Wolfmeyer v. Otis Elevator Co.

• Decision Date: 09 November 1953
• Docket Number: No. 43390,No. 1,43390,1
• Citation: 262 S.W.2d 18
• Parties: WOLFMEYER v. OTIS ELEYATOR CO
• Court: Missouri Supreme Court

Page 18

262 S.W.2d 18

WOLFMEYER v. OTIS ELEYATOR CO.

No. 43390.

Supreme Court of Missouri, Division No. 1.

Nov. 9, 1953.

George E. Heneghan, St. Louis, for appellant.

Luke, Cunliff & Wilson and John B. Busch, St. Louis, for respondent.

VAN OSDOL, Commissioner.

This action was instituted by plaintiff, an employee of Crosley Distributing Corporation, which corporation, a lessee, occupied the first floor and basement of a four-story building situate on Locust Street in St. Louis. The action was instituted against the owners of the building, and Otis Elevator Company was joined as a party defendant. The Elevator Company was obligated by contract with defendant owners to furnish 'Otis (elevator) Maintenance.'

Plaintiff sought recovery for personal injuries occasioned by falling into the shaft of the elevator used for the movement of merchandise to and from the several floors of the building. It was plaintiff's theory that Otis Elevator Company was liable because the maintenance contract provided that Otis Elevator Company was 'to maintain the elevators in proper and safe operating condition'; that the 'closing and interlocking device on the north shaftway gate at the first floor (where plaintiff fell) permitted the shaftway gate to be raised when the (elevator) car was not at the first floor, and that such condition was dangerous to the safety of persons using said elevator.'

At the conclusion of the evidence introduced in plaintiff's behalf, a settlement was effected between plaintiff and the defendants, owners of the building; and, at the conclusion of all of the evidence, plaintiff's case was submitted to the jury against defendant Otis Elevator Company only. A verdict for plaintiff was returned assessing his damages at the sum of $9000. Defendant Otis Elevator Company has appealed from the ensuing judgment.

The elevator involved is located on the south (the alley) side about the middle of the Locust Street building. It was constructed in 1920. It is twenty feet long and about nine feet wide. The elevator car has metal sides six feet high. There are gates about five feet high across the north and south entrance apertures of the elevator shaft. The north gate at the main (first) floor level is provided with a 'spring loaded' latch. In opening the north gate 'you reached up over the top of that gate and got hold of the latch and unlocked it.' Plaintiff was injured when he opened the north elevator gate on the first floor and stepped and fell into the elevator shaft. At the time, the elevator car was at the second-floor level.

Although the elevator gates at other floors of the building were equipped with electrical interlocking devices making it impossible to open a gate unless the elevator car was at the particular floor level, the north gate of the elevator at the first floor was not equipped with such an interlocking device; however, there was some evidence indicating that the gate may have formerly had such an installation. The 'spring loaded' latch was not and had not been such a device. There was no substantial evidence introduced tending to show that, during the term of defendant's maintenance contract, there had been an interlocking device making it impossible to open the elevator gate at the first-floor level when the elevator car was on the level of some other floor, that is, there was no substantial evidence that such an interlocking device had been or was installed at the north gate on the first floor at the time or since defendant contracted to furnish 'Otis Maintenance.'

The 'Otis Maintenance' contract had been entered into May 15, 1940, with L. M. Stewart, Inc., then tenants occupying the building. On June 4, 1947, L. M. Stewart, Inc., cancelled the elevator maintenance service theretofore provided by defendant under the contract; the owners of the building assumed the obligation of L. M. Stewart, Inc.; and defendant Otis Elevator Company continued its maintenance service under the terms of the original contract. The (material) terms of the contract, in the form of proposals, which proposals had been accepted by L. M. Stewart, Inc., are as follows,

'We propose to furnish Otis Maintenance on the following described elevators in your building located at 3224 Locust Street, St. Louis, Missouri: one (1) Otis Electric Freight Elevator.

'Under this contract we will maintain the entire elevator equipment as hereinafter described, on the terms and conditions subsequently set forth. We will use trained men directly employed and supervised by us. They will be qualified to keep your equipment properly adjusted, and they will use all reasonable care to maintain the elevators in proper and safe operating condition.

'We will regularly and systematically examine, adjust, lubricate as required, and, if conditions warrant, repair and replace: Machine, Motor, General and Controller Parts including Worms, Gears, Thrusts, Bearings, Brake Magnet Coils or Brake Motors, Brake Shoes, Brushes, Windings, Commutators, Rotating Elements, Contacts, Coils, Resistance for Operating and Motor Circuits, Magnet Frames and other mechanical parts--using only genuine Otis Parts for this purpose.

'We also agree: To keep the guide rails properly lubricated at all times, and when necessary renew guide shoe gibs to insure smooth and quiet operation.

'To periodically examine all safety devices and governors, and equalize the tension on all hoisting ropes.

'To renew all wire ropes as often as necessary to maintain an adequate factor of safety, and repair and/or replace conductor cables.

'To furnish Otis Lubricants prepared in our own factory.

'We will also examine, lubricate, adjust, repair and/or replace the following accessory equipment: Hatch gates, gate contacts, annunciator and wiring and car light.

'The following items of elevator equipment are not included in this contract: None 'The items listed on the schedule below show considerable wear and will have to be replaced in the near future. To provide you with the maximum of service from these items, we are accepting them in their present condition with the understanding that you are to pay, in addition to the base amount of this contract, an extra at the time the items listed are first replaced. The charge for this replacement will be determined by pro-rating the total cost of replacing the individual items. You are to pay for that portion of the items used prior to the date of this contract and we are to pay for that portion used since the date of this contract.

'Schedule of Parts to be Pro-Rated

'Name Of Part Installed

'None

'* * * It is mutually understood that we are not required to make renewals or repairs necessitated by reason of negligence or mis-use of the machinery, apparatus or car, or rendered necessary due to any other cause beyond our control. We shall not be required to make safety tests; nor to install new attachments on the elevator as recommended or directed by insurance companies, or government, state, municipal or other authorities.

'It is expressly understood, in consideration of our performance of the service enumerated herein at the price stated, that nothing in this agreement shall be construed to mean that Otis Elevator Company assumes any liability on account of accidents to persons, or property; except those directly due to the negligent acts or omissions of Otis Elevator Company or its employees; and that your own responsibility for accidents to persons or property while riding on or being in or about the elevators referred to is in no way affected by this Agreement. * * * No work, service or liability on the part of Otis Elevator Company other than that specifically mentioned herein, is included or intended. * * *'

The defendant Otis Elevator Company proposed to perform its service for $32 per month. By supplemental agreement the cost of the service was increased in June 1950 to $38.80 per month.

Otis Elevator Company, defendant-appellant (hereinafter generally referred to as 'defendant'), contends that under its contract to furnish 'Otis Maintenance' it had no obligation whatsoever to install new elevator equipment consisting of an interlocking device such as would keep the elevator gate on the first floor from being opened when the elevator car was not at the level of that floor. Defendant asserts the evidence shows that all of the parts of the elevator as they existed were functioning properly; and that defendant's contractual duties were properly performed. Defendant argues that it cannot be substituted for the owners of the building as to their obligations to plaintiff. And there being no privity of contract between plaintiff and defendant, and defendant, having carefully and entirely performed its contractual duties in the maintenance of the elevator as constructed, owed no further duty to plaintiff to protect him from harm.

It is elementary that actionable negligence consists mainly of three fundamental elements (1) the duty or obligation of the defendant to protect plaintiff from injury, (2) a failure to discharge such duty, and (3) injury proximately resulting from such failure. Whealen v. St. Louis Soft Ball Ass'n, Inc., 356 Mo. 622, 202 S.W.2d 891.

The contract is of interest to us because it shows what defendant undertook to do. Some of the things defendant undertook to do were such as might affect the safety of third persons, including plaintiff. And in doing the things which the defendant knew or should have known affecting the safety of third persons, defendant had a duty to such third persons to do carefully what it undertook to do.

In the case of Lambert v. Jones, 339 Mo. 677, 98 S.W.2d 752, 759, cited by plaintiff-respondent, this court spoke of the liability of an agent or servant to third persons for his negligence. The court was treating with the troublesome rule of nonliability for 'nonfeasance.' Said the court, 'Of course, a servant should not be liable for failing to act outside of the scope of his...