Jones v. Otis Elevator Co

• Decision Date: 14 December 1949
• Docket Number: No. 394.,394.
• Parties: JONES. v. OTIS ELEVATOR CO.
• Court: North Carolina Supreme Court

56 S.E.2d 684

231 N.C. 285

JONES.

v.OTIS ELEVATOR CO.

No. 394.

Supreme Court of North Carolina.

Dec. 14, 1949.

Action by Mary Leona Jones against Otis Elevator Company for injuries sustained as result of fall into an elevator shaft.

The Superior Court, Lenoir County, Claw-son L. Williams, J, overruled defendant's demurrer to plaintiff's complaint and the defendant appealed.

The Supreme Court, Denny, J., held that the complaint stated a cause of action and affirmed the judgment.

This is an action instituted by the plaintiff on March 26, 1949, to recover for injuries which she sustained as the result of falling in an elevator shaft in Memorial Hall, Richmond, Va., on March 28, 1948, which injuries she alleges were sustained by reason of the failure of the defendant to keep the elevator in said building in proper repair, in accordance with the terms of a written contract between the defendant and the Medical College of Virginia, Hospital Division (hereinafter called Med-ical College of Virginia), the owner of said Memorial Hall.

It is further alleged that the plaintiff at the time of her injury was an employee of the Goldsboro Hospital, Inc., and had been assigned to duty in the Medical College of Virginia for further training; that under the terms and provisions of her contract of employment with the Goldsboro Hospital, Inc., on March 28, 1948, it was the duty of the Goldsboro Hospital, Inc., to provide her with living quarters, and, through the Medical College of Virginia, it did provide the plaintiff with living quarters in the building known as Memorial Hall, 1201 East Broad Street, Richmond, Va.

It is alleged that the defendant, on May 28, 1945, entered into a contract with the Medical College of Virginia, which contract was in effect at the time of plaintiff's injury, and in which the defendant obligated itself to use all reasonable care to maintain the passenger elevator in Memorial Hall in proper and safe operating condition, to inspect it weekly; and to examine, lubricate, adjust, and if in its judgment conditions warranted, repair or replace the following accessory equipment: Selectors, electric operators, door closers, electric interlocks, car doors, car gates, door hangers, etc.

The plaintiff alleges that by reason of the improper maintenance of the elevator by the defendant, she was lured into the open elevator shaft in a poorly lighted hall on the third floor of said building, that she fell to the first floor on top of the elevator and received serious and permanent injuries; and she further alleges, among other things, that the defendant, in violation of its contract so maintained "the said elevator that the door closures, electric inter-locks and other apparati (apparatus) forming a part of the elevator unit would not operate or perform the function for which such units were designed and installed, and so as to cause the elevator cage and/or carriage to move and/or be moved from one floor in the said building to the other while the door to the elevator well was open, to enable one to open the door to the elevator well when the cage or carriage was not at that floor."

It is also alleged that the plaintiff has filed a claim with the N. C. Industrial Commission, seeking to recover compensation under the provisions of the N. C. Workmens' Compensation Act, as an employee of the Goldsboro Hospital, Inc., but no award has been made, neither has the employer or its carrier, The Travelers Insurance Company, admitted or accepted liability for the injuries sustained by her, and that more than six months has expired since the date of her injury, and that this action is brought on behalf of plaintiff, her employer and its insurance carrier.

The defendant demurred to the complaint on the following grounds:

1. That it appears on the face of the complaint that there is a defect of parties plaintiff and defendant, in that: (a) The Goldshoro Hospital, Inc., and its carrier. Travelers Insurance Company, are real parties in interest and are proper and necessary parties plaintiff in this action; (b) The Medical College of Virginia is a proper and necessary party defendant.

2. That the complaint does not state facts sufficient to constitute a cause of action against the defendant, Otis Elevator Company for the following reasons: (a) That the plaintiff alleges a contract between the Otis Elevator Company and the Medical College of Virginia, which is not a party to the action, and no privity of contract exists between the plaintiff and the parties to said contract; (b) the contract referred to herein, creates no duty on the part of this defendant to the plaintiff, since she is a third party, and no privity of contract exists between them.

3. That it appears on the face of the complaint that the Court has no jurisdiction of the subject matter of this action, in that the N. C. Industrial Commission has exclusive jurisdiction thereof.

The demurrer was overruled, and the defendant appeals and assigns error.

J. A. Jones, Weston O. Reed and Thomas B. Griffin, Kinston, for plaintiff.

Whitaker & Jeffress, Kinston, for defendant.

DENNY, Justice.

We shall first consider the challenge to the jurisdiction of the Court. It is contended that the N. C. Industrial Commission has exclusive jurisdiction of this cause. The contention cannot be upheld in light of the provisions of our Workmen's Compensation Act and the facts as alleged in plaintiff's complaint

It is provided in G.S. § 97-10 that the rights and remedies granted to an employee, where he and his employer have accepted the provisions of the Workmens' Compensation Act, shall exclude all other rights and remedies of such employee, as against his employer at common law, or otherwise, on account of any injury. However, the statute further provides "that in any case where such employee * * * may have a right to recover damages for such injury * * * from any person other than the employer, compensation shall be paid in accordance with the provisions of this chapter: Provided, further, that after the industrial commission shall have issued an award, or the employer or his carrier has admitted liability in writing and filed same with the industrial commission, the employer or his carrier shall have the exclusive right to commence an action in his own name and/or in the name of the injured employee or his personal representative for damages on account of such injury or death, * * *. If, however, the employer does not commence such action within six months from the date of such injury or death, the employee, or his personal representative, shall thereafter have the right to bring the action in his own name, and any amount recovered shall be paid in the same manner as if the employer had brought the action." Peterson v. McManus, 208 N.C. 802, 182 S.E. 483; Ikerd v. North Carolina R. Co., 209 N.C. 270, 183 S.E. 402, 106 A.L.R. 1061n; Mack v. Marshall Fields & Co, 217 N.C. 55, 6 S.E.2d 889; Sayles v. Loftin, 217 N.C. 674, 9 S.E.2d 393; Whitehead & Anderson, Inc. v. Branch, 220 N.C. 507, 17 S.E.2d 637; Eledge v. Carolina Power & Light Co, 230 N.C. 584, 55 S.E. 2d 179.

The plaintiff was injured on March 28, 1948, and at the time of the institution of this action, on March 26, 1949, more than six months having expired from the date of her injury, she was authorized by the statute to institute an action against any third party or parties who in her opinion contributed to her injury, and the defendant is in no wise affected by our Workmens' Compensation Act. It is an outsider, a third party, and is given no rights nor is it relieved of any liability under its provisions. Hinson v. Davis, 220 N.C. 380, 17 S.E.2d 348.

Likewise, on the question of parties, since it appears on the face of the complaint, that no award has been made by the N. C. Industrial Commission, and neither the employer nor its carrier has admitted or accepted liability, they are neither necessary nor proper parties. The employer or his carrier becomes subrogated to the rights of the employee, under the provisions of our Workmens' Compensation Act, only after the payment of an award to the injured employee, or his personal representative, or where the...