Tippecanoe Loan And Trust Company v. Jester

• Citation: 101 N.E. 915,180 Ind. 357
• Decision Date: 09 May 1913
• Docket Number: 21,718
• Parties: Tippecanoe Loan and Trust Company v. Jester
• Court: Supreme Court of Indiana

101 N.E. 915

180 Ind. 357

Tippecanoe Loan and Trust Company v. Jester

No. 21,718

Supreme Court of Indiana

May 9, 1913

Rehearing Denied October 31, 1913.

From Superior Court of Tippecanoe County; James P. Wason, Special Judge.

Action by Ella M. Jester against the Tippecanoe Loan and Trust Company. From a judgment for plaintiff, the defendant appeals.

Reversed.

Will R Wood, for appellant.

George P. Haywood and Charles A. Burnett, for appellee.

OPINION

Myers, C. J.

This was an action for damages for personal injuries sustained by appellee by falling down an elevator shaft in an apartment house known as Columbia Flats in the city of Lafayette. The action was originally brought against appellant as agent, George Mohr, day elevator boy at the building, and John W. Barr, Jr., and Henry W. Barret, owners of the building, as trustees. The action was dismissed as to Mohr, and the court sustained a plea in abatement by Barr and Barret for want of jurisdiction over their persons. The amended complaint upon which the cause went to trial, alleges that Barr and Barret on December 28, 1904, and for two years prior thereto, were and had ever since been the owners of the grounds and building known as Columbia Flats, in the city of Lafayette, a four-story building used as an apartment house for rooms and residences; and for part of the time as a restaurant; that it was used by many persons and families as tenants of Barret and Barr, who, on December 28, 1904, and for more than two years prior, and ever since have been and are nonresidents of the State of Indiana, and were running and operating such building through the appellant trust company as their agent; that at that time, and ever since, the trust company was their agent in the management, control and operation of the business, and as such agent had full charge and complete control of the management and operation of the business; that it employed all the employes and servants engaged in and about the building who were engaged in the care and control thereof, rented the rooms and apartments, looked after and had charge of the making of, and it was its duty to make all repairs to the building, and the different parts thereof, and had charge of the heating, and the janitor work in the building, procuring coal and supplies necessary for the conduct of the business, and the management of the building generally; that as such agent it had not only the right, authority and power to engage and employ all employes and servants used in and about the building and premises, but had the absolute right and authority to discharge said servants, and had complete control over the conduct of their work. Then follows a description of the construction and manner of operating an elevator in the building for the transportation of the tenants, and all persons having business therein, to and from the several floors of the building. It is alleged that the trust company was charged with the duty of making all necessary repairs, not only to the building, but particularly to the elevator and the doors thereof, and all things connected therewith, so as to render occupancy comfortable, convenient, and its use safe for the tenants thereof, and all persons using the same, and that the trust company held itself out to the plaintiff, and to the other occupants of the building as having charge of the keeping in safe repair and condition the building and elevator, and entrances to the latter, and all things connected therewith; that plaintiff knew that the trust company was agent for the owners, and had the control and management and charge of the business, and had charge of the repairs to the building and the elevator, and that it was its duty to keep it in repair, and everything connected therewith, and to keep it in safe condition for the use of the plaintiff and others, and that she relied upon it to do so, and that it knew she so relied; that the use and operation of the elevator and the frequent closing and opening of the door thereto into the hallway leading thereto caused the catch on the door to become loose, and also caused a small bolt that helped hold in position the catch on the jamb of the door to become loose and fall out, and thereby the catch became loose, and the latch would not and did not go into the slot of the catch and hold the door when it should be kept closed; that this catch was loose and out of repair for several days prior to December 28, 1904, which fact the company knew, or by reasonable diligence could have known in time to have repaired it prior to that day. It is also alleged that the lock, latch and catch had been out of repair as aforesaid for several weeks prior to the injury, and that the defendants knew, or by the use of ordinary diligence and care, could have known, that it was so out of repair and in a dangerous condition, and that appellee did not know it. That the defendants carelessly and negligently permitted the lock, latch and catch of the elevator door to be and remain out of repair as aforesaid, and to be in a dangerous and unsafe condition, so that when the door was closed the latch would not and did not fasten in the catch, or slot, and hold the door closed, but on account of the defective condition of said lock, latch and catch, as aforesaid, the door would rebound, and roll back, and open, and remain open after the elevator had ascended, thus leaving the elevator door open, through which any person was likely to step, and fall into the elevator shaft, but of which dangerous condition plaintiff had no knowledge, and that the defendants carelessly and negligently continued to run, operate, and use the elevator from the time the door became out of repair as aforesaid until the time of the accident. That in the operation and running of the elevator it was the custom and duty of the defendants to keep the door to the elevator closed when the elevator was not at the floor where the door of the elevator was situated, and that it was the custom of defendants to have the door to the elevator open when the elevator was in position at such door, to receive passengers, of which custom plaintiff was aware. That appellee with her husband resided as tenants on the second floor of the building, and had done so for some time, and rented the apartments occupied by them through the trust company as agent. That during all said time, and on December 28, 1904, a main entrance to the building ran from the street, fifteen or twenty feet to the door of the elevator. That there was provided a gaslight fixture, or lamp, in the ceiling of the hallway, a few feet from the door to the elevator, and another smaller fixture or lamp on the opposite side of, and near the elevator door. That December 28, 1904, was a cloudy, dark day at 4:30 p. m., and that the aforesaid lamps were not lighted, and the hallway and elevator shaft were dark and unlighted. That on said day at about 4:30 p. m. the defendants, by and through the elevator boy, who had been employed by the trust company to operate the elevator, caused the elevator to ascend from its position on the main floor of the building to one of the upper floors, and as the elevator started said boy attempted to close the door, and after the elevator had left the main floor, on account of the aforesaid defective condition of the lock, latch and catch, it failed to fasten, when closed, but rebounded, and rolled back, and opened, and stood open, thus leaving the door into the elevator shaft open, through which door anyone was likely to step and fall into the shaft. That at about 4:30 p. m. of said day plaintiff, who was familiar with the hallway and elevator, and the entrance to the latter through the said door, and the custom of the defendants to have the door open when the elevator was in position at the hallway to receive passengers, and the custom to have it closed when the elevator was ascending from, or descending to the floor at the hallway, entered the hallway from the street, carefully approached the elevator door and saw the elevator door open, but because of the darkness was unable to see beyond the elevator door. That the door was not in position, and she did not know that the elevator was not in position opposite the door, or that the elevator shaft was open and exposed, and because the door was open and exposed, and believing the elevator to be in position, with due care, she stepped through the door for the purpose of stepping into the elevator to be carried to the floor of her apartment, and because the elevator was not there, and the shaft was open and exposed, she fell to the bottom of the shaft, a distance of about ten feet, and was greatly injured, the injuries being minutely described, by reason of which aforesaid negligence of the defendants she was injured without fault on her part.

A demurrer for want of facts sufficient to constitute a cause of action was unsuccessfully interposed by appellant to this complaint, and the ruling is challenged here. The objection made to the complaint is, (1) that as it appears from the complaint that appellant was an agent only, and that the charge of negligence is one of nonfeasance, and not of misfeasance, that for an act of nonfeasance, an agent is not liable to third persons; (2) that the complaint affirmatively shows contributory negligence on the part of appellee.

It is to be regretted that there is such a divergence of opinion on the first proposition in the American courts. The cases are largely collected on both sides of the question in 2 Am. and Eng. Ency. Law and Pr. 1160 et seq., and in note to Ellis v. Southern R. Co. (1905), 2 L. R. A. (N. S.) 378.

Where the entire premises are not let to a single tenant, or where a part of the premises are in control of the landlord, as...