Otis Elevator Co. v. Bond

• Decision Date: 01 November 1963
• Docket Number: No. 16242,16242
• Parties: OTIS ELEVATOR COMPANY et al., Appellants, v. Doris L. BOND, Appellee.
• Court: Texas Court of Appeals

Page 518

373 S.W.2d 518

OTIS ELEVATOR COMPANY et al., Appellants, v. Doris L. BOND, Appellee.

No. 16242.

Court of Civil Appeals of Texas, Dallas.

Nov. 1, 1963.

Rehearing Denied Dec. 6, 1963.

Bailey & Williams; Strasburger, Price, Kelton, Miller & Martin and Hobert Price, Dallas, for appellants.

Bonney & Wade and Minor Morgan, Dallas, for appellee.

BATEMAN, Justice.

Appellee brought this suit for damages against Adolphus Tower Building, herein sometimes called 'the Building', and Otis Elevator Company, herein sometimes called 'Otis', alleging that while riding as a passenger in an automatic elevator in the Adolphus Tower Building, intending to descend to the lobby floor, the elevator descended very rapidly in what was described as a free fall causing her to be thrown to the floor of the elevator and injuring her foot and ankle. Appellee neither pled not attempted to prove any specific act of negligence as against either defendant, relying wholly on the doctrine of res ipsa loquitur. The Building denied liability to appellee and sought judgment over against Otis by way of indemnity, alleging that Otis by written contract had obligated itself to maintain the elevators in a safe and proper condition, and that if there was any negligence involved it was solely that of Otis, which had manufactured and installed the elevator in question and thereafter exclusively maintained it.

The jury found that (1) after appellee entered the elevator, the elevator went into a free fall (2) throwing appellee to the floor and (3) injuring her; (4) that at the time and on the occasion in question the elevator in question was under the exclusive control of the Adolphus Tower Building, but (4-a) that the Building did not fail to use a high degree of care in the maintenance of the elevator mechanism; (5) that at the time and on the occasion in question the elevator in question was not under the exclusive control of Otis Elevator Company, but (7) that Otis failed to properly inspect, and (10) also failed to properly maintain the elevator, each such omission being negligence and a proximate cause of appellee's injuries; also (14) that the acts or omissions on the part of Otis were the sole proximate cause of appellee's injuries. The jury acquitted appellee of any contributory negligence and found her damages to be $31,254.

On Motion of appellee the court disregarded the jury finding (4-a) that Adolphus Tower Building did not fail to use a high degree of care, as well as the jury finding (5) that the elevator was not under the exclusive control of Otis Elevator Company, and rendered judgment non obstante veredicto for appellee against both defendants jointly and severally for $31,254, and also rendered judgment in favor of the Building over against Otis for the same amount. ($3,330.46 of plaintiff's judgment was awarded to the intervenor, Traders & General Insurance Company, by way of subrogation for monies paid out by it to and for the account of appellee under a workmen's compensation policy). The Building and Otis Elevator Company have appealed.

On the trial the appellee established by her testimony and that of another passenger in the elevator that almost immediately after appellee entered the elevator on the ninth floor it descended very rapidly in what they describe as a 'free fall' and when it reached the fifth or sixth floor level it stopped suddenly and began to 'bounce' up and down violently; that she pulled the emergency switch and the elevator came to a standstill between floors; that appellee was thrown to the floor of the elevator, resulting in painful injury to her ankle.

The elevator in which appellee was riding was one of five previously sold and installed by Otis in the Adolphus Tower Building, an office building in the City of Dallas.

J. L. Bostick testified that he was employed by Adolphus Tower Building as 'elevator starter' and on the occasion in question was sitting in the lobby and could tell from an instrument board in the lobby where each of the elevators was at any given time; that the No. 3 car in which appellee was riding left the lobby and went to the twenty-sixth floor, then it got a call to the twenty-fifth floor, where is stopped; then it stopped on the ninth floor and after that a signal came on the sixth floor, but the car didn't stop on the sixth floor; there was a crashing sound, a noise which came from the No. 3 car between the fifth and sixth floors; and about the time he heard the crash sound the emergency signal came on, which is something like a burglar alarm, after which he went to a speaker which was connected to the car in question and over which he carried on a conversation with the other passenger, a Mrs. Johnson. In the meantime, word was sent to Otis Elevator Company, who sent a Mr. Anderson over and three or four minutes after his arrival appellee was released from the elevator car. However, it was 58 minutes from the time of the accident until appellee was out of the car. Bostick's testimony showed further that he was instructed by his employer always to call Otis Elevator Company whenever anything went wrong with any of the elevators, that this was always done and that none of the employees of the building ever worked on the elevators when they needed repairs. Otis Elevator Company had its employees in the building every day, sometimes for two or three hours at a time, checking over, maintaining and cleaning the elevator equipment.

The Appeal of Adolphus Tower Building

The points of error asserted by this appellant may be summarized as follows: the court erred (1) in refusing to hold as a matter of law that appellant was entitled to judgment; (2) in refusing to render judgment for appellant in view of the jury finding exonerating it of any negligence; (3) in not holding as a matter of law that Otis has exclusive control of the elevator since it had by contract assumed 100% responsibility for the inspection, repair and maintenance of the elevator; (4) in refusing to hold that the jury finding that the Building had exclusive control of the elevator was so contrary to the preponderance of the evidence as to require it to be set aside; (5) in refusing to hold that the jury finding that the elevator was not under the exclusive control of Otis was contrary to the undisputed evidence; (6) in refusing to set aside the finding that the elevator was not under the exclusive control of Otis as being so contrary to the overwhelming preponderance of the evidence as to be clearly wrong; (7) in rendering judgment against the Building in view of the finding that the negligence of Otis was the sole proximate cause of appellee's injuries; (8) in rendering judgment against the Building because as a matter of law appellee 'failed to prove any cause of action against said defendants'; and (9) the verdict was excessive. As the first eight points are briefed together, we shall discuss them together.

The first point of error is too general to be of any help to us. Nevertheless, we shall consider it along with the second.

The second point, complaining of the adverse judgment in view of the fact that the jury exonerated appellant of any negligence, completely ignores the fact that on motion the court disregarded this finding. Nowhere in the Building's brief do we find any point of error which even mentions, much less challenges, the court's said action, nor any statement to indicate dissatisfaction therewith. Neither is the action complained of in an assignment of error in the Building's motion for new trial. Accordingly, and since counsel for neither appellant has directed our attention to any evidence, lack of evidence, reason or authority to demonstrate any error in this action of the court, we are compelled to overrule the first two points.

The third, fifth, sixth and seventh points, all being to the effect that the judgment against the Building was erroneous and should have been only against Otis Elevator Company, we hold to be without merit and are overruled. The Building's duty, which it owed to all who would reasonably be expected to use the elevators, to maintain the elevators in reasonably safe condition cannot be delegated to an independent contractor so as to relieve the Building of responsibility. Restatement of the Law of Torts, Sec. 425, p. 1145; 15-B Tex.Jur. 711-712, 'ELEVATORS', Sec. 10; 21 Tex.Jur.2d 550, 'ELEVATORS AND ESCALATORS', Sec. 9; Otis Elevator Co. v. Cameron, Tex.Civ.App., 205 S.W. 852, err. ref.

The fourth point, complaining of the jury finding that the Building had exclusive control of the elevator, as being so contrary to the preponderance of the evidence as to require it to be set aside, is without merit and is overruled. There was ample testimony to support this finding.

The Building's eighth point of error, that the judgment against it was erroneous because appellee 'failed to prove any cause of...