Olson v. Schultz

• Decision Date: 13 April 1897
• Docket Number: Nos. 10,380 - (268).,s. 10,380 - (268).
• Citation: 67 Minn. 494
• Parties: SEAVER E. OLSON v. CARL C. SCHULTZ.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

67 Minn. 494

SEAVER E. OLSON v. CARL C. SCHULTZ.¹

Nos. 10,380 - (268).

Supreme Court of Minnesota.

April 13, 1897.

Appeal by defendant from an order of the district court for Hennepin county, Elliott, J., refusing a new trial after a verdict for $500. Affirmed.

Choate & Merrill, for appellant.

J. F. McGee, for respondent.

BUCK, J.

On June 2, 1891, the appellant, Schultz, was the owner of a four-story brick building, with basement, situate in the city of Minneapolis; and on that day he leased the fourth floor of said building, with the privileges and appurtenances thereunto belonging, to the respondent, Olson, for a term of one year, to commence July 1, 1891, for the rental of $50 per month. The third floor of the building was unoccupied, and the remainder of the building was occupied by the North Star Boot & Shoe Company, with equal right to use an elevator in the building in common with the respondent, Olson. This elevator ran from the basement of the building to the top floor, and, when the necessities of each tenant required its use, he furnished his own operator. All the machinery connected with the operation of the elevator was in the basement of the building, except that part of the cable which was in the shaft and overhead the pulleys. Olson leased and used the fourth floor for the purpose of manufacturing overalls and light clothing, and, in connection with this business, used this elevator in carrying, freight. The lease, which was in writing, contained a provision,

"The lessor is to keep the elevator and approaches in constant repair, and in perfect condition for the lessee's use: provided that, if said premises shall have become untenantable without the fault of said lessee, then in that case said lessee shall be released from the obligation of this lease, unless said lessor, after receiving seasonable notice from said lessee, cause said premises to be repaired and put in suitable condition for occupancy within a reasonable time after receiving said notice."

It was also further provided by the terms of the lease that "the lessor may enter at any and all times to view and make improvements and suitable repairs." During the term of the lease the third floor of said building, although unoccupied, was under the control of the defendant, Schultz, and during said term there was a hall and stairway running from the street to the fourth story of said building. On January 12, 1892, one Lyman, an employé of respondent, who operated the elevator when it was used by respondent, had used the elevator, and for some purpose stepped from it, leaving the floor of the elevator cage even with the fourth floor of the building, and was absent for some time; and when he returned he found that the elevator platform had crept up some distance, and, when he stepped upon it, it instantly fell to the bottom of the shaft, a distance of about 75 feet, injuring said Lyman.

Afterwards Lyman brought a suit against the respondent, Olson, in the United States circuit court, to recover $5,200 damages for the injuries sustained by him by reason of the fall of said elevator; alleging that said elevator was defective, unsafe, and out of repair. Thereupon the respondent duly notified the appellant of the pendency of the action, and required him to appear and defend it, but the latter did not do so, whereupon this respondent did duly appear and defend said action, the result of which was a verdict in favor of Lyman for the sum of $500, which, with the costs and expenses of the trial, amounted to the sum of $1,038.64, which respondent paid; and he brought this action to recover from the appellant the said amount, on the theory that the failure of the appellant to perform his covenant to keep the elevator and approaches in constant repair and perfect condition for the lessee's use resulted in the accident to Lyman on January 12, 1892, and that the respondent, as master, being primarily liable to his servant, Lyman, had a remedy over against appellant on the said covenant, to recover the amount he was obliged to pay Lyman. This view of the law was sustained by the trial court, and judgment ordered by it in favor of plaintiff accordingly, and this appeal is taken from an order denying a motion for a new trial.

The counsel for the appellant has devoted considerable space in his brief to a discussion of the question of whether the elevator was out of repair on and prior to January 12, 1892, the date of the accident. We are of the opinion that this question was determined adversely to the contention of the appellant in the former action, and that the judgment entered in that action concludes the appellant herein, as that was one of the very questions litigated in that action. The complaint in the former action of Lyman v. Olson contains an allegation that the elevator was in an unsafe and dangerous condition, and unfit for use, at and for some time prior to the time of the injury to Lyman. We are also of the opinion that the question of Lyman's being injured by reason of such defective condition of the elevator, and the amount of damages which he thereby sustained, were settled by the verdict and judgment entered thereon in the former action, and are not now open for discussion or adjudication upon the merits in this action. Schultz had due notice of the pendency of that action, and was afforded an opportunity to appear and defend, which he neglected and refused to do, and he was as effectually concluded thereby as though he had duly appeared therein and contested these questions upon the merits. City of Wabasha v. Southworth, 54 Minn. 79, 55 N. W. 818; Erickson v. Brandt, 53 Minn. 10, 55 N. W. 62.

The most serious question arises upon the fifth finding of the trial court, which is as follows:

"That subsequent to the time plaintiff took possession of said premises, and some days prior to January 12, 1892, unknown to the defendant, a bolt in the arm in the top of said elevator cage, through an opening in which the steel cable used in starting and stopping the elevator passed, was lost out, so that said arm, when said elevator reached the fourth floor, would not come against the button fastened to said steel cable, but would allow the same to creep about twelve inches above said floor; but notice of the condition of said elevator was never given to the defendant, and no demand was ever made on the defendant to repair the same. That at the time of said injury, and while said elevator was out of repair, neither the plaintiff nor defendant herein knew the said elevator was out of repair. That plaintiff's factory in said building was under the charge of Mr. Shotwell, who was the manager of said factory on behalf of the plaintiff, and, as such manager, had charge of all the operations carried on by plaintiff in said factory, and of all the workmen employed therein. That said Shotwell, for several days prior to the injury suffered by Lyman, had notice that said arm was out of repair as above stated. That the plaintiff was not in immediate supervision of said factory, and visited the same but two or three times during the term of said lease. That the absence of said bolt or of the arm would not affect the operation of the elevator, or cause it to fall, if the guide strips, being maple strips two by two inches, which should run from the bottom to the top of the elevator shaft, had been properly constructed so as to run to the top of the shaft, thereby preventing the elevator shoes which operate on said guides from getting off the guides and `hanging up' the elevator cage, by reason of said shoes getting on the top of said guides. That said guide strips did not run to the top of the elevator shaft, but stopped some distance below that point."

In order to determine upon whom the liability rests in this action we may properly consider three points: (1) Who had control and possession of the elevator and the machinery necessarily connected with its operation, and the right to make constant repairs and keep it in perfect condition for the lessee's use? (2) Was it the duty of the lessor, under the covenants in the lease, to keep the elevator in constant repair and perfect condition, irrespective of the question whether he had notice of its being out of repair? In other words, was he liable for injury resulting from its being out of repair without his having knowledge of such defect? (3) Was Shotwell's notice of the defective condition of the elevator sufficient to charge plaintiff with contributory negligence, in not giving notice thereof to defendant?

The only control or possession which plaintiff had over the elevator was that his operator might stand upon the platform while operating it in carrying plaintiff's merchandise. The other tenants had the same right. So far as appears from the record, the entire machinery connected with the operation of the elevator was under the management and in the possession and under the control of the defendant. The premises designated in the lease as those rented are "the fourth floor of the four-story brick building known as being `Numbers 121 and 123 Washington Avenue North.'" The elevator was not leased to Olson, but only its mere use during such time as he needed it to convey his merchandise either up or down. At other times the North Star Boot & Shoe Company or the defendant had a right to its use. Olson's control of the elevator was a mere easement or right to transport his goods back and forth as his necessities occasionally required. It does not appear that the other tenant had any greater right in the elevator.

As the defendant was the owner of the building and elevator, and the third story not rented, the presumption is that he had the absolute control and possession of the elevator at all times, subject only to the tenant's right of carrying goods as above indicated. Hence he had the legal right and the actual opportunity to make all necessary repairs and keep the elevator and its machinery in...