O'Day v. Sakowitz Bros.

Decision Date29 October 1970
Docket NumberNo. 15595,15595
Citation462 S.W.2d 119
PartiesWilliam J. O'DAY et ux., Appellants, v. SAKOWITZ BROTHERS et al., Appellees. (1st Dist.)
CourtTexas Court of Appeals

Powell, Tucker, Kain & Reedy, Paul A. Tucker, Houston, for appellants.

Baker, Botts, Shepherd & Coates, Walter E. Workman, Houston, for appellee Elevator Maintenance Co., Inc.

John L. McConn, Jr., Howard L. Nations, Butler, Binion, Rice, Cook & Knapp, Houston, of counsel, for appellee Sakowitz Brothers.

PEDEN, Justice.

Appeal from a take nothing judgment in a personal injury suit.

Plaintiff Mrs. Lorraine O'Day alleged that she was injured while riding an escalator in Sakowitz Brothers' store at about 1 P.M. on October 23, 1963, when the escalator suddenly stopped. She brought this suit against Sakowitz and against Elevator Maintenance Co., which had contracted to maintain the escalators for Sakowitz. Other parties named as defendants will be noticed later in this opinion.

The appellants' petition stated that while Mrs. O'Day was riding down from the third floor on the escalator it plunged down, jerking her around, and that it came to a jolting stop, further jerking and twisting her, causing her to be dazed and injured. They alleged that the escalator was in the exclusive custody and control of the defendants and that Mrs. O'Day was entitled to rely upon the doctrine of res ipsa loquitur. Further, that she was a business invitee in the store and Sakowitz owed her a non-delegable duty to properly inspect and maintain its escalator, which the defendants negligently failed to do.

She also contended that the defendants failed to comply with City of Houston Ordinances 5602, 5604(c) and (c), 5605 and 5605(e), which concern maintenance, inspection and other duties of the owners of escalators (and elevators, etc.) and with Section 901.3b of the American Standard Safety Code.

Sakowitz answered by general denial, pleaded contributory negligence and unavoidable accident and sought indemnity or contribution from Elevator Maintenance based on a maintenance contract. Elevator Maintenance filed a cross-action seeking like relief from Sakowitz. Each of these defendants alleged that the other's negligence proximately caused the accident.

It is uncontroverted that the lights in Sakowitz Brothers' store went off for a moment and that their escalators stopped at about 1 P .M. on the day in question when there was a brief interruption in the power supplied by the utility company. The expert witnesses testified that the escalators would be stopped by such a power interruption and would have to be started up again. Also that the escalators move at about ninety feet per minute, which is about one mile per hour or one and one-half feet per second and that when the electric power is interrupted the brakes are automatically applied. One expert witness testified that this causes the escalator to come to a 'gradual' stop, in from twelve to sixteen inches. Another expert testified that the escalators come to a stop within sixteen to eighteen inches, and a third said that the escalator in question, when going down with one or two people on it, would move six to eight inches after the brakes were applied and would come to a 'soft' stop.

The expert witnesses testified that they had never heard of an escalator going into a 'free fall' and the exhibits offered by the defendants demonstrated the various forces making it unlikely to happen. The plaintiffs apparently submitted no issues seeking a finding that it did occur.

In response to special issues the jury found 1) that the escalator on which Mrs. O'Day was a passenger came to a sudden stop, but the jury did not find 2) that Elevator Maintenance or its agents, servants and employees failed to use ordinary care in the maintenance of the escalator on or before the incident in question and did not find 4) that Sakowitz or its agents, servants and employees failed to use a high degree of care in its maintenance before the incident in question. The jury found 6) that the occurrence was the result of an unavoidable accident, 7) that Mrs. O'Day did sustain injury on the occasion made the basis of the suit, and 8) that the reasonable value of the medical services made necessary by such injury was $2,300., but 9) the jury did not find that she had suffered other damages.

The appellants present their first four points of error together, alleging in those points that the trial court erred in refusing to grant their amended motion for new trial in that 1) Sakowitz and Elevator Maintenance were each allowed six jury strikes when there was no controversy to be decided by the jury between those defendants, 2) the trial court should have permitted two prospective jurors to be struck for cause, 3) a Mrs. Hayes, one of the jurors, failed to answer a question on voir dire as to whether she had ever received an injury when in fact she had suffered a back injury and 4) there was no evidence to support the jury's answer of 'none' to Special Issue No. 9, the general damage issue.

We overrule the first four points.

We hold that the trial judge did not err in allowing Sakowitz and Elevator Maintenance six peremptory challenges each.

Whether two or more parties are each entitled to six jury strikes under Rule 233, Texas Rules of Civil Procedure, depends on whether they have interests that are, at least in part, antagonistic on one or more fact issues. Retail Credit v. Hyman, 316 S.W.2d 769 (Tex.Civ.App.1958, writ ref.).

We have noted that Sakowitz and Elevator Maintenance had filed pleadings seeking indemnity and contribution from each other. The appellants contend that there was no antagonism between such defendants on any fact issue because Mr. P. B. Smith, an officer and owner of Elevator Maintenance, judicially admitted in a deposition on file in this cause that the maintenance contract between the defendants was in effect at the time of Mrs. O'Day's accident and it obligated Elevator Maintenance to maintain the escalator in question for Sakowitz. There are several reasons for our not agreeing with this position. The record does not reflect that such deposition, or the admission therein (if it did constitute a judicial admission) was ever called to the attention of the trial judge. We think it would place an unreasonable burden upon him to require him to examine all depositions on file in determining how many peremptory challenges to allow. Further, Mr. Smith's statement would not demonstrate that these defendants have no antagonistic interests on fact issues.

It appeared from the pleadings on file when the trial judge was required to rule on this matter, that fact issues would likely arise as to whether the escalator sped up and then stopped suddenly, and if so, what caused this to happen. Even if the maintenance contract between the defendants had been before the court, it provides that Elevator Maintenance assumed no liability for injuries or damages to persons except those directly due to the acts or omissions of Elevator Maintenance. Under the defendants' respective pleadings each could have offered proof to show that the accident was caused by negligence on the part of an employee of the other, so the defendants' liability was not necessarily a question of law to be determined by the court from the contract.

We have examined the record of the voir dire examination of the two prospective jurors whom the trial court declined to strike for cause, and we hold that the error, if any, was harmless. The challenged jurors did not serve, and the record does not reflect that before they exercised their peremptory strikes, the appellants made known to the trial judge that two of the jurors who served were objectionable to them. It appears that the appellants were restricted in their efforts to state their position in open court during selection of the jury, but they were allowed to timely present their written objections to the two prospective jurors, and we find no reference in such writing to their being required to accept two other jurors who were objectionable to them.

In order to complain, the appellants would be required to show that before they exercised their peremptory challenges they apprized the trial court that two of the prospective jurors were objectionable to them and that they would have challenged those jurors had they not been forced to exhaust two challenges on objectionable jurors. Palestine Contractors, Inc. v. Perkins, 386 S .W.2d 764 (Tex.Sup.1965); Hammon v. Texas & New Orleans Railroad Co., 382 S.W.2d 155 (Tex.Civ.App.1964, writ ref. n.r.e.).

Further, when the trial court has found that a prospective juror was not disqualified, the appellate courts must consider the evidence in the light most favorable to upholding that ruling. Compton v. Henrie, 364 S.W.2d 179 (Tex.Sup.1963); Swap Shop v. Fortune, 365 S.W.2d 151 (Tex.Sup.1965). When the evidence as to disqualification is viewed in that light, we cannot say that the trial court erred in denying the appellants' motion to strike the two prospective jurors.

As to the appellants' contention that Mrs. Hayes failed to answer their question on voir dire examination of the jury panel as to whether anyone had ever had an injury, we note that Mrs. Hayes' explanation, given during the hearing on the appellants' motion for new trial, was 1) she was never asked if she had had an injury and 2) she once fell in her home, but her doctor said there was no injury, so she could truthfully say she had not injured her back.

Our examination of the record of the questioning of the prospective jurors does not reveal that Mrs. Hayes was asked any direct questions concerning her health or any possible injuries. Several questions were asked of the panel generally, and of other veniremen individually, concerning lawsuits or claims they might have filed based on past injuries, and two of the questions then asked were:

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