Kentucky Home Mut. Life Ins. Co. v. Wise

• Decision Date: 23 June 1961
• Citation: 364 S.W.2d 338
• Parties: KENTUCKY HOME MUTUAL LIFE INSURANCE COMPANY, Appellant, v. John E. WISE, Appellee. OTIS ELEVATOR COMPANY, Appellant, v. KENTUCKY HOME MUTUAL LIFE INSURANCE COMPANY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 338

364 S.W.2d 338

KENTUCKY HOME MUTUAL LIFE INSURANCE COMPANY, Appellant, v. John E. WISE, Appellee.

OTIS ELEVATOR COMPANY, Appellant, v. KENTUCKY HOME MUTUAL LIFE INSURANCE COMPANY, Appellee.

Court of Appeals of Kentucky.

June 23, 1961.

As Modified on Denial of Rehearing Feb. 22, 1963.

John P. Sandidge, Woodward Hobson & Fulton, Louisvill, for Ky. Home Mut. Ins. Co.

Norman A. Curtis, Louisville, for Otis Elevator Co.

Richard C. Oldham, E. A. Sherman, Louisville, for John E. Wise.

MILLIKEN, Judge.

John E. Wise recovered a judgment for $29,582 against Kentucky Home Mutual Life Insurance Company for a back injury received when a passenger elevator in the Kentucky Home Life office building in Louisville fell a short distance with him on July, 26, 1955, and the trial court entered a judgment on a directed verdict for Kentucky Home Mutual Life Insurance Company for the same amount against Otis Elevator Company, based upon an elevator maintenance and service contract between the companies. Both judgments have been appealed.

In the circumstances, Wise necessarily relied solely upon the doctrine of res ipsa loquitur as the legal basis of his claim while the two companies attempted to avoid liability, basically, by showing that they were not negligent. Thus brought into sharp focus is the procedural effect of the doctrine of res ipsa loquitur. Before discussing the specific problems presented by these appeals, we believe a summary of the general principles of law involved would be helpful.

There are three ways to treat the procedural effect of that form of circumstantial evidence within the scope of the doctrine of res ipsa loquitur. First, as a permissive inference which would require no directed verdict for the plaintiff in case the defendant failed to offer any evidence in defense. This is the present weight of authority. Second, to treat it as a presumption which would require a directed verdict for the plaintiff in case the defendant offered no evidence in rebuttal. Third, to treat res ipsa loquitur as if it threw the burden of proof entirely over on the defendant to rebut negligence by evidence of greater weight which, in a sense, is closely related to the presumption theory. See Prosser, Law of Torts, 2nd Ed. (1955), pages 211-217. The classic statement of the permissive inference theory was made by Justice Pitney in Sweeney v. Erving in 1913 in 228 U.S. 233, 33 S.Ct. 416, 418, 57 L.Ed. 815, '* * * res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff.' When we get right down to practicalities, the procedural theory followed by courts in a given case depends largely on 'the strength of the inference to be drawn, which will vary with the circumstances of the case.' Prosser, above, page 212. In fact, in Vernon v. Gentry, Ky., 334 S.W.2d 266, we said, 'In the event the defendant can explain away the presumption so conclusively as to completely overcome it, he is entitled to a directed verdict.' With this analysis in mind, let us examine the evidence.

In addition to the operator, who was an employee of Kentucky Mutual Life Insurance Company, Wise and a woman passenger were the only occupants of the elevator when its upward travel halted and it began its descent from about the nineteenth floor. The consensus appears to be that it came to a stop about three feet below the eighteenth floor, a descent of fourteen or fifteen feet. Wise said he heard a strange noise when the elevator started down, that the operator was moving the control handle first one way and then another, that in a few seconds the elevator came to a jarring stop and made 'a couple of little, small jars' as it settled into position. He said the resultant force 'more or less pushed me down, sort of like an accordion.' The operator opened the door, Wise climbed out, reached down and helped the woman passenger out. The operator said the elevator rattled and squeaked when it came to a stop, that he did not realize it was falling, but that the stop caused his knees to buckle. The woman passenger said she noticed no jarring or peculiar noise when the...