Peacock Const. Co. v. Montgomery Elevator Co.
| Decision Date | 07 April 1970 |
| Docket Number | No. 2,No. 45074,45074,2 |
| Parties | PEACOCK CONSTRUCTION COMPANY v. MONTGOMERY ELEVATOR COMPANY et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
There being unresolved issues for jury resolution, the court erred in granting summary judgment for the third-party defendants.
John D. Chambers filed a petition against Peacock Construction Company and Elevator Maintenance Co., Inc., for injuries sustained when he fell into an elevator shaft in a building under construction in Tift County. The defendant Elevator Maintenance Co. was dismissed on general demurrer on the ground that plaintiff was a licensee only as to Elevator Maintenance Company and no acts of 'wilful and wanton' conduct were alleged, leaving the cause of action against Peacock Construction Company, the status of plaintiff as to it being that of an invitee. Chambers v. Peacock Construction Company, 115 Ga.App. 670, 155 S.E.2d 704; affirmed by the Supreme Court on the procedural issue and the merits, 223 Ga. 515, 156 S.E.2d 348.
Subsequently, Peacock instigated third-party proceedings for indemnity and contribution against Montgomery Elevator Company, its subcontractor for elevator installation, and Elevator Maintenance Company, the actual elevator installer. The main case and the third-party proceedings were separated for trial and Chambers and Peacock consented to a verdict and judgment against Peacock for $45,000. The lower court then sustained the motions of each of the third-party defendants for summary judgment, stating in the order that by agreement of counsel the verdict and judgment against Peacock were 'to be considered as though after full trial before a jury, and the court has so considered them.' Peacock appeals from this order.
Gambrell, Russell, Moye & Killorin, Charles A. Moye, Jr., David A. Handley, Atlanta, for appellant.
Swift, Carrie, McGhee & Hiers, William W. Horton, Greene, Buckley, DeRieux & Jones, Burt DeRieux, James A. Eichelberger, Atlanta, for appellees.
1. Negligence as the proximate cause of the injuries, which Chambers alleged in his petition as that of Peacock and Elevator Maintenance, is as follows: '(a) In failing to provide sufficient lighting at or near the said elevator shaft; (b) In failing to erect signs giving warning of the open unguarded elevator shaft; (c) In failing to rope off or place barriers or barricades at the entrance to the said open and dimly lit elevator shaft; (d) In removing the elevator or elevators from the first floor level without taking proper precautionary measures to protect petitioner and others lawfully upon the premises from the dangerous condition thereby created; (e) In failing to warn petitioner of the latent danger created by the open, unguarded and dimly lit elevator shaft of which he had no knowledge and of which both defendants knew.'
From the record before this court in support of the consent verdict and judgment we consider it impossible to determine, as a matter of law, which alleged acts of negligence are to be regarded as the proximate cause of the plaintiff's injuries, or whether this negligence is directly attributable to Peacock, or attributable jointly to Peacock and Elevator Maintenance, or a combination of the negative conduct of Peacock and the positive conduct of Elevator Maintenance. The verdict and judgment merely represent a conclusive determination that Peacock was negligent in some manner alleged in violation of its responsibility as the occupier of premises to its invitee. See Chambers v. Peacock Construction Company, 115 Ga.App. 670, 155 S.E.2d 704.
2. Inasmuch as the fall here involved occurred on December 3, 1964, the statutory right to enforce contribution among tortfeasors 'just as if they had been jointly sued' (Ga.L.1966, p. 433; Code Ann. § 105-2012(1)) is not applicable. F. H. Ross & Company v. White, 224 Ga....
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