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CALLAHAM v. CARLSON et al.
CARLSON v. RICH'S INCORPORATED et al.
33639.
33646.
Action for damages; from Fulton Superior Court-- Judge Pharr. April 19, 1951. (Application to Supreme Court for certiorari.)
FELTON, J.
1. (a, b) The petition does not allege a violation of a city ordinance so as to allege a case of negligence per se.
2. Under the allegations of the petition, the plaintiff was not an invitee of the defendant elevator company.
3. Construed properly, the petition alleges the defendant elevator company to be an independent contractor and not a servant or an employee of either the defendant owners or the defendant lessee.
4. The court did not err in sustaining the general demurrers of the defendant owners and the defendant lessee and in dismissing the actions as to each of them. The court erred in overruling the general demurrer of the defendant elevator company.
Mrs. Edward J. Carlson sued Rich's Incorporated, referred to as the lessee, W. E. Callaham, doing business as Southeastern Elevator Company, referred to as the elevator company, and Walter J. Sampson, Bernard Greenbaum, Arthur A. Bogeaus, and Abner J. Mesirow, doing business as Southeastern Industrial District, referred to as the defendant owners, and W. K. Henry, for certain injuries allegedly due to the negligence of the defendants. The petition as amended alleged substantially: that on January 8, 1947, the plaintiff was an employee of the defendant lessee, and was employed in the service building of the lessee located in the Candler Warehouse at 631 Shelton Street, S. W., Atlanta; that the defendant lessee was the lessee of said premises and the occupant thereof, having occupied said premises for a period of time prior to January 8, 1947, since at least March, 1946; that the defendant owners were the owner and landlord of said premises, having leased the same to the defendant lessee; that said service building was used by the lessee as a warehouse for storage of merchandise for sale through its retail store, which was located in downtown Atlanta at another location; that in said warehouse was a warehouse office in which worked the office force for said warehouse; that the plaintiff was the telephone operator for said warehouse, and had her desk and switchboard in the office, which at the time was partially on the first floor and partially on the fourth floor; that the entire office, including her switchboard and desk, were in the process of being moved from said first floor to the fourth floor; that the plaintiff went to said office on the fourth floor during her lunch hour for the purpose of viewing the location where her switchboard would be when the removal of her office from the first floor was completed; that the plaintiff wished said switchboard to be placed in a proper position with respect to light and with respect to places and persons in said warehouse, the plaintiff desiring a view from which she could tell members of the public seeking persons on the inside whether said persons were present; that the plaintiff had no authority to direct the location of said switchboard, but felt that her request with respect to the location of same might be heeded; that the plaintiff at said time and place when she was injured was an employee of the defendant lessee on the premises of her employer, but said injury did not occur to her at a tame when she was performing any duty arising out of her employment; that the plaintiff during her off time or lunch hour intended to make said inspection in order to facilitate her own comfort, convenience, and efficiency, but intended to benefit her employer by making helpful and beneficial suggestions with respect to the proper placement of said switchboard; that during lunch hour on said date of January 8, 1947, the plaintiff ate her lunch in the cafeteria in said building, which was on the first floor of said building where her office was also located; that after finishing her lunch, the plaintiff, accompanied by one Jack Helton, another employee of the defendant lessee, proceeded to go to the fourth floor of said building to inspect the new location of her office in said building, which at said time was being constructed by the defendant lessee; that there were two elevators in said service building, one located in the eastern part and toward the eastern end and the other located in the western part and toward the western end; that said elevators were primarily freight elevators serving the four floors, although they were customarily used by the employees of the lessee as passenger elevators during lunch hours as well as during actual working hours, this being known to all the defendants; that on the north and south sides of said western elevator there were hoistway gates, which, at the time said premises were leased to the defendant lessee, were of a height of fifty-four inches; that, in order to enter into said elevators, the hoistway gates must be raised,
and, in order to start the elevators, the hoistway gates must be lowered and locked; that the plaintiff had been employed by the defendant lessee at said warehouse for approximately three months and had frequently ridden as a passenger on both the western and eastern elevators; that during said time she rode on the elevators she learned and knew that there was no angle iron around the top of the elevators; that among the repairs and remodeling to be done by the defendant elevator company at the instance and direction of the defendant owners and lessee was the raising of said hoistway gates to a height of sixty-six inches, and in addition the installing of an angle iron running around the outside of said elevator approximately nine feet above the floor of said elevator, and along its outside edge; that said angle iron was intended as a support for the wire mesh top, also to be installed in said elevators; that when said angle iron was installed, and passed up and down in the shaftway, it passed along the side of said gateway so that it would hit an object protruding over and beyond said gateway; that on the way down, said angle iron, a sharp edge of same being exposed downward, would operate like a guillotine with respect to an object protruding beyond said gateway; that said angle iron was composed of two strips of iron or steel made together at a right angle, each strip being approximately two inches wide; that said angle iron was placed around the top of the elevator by the defendant Henry and his helpers two days before the plaintiff was injured; that when said angle iron was placed around the top of said elevator, no warning signal was placed at any location to warn any person that same had been placed on said elevator; that on said date of the injuries the defendant elevator company was employed in repairing and remodeling said elevators, and had been so employed for at least a month prior thereto; that such repairing was being done by the defendant Henry, an employee of the defendant elevator company, who at all times mentioned was acting within the scope of his authority given by the defendant elevator company; that such repairing and remodeling work was being done at the instance and direction of the defendant owners and lessee; that the acts and omissions of the defendant Henry, as hereinafter charged to him, were done or omitted by him as an employee of the defendant elevator company, and while acting in the scope of his authority from said company; that, when the plaintiff attempted to go from the first floor to the fourth, she went to the hoistway gate of the elevator, but found that the elevator was not at the first floor where she could use same; that she pushed the electric button to cause the elevator to come down to her to the first floor, but found that the elevator did not move to come down to her; that the defendant Henry was working at the elevator at that time and informed the plaintiff that the elevator was stuck at the fourth floor and could be released only by pulling the fourth floor gate down; that the plaintiff informed Henry that she was going to the fourth floor, and Henry stated that he then needed the elevator down there to work on, and requested the plaintiff to pull the fourth floor gate down so that the elevator would come down to him on the first floor, and requested her to hollow down the elevator shaftway to let him know when the hoistway gate was lowered; that the defendant Henry requested the plaintiff to close the fourth floor gate so that he might bring the elevator down to him so that he might work on same; that the defendant Henry did not warn the plaintiff that the angle iron had been placed around the top of the elevator and did not warn her not to protrude her head over the top of the gate, which he knew was only fifty-four inches high; that the plaintiff went to the fourth floor on said eastern elevator, and upon her arrival walked back to the western elevator shaftway for the purpose of complying with the request of the defendant Henry to lower the hoistway gate; that, immediately upon pulling said hoistway gate down, the plaintiff looked over said gate into the shaftway, which was one and one-half inches from said hoistway gate thereby protruding her head approximately four or five inches into said shaftway space so as to hollow to the defendant Henry, as he had requested; that the elevator gate was lowered, when the plaintiff was struck on the head by the angle iron that had been placed around the top of the elevator, causing enumerated injuries to the plaintiff; that the defendant Henry individually and as an employee of the defendant elevator company, acting at said time and place within the scope of his employment, pushed the elevator button on the first floor in order to make said elevator come down to him, said pushing of the button taking place
at the time the plaintiff protruded her head into said hatchway to hollow down to him, and simultaneously with the plaintiff's hollowing down the shaftway to him that she had lowered said hoistway gate; that the defendant Henry pushed said button without first ascertaining whether the plaintiff was free and clear of contact by said angle iron, known by him to have been in the top of said elevator at said time; that, in order to start said elevator down to the defendant Henry on the first floor, it was necessary for the defendant Henry to push the elevator button on the first floor after said hoistway gate was lowered; that for and during the time of her employment in said warehouse by the defendant lessee, employees of the defendant lessee, while in the course of motivating said elevators, either for the purpose of bringing said elevators to the floor where use thereof was desired, or sending same to another floor, did by custom and usage, known to the defendant lessee and the defendant elevator company, hollow down and up into said shaftway for the purpose of notifying a person on another floor that said elevator was moving toward a certain floor, or was not ready to be called to or sent from the floor where the person doing the hollowing was located, and did by custom and usage, known to the defendant lessee and the defendant elevator company, protrude their heads over said hoistway gates into said hatchway while hollowing down said hatchway for said purposes; that, at the time she stuck her head over the hoistway gate to hollow down to Henry, the plaintiff did not know of the presence of the angle iron and could not by the exercise of ordinary care have discovered its presence, in that it blended into the shadows of the elevator; that at the time of the accident the plaintiff was an invitee upon the premises and was doing an act beneficial to and serving the purpose of the elevator company; that the defendant lessee could have and should have in the exercise of ordinary care anticipated the plaintiff's presence at said elevator, because said elevators were customarily used by the lessee's employees; that said elevators were used by employees of the lessee as passenger elevators during the entire time the plaintiff was employed at said warehouse, and were used by said employees as passenger elevators during the time said repairing and remodeling of said elevators by the defendant elevator company was being done; that said user of said elevators by the employees was known to the defendant elevator company and to the defendant lessee; that there was at the time in existence an ordinance of the City of Atlanta, as follows (for the sake of easy reference, the ordinance as incorporated in Code of the City of Atlanta, 1942, will be quoted): "49-101. Elevator Safety Code.--The American Standard Safety Code for elevators, dumbwaiters and escalators, 1937 Edition, hereinafter referred to as the Elevator Safety Code . . . shall be the legal code for the City of Atlanta, except as follows: Hoistway gates, as specified in Rule 124-D, may be 66 inches high in place of the full height of the opening as specified; Rule 100-A, hoistways . . . 49-103. Existing installations.--Elevators, dumbwaiters and escalators, legally installed before the adoption of this Code, may be used without being reconstructed to comply with the requirements of the Elevator Safety Code, except that the following rules must be complied with: . . . Alterations and relocations: All alterations to, and relocations of, elevators, dumbwaiters and escalators, made after the adoption of this Code, shall meet the requirements of the Elevator Safety Code . . . 49-116. Definitions.-- . . . Alteration: An alteration of an elevator, dumbwaiter or escalator is a change in the use, classification, operation, control, motor, brake, character of power supply, capacity, dead weight of car or counterweights, car travel, speed, sizes or number of hoist or counterweight ropes, guide rails, car or counterweight safety devices, or safety governors, application for which is filed in the Department of Electricity under provisions of this Chapter." The ordinance was approved October 6, 1938.
The petition further alleged: that the defendant Henry and the defendant elevator company were negligent in the following particulars: in failing to warn the plaintiff of the presence of the angle iron, the defendants well knowing of the existence of said angle iron and said improper and defective gate; in failing to raise the hoistway gate to a height of 66 inches before installing said angle iron; in installing the angle iron without simultaneously installing a protective device to prevent injury to persons in the position of the plaintiff; in failing to warn the plaintiff not to protrude her head or any part of her body over said hoistway gate and into the space beyond same; in failing to have said hoistway gate at said elevator at a height of 66 inches, as required by the city ordinance; in failing to have the hoistway gate of a height sufficient to prevent a person of ordinary height, such as the plaintiff, from protruding her head over said gate and into the elevator shaftway space; that the defendant owners were negligent in the following particulars: in failing, before leasing said premises to the defendant lessee, to construct said gate to a height of 66 inches as required by the city ordinance; in failing, before leasing the premises to the defendant lessee, to construct said gate to a height which would have prevented a person from protruding his or her head over said gateway into said shaftway space, while knowing that said gate was not constructed to a sufficient height for said purpose; in causing to be installed said angle iron in said elevator without simultaneously causing to be installed a protective device to prevent injury to persons in the position of the plaintiff; in failing to place a warning either by sign or otherwise, at said elevator, so as to warn the plaintiff not to protrude her head or any part of her body over said hoistway gate and into the space beyond; in failing to raise the hoistway gate to a height of 66 inches, as required by said ordinance, before permitting said angle iron to be installed; in failing to have said hoistway gate on said elevator at a height of 66 inches at said time and place as required by the city ordinance; in failing to warn the plaintiff, by sign or otherwise, of the existence of said angle iron, which had only recently been installed; that the defendant lessee was negligent in the following particulars: in failing to construct said gate to a height of 66 inches, as required by the city ordinance; in failing to construct said gate to a height which would have prevented a person from protruding his or her head over said gateway into said shaftway space, while knowing that said gate was not constructed to a sufficient height for said purpose; in causing to be installed said angle iron in said elevator without simultaneously causing to be installed a protective device to prevent injury to persons in the position of the plaintiff; in failing to place a warning, either by sign or otherwise, at said elevator so as to warn the plaintiff not to protrude her head or any part of her body over said hoistway gate and into said
shaftway space; in failing to raise said hoistway gate to a height of 66 inches as required by said ordinance before permitting said angle iron to be installed; in failing to warn the plaintiff, by sign or otherwise, of the existence of said angle iron which had been only recently installed; that the negligence of each defendant as hereinbefore pleaded, concurrently and jointly and severally, was the proximate cause of the injuries to the plaintiff; that the defendants failed to expose on the elevator which injured the plaintiff a Certificate of Inspection, as required by 49-109 of the Atlanta City Code, which reads: "Certificate of Inspection.--It shall be the duty of every person owning, controlling, operating or using as owner, lessee or agents any passenger or freight elevator within the limits of the City of Atlanta to expose to the public view in the elevator car a Certificate of Inspection as issued by the Superintendent of Electrical Affairs"; that such ordinance was in effect on the day the plaintiff was injured; that said Superintendent of Electrical Affairs would not have issued a Certificate of Inspection to be exposed to the public view in said elevator car unless said hoistway gate had been raised and erected to the height of 66 inches, and would not have let said elevator be used by any persons until said alteration to 66 inches had been made.
The plaintiff incorporated in the pleadings of one of her amendments a very voluminous excerpt from the lease agreement between the defendant owner and the defendant lessee, which in substance was to show that the repair and remodeling work being done in the warehouse was to be done at the instance of the lessee, but that a certain portion of the expenses of such remodeling was to be borne by the defendant owner.
The court sustained the general demurrer of the defendant owner and the defendant lessee to the amended petition, and the plaintiff excepted. The court overruled the general demurrer of the defendant elevator company, and it excepted.
1. (a) The plaintiff contends that the defendants were guilty of negligence per se in that they failed to raise the fourth floor hoistway gate to the elevator in question to a height of 66 inches as required by the city ordinance concerning elevators. This contention might be based on two theories. First, it could be based on the theory that the American Standard Safety Code for elevators, which was adopted by the City of Atlanta as the legal code for the city in the ordinance of 1938, required hoistway gates existing at the time ,of the adoption of the ordinance to be raised to 66 inches. The provision of the American Standard Safety Code relied on is as follows: "Existing hoistway doors or gates at any landing shall comply with the dimensions for gates given in the preceding paragraph, unless the car is equipped with a door or gate which is provided with an electric contact." If this were the only provision in the 1938 elevator ordinance, the contention of the plaintiff might be sound. However, the 1938 ordinance, after adopting the American Standard Safety Code by reference, provided that "Elevators, dumbwaiters and escalators, legally installed before the adoption of this Code, may be used without being reconstructed to comply with the requirements of the Elevator Safety Code, except that the following rules must be complied with: . . ." We are of the opinion that there is a conflict within the ordinance as to whether hoistway gates were required to be raised to 66 inches whether or not the elevator proper was altered as described in the part of the ordinance requiring compliance as to the hoistway gates. The American Standard Safety Code required the hoistway gates to be raised to 66 inches regardless of an alteration in the elevator proper. We think the later provision in the ordinance nullifies the American Standard Safety Code provision as to the raising of the hoistway gates when it provides that existing elevators may be used without being reconstructed to meet the requirements of the code. Gilbert v. Ga. R. & Bkg. Co., 104 Ga. 412 (1) (30 S. E. 673); Lamar v. Allen, 108 Ga. 158, 164 (33 S. E. 958); Tyler v. Huiet, 199 Ga. 845, 850 (36 S. E. 2d, 358); Darby v. DeLoach, 190 Ga. 499, 501 (9 S. E. 2d, 626). The plaintiff contends that the code provision as to existing elevators does not apply to the hoistway gate because the gate is not physically a part of the elevator but is a part of the building wall. With this contention we cannot agree. While the hoistway gate is not physically a part of the elevator and is a part of the wall, it is nevertheless a part of the elevator installation and not only are the gates controlled by the elevator code, but it is inconceivable that a permit for an elevator be granted without a strict compliance with the safety provisions relating to the gates. So, while the alteration of an elevator gate may not be such an alteration as to require compliance with gate requirements, the gate is a part of the elevator in the general sense of the word inasmuch as under modern requirements there would seldom be an elevator without a gate or door, whether the gate or door was on or off of the elevator. The explanation of the definition of alterations requiring changes in gates is the fact that the nature of the elevator proper determines the type of gate necessary. The fact that the city likewise construed the ordinance would not necessarily be controlling, because we have cited the rule of interpretation which governs in this case, but the petition in effect alleges that the city construed the ordinance as we have done. It is alleged that the elevator gates were altered by permit from the city in 1941, to a height of 54 inches. In the absence of allegations to the contrary, it will be assumed that the application for the permit stated the height of 54 inches to which the doors were to be raised. If the city construed the ordinance to require the gates to be raised to 66 inches, presumably it would not have issued the permits without being assured that the gates would be raised to 66 inches. It would be anomalous to condemn the changing of the gates where they were changed by express permission from the city. Second, such a contention, to wit, that the defendants were guilty of negligence per se for not raising thee gates to 66 inches, could be based on the theory that if such an alteration was made as required a raising of the gates, the gates would have to be raised prior to the other alterations. Section 49-102 of the ordinance, as codified in the Code of the City of Atlanta of 1941, does not require hoistway gates of existing installations, that is, elevators existing at the passage of
the ordinance, to be the height of 66 inches unless there has been an alteration or relocation of the installation. Under the allegations of the amended petition, the only alterations made to the elevator since the passage of the ordinance were those being made at the time the plaintiff sustained her injuries. The petition does allege that in January, 1941, the hoistway gates existing on the elevators at the time the plaintiff was injured, of a height of 54 inches, were installed, replacing wooden cross-bars, but under 49-116 of the Atlanta City Code defining "alterations" as used in 49-103 of such code, the installing of such hoistway gates was not such an alteration as would require the installation of 66-inch hoistway gates. We are then left with the contention that, during the alterations being made at the time the injuries were sustained, the hoistway gates of 66 inches in height should have been installed prior to any other alteration being made and specifically before the installation of the angle iron around the top of the elevator. There is nothing in the ordinance that says when, during the course of alteration of an elevator on which the hoistway gates are below the height of 66 inches, such hoistway gates must be raised to a height of 66 inches. Under a proper construction of the ordinance, the raising of the hoistway gates to the required height of 66 inches may be made as the final act of alteration. The ordinance merely requires that, upon completion of the alterations, the hoistway gates shall be 66 inches high.
(b) It is also contended that the ordinance was violated because a Certificate of Inspection from the Superintendent of Electrical Affairs was not displayed in the elevator. The plaintiff avers that, had such a certificate been sought by the defendants, the Superintendent of Electrical Affairs would not have issued it to be exposed to public view unless the hoistway gates had been raised to 66 inches in height, and would not have let said elevator be used by any persons until the alteration to 66 inches had been made. This contention is also without merit. As was said in division 1 (a) of this opinion, there was no requirement that the hoistway gate be 66 inches high before the beginning of the alterations, and there is no requirement as to when during such alterations the gates had to be raised to a height of 66 inches; therefore, it cannot be said that the Superintendent of Electrical Affairs would not have issued such certificate and would have prevented use of the elevator by any person until the gate had been raised to a height of 66 inches, when under the ordinance the gate raising could have been the last act in the alteration procedure. The requirement that a certificate be procured and displayed is only a regulatory or police measure in the nature of a license, like, for example, the requirement that a driver of an automobile have an operator's license before he can legally operate an automobile in the State. The determining factor as to the negligence of the defendants in the instant case is the actual condition of the elevator and whether or not it was negligently operated, and the procurement and display of a Certificate of Inspection. No causal connection between the failure to procure the certificate and the injuries is alleged. Aycock v. Peaslee-Gaulbert Paint &c. Co., 60 Ga. App. 897 (5 S. E. 2d, 598). The petition, then, is defective in that it fails to show the defendants jointly liable on the theory that they were all guilty of negligence per se.
2. The plaintiff seeks to show that she was an invitee as to the defendant elevator company at the time and place of her injury, by alleging that, had not the defendant Henry requested her to pull down the fourth floor hoistway gate and hollow down to him, he would have had either to send another employee of the defendant elevator company to do it or to have done it himself. These allegations are not sufficient to allege that Henry was acting within the scope of his authority or employment when he made the request to the plaintiff. There is no allegation that the defendant lessee and the defendant elevator company jointly retained control over the elevator during the alteration so as to make an invitee of one the invitee of the other. Therefore, under this theory, the plaintiff was not alleged to be an invitee of the defendant elevator company. "One who without any employment whatever, but at the request of a servant who has no authority to employ other servants, voluntarily undertakes to perform service for a master is a mere volunteer, and the master does not owe him any duty except not to injure him wilfully and wantonly after his peril is discovered." Early v. Houser, 28 Ga. App. 24 (2) (109 S. E. 914). See also Cooper v. Lowery, 4 Ga. App. 120 (60 S. E. 1015). Nor would the plaintiff be considered an invitee of the elevator company by reason of her being an invitee of the lessee under the facts alleged. See division 3. The petition does not state a cause of action as to the defendant elevator company.
3. The petition alleges that the work being done by the defendant elevator company was "being done at the instance and direction of defendant owners and lessee." The petition does not specifically allege that either the defendant owners or the defendant lessee retained any control or direction over the work being done by the elevator company, so as to allege that the elevator company was an employee or a servant of either the defendant owners or the defendant lessee. Therefore, construing the petition most strongly against the plaintiff, under the ruling in Southern Bell Tel. &c. Co. v. Dekle, 83 Ga. App. 261 (1) (63 S. E. 2d, 275), the petition alleges the elevator company to be an independent contractor and not an employee or a servant of either the defendant owners or the defendant lessee. There are no allegations that the work would result in a nuisance, or would in its nature be dangerous to others, however carefully done; or that the alleged wrongful act was in violation of a duty imposed upon the owners or the lessee by contract or by statute; or that the owners or the lessee interfered with the execution of the work, or retained the right to direct or control the time and manner of executing the work; or that the owners or the lessee ratified the alleged wrongful act of the contractor, so as to render the defendant owners or the defendant lessee liable for the negligence of the independent contractor under Code 105-502. Under such a construction of the petition the theory that the plaintiff was an invitee of the elevator company because she was an employee and invitee of the lessee would not be sustainable, since if the elevator company had exclusive control of the elevators, the plaintiff as an employee of the lessee would not occupy the status of invitee as to the elevator, either as to the elevator company or the lessee, in the absence of allegations showing an authorized invitation otherwise. The mere allegation that the employees of the lessee used the elevator during the period of repairs with the knowledge of the lessee and elevator company is insufficient to show an invitation by the lessee because, as above stated, the elevator company presumptively had exclusive control; the allegations are insufficient to show an implied invitation by the elevator company because they do not allege that the plaintiff used the elevator for other than her own convenience as respects the elevator company. In addition, there is no allegation that the defendant owners or the defendant lessee knew that the angle iron had been installed without raising the hoistway gate to a height of 66 inches; and both the defendant owners and the defendant lessee had a right to assume that the independent contractor, the defendant elevator company, would exercise ordinary care in executing the remodeling work being done; and the allegations will be construed to mean that they had no notice of the defendant elevator company's negligently doing the work, in the absence of an allegation of circumstances showing otherwise.
The court did not err in sustaining the general demurrers of the defendant owners and of the defendant lessee and in dismissing the actions as to each of them.
The court erred in overruling the general demurrer of the defendant elevator company.
Judgments adhered to on rehearing. Sutton, C. J., and Worrill, J., concur.
Neely, Marshall & Greene, W. Neal Baird, Ferdinand Buckley, Smith, Field, Doremus & Ringel, T. O. Hathcock, T. J. Long, for defendants in case No. 33646.
Houston White, Robert D. Tisinger, W. Neal Baird, Neely, Marshall & Greene, Smith, Field, Doremus & Ringel, T. O. Hathcock, contra in case No. 33639.
T. J. Long, for plaintiff in error in case No. 33639.
DECIDED OCTOBER 4, 1951. ADHERED TO ON REHEARING NOVEMBER 15, 1951.
Saturday May 23 05:17 EDT


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