Opinion
43102.
SUBMITTED OCTOBER 2, 1967.
DECIDED OCTOBER 31, 1967. REHEARING DENIED NOVEMBER 16, 1967.
Action for damages. Fulton Superior Court. Before Judge Etheridge.
Vandiver, Barwick Bentley, Thomas S. Bentley, John E. Talmadge, for appellant.
Nall, Miller, Cadenhead Dennis, Lynn A. Downey, Haas, Dunaway, Shelfer Haas, George A. Haas, Douglas Dennis, for appellees.
The court erred in granting the motions of the defendants for summary judgments because the showings on the motions did not pierce the pleadings and show as a matter of law that the defendants were not guilty of the acts of negligence alleged in the petition to be the proximate cause of the injuries alleged to have been suffered by the plaintiff.
SUBMITTED OCTOBER 2, 1967 — DECIDED OCTOBER 31, 1967 — REHEARING DENIED NOVEMBER 16, 1967.
James F. Chapman instituted this action against Turnbull Elevator, Inc., and Atlanta Federal Savings Loan Association to recover damages for injuries alleged to have been received by reason of the malfunction of an elevator operated by the Atlanta Federal Savings Loan Association in its building. The petition further alleged in part as follows: "That on December 31, 1962, Atlanta Federal Savings and Loan Association did operate a savings and loan association in a building named and known as The Atlanta Federal Savings Building at 22 Marietta Street, N.W., Atlanta, Fulton County, Georgia. That on said date said building had eighteen (18) stories and was owned by Atlanta Federal Savings and Loan Association, a defendant herein. That said building was occupied on said date by many commercial tenants, but not to the exclusion of the defendant Atlanta Federal Savings and Loan Association. That on December 31, 1962, there were five elevators located in said building and said elevators were under the direct control of the defendants herein. That said elevators had been manufactured and installed and were maintained by the defendant Turnbull Elevator, Inc. That said elevators on December 31, 1962, were in use and servicing the first seventeen stories. That said elevators were automatic in that any person riding said elevators, upon entering, was to push a button designating the story or floor to which he desired to be borne and the doors of said elevators, upon the elevators' arriving at the story or floor designated, were designed to automatically open. That said elevators were used and installed for the purpose of providing employees, customers, and callers of the said tenants in said building a means of transportation among the several stories or floors of said building. That the plaintiff on said date was an employee of a tenant in said building, namely Georgia Insurance Service, Inc., and had every right to use said elevators and to expect that they were properly maintained for safe operation. That on December 31, 1962, at approximately 11:45 a. m., the plaintiff and six others boarded on the seventeenth floor the middle elevator of said five elevators for the purpose of descending to the first floor of said building. That the said elevator descended to the sixteenth floor to pick up an additional passenger. That, after the said passenger boarded said elevator on the sixteenth floor, the doors of the said elevator closed and the said elevator suddenly and swiftly plummeted at extraordinary speed ten stories or floors to the sixth floor, jerking the plaintiff to his knees where he remained for a time; that the said elevator then quivered momentarily, and the lights having gone out, ascended in total darkness to the sixteenth floor, from which said elevator again suddenly and swiftly plummeted at extraordinary speed ten stories or floors to the sixth floor, violently and forcefully driving and snapping the plaintiff again to his knees and causing the grievous and painful bodily injuries as set forth herein. That at the time of the occurrence complained of herein the defendants had knowledge that said elevator was malfunctioning, that the defendants failed to repair said elevator, and that the defendants allowed said elevator to remain in service without apprizing the public, including the plaintiff, of said malfunctioning. That the fall of the elevator and the injuries of the plaintiff, as hereinafter set forth, were directly and proximately caused by the negligence of the defendants, which negligence consisted of the following particulars: (a) In failing to maintain the said elevator in said building in a state of reasonably safe repair; (b) In failing to take said elevator out of operation after similar occurrences prior to the occurrence complained of herein; (c) In failing to exercise reasonable care in the inspection, repair, and maintenance of said elevator; and (d) In failing to provide a safe means of transportation among the several stories or floors of said building. That as a direct and proximate result of defendants' negligence, as aforesaid," the plaintiff has sustained described injuries.
Turnbull Elevator, Inc., moved for a summary judgment based upon the affidavit of H. A. Estes, the deposition of Buford Harris Jakes, Jr., and the pleadings in this case. The Atlanta Federal Savings Loan Association filed its motion for a summary judgment based on the affidavit of H. A. Estes, the depositions of Buford Harris Jakes, Jr., and V. John Garren, and the pleadings of this case. The court granted a judgment sustaining the motions for summary judgment from which the plaintiff appeals, enumerating as error the sustaining of said motions for summary judgment by each of the defendants.
Specifications of negligence (a), (b) and (d) relate to the defendant Atlanta Federal Savings Loan Association, called the bank for the sake of brevity, and specification (c) relates to Turnbull Elevator, Inc., called the elevator company for convenience. The petition sets forth a cause of action against both defendants. The sole questions for decision are whether the allegations were pierced by the motions for summary judgment and documents in support thereof and whether such showings require the conclusion of non-negligence as a matter of law. The pleadings were not pierced as to the elevator company. Under the rules of common law duty and of circumstantial evidence the allegation that the injury was proximately caused by the failure to properly inspect the elevator was not pierced by the motion of either defendant for a summary judgment and evidence presented therewith. The allegations of negligence as to the bank could also be supported by evidence bringing the case as to it under the rules of circumstantial evidence. The evidence showed that the plaintiff furnished the defendants the names of the persons who were present on the elevator when it was alleged to have malfunctioned. To have pierced the pleadings as to either defendant, it would have to appear in support of the motions for summary judgment that one of the passengers did something to the elevator which caused it to malfunction and that such conduct was unconnected with any negligence charged against the defendants. The witnesses for the defendant could offer but one explanation for the malfunctioning of the elevator and that was that a passenger toyed with the emergency and other buttons in the elevator. In the trial of the case the plaintiff could prove that no passenger was the cause of the malfunction here charged and carry the case to a jury. Further evidence on the motions showed that the alleged malfunction could happen but no witness could explain it; that two other similar malfunctions had been reported; that inspections were made by the elevator company at the instance of the bank and nothing was found to be wrong and that the elevators were put back in service after each inspection and that no other malfunction has occurred since the one on which this action was based. There is no showing that the malfunctions did not occur. Since that is true, on a trial of the case if a jury finds that the alleged malfunction occurred, and that the occurrence could not be accounted for without negligence, the jury would be authorized to find against both defendants. Otis Elevator Co. v. Robinson, 287 F.2d 62 (5th Cir., 1961); Otis Elevator Co. v. Jackson, 325 F.2d 260 (5th Cir., 1963); 6 ALR 391; Bullard v. Rolader, 26 Ga. App. 742 ( 107 S.E. 548); Helmly v. Savannah Office Bldg. Co., 13 Ga. App. 498 ( 79 S.E. 364); Callaway v. Hall, 58 Ga. App. 795 ( 199 S.E. 899); Higgins v. Otis Elevator Co., 69 Ga. App. 584 ( 26 S.E.2d 380). The case of Darlington Corp. v. Finch, 113 Ga. App. 825 ( 149 S.E.2d 861) is so obviously distinguishable that discussion of the fact is unnecessary. The Darlington decision, overruling in part a statement in the Bullard and Helmly cases to the effect that in certain cases "on proof of the injury a presumption of negligence arises," does not mean that a case of negligence cannot be made by circumstantial evidence. Judge Powell, in Hubbard v. Macon R. c. Co., 5 Ga. App. 223, 225-226 ( 62 S.E. 1018) stated: "It is contended by the defendant that the plaintiff did not show the existence of the defect. We think he made a prima facie case as to this. It is true that he never saw the valve before or after the time of his injury. He knew, however, the general construction of the machinery. He exhibited a diagram of it to the jury, showing the relation of the valve and of the other parts. From an examination of the diagram, it seems impossible that the steam could have come through the valve, when it was closed, as the plaintiff testified it was, so as to blow the contents of the lubricator into the defendant's face, if it had not had the defect of being leaky. Without frightening any of the brethren of the profession by saying that it was a case of res ipsa loquitur (for this phrase seems to be a bugaboo to some members of the bar), we will say that the circumstances were such as clearly to prove, according to all the rules of circumstantial evidence, that the valve contained a leak. As the plaintiff directly testified, `there was no other way for it (the steam) to get in there.' Even in pleading it is not necessary that the negligent deficiency be described in structural terms; a deficiency may be sufficiently alleged by stating that the particular contrivance was so constructed or maintained that it gave forth a result which it was designed to prevent, and which such contrivances, as they are usually constructed and maintained, do prevent. Atlantic Coast Line R. Co. v. Davis Brandon, ante, 214 (62 S.E. 1022); Ga. Ry. Elec. Co. v. Reeves, 123 Ga. 702 (3), ( 51 S.E. 610). The plaintiff proved a prima facie case, and the grant of a nonsuit was erroneous." "The burden is upon the moving party to establish the lack of a genuine issue of fact and the right to a judgment as a matter of law, and any doubt as to the existence of such an issue is resolved against the movant. . . The party opposing the motion is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists and the trial court must give that party the benefit of all favorable inferences that may be drawn from the evidence." Holland v. Sanfax Corp., 106 Ga. App. 1, 4-5 ( 126 S.E.2d 442).
The court erred in granting a summary judgment in favor of each defendant because the pleadings were not pierced by the showings in support of the motions and because the showings did not show as a matter of law that the defendants were not guilty of negligence constituting the proximate cause of the injuries as charged in the petition.
Judgments reversed. Hall and Eberhardt, JJ., concur.