Opinion
November 9, 1950 —
December 5, 1950.
APPEAL from a judgment of the circuit court for Rock county: HARRY S. FOX, Circuit Judge. Reversed.
For the appellant there were briefs by Jeffris, Mouat, Oestreich, Wood Cunningham, and oral argument by Harry F. Knipp, all of Janesville.
For the respondents there was a brief by Dougherty, Ryan, Moss Wickhem of Janesville, and oral argument by John C. Wickhem.
This action to recover damages for personal injuries was begun June 18, 1948. Judgment for the plaintiffs was entered March 1, 1950.
Plaintiff Barrows is a mechanic who was injured while working on the elevator in defendant's store in the city of Janesville. Workmen's compensation was paid to him by plaintiff, Employers Liability Assurance Corporation, Limited. The plaintiffs have joined in the action to recover their respective damages from the defendant. Since the insurance company's claim exists only by subrogation it will not be necessary in this case to discuss the insurer's claim apart from that of Barrows' and when reference is made to the "plaintiff" it is he who is so designated.
Barrows' complaint identified the parties and then alleged:
"III. That the plaintiff, Russell Barrows, at all times hereinafter mentioned, was employed by the Otis Elevator Company of Rockford, Illinois, as a mechanic engaged in repairing and maintaining elevators; that at all times hereinafter mentioned, the Otis Elevator Company of Rockford, Illinois, had an agreement with the defendant for the periodic inspection, repair, and maintenance of the freight elevator located in the defendant's premises and owned and operated by the defendant.
"IV. That, in accordance with the agreement between the Otis Elevator Company and the defendant, and with the authority and permission of the defendant, the plaintiff, Russell Barrows, as an employee of the Otis Elevator Company, was at the place of business of the defendant on the 16th day of January, 1945, for the purpose of repairing and maintaining the defendant's freight elevator.
"V. That, unknown to the plaintiff Russell Barrows prior to said 16th day of January, 1945, the defendant, through its agents and servants, had negligently and carelessly removed the bolts that secured the grille on the top of the elevator to the angle-iron frame, and had failed and neglected to replace said bolts and grille, or had failed and neglected to replace said bolts so as to secure said grille, and had failed and neglected to warn and caution said plaintiff of the removal of said bolts and the condition of said grille.
"VI. That while repairing the first-floor hatchway gate lock on defendant's elevator, the plaintiff Russell Barrows stepped on the grille on the top of said elevator, and while so engaged, the grille slipped out of place without notice or warning to him, causing him to fall to the basement landing below, a distance of approximately ten (10) feet, resulting in the injuries and damages as hereinafter set forth.
"VII. That the plaintiff Russell Barrows' injuries were caused by the failure of the defendant to furnish him with a place of employment that was safe; failure to adopt and use methods and processes reasonably adequate to render such place of employment safe, and to do every other thing reasonably necessary to protect the life, health, safety, and welfare of this plaintiff, all in violation of sec. 101.06 of the Wisconsin statutes."
At the trial Barrows denied that Otis Elevator Company's contract with the defendant was for inspection and repair of the elevator and denied that he was at defendant's store for such purpose. He offered no evidence that defendant had removed the bolts. He explained his fall by testimony that the vibration of the elevator could have caused bolts and nuts holding the top to work loose until the supports spread and the top caved in under his weight. After his fall he found those bolts were missing and replaced them but cannot recall whether he got the replacements out of his toolbox or elsewhere. The elevator code of the Wisconsin industrial commission requires the top of such an elevator to support a weight of three hundred pounds on a square space two feet on each side. Plaintiff's weight was two hundred twenty pounds.
The contract under which Barrows was at work consists of a proposal by Otis Elevator Company and an acceptance by Leath Company as follows:
"Otis Elevator Company "Service Department "January 28, 1933 "To Leath Company "315 West State street, "Rockford, Illinois "We propose to furnish Otis-service on one freight elevator located at Janesville, Wisconsin, from February 1, 1933, and thereafter until this agreement is terminated in writing by either of the parties thereto for the sum of Four 25/100 ($4.25) dollars per month, payable monthly."This service is to consist of a monthly examination of the elevator, excepting' signal devices, including oiling and cleaning machine, motor, and controller; greasing or oiling bearings and guides, making necessary minor adjustments. In addition we will furnish the following supplies as and when necessary, oils, greases, rope preservatives, and cotton waste.
"This agreement is not valid unless approved by service manager or authorized representative of the Otis Elevator Company.
"This agreement is subject to the terms and conditions printed on the back hereof, which are expressly made a part of this agreement.
"Respectfully submitted, "Otis Elevator Company "By H. R. Block (signed) "Machine No. Keickhefer "AEK:MA Superseding semi-mo. con. dated "8-13-30 "Signed and accepted in duplicated 2-2-33 192 — "Leath Company "By L. E. Krantz (signed) "Treasurer "Terms and Conditions "It is 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, except those directly due to the negligent acts or omissions of Otis Elevator Company or its employees. You, therefore, except as above stated, remain liable for all accidents to persons while riding on or being in or about said elevators, irrespective of whether such accidents result from the use, operation, maintenance, or condition of the elevators, hatchways, or appurtenances. Otis Elevator Company shall not be liable for loss or damage resulting from strikes, lockouts, fires, storms, or other similar or dissimilar causes beyond its control. No work, service, or liability on the part of Otis Elevator Company other than that specifically mentioned herein is included or intended. This contract shall constitute the entire agreement for the service described, and all prior representations whether written or verbal are merged herein."Plaintiff's witness, an inspector for the industrial commission, testified over the objection of the defendant that this contract was not one obliging Otis Elevator Company to inspect or maintain the elevator from a structural standpoint but was only one for greasing and oiling the mechanism; and "the statutes prohibit any elevator manufacturing company or service or repair firm or organization, to make any inspection upon an elevator."
Barrows testified that he had been employed by Otis Elevator Company for about twenty-five years and during all that time had been familiar with this elevator. He had made about one hundred eighty trips to attend to it. Fixing the lock wasn't really his work but he did it as a favor; on some other occasions he had checked the bolts which held the top in place but he was not required by the contract to do so. The last time he checked them was about three weeks before the accident. He did it as a gratuity. On the day of the accident he made no examination before getting up on the top.
The jury found Leath Company failed to have the top strong enough to maintain three hundred pounds on a square area two feet on a side as required by the elevator code of the industrial commission and in the exercise of ordinary care should have known this while the plaintiff should not and he was not guilty of contributory negligence; that it was defendant's failure to repair and maintain which caused the accident and plaintiff's resulting damage was $6,277.39. Defendant's motions after verdict preserved review of the questions treated here. Judgment for plaintiffs was given on the verdict and defendant appealed.
The language of the contract between Otis Elevator Company and the defendant is not technical or otherwise obscure, but is plain and unmistakable. As such it must be construed according to the ordinary meaning of the words and evidence of extrinsic circumstances is excluded. Milwaukee County v. Badger Chair Furn. Co. (1936), 223 Wis. 118, 126, 269 N.W. 659; Schuhknecht v. Robers (1927), 192 Wis. 275, 212 N.W. 657; Deree v. Reliable Tool Machine, Inc. (1947), 250 Wis. 224, 26 N.W.2d 673. The construction of such a contract is a matter of law for the court. Payne v. Payne (1906), 129 Wis. 450, 109 N.W. 105. The contract expressly states that Otis Elevator Company is to make "a monthly examination of the elevator, excepting signal devices." Testimony which eliminated this provision from the agreement was clearly incompetent and was made still more prejudicial by the statement that the statutes prohibited Otis Elevator Company or any other organization from entering into a contract giving such words their plain, unmistakable meaning. We have not been directed to any such statutes and have found none and, indeed, it would be a strange state of the law if a duty was imposed on a corporation to maintain a safe place for its employees and others but it was prohibited from employing competent agents to inspect and repair. The admission of the testimony of the elevator inspector from the industrial commission interpreting the contract constituted reversible error and the only question in our minds is whether the error demands a new trial or the contract itself, under the circumstances of the accident, requires a direction to the trial court to dismiss the complaint.
The contract provides for a monthly examination of the elevator by the Otis Elevator Company. Barrows was the person assigned to that job. There is nothing illegal in such an undertaking. Sometimes Barrows looked at the top to see if it was in safe condition and sometimes he didn't. On this occasion he didn't. His last examination in this respect was about three weeks earlier. There is no ambiguity in the contract to support his present contention that such examination was no part of the contract and that he was not there for that purpose. When, two and one-half years after the accident he swore to his complaint, he alleged that it was a contract for inspection, maintenance, and repair and that he was on hand to carry it out. The language of the agreement and his actions on this and other occasions conform to that interpretation and not to his changed theory that there was a contract for oiling and greasing the mechanism only. The provision that Otis Elevator Company will furnish rope preservatives as necessary has nothing to do with oiling and greasing but a great deal to do with safety. While it does not appear whether ropes were used on this elevator the services and materials to be furnished show the nature of the obligation. A new trial could not change the interpretation of the contract nor the capacity in which Barrows was engaged on the elevator. His brief asserts:
"If plaintiff were the very person charged with maintaining the elevator in a safe condition and, having failed to do so, was injured by his own failure, it stands to reason, as appellant contends, that he could have no recovery, and we are not surprised that the appellant has found a great deal of authority in support of that proposition. However, the fact is that there is no showing that the plaintiff had any obligation toward Leath other than to make a monthly visit in order to oil and grease and make minor adjustments to the operating mechanism of the Leath elevator."
The contract must be construed according to its plain words, and the construction is for the court not the jury. This court cannot construe it in accord with what counsel says the fact is (above), eliminating the provision for the "monthly examination of the elevator, excepting signal devices." Plaintiff was the very person charged with this duty. His injury came from his failure to examine the top, as he had done about three weeks earlier, before using it as a platform. He was injured by his own failure and, as his counsel says, in that case neither reason nor authority allow him recovery. The judgment must be reversed with directions to dismiss the complaint.
By the Court. — Judgment reversed and cause remanded with directions to enter judgment dismissing plaintiffs' complaint.