Bond v. Otis Elevator Company

• Decision Date: 24 March 1965
• Docket Number: No. A-9936,A-9936
• Citation: 388 S.W.2d 681
• Parties: Doris L. BOND, Petitioner, v. OTIS ELEVATOR COMPANY et al., Respondents.
• Court: Texas Supreme Court

Page 681

388 S.W.2d 681

Doris L. BOND, Petitioner, v. OTIS ELEVATOR COMPANY et al., Respondents.

No. A-9936.

Supreme Court of Texas.

March 24, 1965.

Bailey & Williams, Dallas, for Otis Elevator Co.

Bonney & Wade and Minor Morgan, Dallas, for Doris L. Bond.

Strasburger, Price, Kelton, Miller & Martin, Dallas, for Adolphus Tower Building.

HAMILTON, Justice.

ON MOTION FOR REHEARING

We withdraw our former opinion in this cause and substitute therefor the following opinion:

Petitioner Bond brought this suit for damages against Adolphus Tower Building, herein sometimes called 'the Building' and Otis Elevator Company, herein sometimes called Otis, alleging that while riding as a passenger in the Adolphus Tower Building intending to descend to the lobby floor, the automatic elevator descended very rapidly in what was described as a free fall, causing her to be thrown to the floor of the elevator and injuring her foot and ankle. Petitioner neither pleaded nor attempted to prove any specific act of negligence as against either defendant, but relied wholly on the doctrine of res ipsa loquitur. Respondents both denied liability and pleaded contributory negligence and unavoidable accident. The Building alternatively sought judgment over against Otis by way of indemnity, alleging that Otis by written contract with the Building had obligated itself to maintain the elevator in a safe and proper condition, and if there was any negligence involved it was solely that of Otis, which had manufactured and installed the elevator in question and thereafter exclusively maintained it.

The jury found that as petitioner entered the elevator it went into a free fall, throwing petitioner to the floor and injuring her; that at the time and on the occasion in question the elevator was under the exclusive control of the Adolphus Tower Building; that the Building did not fail to use a high degree of care in the maintenance of the elevator mechanism; that at the time and on the occasion in question the elevator was not under the exclusive control of Otis Elevator Company; that Otis failed to properly inspect and also failed to properly maintain the elevator; that such omission was negligence and a proximate cause of petitioner Bond's injuries; that the acts and omissions of Otis were the sole proximate cause of petitioner's injuries; that petitioner was not contributorily negligent; and that petitioner's damages were $31,254.00.

On motion of petitioner the trial court entered judgment jointly and severally against Adolphus Tower and Otis Elevator on the verdict for $31,254.00 and notwithstanding the findings that the Adolphus Tower was not negligent and Otis Elevator was not in exclusive control of the elevator in question. The judgment also provided that Adolphus Tower have judgment over against Otis for the full amount. Traders & General Insurance Company, intervenor, was awarded judgment for $3,330.46 against petitioner by way of subrogation for monies paid out by it to and for the account of petitioner under a workmen's compensation policy. From this judgment the Adolphus Tower and Otis Elevator Company appealed to the Court of Civil Appeals. The Court of Civil Appeals reversed the judgment of the trial court and remanded the cause. 373 S.W.2d 518.

All three parties have filed applications for writs of error in this court, the petitioner Bond requesting that the Court of Civil Appeals' judgment be reversed and the trial court's judgment affirmed; petitioners Otis Elevator Company and Adolphus Tower Building requesting that the Court of Civil Appeals' judgment be rendered rather than that the cause be remanded. Adolphus Tower alternatively requested it be given judgment over and against Otis. We reverse the judgment of the Court of Civil Appeals.

On the trial petitioner Bond established by her testimony and that of another passenger in the elevator that almost immediately after petitioner entered the elevator on the minth floor of the Adolphus Tower it descended very rapidly in what they described as a free fall, and when it reached the fifth or sixth floor it stopped suddenly and began to bounce up and down violently; that petitioner pulled the emergency switch and the elevator came to a standstill between floors; that petitioner was thrown to the floor of the elevator, resulting in painful injury to her ankle.

The elevator in which petitioner was riding was one of five previously sold and installed by Otis in the Adolphus Tower Building, which is an office building in the City of Dallas. There was in evidence a contract between Adolphus Tower Building and Otis whereby Otis undertook the exclusive responsibility for the maintenance of the elevators and the mechanism operating them. That part of said contract applicable to this case is as follows:

'OTIS ELEVATOR COMPANY

'TO Adolphus Tower Main & Akard Dallas, Texas

DATED AT Dallas, Texas. October 20, 1955

'We propose to furnish OTIS MAINTENANCE on the following described elevators in your building located at Adolphus Tower, Dallas, Texas.

'Five (5) Otis Electric Passenger Elevators #228176-80

'Under this contract we will maintain the elevator equipment therein described, on the following terms and conditions:

'We will use trained men directly employed and supervised by us. They will be qualified to keep your equipment properly adjusted, and they will use all reasonable care to maintain the elevator equipment in proper and safe operating condition.

'We will regulary and systematically examine, adjust, lubricate as required, and if, in our judgment, conditions warrant, repair or replace:

'MACHINE, MOTOR, GENERATOR AND CONTROLLER PARTS,

including

'Worms, Gears, Thrusts, Bearings, Brake Magnet Coils or Brake Motors, Brake Shoes, Brushes, Windings, Commutators, Rotating Elements, Contacts, Coils, Resistance for Operating and Motor Circuits, Magnet Frames and other mechanical parts-using only genuine Otis Parts for this purpose.

'We also agree:

'To renew guide shoe gibs or guide rollers when in our judgment this is necessary to insure smooth and quiet operation and, except where roller guides are used, to keep the guide rails properly lubricated.

'To renew all wire ropes as often as in our judgment is necessary to maintain an adequate factor of safety; to equalize the tension on all hoisting ropes, and repair or replace conductor cables.

'To furnish Otis Lubricants compounded to our rigid specifications.

'To examine, lubricate, adjust, and if, in our judgment, conditions warrant, repair or replace all accessory equipment furnished and installed by us with exceptions as stated hereinafter.

'To examine periodically all safety devices and governors and make our customary annual safety tests.

'It is agreed that we do not assume possession or management of any part of the equipment but such remains yours exclusively as the owner (or lessee) thereof. * * *'

On the occasion in question J. L. Bostick, who was employed by the Adolphus Tower Building as elevator starter, heard a crashing sound when the elevator stopped between the fifth and sixth floors, at about which time the emergency signal similar to a burglar alarm came on. As per instructions when anything went wrong with the elevators, he immediately called Otis Elevator Company. A Mr. Anderson from Otis arrived within three or four minutes from the time he was called, and within fifty-eight minutes from the time of the fall of the elevator petitioner Bond was released from the elevator.

Neither Otis nor the Building offered any testimony by way of explanation of why the elevator fell, and the record does not otherwise reflect any explanation.

In entering the judgment which the trial court did it is apparent that it must have found: First, that under the fact situation here the doctrine of res ipsa loquitur applies. Second, that the evidence conclusively showed that the elevator was under the joint control of Adolphus Tower and Otis Elevator. Third, that the Adolphus Tower was negligent itself as a matter of law or that the Adolphus Tower was liable for the negligence of Otis Elevator.

(1) We agree with the Court of Civil Appeals that the doctrine of res ipsa loquitur is applicable in this case. The elevator's going into a free fall and injuring the petitioner was such an accident which does not ordinarily occur without negligence, and is such an accident, that from the mere showing that it happened, negligence of those in control may be inferred.

It appears from the contract between Adolphus and Otis with reference to the maintenance of the elevators that the mechanism controlling the movement of the elevators is quite complicated and from the very nature of things the facts which would reveal how this 'free fall' happened were peculiarly within the knowledge of respondents. If there is any explanation of this unusual occurrence of the elevator going into a 'free fall', then the respondents are in a far better position to come forward with it than is the petitioner.

(2) We think that the evidence conclusively shows that the elevator was under the joint control of Adolphus Tower and Otis Elevator. A mere reading of that part of the contract quoted above shows this. Otis Elevator says that the contract places the exclusive control in Adolphus Tower. It points to the last sentence copied above from the contract wherein the agreement states that Otis did not assume possession or management of the equipment, but such remained in the owner, that is, Adolphus Tower. It is true that the Adolphus Tower retained possession and management of the elevators by that contract, but with the understanding that Otis was to examine, lubricate, adjust and if in its judgment conditions warrant, it was to repair or replace all necessary equipment. In other words, what...