Opinion
Rehearing Denied June 4, 1931
Hearing Granted by Supreme Court July 2, 1931.
Appeal from Superior Court, City and County of San Francisco; Percy S. King, Judge.
Action by Arthur Hollander against the Wilson Estate Company. Judgment for plaintiff, and defendant appeals.
Reversed.
COUNSEL
Redman, Alexander & Bacon, Lovell & Lovell, and Herbert Chamberlin, all of San Francisco, for appellant.
Albert A. Rosenshine, of San Francisco, for respondent.
OPINION
PRESTON, Justice pro tem.
This is an appeal by the defendant Wilson Estate Company, a corporation, from a judgment entered against it upon the verdict of a jury in the sum of $26,500.
The facts necessary for a correct understanding of the questions involved on this appeal are briefly these: The defendant and appellant Wilson Estate Company owns what is known as the "Wilson Building" on Market street, in the city and county of San Francisco. This building is seven stories with basement. The plaintiff and respondent, Arthur Hollander, was severely injured by the fall of an elevator in said building. On April 23, 1927, the date of the accident, the stores and upper floors were occupied by some fourteen tenants, among whom was respondent. This building was provided with two elevators, one having a carrying capacity of ten persons and another for freight. Both elevators were under the control of appellant and were maintained by it and operated by its employees. Respondent conducted a wholesale and retail furniture, rug, and carpet business on the fourth floor, and occupied all of the floor except one room.
About noon on said April 23, 1927, one Roger Scott visited respondent’s place of business on the fourth floor of said building in connection with the purchase of rugs. He remained until about 2 o’clock p.m., when he and respondent left the premises together, walked out into the common hallway provided for the tenants on the fourth floor and rang the bell for the passenger elevator. The elevator came, and it was under the control of an employee of appellant, named Charles Dahms. Scott and respondent entered the elevator together. There were no other passengers in it. Dahms, the operator, closed the door, applied the power, and then the elevator dropped, falling from the fourth floor to the basement. All three persons in the elevator were injured.
After the accident it was discovered that the elevator shaft, on which the sheave carrying the hoisting cable revolves, had broken. The hoisting cable had slipped off and fallen down on the top of the car, and the latter, being without support, dropped to the basement.
Respondent was a tenant of appellant, under a written lease, which was introduced in evidence at the trial, and which contained a general provision whereby respondent released appellant from "personal injuries or damages to any person or persons whatever, arising from or occasioned by any cause, matter or thing", and "from any and all damages of every kind whatever, either to person or property and howsoever caused, arising during the term of this lease, or any extension thereof, in or about or connected with this tenancy, or the occupancy of said demised premises." These provisions in said lease were set up as a separate defense in an amendment to the answer of defendant, filed by permission of the court on the morning that the trial began. At the conclusion of plaintiff’s evidence in chief, and on motion of plaintiff’s counsel, the court struck out said separate defense, thereby depriving defendant of the benefit of the release provisions contained in said lease; or, in other words, the court, by granting plaintiff’s motion, held that the release provisions in said lease were void and constituted no defense to plaintiff’s cause of action.
Appellant claims on this appeal that said release clause in said lease is a complete defense and bar to the action of plaintiff, and that the trial court erred in not so holding. Therefore, the first question presented by this appeal is whether said provisions in the lease, purporting to relieve or exempt appellant from liability for the negligence of its agents and employees, precludes a recovery under the circumstances of this case.
Independent of statutory provisions, it is almost universally held that any contract purporting to exempt a common carrier of persons from liability for negligence of himself or his servants to a passenger carried for compensation is void, as being against public policy, and it is immaterial in such cases that the attempted limitation on such liability is agreed to by the passenger in consideration of special concessions in the matter of rate of fare or other departure from the rules applicable to passengers paying full fare. Walther v. Southern Pacific Co., 159 Cal. 769, 116 P. 51, 37 L.R.A.(N.S.) 235.
In determining the liability of the owner of an elevator for injury to a passenger, the Supreme Court of this state has long been committed to the doctrine that the responsibility is analogous to that of a common carrier. Treadwell v. Whittier, 80 Cal. 576, 22 P. 266, 269, 5 L.R.A. 498, 13 Am.St.Rep. 175; Champagne v. A. Hamburger & Sons, 169 Cal. 683, 147 P. 954; Wilmarth v. Pacific Mutual Life Ins. Co., 168 Cal. 536, 143 P. 780, Ann.Cas.1915B, 1120; 4 Cal.Jur. 820.
In the early case of Treadwell v. Whittier, supra, the court said: "The defendants used their elevator in lifting persons vertically to the height of 40 feet. That they were carriers of passengers, and should be treated as such, we have no doubt. The same responsibilities as to care and diligence rested on them as on the carriers of passengers by stage-coach or railway." In that case the elevator was used for moving merchandise and for transporting customers from floor to floor in the building. In the case at bar, there is no question but that this particular elevator was used exclusively for the transportation of passengers.
Appellant’s responsibility towards its passengers riding in said elevator is therefore the same as that of a common carrier. This being true, the release provisions of the lease relied upon by appellant would be void under section 2175 of the Civil Code, if appellant was guilty of gross negligence. The question of public policy in regard to such contracts of exemption has been settled in this state by the enactment of said section 2175 of the Civil Code. On the other hand, if appellant was not guilty of gross negligence, then the release provisions of the lease would be valid and binding on plaintiff, and a bar to his action. Stephens et al. v. Southern Pacific Co., 109 Cal. 86, 87, 41 P. 783, 29 L.R.A. 751, 50 Am.St.Rep. 17; Northwestern Mutual Fire Association v. Pacific Wharf & Storage Co., 187 Cal. 38, 200 P. 934. Furthermore, if appellant be not considered a common carrier, the provisions of the lease would be valid and a bar to plaintiff’s action under the authorities just cited.
Therefore, we think the court erred in striking out the amendment to the answer of appellant containing the release provisions of the lease. The court should have permitted the defense based on the release provisions of the lease to have gone before the jury, and then have instructed the jury that, if it should find appellant guilty of gross negligence, then the provisions of the lease would be void, but, if it should find appellant guilty of only the lack of ordinary care, then the provisions of the lease exempting or releasing appellant from liability were valid and a bar to plaintiff’s action; or, in other words, the jury should have been permitted to determine the degree of negligence that appellant was guilty of, and upon a determination of that question of fact would depend the validity or invalidity of the release provisions of the lease.
Gross negligence has been discussed and defined in this state in the following cases: Walther v. Southern Pacific Co., supra; Redington v. Pacific Postal Telegraph Co., 107 Cal. 317, 40 P. 432, 48 Am.St.Rep. 132; Krause v. Rarity et al. (Cal.Sup.) 293 P. 62; Merrill v. Pacific Transfer Co., 131 Cal. 582, 63 P. 915; Coit v. Western Union Tel. Co., 130 Cal. 657, 63 P. 83, 53 L.R.A. 678, 80 Am.St.Rep. 153; Malone et al. v. Clemow et al. (Cal.App.) 295 P. 70; Kastel, etc., v. Stieber et al. (Cal.App.) 297 P. 932.
There is no merit in respondent’s contention that the release provisions of the written lease only applies to the portion of the building actually occupied by him. The provisions of the lease are broad and comprehensive enough to include any injury or damages caused by the elevator in question.
Over the strenuous objections of appellant, the court admitted testimony that the elevator was out of commission for several weeks after the accident, and that plaintiff’s business in said Wilson building was damaged by deprivation of such elevator service. It is claimed that the admission of this testimony constituted prejudicial error. Plaintiff contends that this evidence was admissible in support of the allegation in the second cause of action of the complaint.
The second cause of action in the complaint, after alleging negligence, reads: "(II) That prior to the aforesaid injuries sustained by the plaintiff herein, the said plaintiff was the owner of and engaged in the business of dealing in and with rugs, carpets and furniture, from which business plaintiff derived the sum of One Thousand Dollars ($1,000.00) per month. (III) That by reason of the premises plaintiff was unable, for a period of approximately eight (8) months, to carry on and conduct said business."
It is clear that this damage is claimed by reason of the incapacity of plaintiff by reason of his injuries, and not for loss of elevator service.
The right of plaintiff to have elevator service to and from his place of business rested upon the contract and arose out of the relation of landlord and tenant, and sounded in contract and not in tort. This cause of action was not complete upon the fall of the elevator; it was a cause of action that could accrue only by lapse of time after the elevator fell; it was a cause of action entirely disassociated from the allegations of the complaint and was a cause of action which the release provisions of the lease destroyed.
This testimony informed the jury that several weeks were consumed in rehabilitating the elevator, and implied that the defendant tacitly, at least, admitted the elevator was defective and dangerous at the time of the accident, and also advised the jury that in fixing damages for plaintiff they could award damages for the loss he suffered by reason of deprivation of elevator service after the elevator fell, which was entirely without the issues of the case.
Respondent also argues that this evidence went to the question of damages and not to the question of negligence. It is, of course, well settled that in personal injury cases the loss of income which a person is deprived of through his injuries is a proper element of damage. That is a detriment proximately caused by the injury and proof of the injury is essential to a recovery for damages for such detriment, but in the case at bar the loss of the business in which plaintiff was engaged occurred from a cause of action arising after he had been injured. Clearly, that is not a detriment proximately caused by his injury, and proof of injury is not essential to recovery of damages for loss of elevator service. Plaintiff could have maintained an action under his lease for loss of elevator service irrespective of his personal injuries. The complaint contained no allegation of damages for loss of his business, by reason of deprivation of elevator service after the accident. Damages for loss to plaintiff’s business by incapacitation of the elevator were not even remotely connected with the plaintiff’s injuries. Such damages were dependent upon the establishment of a new and distinct cause of action after the accident had occurred and after the negligence that caused the elevator to fall had spent its force. As above stated, this was a new and distinct cause of action arising out of the relation of landlord and tenant and based upon a breach of the covenants of the lease, and was a cause of action foreign to that alleged in the complaint.
We conclude, therefore, that such testimony was not pertinent to any issue in the case, and, under the allegations of the complaint, was absolutely foreign to the issue made by the pleadings and inadmissible. The prejudicial effect from the erroneous admission of such evidence is readily apparent.
The appellant also makes this contention: "Prejudicial error was committed in the rulings of the court admitting testimony of former passengers in the elevator as to antecedent condition and complaints, and in admitting conversations between such witnesses and the employee running the elevator, and which were not part of the res gestae."
In his case in chief, plaintiff produced three witnesses who testified to the antecedent condition of the elevator in general, and also to statements made by passengers to the employee running the elevator and his responsive statements thereto. All such testimony was admitted over the strenuous and repeated objections of defendant. A portion of this testimony is as follows:
"Q. Prior to April 23, 1927, or a short time prior to April 23rd, did you note anything unusual about the elevator? A. About a week or even less previous to that, I heard grinding noises while riding up and down in the elevator. At times, the elevator would ascend and descend in a jerky manner.
"Q. Did you ever make complaint to any member of the corporation, Wilson Estate Company, or any employee, about the condition of the elevator?
A. I made several complaints to the elevator operator.
"Q. What was the name of this man?
A. Charles Dahms.
"Q. He was the man who operated the elevator?
A. Yes.
"Q. At any other time prior to the accident, other than the time you testified to, a week or less prior, when you heard the rattling noises, was there trouble with the elevator?
A. There was always trouble with the elevator; it was continually in trouble.
"Q. At the time that you heard this noise, this unusual noise, in the elevator, a week or less prior to the accident, did you mention that to Mr. Dahms?
A. Yes.
"Q. What did you say to him?
A. I told Charlie, or Mr. Dahms, rather, that that elevator would fall just as sure as you are a foot high, one of these days."
Plaintiff contends that this testimony was admissible for the following purposes: "(1) To show the elevator was in poor condition and state of repair, thereby tending to charge the defendant with gross negligence; (2) To charge defendant with knowledge of the condition through the knowledge of its duly authorized agent."
It has been held that evidence of antecedent or subsequent conditions is admissible, where it relates directly to the instrumentality causing the accident and where there is no change in the condition. Grossetti v. Sweasey, 176 Cal. 793-800, 801, 169 P. 687; Dyas v. Southern Pacific Co., 140 Cal. 296, 73 P. 972; Craven v. Central Pacific R.R. Co., 72 Cal. 345, 13 P. 878; Dow v. Sunset Telephone & Telegraph Co., 157 Cal. 182, 106 P. 587; Brunger v. Pioneer Roll Paper Co., 6 Cal.App. 691, 92 P. 1043; Willard v. Valley Gas & Fuel Co., 171 Cal. 9, 151 P. 286; Hoffman v. Southern Pacific Co. (Cal.App.) 279 P. 474.
If the above-quoted statements could be classed as evidence at all, they are too general and do not relate to the particular instrumentality that caused the accident in question. Prior to the admission of such conversations no effort was made to lay a foundation therefor by showing that the conditions related by the witnesses remained unchanged up to the time of the accident; neither was any foundation laid by showing that the conditions complained of by these witnesses caused the accident.
We are of the opinion that these statements and observations formed no part of the res gestae, were not binding upon the defendant, were entirely collateral to any issue of the case, were hearsay, and inadmissible under the state of the record for any purpose.
Charles Dahms, the operator of the elevator at the time of the accident, testified for the defendant and denied the statements attributed to him; he also denied that any one had complained to him about the condition of the elevator, and stated that he had not observed any unusual conditions in and about the elevator. After this testimony had been given, and in rebuttal and impeachment of this testimony, the plaintiff produced a number of other witnesses who had not previously testified in the case, all of whom testified that prior to the accident they had observed unusual conditions about the elevator and that they had complained to Dahms, and they testified as to what they told him and what he said in response thereto. Excerpts from this testimony are as follows:
"Q. Prior to the elevator accident, prior to April 23rd, 1927, did you ever make a complaint to Mr. Dahms, Charlie Dahms, about the condition of that elevator?
A. I did several times complain to him about the noise. ***
"Q. *** Did you shortly prior to the accident hear any unusual noises in the elevator?
A. Yes.
"Q. When you complained to Charlie Dahms, what did he say to you?
A. I said to him that I thought it was running on rusty hinges, and he said no, that they had put in a new cable and it wasn’t anything of that sort.
"Q. *** Within a few days prior to that accident, did you ever make a complaint about the condition of that elevator to Mr. Dahms?
A. We had made numerous complaints. We had made complaints to the elevator man, of course. Of course, he was just employed there as an elevator man and there was constant trouble and stoppages between floors and a number of my customers objected to coming to my building. ***
"Q. Did you ever hear any unusual noises in that elevator?
A. Yes, sir. *** I am not an engineer or a mechanic. I just know there was something the matter with that elevator. At different times they stopped between floors and they couldn’t proceed. I cannot recollect any noises or anything; I just know it was a faulty elevator. ***
"Q. Within a short time prior to the falling of that elevator, did you ever have any conversations with Mr. Dahms, Charlie, with reference to the condition of that elevator?
A. Yes, sir.
"Q. *** What did you say to him?
A. I told him that it is about time that the landlord should put in a new elevator and I told him ‘this is the most dangerous thing there is in the City of San Francisco.’ ***
"Q. You testified you had a conversation with Mr. Dahms in which you called his attention to the condition of the elevator?
A. Yes, sir.
"Q. And you said it was a dangerous elevator?
A. Yes, sir.
"Q. Did he say anything in reply?
A. Yes, sir. He says, ‘I told the landlord myself, the boss, and he won’t do it,’ and he was scared himself."
We think this testimony was also inadmissible for the same reasons above set forth, and, furthermore, it went far beyond the bounds of legitimate rebuttal or impeachment and should not have been admitted.
There is no merit in appellant’s contention that the court erred in instructing the jury on the doctrine of res ipsa loquitur. We think that the court’s instructions on that doctrine were correct and proper.
Appellant also contends "that it was deprived of a fair trial by the misconduct of counsel for plaintiff in stressing that defendant carried casualty insurance and that defendant was a wealthy corporation." We find in the record considerable justification for this criticism, but, owing to the fact that the judgment must be reversed for the other reasons above stated, we deem a discussion of this alleged prejudicial misconduct unnecessary.
Judgment reversed.
We concur: NOURSE, P.J.; STURTEVANT, J.