Chance v. Scarbrough , 303 S.W.2d 832 ( 1957 )

GRAY, Justice.

Appellants, Jayne B. Chance and husband C. L. Chance, sued appellees, J. W. Scarbrough and Lem Scarbrough individually and as trustees for the E. M. Scar-brough Trust, to recover damages for personal injuries sustained by Jayne B. Chance when she fell as she was leaving an elevator on the eighth floor of the Scarbrough Building in the City of Austin.

It was alleged that the Scarbrough Building was an office building; that appellees maintained and operated the building and the elevators and halls therein for the use and benefit of tenants and the general public; that Jayne B. Chance was an employee of a tenant with offices on the eighth floor of the building; that on November 9, 1954, she was returning from lunch to the office where she was employed.

“In doing so she entered the elevator to the right as you enter the building, or the west elevator, and the operator of said elevator, an employee of the defendants proceeded to carry her to the eighth floor. When the elevator reached the eighth floor the elevator operator opened the doors leading from the elevator to the hall and she started out of the elevator. As she stepped forward with one foot raised to leave the elevator and the other foot still on the elevator, the elevator moved upward throwing her off balance and causing her to fall forward, and as she was falling forward off balance she stepped upon a substance just outside the elevator door on the floor of the hall, which she later learned to be wax, and which caused her foot to slip out from under her as she was off balance and in the act of falling forward by reason of the movement of the elevator as she was getting off, and caused her to fall heavily to the floor of the hall with such force as to inflict on plaintiff Jayne B. Chance serious, painful and disabling permanent injury.”

In other paragraphs it was alleged:

“Plaintiffs further show that the elevator operator opened the door of the'elevator before the upward movement of the elevator had stopped, and while in control of the said elevator the elevator operator, an employee of the defendants, caused the said elevator to move upward while the plaintiff Jayne B. Chance was in the act of getting off the said elevator, and that such act was in violation of the duty owed to plaintiffs to operate the elevator in a safe manner.

“The injury to the plaintiff Jayne B. Chance, as a result of the foregoing occurrence, was due to the carelessness and negligence of the defendant’s employee who operated the said elevator, and to the carelessness and negligence of the defendants’ employee who, while he was waxing the elevators, dropped some of the wax on the floor of the hall on the eighth floor of said building just outside the elevator doors. The violation of each of such duties owed to plaintiffs contributed to her fall and to her resultant injuries, * * * ”

and in still another paragraph of the petition it was. alleged:

“That the defendants as owners, managers and operators of the said building were required by statute to equip the said elevators and particularly the elevator in which plaintiff Jayne B. Chance was riding with a device that would prevent moving or movement of the elevator with its gate or door open. That plaintiffs would show that in fact the said elevator was moved or did move when the entrance doors thereto were open, and that such movement of the elevator when its doors were open separately caused said plaintiff to fall and proximately caused her injury hereinafter set out.”

Appellees answered and admitted ownership of the building in question; that Jayne B. Chance was an employee of a tenant, and that the Trust operated elevators in the building but that the same were kept in repair by Otis Elevator Company, an independent contractor, under a contract arrangement. They did not dispute the reasonableness of the expenses incurred by appellants but denied that any of such charges and expenses were necessitated by the- matters alleged. They especially denied :

“(1) That on the occasion in question the elevator operator, an employee of the defendants, caused the said elevator to move upward while the plaintiff, Jayne B. Chance, was in the act of getting off the said elevator.

“(2) That defendants operated the elevator in question without first having equipped it with a device that would prevent its being moved when the entrance doors thereto were open;

“(3) That there was, on the occasion in question, any wax dropped by defendant’s employee on the floor just outside the elevator doors which caused Mrs. Chance’s foot to slip out from under her.”

Appellees alleged that the injuries of Jayne B. Chance were caused by her own negligence or that the same were caused by an unavoidable accident. They filed a cross action against Otis Elevator Company and prayed that in the event any judgment was rendered against them that they have judgment over against Otis Elevator Company for indemnity or contribution.

Otis Elevator Company filed an answer and at the conclusion of the evidence before a jury it moved for an instructed verdict in its favor. This motion was granted and a judgment was accordingly rendered. No appeal was taken from that judgment, it is not before us for review and will not be further noticed.

Thirteen special issues were submitted to the jury but only six were answered. These issues and their answers are

“Special Issue No. 1:

“Do you find from a preponderance of the evidence that on November 9, 1954, the defendants failed to equip the .elevator in question with a device to prevent moving said elevator while the door on the eighth floor landing was open ? Answer ‘yes’ or ‘no.’

“Answer: No.

“Special Issue No. 3:

“Do you find from a preponderance of the evidence that on November 9, 1954, Mrs. Chance fell as she left the elevator on the .eighth floor landing? Answer ‘yes’ or ‘no.’

“Answer: Yes.

“If you have answered the foregoing question ‘yes,’ then you will answer the next question; otherwise, you need not answer it.

“Special Issue No. 4:

“Do you find from a preponderance of the evidence that on the occasion in question the employees of the Scar-brough defendants caused wax to remain on the floor near the elevator door on the eighth floor landing? Answer ‘yes’ or ‘no.’

“Answer: No.

“Special Issue No. 9:

“Do you find from a preponderance of the evidence that at the time Mrs. Chance started to leave the elevator in question the elevator operator caused the elevator to jerk upward? Answer ‘yes’ or ‘no/

“Answer: No.

“Special Issue No. 12:

“Was the fall of Mrs. Chance, if any, the result of an unavoidable accident? Answer ‘yes’ or ‘no.’

■“Answer: No.

“Special Issue No. 13:

“What sum of money, if any, if paid now in cash, do you find, from a preponderance of the evidence, will fairly and reasonably compensate plaintiffs for Mrs. Chance’s injuries, directly and proximately caused by the fall, if any, sustained by her on November 9, 1954. Answer by stating the amount, if any, in. dollars and cents.

“Answer: $1,278.89.”

All issues not set out supra were conditionally submitted and were not answered.

A judgment that appellants take nothing against appellees was rendered on the jury’s verdict.

Appellants complain that they were denied the right to poll the jury as shown by their bill of exceptions.

Except for its formal parts and the signature of attorneys and the trial judge this bill of exceptions and the trial court’s qualification is:

“Be it remembered that upon the trial of the above entitled and numbered cause from June 11, 1956 to June 15, 1956, on said 15th day of June, 1956, after the jury returned its verdict into open court, and the Court had received such verdict and handed the verdict to the Clerk to be read, the Clerk proceeded ⅛> read the verdict in open court in the presence of the jury and attorneys for the parties respectively. Thereupon the Court asked the jury as a whole if such was their verdict and the verdict of each of them, and each of the jurors in unison said ‘yes’ and affirmed said verdict. Thereupon the Court paused and then told the jury they were discharged and had performed their important duty of citizenship, and thanked the jury for their attendance. As soon as the Court completed his remarks to the jury, the attorney for plaintiff rose and asked that the jury be polled.

“At said time when said request for polling the jury was made, the judge had just finished his remarks to the jury, and was still on the bench, all of the jurors were still in their seats in the jury box, plaintiffs and their counsel were in attendance on the Court, one of the attorneys for the defendants and the cross defendant, respectively, were in attendance on the Court, and the Clerk of the Court was present in the court room with the verdict, and it had not been recorded.

“The Court refused to permit the polling of the jury and overruled plaintiffs’ request that the jury be polled on the ground that the court had formally discharged the jury, and that the jury was no longer the jury in the case, and that the Court no longer had control of the jury, and that the request came too late; to which ruling of the Court refusing the request of plaintiffs to poll the jury, the plaintiffs, and each of them, then and there in open court excepted; and asked that this their Bill of Exceptions No. 2 be allowed and filed.

⅜ ⅝ * # ⅜ ⅜

“The foregoing Bill of Exception No. 2, having been reduced to writing by the attorneys for said plaintiffs and having been presented to the undersigned Judge of said Court for allowance and signature within the proper time required by law, and having been by me submitted to adverse counsel with the qualifications noted and found by him to be correct with said qualifications, and having been by me found to be correct with said qualifications, is hereby allowed, approved and ordered filed by the Clerk of this Court as part of the record in such cause, this 19th day of November, 1956, with the following qualification:

“Upon the occasion of the receipt of the verdict by the Court, and after the reading of the verdict, the Court addressed the jury as a whole, asking:

“ ‘Ladies and gentlemen of the jury, is this your verdict ?’

“Each of the jurors in unison said ‘Yes’ and affirmed said verdict. The Court then paused for a time ample and sufficient for the making of a request for the poll of the jury and then again addressed the jury as a whole, asking:

“ ‘So say you each and all ?’

“Each of the jurors again answered ‘Yes’ in unison, and the Court again paused for a sufficient period for counsel to have requested a poll of the jury. No request was made, and the Court therefore announced to the jury:

“ ‘Then your verdict will be received and you are discharged from your service as jurors.’

“The Court then proceeded to thank the former jurors for their attendance and for their performance of an important duty of citizenship. As soon as the Court had completed these remarks, the attorney for plaintiffs requested a poll of the jury. * * * ”

Rule 294, Texas Rules of Civil Procedure, provides that:

“Either party shall have the right to have the jury polled. When a jury is polled, this is done by reading once to the jury collectively the general verdict, or the special issues and answers thereto consecutively, and then calling the name of each juror separately and asking him if it is his verdict. If any juror answer in the negative, the jury shall be retired for further deliberation.”

The source of the above rule is Article 2206, which we quote:

“Either party shall have the right to have the jury polled, which is done by calling separately the name of each juror and asking him if it is his verdict. If any juror answer in the negative, the jury shall be retired for further deliberation.”

The wording of the rule is slightly different from that of the statute. The rule makes more specific the manner of making the poll but without express limitation or qualification of the right of either party to poll the jury and does not specifically fix the time when the request must be made.

The majority is of the opinion that the record plainly shows appellant was given a fair opportunity to request a poll of the jury after the court had indicated the verdict was acceptable and before the jury was discharged and that we should not concern ourselves with the authority of the Trial Court to reconvene the jury and give appellant a second opportunity to request a poll.

We are not to be understood as approving the manner of the submission of this cause as shown by the record before us.

Issue 1 supra inquired whether the elevator was equipped with a device “to prevent moving said elevator.” Art. 6145a, Vernon’s Ann.Civ.St., provides the elevator shall be equipped with a device “that will prevent moving said elevator.” The statute further provides that if the design of such device as is installed has been approved by either of the agencies therein named then it “shall be prima facie evidence of a compliance with this Act.” Then the answer “No” to Issue 1, supra, is not necessarily conclusive of the issue as to whether the elevator did in fact move.

It is not disputed that Mrs. Chance stepped through an open door of the elevator ; that she fell and that she was injured. She testified how she fell and the cause of her fall. The jury found her fall was not an unavoidable accident.

Referring to Issue 4, supra, which assumes wax was on the floor, even if it be assumed that there is no dispute as to wax -being on the floor and that therefore the only issue to be determined is whether appellees were negligent in not removing it prior to the fall then Issue 4 as submitted is not sufficient for that purpose because if it was removed at any time prior to the trial the jury could conclude that the wax was not “caused to remain on the floor” by appellees’ employees.

Appellants presented various objections to the charge and we must briefly notice the other points made by appellant in order to determine if there is any reversible error.

Points one and two are that the 'Court erred in refusing to submit to the jury requested special issues: (1) as to whether after the door of the 8th floor opened, the elevator moved (2) as to the slippery condition of the 8th floor landing, where appellant fell.

These requested issues, five in number, were included in three pages of requested issues containing eighteen special issues. They were not separately requested. They were requested en masse. This was impi-oper. Walton v. West Texas Utilities Company, Tex.Civ.App. Eastland, 161 S.W.2d 518, writ ref., w. o. m.; Texas General Indemnity Co. v. McNeill, Tex.Civ.App. Beaumont, 261 S.W.2d 378. See also Edwards v. Gifford, 137 Tex. 559, 155 S.W.2d 786.

The remaining point is that the indicated1 answer of the jury to the following issue was “contrary to the undisputed testimony” :

“Do you find from a preponderance of the evidence that on November 9, 1954, the defendants failed to equip the elevator in question with a device to prevent moving said elevator while the door on the eighth floor landing was open ?”

Answer: “No.”

Mr. Franklin Peterson, a zone service superintendent for Otis Elevator Company, testified regarding the Scarbrough elevator:

“Q. All right. Is there or not a device or mechanism that will prevent the operation of the elevators with the car doors open? A. Yes, there is. There is a safety circuit, sir, to prevent that.”

This evidence of Mr. Peterson was undisputed.

There is evidence that this device did not function properly in that appellant testified that after the elevator stopped and as she was stepping off the elevator jerked upward and this in conjunction with her foot striking a foreign substance on the floor caused her to fall. The jury, however, found that the operator did not cause the elevator to jerk as she stepped off. This finding was fully supported by the evidence and as no other issues on this feature of the case were submitted we do not understand how the answer to the issue about the safety device, even if erroneous, has any significance.

The judgment of the Trial Court is affirmed.

Affirmed.