Dallas Hotel Co. v. Fox

• Decision Date: 30 May 1917
• Docket Number: (No. 1171.)
• Citation: 196 S.W. 647
• Parties: DALLAS HOTEL CO. v. FOX et al.
• Court: Texas Court of Appeals

Page 647

196 S.W. 647

DALLAS HOTEL CO. v. FOX et al.

(No. 1171.)

Court of Civil Appeals of Texas. Amarillo.

May 30, 1917.

Rehearing Denied June 20, 1917.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by Gussie Fox and others against the Dallas Hotel Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

A. P. Wozencraft and S. P. English, both of Dallas, for appellant. Etheridge, McCormick & Bromberg, of Dallas, for appellees.

HALL, J.

Mrs. Gussie Fox, plaintiff below, for herself and as guardian of her two children, sued appellant hotel company for damages on account of the death of her husband, Alexander Fox. The pleadings of the parties are voluminous, and for the purposes of this opinion it is sufficient to state briefly the substance of the allegations and in consideration of the various assignments when necessary, to set out the particular parts of the pleadings of either party pertinent to the assignment under consideration. A summary of plaintiff's petition is that the husband was in the employ of A. Harris & Co. as night watchman; that Harris & Co., under a lease from estate of Adolphus Busch, occupied the first five floors and basement of the Busch building in Dallas; that Fox's duties involved the use of a hydraulic elevator which extended from the basement of the Busch building to the sidewalk; that defendant, Dallas Hotel Company, owned and operated the Adolphus Hotel, and prior to the accident resulting in the death of Fox had undertaken to maintain the hydraulic elevator in repair for A. Harris & Co.; that defendant negligently failed to keep said elevator in repair, and while Fox was using it, causing it to descend, the elevator, from some cause, stuck and stopped; that he then placed a portion of his body beneath the elevator in an effort to ascertain the cause of the trouble, and while in this position the elevator, of its own motion, renewed its descent and caught and injured him, from which injury he died within a few hours. The defendant answered with general demurrer and certain special exceptions, a general denial, and affirmatively pleaded in substance that its agreement to maintain the elevator in question was not made until two months after the death of Fox, and that at the time of the accident to Fox it was not obligated in any way to keep the elevator in repair, and could not be held for failing to do that which it was not obliged to do; that in fact it was under an obligation to maintain those elevators which served the office part of the Busch building, and as defendant's employés were in the Busch building the defendant through them voluntarily inspected and otherwise looked after the hydraulic elevator from time to time, even before the death of Fox, but that the fact that certain care of such elevator was voluntarily rendered did not make defendant liable for failing to continue that care; that subsequently to the death of Alexander Fox plaintiffs had sued A. Harris & Co., the employer of deceased, and judgment was rendered against plaintiffs; that subsequently plaintiffs gave a complete release to A. Harris & Co., extinguishing their cause of action in consideration of $3,625.61, received as damages and compensation on account of the death of Alexander Fox; that the suit, judgment, release, and payment were a bar to the present action; that the payment was a payment pro tanto on any damages sustained and should be taken as an offset in the present suit; that Fox was guilty of contributory negligence in putting part of his body underneath the elevator, in failing to operate the elevator up and down until the sticking, if any, was overcome, and in failing to lock the elevator in place by closing the outlet water valve before going under the elevator, in putting part of his body under the elevator without having locked it in position, and in not getting entirely in the elevator pit, if he was going to get under the elevator at all. The case was submitted to a jury upon special issues and a verdict returned, upon which the court entered judgment against the defendant for $9,000.

Under the first assignment appellant insists that the court should have directed a verdict in its favor, and the proposition is urged that in a suit brought by the representatives of a servant, not against his master, but against defendant, a third party, based upon the failure of defendant to maintain in repair an elevator leased by the master from a fourth party, and furnished by the master to the servant where there is no evidence that defendant was bound or obligated to so maintain the elevator, a verdict for defendant should be instructed. The Busch building in Dallas is a 16-story structure, owned by the estate of Adolphus Busch, the basement and five stories of which are occupied by A. Harris & Co. as a department store. The remaining stories are leased for office purposes. The lease contract between A. Harris & Co. and the estate of Adolphus Busch provides that Harris & Co. will, at its own cost, keep and maintain the leased premises in good order and repair, including the elevators. Except the hydraulic elevator, which injured Alexander Fox, the remaining elevators which served the building were operated by electric power. Harris & Co. had in their employ a machinist and engineer by the name of Parks, whose duty it was to care for the elevators in use in that part of the building leased and occupied by Harris & Co. Defendant hotel company also had two engineers, Long and Tucker, to care for and look after the elevators and other machinery of the Busch building. It appears that these parties, at least to some extent, undertook to care for the elevators which served that part of the building occupied by Harris, as well as the elevators serving the offices in the upper floors of the building. Appellee contended that appellant was under contract with Harris & Co. to care for all elevators used by said company, and especially the hydraulic elevator where the accident occurred. Appellant's contention is that the care of the elevators by its employés, Long and Tucker, was voluntary and without any compensation whatever, and denied that it had any such contract with Harris & Co.

The second assignment of error is based upon this portion of the general charge:

"You are instructed that defendant owed to Alexander Fox the duty to exercise ordinary care to maintain the elevator in question in a reasonably safe condition for his use."

The objection to this charge is that:

"The court assumes and informs the jury that the defendant did owe such duty, that the court assumes that there was such obligation on the part of defendant, and that the court assumes that there was an agreement on the part of the defendant to exercise ordinary care to maintain the elevator in question in a reasonably safe condition."

The first and second assignments will be considered together. The charge in the petition is that there was an agreement or some sort of an arrangement between appellant hotel company and Adolphus Busch, whereby the hotel company, by and through its operatives, had the management and control of all elevators in the Busch building, and that through its operatives the hotel company undertook for and on behalf of A. Harris & Co. to supervise and keep in repair all of said elevators used by A. Harris & Co., and to that end there was also an agreement by and between appellant and Harris & Co. It appears that Harris & Co. moved into the Busch building about the 17th of November, 1913. The accident resulting in the death of Fox occurred January 31, 1914. In the lease contract between Harris & Co. and the owners of the Busch building, we find these stipulations:

"Lessee (A. Harris & Co.) hereby agrees and covenants with lessor (the estate of Adolphus Busch) to procure from the proprietors of the Adolphus Hotel (situated in the city of Dallas, Tex.) all heat required by lessee for heating said leased premises, the same to be furnished at a reasonable cost, and if lessee and the proprietors of the said Adolphus Hotel are unable to agree upon the reasonable cost thereof, then such cost shall be determined by a board of arbitration, consisting of three members, whose written award or the award of two members thereof shall be conclusive and binding. Lessee shall select one member of said board, the proprietor of the Adolphus Hotel shall select a second, and the two men so chosen shall select a third, provided, however, that if the proprietors of the Adolphus Hotel are unable at any time to supply said leased premises with the necessary agency to properly heat the same, then the lessors agree to install in the Busch building a good and sufficient heating plant of modern type, for the use thereof, and to thereby heat the leased premises for a reasonable compensation for such heat, to be agreed upon in writing by the parties thereto."

Following this is a similar stipulation with reference to the supply of electric current for light and power. It appears that about two months after the death of Fox the arbitration provided for by these two paragraphs of the lease contract was entered into, resulting in an award that Harris & Co. should contribute $100 a month for the time they had occupied the Busch building; said amount being contributed for the purpose of paying appellant's engineers, Long and Tucker, for such services as had been rendered in looking after the particular elevators which served the A. Harris & Co. part of the building. Appellant quotes at length the testimony of Arthur L. Kramer, the president of A. Harris & Co., and Geo. E. Wells, supervising engineer of the Anheuser Busch Brewing Association, with reference to the existence of an agreement or contract binding appellant to look after the Harris & Co. elevators. Upon this issue appellee quotes from the testimony of Long, Tucker, and Wells, tending to show that such an agreement existed. It...