. While the examination was taking place, an explosion occurred. This Court said: "The duty of Simpkins [the casualty company's employe] was to find if the contractor had installed a machine which would withstand the resistance for which it was designed. When he arrived, the boiler was in the control of the manufacturer, and the openings had already been closed, with the alleged defective flange, and tightly fastened. The directions given by him were to the employees of Badenhausen to start the test, to learn whether the work contracted for was properly completed, so as to justify the making of an insurance contract, and nothing more." This Court further said: "One controlling the operation of a boiler is bound to make reasonable inspection to guard against explosions which may cause injury to his own employees, or even third parties. So, the manufacturer is liable where damage is suffered as a result of his negligence (Erie City Iron Works v. Barber & Co., 102 Pa. 156; Losee v. Clute, 51 N.Y. 494), or the owner may be when he has accepted it, and thereafter fails to make reasonable inspection to discover defects (McNeil & Brother Co. v. Crucible Steel Co., 207 Pa. 493), and this responsibility may be enforced against an insuring company: Van Winkle v. American Steam Boiler Co., 52 N.J.L. 240, 19 A. 472.... It (defendant) had not entered into an insurance contract or assumed responsibility to make proper inspections for the protection of itself and owner, and therefore cannot be held responsible for the negligence claimed to have caused the injury." Later in the opinion the court stated that: "Where the duty of inspection has been imposed, and there is proven a failure to exercise due care, which may be inferred from the circumstances... liability attaches."

The question for us to decide in the case now under review if this: what is the legal liability of an insurance company by reason of its having assumed on behalf of the owner to discharge the statutory liability of inspecting and reporting on the condition of the elevator, not within the terms of its contract, but under and pursuant to the terms of a statute?

Such questions have been decided in other jurisdictions. In Van Winkle v. American Steam Boiler Co., 52 N.J.L. 240, 19 A. 472, plaintiff was injured by the explosion of a steam boiler which had been insured by the defendant insurance company. Although not required to do so by New Jersey law, the defendant insurance company had agreed as a matter of contract to inspect the boiler for the owner at periodic intervals and warn the owner of any defects found. In construing the policy the court said: that it was plain that the defendant company was in nowise obligated by its contract to make any inspections whatever; it acquired the right to do so when it chose to do so, and if it had altogether refrained from making an inspection, it would seem clear that it would have incurred no responsibility either to the assured or to the plaintiff. But the defendant having, in the exercise of its volition, made repeated inspections of the boiler and furnished the required certificates, no one could doubt that, by this course of action, a duty was imposed on it, by operation of the contract itself, to act with ordinary care and skill, both with respect to its inspection and its certificate and that there could be no room to doubt that, for the proximate damages occasioned by the absence of such care and skill, the defendant would be answerable to the assured under the contract. The court further said, in regard to the plaintiff who was a stranger to the contract, that there was a broader ground on which the case could be based. It was that, in all cases in which any person undertakes the performance of any act which, if not done with care and skill, will be highly dangerous to the safety of persons, known or unknown, the law, ipso facto, imposes as a public duty the obligation to exercise such care and skill.

This case is cited with approval in Sheridan v. Aetna Casualty & Surety Co., 3 Wash. (2d) 423, 100 P(2d) 1024, in...