Harzfeld's, Inc. v. Otis Elevator Co.

• Decision Date: 24 August 1953
• Docket Number: No. 8138.,8138.
• Citation: 114 F. Supp. 480
• Parties: HARZFELD'S, Inc. v. OTIS ELEVATOR CO.
• Court: U.S. District Court — Western District of Missouri

114 F. Supp. 480

HARZFELD'S, Inc. v. OTIS ELEVATOR CO.

No. 8138.

United States District Court W. D. Missouri, W. D.

August 24, 1953.

COPYRIGHT MATERIAL OMITTED

William G. Boatright and David L. Sheffrey, Kansas City, Mo., for plaintiff.

Dietrich, Tyler & Davis, Kansas City, Mo., McKnight, McLaughlin & Dunn, Chicago, Ill., for defendant.

RIDGE, District Judge.

Plaintiff herein prays actual and punitive damages for injury to its business, alleged to have resulted as the consequence of the re-cabling and subsequent service and inspection by defendant of one of its passenger elevators.

Plaintiff, engaged in the retail sale of women's wearing apparel, entered into a contract with defendant in December of 1948, whereby the latter agreed to regularly inspect and service plaintiff's elevators located in the Deardorff Building in Kansas City, Missouri. In January of 1949, one of the plaintiff's elevators became damaged, whereupon the parties herein entered into a separate contract calling for defendant to remove and replace a defective cable by which said elevator was partially suspended. This, defendant undertook to do. Plaintiff contends, however, that defendant negligently and recklessly, and in reckless and wanton disregard of lives, property and the business of plaintiff, installed the new cable by attaching it to a "spacer plate" rather than to the "hitch plate", when "defendant knew that, if the cables were attached to the guide or spacer plate, it was but a question of time until said plate would buckle," causing the elevator to fall. After this claimed act, plaintiff alleges defendant continued to inspect and service plaintiff's elevators pursuant to contract, without, however, informing or warning plaintiff of the alleged faulty installation. Finally, on October 6, 1949, the elevator which defendant had recabled fell, causing injury to those riding therein. As a result of that occurrence, plaintiff claims its business was damaged and injured and it suffered loss of profits, since "customers became afraid to ride, and because of such fear did not and would not ride, the elevators in plaintiff's said place of business * * *."

Defendant now moves the Court to dismiss plaintiff's complaint for failure to state a claim for which relief can be granted, or by separate motion, to strike certain allegations contained therein. Defendant contends that its instant liability to plaintiff, if any, must rest on the contracts in force between it and plaintiff, and that its alleged breach thereof would not give rise to an ex delicto cause of action such as plaintiff seeks to assert. If plaintiff has stated an action for breach of contract in the complaint, then defendant moves that those portions thereof which charge negligence and seek punitive damages be stricken. Thus defendant raises a perplexing question of law which is always cause for judicial concern in its resolution, viz.: under what attending circumstances will a breach of a private contract give rise to an ex delicto cause of action in favor of a party to the contract.

The claim here asserted having accrued in the State of Missouri, a determination of the above proposition must be made in accordance with the law of that State. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. It is the law of Missouri, as generally elsewhere, that a mere breach of a contract will not constitute the basis for recovery in tort. Kohnle v. Paxton, 268 Mo. 463, 188 S.W. 155. But that is not to say that under all attending circumstances, an act in breach of a contract obligation cannot also constitute an actionable tort, where the law imposes a duty or separate obligation with respect to the contract undertaking. As stated in Lahtinen v. Continental Building Co., 339 Mo. 438, 97 S.W. 2d 102, 107:

"The violation of a contract will not, as such, furnish a basis for liability in tort, but the act which violates the contract may be a negligent one which creates such liability. In such a case it is the negligent act rather than the violation of the contract which furnishes the basis for the liability."

A few cases may be found in Missouri case law which hold that where a contract creates a duty, mere failure to perform that duty, constituting a breach, may be the basis for an action in tort. Cf. Graff v. Lemp Brewing Co., 1908, 130 Mo.App. 618, 109 S.W. 1044, cited with approval in Peitzman v. City of Illmo, 8 Cir., 141 F.2d 956; and Taylor v. Atchison, T. & S. F. Ry. Co., D.C.Mo., 92 F.Supp. 968, 969. But a closer scrutiny of controlling Missouri authorities regarding that proposition, requires rejection of such a broad view. The Court's opinion in the Graff case, supra, on which the above cited later decisions apparently rely, was expressly rejected in subsequent holdings of the Missouri Supreme Court. In Kohnle v. Paxton, supra, 188 S.W. loc. cit. 160, the Court said:

"* * * the petitions sound in tort, but they do not disclose such active negligence independent of the contract as will support an action of this character. * * * That much may be and has been said to the contrary, especially in the well-reasoned cases of Willcox v. Hines 100 Tenn. 538, 46 S. W. 297, 41 L.R.A. 278 and Graff v. Lemp Brewing Co., supra, we do not hesitate to admit; but, considering the nature of the action, the relationship of the parties, as landlord and tenant, and the general law in regard to the force and effect of contracts, the doctrine declared in these cases is not approved." (Italics supplied.)

Parenthetically it is noted that although the Circuit Court of Appeals for the Eighth Circuit, in the Peitzman case, supra, quoted the Graff case with approval, the facts in those two cases are readily distinguishable. In the former, recovery was sought for willful acts independent of contract obligation, while no active negligence was involved in the Graff case. We only advert to these authorities to bring into proper focus the ruling that was actually made by the Court in the Peitzman case, supra. When the facts in that case are correctly perceived, it is apparent that the recovery there sustained is and was consonant with Missouri law. However, the general concept as expressed in 141 F.2d on page 961 of that opinion, i. e., "In Missouri the principle is recognized that where a covenant creates a duty, failure to perform that duty is the basis for an action in tort", if taken out of context of the issues before the Court in the Peitzman case, does not express the correct Missouri rule regarding that subject. Cf. Lahtinen v. Continental Building Co., (Mo.) supra; Combow v. Kansas City Ground Inv. Co., 358 Mo. 934, 218 S.W.2d 539, 8 A.L.R.2d 213; and Kohnle v. Paxton, supra.

Counsel in the instant action have in their briefs made an exhaustive and scholarly review of Missouri authorities as such authorities are generally concerned with the above proposition. Regardless, in light of the issues proffered by the instant complaint, we do not believe it necessary to follow them throughout such analysis or bestow further thought on the general nature of the principle of law so considered by them. In the complaint at bar, plaintiff alleges facts that reveal it had what might be termed a "construction contract" with defendant, one that called for performance of repairs to be made by defendant to the machinery in the building occupied by plaintiff. As to contracts of that character, it is the law of the State of Missouri that "even in the absence of an express agreement" that such an undertaking be done in a good and workmanlike manner, "such a condition is none the less implied in every working contract", Brush v. Miller, Mo.App., 208 S.W.2d 816, 818, and under a contract of that character a contractor may be "required to respond to the owner on account of defective construction, * * * in accordance with the precepts of ordinary care". Flannery v. St. Louis Architectural Iron Co., 194 Mo.App. 555, 185 S.W. 760, 761. But to state such propositions of Missouri law is still far short of determining when an act in breach of such a contract will also give rise to a remedy in tort. We believe such matter may be determined by these further considerations.

Accompanying every contract of the character here considered is a common law duty to perform the thing agreed to be done with care, skill, reasonable expediency and faithfulness, and a negligent failure to observe any of these conditions is a tort as well as a breach of contract. Cf. Rest. of Law, Torts, § 403; Roddy v. Missouri Pac. Ry. Co., 104 Mo. 234, 15 S.W. 1112, 1115, 12 L.R.A. 746; 12 L.R.A. 925, and cases there cited. See also 52 Am.Jur., Torts, Sec. 27. A very important matter to be considered in determining when a breach of private contract duty gives rise to an action ex delicto or ex contractu is the distinction between...