Shew v. Hartnett

• Court: United States State Supreme Court of Washington
• Citation: 208 P. 60,121 Wash. 1
• Docket Number: 16508.
• Parties: SHEW v. HARTNETT at al.
• Decision Date: 13 July 1922

208 P. 60

121 Wash. 1

SHEW v. HARTNETT at al.

No. 16508.

Supreme Court of Washington, En Banc.

July 13, 1922

Appeal from Superior Court, King County; A. W. Frater, Judge.

Action by Dorris Shew, by Carrie Shew, his guardian ad litem against James J. Hartnett and wife and the Thomson Estate Inc. From a judgment against the defendant corporation upon the verdict and against the defendants Hartnett and wife notwithstanding the verdict in their favor, the defendants appeal. Judgment reversed as to both appellants, with directions to enter judgment in favor of the corporation and to pass upon a motion of the plaintiff for a new trial as to the other defendants.

A lessor is not liable to the lessee or to the lessee's invitees, including an employee of the lessee, for defects in an elevator or in the leased premises of which the lessor had no actual or constructive knowledge, and which could have been ascertained by the lessee as well as by the lessor.

Carver & Pixley, Peters & Powell, and J. Speed Smith, all of Seattle, for appellants.

Rummens & Griffin, of Seattle, for respondent.

MITCHELL J.

This is a personal injury action on behalf of Dorris Shew by his guardian ad litem. On January 21, 1918, he, 17 years of age, and as an employee of James J. Hartnett and wife, was operating a passenger elevator in an apartment house known as Haddon Hall apartments, in Seattle, when the hoisting cables of the elevator broke, causing the elevator to drop a distance of about 30 feet to the basement, causing the injuries complained of. A suit was commenced against the Hartnetts, lessees of the property, the Thomson Estate, Inc., owners of the property, and the J. J. Montgomery Elevator Company. The latter company was dismissed from the action upon its demurrer to the complaint, and did not appear thereafter. The case was tried before a jury, and at the conclusion of all the evidence the Thomson Estate, Inc., demanded a nonsuit, or, in the alternative, a directed verdict in its favor because of the insufficiency of the evidence to sustain a verdict against it. The motions were denied, to which exceptions were taken. The jury returned a verdict for the plaintiff against the Thomson Estate, Inc., but not against the Hartnetts. The Thomson Estate, Inc., thereupon moved for a judgment in its favor against the plaintiff, notwithstanding the verdict, and at the same time the plaintiff moved for a judgment against the Hartnetts notwithstanding the verdict in the amount of the verdict, or, in the alternative, for a new trial. The motion of the Thomson Estate, Inc., was denied, while that of the plaintiff for a judgment against the Hartnetts was granted. Judgment was entered accordingly from which the Thomson Estate, Inc., and the Hartnetts have separately appealed.

Speaking generally, it may be mentioned the apartment house was built and the elevator installed by a party other than the Thomson Estate, Inc., which thereafter became the owner and for several years conducted the house and used the elevator in the same condition it had been received, other than the usual repairs, including new cables from time to time, until, about September 15, 1917, the premises were let to one who, on October 16, 1917, with the consent of the lessor, the Thomson Estate, Inc., assigned the lease to the Hartnetts, who thereafter controlled and conducted the apartment house. By the terms of the written lease under which the Hartnetts took and held possession it was agreed:

'The lessee hereby accepts the premises as in good tenantable condition and agrees and binds himself to keep same in good condition and repair at his own expense during the whole term of this lease, the lessor being bund only to execute such repairs as are necessary for the maintenance of the roof and outer walls of the building.'

In the complaint it was alleged, in substance, that the elevator was carelessly and negligently built and installed, and was in an unsafe and dangerous condition at all times from the date of its installation to the time of the accident. The defects of construction, as stated in the complaint, pertained to the method of installation, and the manner in which the elevator was built with reference to the safety appliances. As to the first, it was averred, in effect, that the drum of the elevator, about which the cables wound, was placed on the wrong side of the elevator shaft, necessitating the running of the hoisting cables under a idler or sheave in such way as to place an unusual and dangerous strain upon the cables; that it was provided with only one counter weight, whereas for safe and practical operation there should have been two or more. Concerning the other (the safety appliance), the allegation was that it was necessary for the safe and practical operation of the elevator to have a safety appliance which would hold the elevator carriage in case of the breaking of the cables, but that the safety appliance built in this elevator was constructed in such manner that it would not catch or hold the carriage in the event the cables broke, and that all of the defendants knew of each and all of said defects in the construction and maintenance of the elevator. It was further alleged that, by reason of such condition of the elevator, there was imminent danger at all times that it would fall and injure any one riding therein, and that it constituted and was a nuisance.

Concerning the appeal of the Thomson Estate, Inc., we consider and adopt the evidence most strongly against it. It shows, in effect, that the installation of the elevator was improper; that it should have been provided with more than one counter weight; and that the location of the drum in its relation to the sheave caused an S bend in the cable in its course, and hence an unreasonable strain upon the cable. This latter, however, by the testimony of all the experts, would cause only the shortening of the life of the cable. The cable in use at the time of the accident was shown, and admitted by respondent's counsel, to be of the best, if not the best, kind manufactured. Without dispute the cable had been in use only about five months at the time of the accident, while the one last use prior to this one (of the same make and used by the Thomson Estate, Inc.) lasted for more than a year. Nor was the accident caused by overloading the elevator. The capacity of the cable was nine or ten tons, and at the time it broke it was supporting the carriage of one and one-half tons' weight, the respondent and two passengers. The elevator was of a kind in common use, and admittedly of as good material as manufactured, and the evidence of respondent's witnesses was that, to the extent it was improperly installed, the objections and defects were open, obvious, and apparent to any reasonably skilled mechanic possessing technical knowledge of elevator construction.

As to the safety appliances, the testimony of respondent's experts shows they are built in the top of the elevator car, and are forced out only when the cables drop down, and that it is impossible to test them. On the contrary, the inspector who looked after this elevator for four or five years down until the date of the accident, and who continued to do so thereafter, testified that he had tested the safety appliances about every three months, and always found them all right.

The testimony further shows that, commencing with the ownership of the property by the Thomson Estate, Inc., down until three days before the accident here involved, the elevator was, at the expense and request of the respective managers of the apartment house, regularly inspected by the same person once a month or oftener by an elevator inspector of six years' experience in the installation, testing, and inspection of elevators, having several hundred elevators under his inspection service.

A careful examination of the record in the case fails to disclose that the Thomson Estate, Inc., or its manager, or the Hartnetts either, had any knowledge whatever of any defective installation or construction of the elevator. On the contrary, it appears, both of them testifying, that they did not have such knowledge, either originally, or constructively, through the advice or suggestion of their inspector or any one else. There was no proof of willful wrong or fraud or palpable negligence on the part of either.

The nonliability of the lessor to the servant of the lessee under such facts as these seems to be settled by the decisions in this state and according to the general rule. The employee of the lessee is in a position similar to that of his employer as to the right of recovery against the lessor. In the case of Baker v. Moeller, 52 Wash. 605, 101 P. 231, an employee of the lessee of a sawmill and its machinery was denied recovery against the lessor for personal injuries, although he alleged that in renting the premises the lessor knew it would be used as a sawmill, and that workmen would be employed therein, and that the building and machinery were unsafe for the purpose for which they were leased. The opinion quotes 24 Cyc. 1114, as follows:

'In the absence of covenant on the part of the landlord to repair, no active duty is imposed on him to disclose apparent defects which are equally within the knowledge of the tenant, or which the latter might ascertain by due diligence, the rule of caveat emptor applying in such cases with full force; and in such cases the landlord is not liable for subsequent injuries resulting from such defects.'

The case calls attention to the fact that the same text announces the further rule that, in the absence of an express contract to repair, a lessor who leases property with knowledge of latent defects which he conceals from the lessee is liable for...