Dolph v. Maryland Casualty Co.
| Decision Date | 04 March 1924 |
| Docket Number | No. 23912.,23912. |
| Citation | 303 Mo. 534,261 S.W. 330 |
| Parties | DOLPH v. MARYLAND CASULATY CO. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.
Action by Clifford M. Dolph against the Maryland Casualty Company. Judgment for plaintiff, and defendant appeals. Affirmed, on condition of remittitur.
Holland, Rutledge & Lashly, of St. Louis, for appellant.
Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent.
The schedule mentioned is as follows:
Schedule
Location of Building Where Location in Number of Maker and Number of Premium per
Elevator is Situated. Building. Elevator. Kind. Power Used. Landings. Elevator
Northeast corner Seventh and Central. One. Passenger. Otis-electric. 8 $52.50
Locust St., St. Louis, Mo
This policy covers south passenger elevator, west side of corridor.
The policy also contains the following provision:
"This policy does not cover accidents to or caused by any person while making additions to, or structural alterations in, or extraordinary repairs of, any elevator or elevator plant, unless a written permit is granted by the company specifically describing the work, except that ordinary repairs of such elevator or elevator plant may be made without such permit; but no elevator may be used for any service while additions, alterations, or repairs of any kind are being made to such elevator or its equipment."
The petition alleges that in plaintiff's building, known as the Dolph Building, two elevators were operated in a shaft from the first floor to the seventh floor of the building; that the south elevator became out of order, and one Joseph Z. Flori proceeded to examine it, to learn the cause of that elevator's failure to operate, and while in the pit or in the shaft on the ground floor, making such examination, the north elevator ascended to the seventh floor, causing its counterweight to descend upon and injure Flori; that Flori thereafter sued the plaintiff for damages on account of such injuries, and February 17, 1914, recovered judgment in the sum of $12,500; that the plaintiff here appealed said suit to the Supreme Court, in which court the said judgment was affirmed February 20, 1917. Flora v. Dolph, 102 S. W. 949. Dolph afterwards paid said judgment, amounting, with interest and costs, to $14,820.82. It is further alleged that the plaintiff was obliged to employ attorneys to defend said suit at a cost of $500 and to pay $10 docket fee in the Supreme Court, and that the defendant has refused to pay any of said sums vexatiously and without legal excuse. Judgment is asked for the sum of $10,608.05 and interest at 6 per cent, from March 21, 1917, to the date of the judgment, and for reasonable attorney's fees, and 10 per cent. Additional for vexatious delay.
In answer the defendant alleged that the policy of insurance covers only the south elevator shaft and pit, and that the injury was caused by the operation of the north elevator vator. This defense, which turns upon a construction of the policy, will be noticed fully below. It is further alleged in the answer that the judgment in the case of Flori v. Dolph, and the affirmance of the same by the Supreme Court, adjudicated the matter as to the cause of Flori's injury, for which Dolph was liable, showing it was not covered by the policy. These points are pressed for consideration here in support of the defendant's claim for reversal. In defense it is also urged that the court, erred in submitting the question of vexatious delay and assessment of the amount paid as attorney's fees, and 10 per cent. in addition to the amount provided for in the policy. This requires a construction of the clause of the policy set out above in the light of the facts shown in the evidence.
The space where the two elevators, the north elevator and the south elevator, were operated from the first floor to the seventh floor, was 15 or 16 feet long from north to south, and 7 or 8 feet wide. The entrance to each elevator was through a gate on the east side. In the space between the two elevators were two counterweights, one balancing each elevator. A counterweight was described as being about 24 inches in width, about 5 inches thick, and a little heavier than the elevator. The counterweight descended as the elevator ascended, and vice versa. The counterweight on the east balanced the south elevator, and the counterweight. on the west balanced the north elevator. In the center of the space between the two elevators was what is termed a "guide;" at the west side and at the east side of the space were also guides to hold the counterweights in place as they passed up and down. Otherwise the space between the two elevators was open.
Flori was president of the George Flori Machine Company, and working as a mechanic for the Geraghty Bros. Elevator Company. The day he was hurt, August 25, 1913, he was called to the Dolph Building for the purpose of finding out what was wrong with the south elevator. Flori was accompanied by one Eugene Eberius, an electrician, who was to assist him in making the necessary repairs. Eberius testified that there was one pit or shaft for both elevators, using the expression: "The width of the shaft contained both cars and is about 7 feet deep and 15 feet long." He described the position and the size of the counterweights, which come up as the cars go down. The two elevators were about 10 inches apart. He said: "Both cars are in one shaft alongside of each other." He said they found the south elevator on the first floor, where they were informed it could not be moved. After going to the top of the building and finding no trouble there, they went to the first floor. The witness stood in the door, and Flori got down in the pit to see conditions at the bottom of the south car. Before going into the pit they had told the elevator boy not to go to the seventh floor, but to stop at the sixth, so that the counterweight would not come all the way down. Flori got into the pit under the north car and crawled through the space where the counterweight of the north car worked, to get under the south car. He crawled down underneath the other car (the south car) and part of his body was in the space between the two cars where the counterweight works, and the elevator boy ran his Car to the seventh floor, allowing the counterweight to come down upon Flori's shoulders and arm, causing the injuries for which he afterwards recovered judgment against Dolph.
Flori testified that there were two elevators in one pit or shaft, and told of the conditions as Eherius had described them. He said he These two witnessnes, Flori and Eberius, were the only witnesses who testified for plaintiff in regard to the situation and the cause of the injuries.
The defendant introduced the judgment and files in the case of Flori v. Dolph, and the record in that case which contained the testimony of Eberius and Flori. Their evidence there in regard to the way the injury occurred did not differ materially from the testimony given in the present case, except that the witnesses did not describe the pit or the shaft in which the elevators were operated. Nothing was said about it, whether it was one shaft or more than one.
The trial resulted in a judgment for plaintiff for $15,840.89, which included attorney's fees and 10 per cent. for vexatious delay. The defendant appealed.
I. The appellant claims that the judgment in the case of Mori v. Dolph is conclusive as to the issues in this case, and a peremptory instruction directing a verdict for defendant should have been given, because the record in that case disclosed that the sole cause of the injuries was negligence of the operator of the north elevator, and the policy sued on covers and refers solely to the south elevator, and therefore the judgment is an adjudication of the rights of the parties here. The judgment in the case of Flori v. Dolph is conclusive as to the matters decided there and necessary to the determination of the case. It was not necessary, in order to recover there for Flori, to prove anything except that the injury was caused by the negligence of Dolph's employee in operating an elevator, and he did prove it was done in operating the north elevator. It was not necessary to prove any other fact in connection with the matter. In the case of City of St. Joseph v. Union Railway Co., 116 Mo. 636, loc. cit. 643, 22 S. W. 794, 795 (38 Am. St. Rep. 626), where this court had under consideration a liability contract, it said:...
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