Callaham v. Carlson

• Decision Date: 04 October 1951
• Docket Number: Nos. 33639,No. 1,33646,s. 33639,1
• Parties: CALLAHAM v. CARLSON et al. CARLSON v. RICH'S, Inc. et al
• Court: Georgia Court of Appeals

Page 726

67 S.E.2d 726

85 Ga.App. 4

CALLAHAM v. CARLSON et al.

CARLSON v. RICH'S, Inc. et al.

Nos. 33639, 33646.

Court of Appeals of Georgia, Division No. 1.

Oct. 4, 1951.

Judgment Adhered to on Rehearing Nov. 15, 1951.

SYLLABUS BY THE COURT.

1 (a, b). The petition does not allege a violation of a city ordinance so as to allege a case of negligence per se.

2. Under the allegations of the petition, the plaintiff was not an invitee of the defendant elevator company.

3. Construed properly, the petition alleges the defendant elevator company to be an independent contractor and not a servant or an employee of either the defendant owners or the defendant lessee.

4. The court did not err in sustaining the general demurrers of the defendant owners and the defendant lessee and in dismissing the actions as to each of them. The court erred in overruling the general demurrer of the defendant elevator company.

Mrs. Edward J. Carlson sued Rich's Incorporated, referred to as the lessee, W. E. Callaham, doing business as Southeastern Elevator Company, referred to as the elevator company, and Walter J. Sampson, Bernard Greenbaum, Arthur A. Bogeaus, and Abner J. Mesirow, doing business as Southeastern Industrial District, referred to as the defendant owners, and W. K. Henry, for certain injuries allegedly due to the negligence of the defendants. The petition as amended alleged substantially: that on January 8, 1947, the plaintiff was an employee of the defendant lessee, and was employed in the service building of the lessee located in the Candler Warehouse at 631 Shelton Street, S. W., Atlanta; that the defendant lessee was the lessee of said premises and the occupant thereof, having occupied said premises for a period of time prior to January 8, 1947, since at least March, 1946; that the defendant owners were the owner and landlord of said premises, having leased the same to the defendant lessee; that said service building was used by the lessee as a warehouse for storage of merchandise for sale through its retail store, which was located in downtown Atlanta at another location; that in said warehouse was a warehouse office in which worked the office force for said warehouse; that the plaintiff was the telephone operator for said warehouse, and had her desk and switchboard in the office, which at the time was partially on the first floor and partially on the fourth floor; that the entire office, including her switchboard and desk, were in the process of being moved from said first floor to the fourth floor; that the plaintiff went to said office on the fourth floor during her lunch hour for the purpose of viewing the location of where her switchboard would be when the removal of her office from the first floor was completed; that the plaintiff wished said switchboard to be placed in a proper position with respect to light and with respect to places and persons in said warehouse, the plaintiff desiring a view from which she could tell members of the public seeking persons on the inside whether said persons were present; that the plaintiff had no authority to direct the location of said switchboard, but felt that her request with respect to the location of same might be heeded; that the plaintiff at said time and place when she was injured was an employee of the defendant lessee on the premises of her employer, but said injury did not occur to her at a time when she was performing any duty arising out of her employment; that the plaintiff during her off time or lunch hour intended to make said inspection in order to facilitate her own comfort, convenience and efficiency, but intended to benefit her employer by making helpful and beneficial suggestions with respect to the proper placement of said switchboard; that during lunch hour on said date of January 8, 1947, the plaintiff ate her lunch in the cafeteria in said building, which was on the first floor of said building where her office was also located; that after finishing her lunch, the plaintiff, accompanied by one Jack Helton, another employee of the defendant lessee, proceeded to go to the fourth floor of said building to inspect the new location of her office in said building, which at said time was being constructed by the defendant lessee that there were two elevators in said service building, one located in the eastern part and toward the eastern end and the other located in the western part and toward the western end; that said elevators were primarily freight elevators serving the four floors although they were customarily used by the employees of the lessee as passenger elevators during lunch hours as well as during actual working hours, this being known to all the defendants; that on the north and south sides of said western elevator there were hoistway gates, which at the time said premises were leased to the defendant lessee, were of a height of fifty-four inches; that, in order to enter into said elevators the hoistway gate must be raised, and, in order to start the elevators the hoistway gates must be lowered and locked; that the plaintiff had been employed by the defendant lessee at said warehouse for approximately three months and had frequently ridden as a passenger on both the western and eastern elevators; that during said time she rode on the elevators she learned and knew that there was no angle iron around the top of the elevators; that among the repairs and remodeling to be done by the defendant elevator company at the instance and direction of the defendant owners and lessee was the raising of said hoistway gates to a height of sixty-six inches, and in addition the installing of an angle iron running around the outside of said elevator approximately nine feet above the floor of said elevator, and along its outside edge; that said angle iron was intended as a support for the wire mesh top, also to be installed in said elevators; that when said angle iron was installed, and passed up and down in the shaftway, it passed along the side of said gateway so that it would hit an object protruding over and beyond said gateway; that, on the way down said angle iron, a sharp edge of same being exposed downward, would operate like a guillotine with respect to an object protruding beyond said gateway; that said angle iron was composed of two strips of iron or steel made together at a right angle, each strip being approximately two inches wide; that said angle iron was placed around the top of the elevator by the defendant Henry and his helpers two days before the plaintiff was injured; that, when said angle iron was placed around the top of said elevator, no warning signal was placed at any location to warn any person that same had been placed on said elevator; that on said date of the injuries the defendant elevator company was employed in repairing and remodeling said elevators, and had been so employed for at least a month prior thereto; that such repairing was being done by the defendant Henry, an employee of the defendant elevator company, who at all times mentioned was acting within the scope of his authority given by the defendant elevator company; that such repairing and remodeling work was being done at the instance and direction of the defendant owners and lessee; that the acts and omissions of the defendant Henry, as hereinafter charged to him, were done or omitted by him as an employee of the defendant elevator company, and while acting in the scope of his authority from said company; that, when the plaintiff attempted to go from the first floor to the fourth, she went to the hoistway gate of the elevator, but found that the elevator was not at the first floor where she could use same; that she pushed the electric button to cause the elevator to come down to her to the first floor, but found that the elevator did not move to come down to her; that the defendant Henry was working at the elevator at that time and informed the plaintiff that the elevator was stuck at the fourth floor and could be released only by pulling the fourth floor gate down; that the plaintiff informed Henry that she was going to the fourth floor, and Henry stated that he then needed the elevator down there to work on and requested the plaintiff to pull the fourth floor gate down so that the elevator would come down to him on the first floor, and requested her to hollow down the elevator shaftway to let him know when the hoistway gate was lowered; that the defendant Henry requested the plaintiff to so close the fourth floor gate so that he might bring the elevator down to him so that he might work on same; that the defendant Henry did not warn the plaintiff that the angle iron had been placed around the top of the elevator and did not warn her not to protrude her head over the top of the gate, which he knew was only fifty-four inches high; that the plaintiff went to the fourth floor on said eastern elevator, and upon her arrival walked back to the western elevator shaftway for the purpose of complying with the request of the defendant Henry to lower the hoistway gate; that immediately upon pulling said hoistway gate down, the plaintiff looked over said gate into the shaftway, which was one and one-half inches from said hoistway gate, thereby protruding her head approximately four or five inches into said shaftway space so as to hollow to the defendant Henry, as he had requested, that the elevator gate was lowered, when the plaintiff was struck on the head by the angle iron that had been placed around the top of the elevator, causing enumerated injuries to the plaintiff; that the defendant Henry individually and as an employee of the defendant elevator company, acting at said time and place within the scope of his employment, pushed the elevator button on the first floor in order to make said elevator come down to him, said pushing of the button taking place at the time the plaintiff protruded her head into said hatchway to hollow down to him, and simultaneously...