GENCE OF AGENT-PERSONAL LIABILITY TO barrassment in the administration of justice | a common carrier, as to all pe.sons having a to permit single causes of action and judg- right to use it, and so under the nondelegable ments to be split up so that different parts duty to exercise the highest care in respect to it. [Ed. Note.-For other cases, thereof could be in litigation in different Cent. Dig. 88 966, 967; Dec. Dig. § 235.*] see Carriers, courts at the same time. We do not think 2. PRINCIPAL AND AGENT (§ 159*) — NEGLIthis case is within the reason of the rule. Although there is no separation of causes of action, either in the complaint or in the judgment, there are manifestly two such causes if we are right in holding that there is a distinction between intrastate shipments and interstate shipments. They are easily separable. The result of our decision is that the plaintiffs are entitled to recover upon one and not upon the other. In these circumstances it is both logical and just to make an end to the litigation by directing that the judgment shall be reduced to $64.45, and as thus modified affirmed, without costs of this appeal to either party. Wolstenholme v. Wolstenholme File Mfg. Co., supra; Board of Underwriters v. Nat. Bank of the Republic, supra. Because of the duty of one in control of property to so use it as not to injure others who are where they have a right to be, creating a privity in law between him and them, the agent of the owners of an apartment house, in full control and management of it for them, who passenger elevator to get out of order, so that negligently allows the catch of the door of the the door does not stay closed after the elevator passes, and negligently causes it to be operated in that condition, is liable for injury to a tenant therefrom; there not only being misfeasance on his part in causing the elevator to be operated with the catch in such condition, but he being liable to third persons for nonfeasance in respect to his duty to them, where he has entered on performance of his contract with his principal. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 599-612; Dec. Dig. 159.*] GENCE-PLEADING. The complaint of one who, in going to her room, stepped through the open door of the passenger elevator of an apartment house, and, the car not being there, fell down the shaft, does not show contributory negligence as a matter of law; it alleging that because of the darkness she could not see beyond the door, and that it was a custom, known to her, for the door to be open only when the car was there. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1398; Dec. Dig. § 343.*] 4. PRINCIPAL AND AGENT (§ 17*)-RELATION— SUBAGENTS. GRAY, J. (dissenting). I am of the opin-3. CARRIERS (8 343*)-CONTRIBUTORY NEGLIion, if, as it is conceded, the common-law duty of the defendant in this case extended to the furnishing of cars sufficiently equipped for the carriage of the plaintiff's produce, that the obligation existed at the place of shipment and was enforceable, whatever the destination of the freight. The argument that the Interstate Commerce Acts confer exclusive jurisdiction upon the federal courts to determine claims and cases of infractions of agreements relating to shipments beyond state lines does not impress me as sound in Where the owners of a building know from its application to the present case. I think its character and location that the business of that the courts of this state did not lose managing it cannot be transacted by their their jurisdiction to enforce the obligation, primary agent, and also know of such agent emwhich arose, or was implied, in the transac-ploying a subagent therefor, the latter is the agent of the principal; and this would also aption between the parties. In the cases de- ply to the employés of the subagent within the cided by the United States Supreme Court, scope of his powers. to which Judge Werner refers in his opinion, the states had enacted laws which operated in regulation of the duties and obligations of carriers of interstate traffic. This case does not present a question where the state has undertaken to exert its authority over subject-matters, which, by congressional action, had been brought within federal control. For these reasons, briefly, I dissent. CULLEN, C. J., and WILLARD BARTLETT, CHASE, COLLIN, and HOGAN, JJ., concur with WERNER, J. GRAY, J., reads dissenting opinion. Judgment accordingly. (180 Ind. 357) TIPPECANOE LOAN & TRUST CO. v. (Supreme Court of Indiana. May 9, 1913.) [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 35; Dec. Dig. § 17.*] 5. TRIAL (§ 352*)-INTERROGATORIES TO JURY. An interrogatory which calls for more than one distinct fact is objectionable. Dig. 88 840-842, 844, 845; Dec. Dig. § 352.*] [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. § 350.*] 7. CARRIERS (§ 280*)-CARE REQUIRED. While one as common carrier by a passenger elevator is required to exercise the highest care consistent with the operation of the elevator, he is not an insurer. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1085-1092, 1098-1103, 1105, 1106, 1109, 1117; Dec. Dig. § 280.*] 8. CARRIERS (§ 321*)-CARE REQUIRED-IN STRUCTIONS. An instruction, that one operating a passenger elevator in an apartment house was charged with the duty of keeping the elevator •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexee 1 Rehearing denied. and the premises about it "safe," is erroneous, [ Flats" in the city of Lafayette. The action as making him an insurer. was originally brought against appellant as INSTRUCTIONS ERROR 9. TRIAL (§ 296*) [Ed. Note.-For other cases, see Trial, Cent. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1247, 1326-1336, 1343; Dec. Dig. agent, George Mohr, day elevator boy at the § 321.*] building, and John W. Barr, Jr., and Henry W. Barrett, owners of the building, as trustees. The action was dismissed as to Mohr, and the court sustained a plea in abatement by Barr and Barrett for want of jurisdiction over their persons. The amended complaint, upon which the cause went to trial, alleges: That Barr and Barrett on December 28, 1904, and for two years prior thereto, were and had ever since been the owners of the grounds and building known as Columbia Flats in the city of Lafayette, a four-story building used as an apartment house for rooms and residences, and for part of the time as a restaurant; that it was used by many persons and families as tenants of Barrett and Barr, who on December 28, 1904, and for more than two years prior, and ever since, have been and are nonresidents of the state of Indiana, and were running and operating such building through the appellant trust company as their agent; that at that time, and ever since, the trust company was their agent in the management, control, and operation of the business, and as such agent had full charge and complete control of the management and operation of the business; that it employed all the employés and servants engaged in and about the building engaged in the care and control thereof, rented the rooms and apartments, looked after and had charge of the making, and it was its duty to make, all repairs to the building, and the different parts thereof, and had charge of the heating and the janitor work in the building, procuring coal and supplies the management of the building generally; necessary for the conduct of the business, and that as such agent it had not only the right, authority, and power to engage and employ all employés and servants used in and about the building and premises, but had the abso13. APPEAL AND ERROR (8 757*)-BRIEFS-lute right and authority to discharge said SETTING OUT RULINGS. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. § 350.*] 11. TRIAL (§ 194*) CONTRIBUTORY NEGLIGENCE QUESTIONS FOR JURY. An instruction, that a tenant of a room in an apartment building "in going to her room from the street is not required to look at every place she steps," is in effect one that she is not required to look under any circumstances, and so an invasion of the province of the jury, for whom is the question whether she exercised ordinary care in stepping into the open elevator shaft, though it was somewhat dark in the hallway and at the elevator door, and though she knew the surroundings and the custom as to the door being open only when the elevator was there. [Ed. Note.-For other cases, see Trial, Cent. Dig. 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.*] 12. TRIAL (§ 187*)-INSTRUCtions-CREDIBILITY OF WITNESSES. An instruction, that in determining the credibility of the witnesses and the weight of their testimony the jury "must take into consideration the interest, the appearance, * * the bias or prejudice of the witness, if any be shown," is calculated to unduly impress on the jurors that the judge has in mind some suspicion regarding the testimony of some witnesses. [Ed. Note. For other cases, see Trial, Cent. Dig. 88 414-419; Dec. Dig. § 187.*] Questions as to rulings on evidence not among those set out in the brief, expressly stating that it sets out all relied on, are not presented for review. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.*] Appeal from Superior Court, Tippecanoe County; James P. Wason, Judge.. Action by Ella M. Jester against the Tippecanoe Loan & Trust Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted. William R. Wood, of Lafayette, for appellant. George P. Haywood and Charles A. Burnett, both of Lafayette, for appellee. servants, and had complete control over the It is alleged: That the trust company was charged with the duty of making all necessary repairs, not only to the building, but particularly to the elevator and the doors thereof, and all things connected therewith, so as to render occupancy comfortable, convenient, and its use safe for the tenants thereof, and all persons using the same, and that the trust company held itself out to the MYERS, C. J. This was an action for plaintiff, and to the other occupants of the damages for personal injuries sustained by building, as having charge of the keeping in appellee by falling down an elevator shaft safe repair and condition the building and in an appartment house known as "Columbia | elevator, and entrances to the latter, and all For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes December 28, 1904, a main entrance to the building ran from the street, 15 or 20 feet to the door of the elevator. That there was provided a gas light fixture, or lamp, in the ceiling of the hallway, a few feet from the door to the elevator, and another smaller fixture or lamp on the opposite side of and near the elevator door. That December 28, 1904, was a cloudy dark day at 4:30 p. m. and that the aforesaid lamps were not light. ed, and the hallway and elevator shaft were dark and unlighted. That on said day at about 4:30 p. m. the defendants, by and through the elevator boy, who had been employed by the trust company to operate the elevator, caused the elevator to ascend from its position on the main floor of the building to one of the upper floors, and, as the elevator started, attempted to close the door, and after the elevator had left the main floor, on account of the aforesaid defective condition of the lock, latch, and catch, it failed to fasten, when closed, but rebounded, and rolled back, and opened, and stood open, thus leaving the door into the elevator shaft open, through which door any one was liable to step and fall into the shaft. That at about 4:30 p. m. of said day plaintiff, who was familiar with the hallway, and elevator, and the entrance to the latter through the said door, and the custom of the defendants to have the door open when the elevator was in position at the hallway to receive passengers, and the custom to have it closed when the elevator was ascending from, or descending to, the floor at the hallway, entered the hallway from the street, and carefully approached the elevator door, and saw the elevator door open, but because of the darkness was unable to see beyond the elevator door. That the door was not in position, and she did not know that the elevator was not in position opposite the door, and that the elevator shaft was open and exposed, and because the door was open and exposed, and so believing, with due care, she stepped through the door, for the purpose of stepping into the elevator to be carried to the floor of her apartment, and because the elevator was not there, and the shaft open and exposed, she fell to the bottom of the shaft a distance of about ten feet, and was greatly injured, the injuries being minutely described, by reason of which aforesaid negligence of the defendants she was injured, without fault on her part. things connected therewith; that plaintiff knew that the trust company was agent for the owners, and had the control and management of and charge of the business, and had charge of the repairs to the building and the elevator, and that it was its duty to keep it in repair, and everything connected therewith, and to keep it in safe condition for the use of the plaintiff and others, and that she relied upon it to do so, and that it knew she so relied. That the use and operation of the elevator and the frequent closing and opening of the door thereto in the hallway leading thereto caused the catch on the door to become loose, and also caused a small bolt, that helped to hold in position the catch on the jamb of the door, to become loose and fall out, and thereby the catch became loose, and the latch would not and did not go into the slot of the catch, and hold the door when it should be kept closed. That this catch was loose and out of repair for several days prior to December 28, 1904, which the company knew, or by reasonable diligence could have known, in time to have repaired it, prior to that day. It is also alleged: That the lock, latch, and catch had been out of repair as aforesaid for several weeks prior to the injury, and that the defendants knew, or by the use of ordinary diligence and care could have known, that it was so out of repair and in a dangerous condition, and that appellee did not know it. That the defendants carelessly and negligently permitted the lock, latch, and catch of the elevator door to be and remain out of repair as aforesaid, and to be in a dangerous and unsafe condition, so that when the door was closed the latch would not and did not fasten in the catch, or slot, and hold the door closed, but on account of the defective condition of said lock, latch, and catch, as aforesaid, the door would rebound, and roll back, and open, and remain open after the elevator had ascended, thus leaving the elevator door open, through which any person was liable to step, and fall into the elevator shaft, but of which dangerous condition plaintiff had no knowledge, and that the defendants carelessly and negligently continued to run, operate, and use the elevator from the time the door became out of repair as aforesaid until the time of the accident. That in the operation and running of the elevator it was the custom and duty of the defendants to keep the door to the elevator closed when the elevator was not at the floor where the door of the ele- A demurrer for want of facts sufficient to vator was situated, and that it was the cus- constitute a cause of action was unsuccesstom of defendants to have the door to the fully interposed by appellant to this comelevator open, when the elevator was in po- plaint, and the ruling is challenged here. sition at such door, to receive passengers, The objections made to the complaint are: of which custom plaintiff was aware. That First, that as it appears from the complaint appellee with her husband resided as tenants that appellant was an agent only, and that on the second floor of the building, and had the charge of negligence is one of nonfeafor some time, and rented the apartments sance, and not of misfeasance, that for an act occupied by them through the trust company of nonfeasance an agent is not liable to third as agent. That during all said time, and on persons: second, that the complaint affirma tively shows contributory negligence on the | ing from negligence of that care required of part of appellee. It is to be regretted that there is such a divergence of opinion on the first proposition, in the American courts. The cases are largely collected on both sides of the question in 2 Am. & Eng. Encyc. of Law & Prac. p. 1160 et seq., and in note to Ellis v. Southern, etc., Co., 2 L. R. A. (N. S.) 378. common carriers of passengers. Connelly v. Des Moines, etc., Co., 130 Iowa, 633, 105 N. W. 400. It appears from the complaint that appellant was employed by the owners, with full authority of management and control, with authority to make repairs, and to hire and discharge employés; but there is no allega[1] Where the entire premises are not let tion showing whether appellant was to reto a single tenant, or where a part of the ceive a sum from which it hired and paid premises are in control of the landlord, both the employés in running the business, or as to maintenance, or operation, and re- whether they were paid from the funds of pair, of the agency, or conditions which give the owners. From the character of the unrise to the injury, as, for instance, a general dertaking, and the allegations of the comentrance to a quasi public building, or en- plaint, it is clear that it was known, or imtries and stairways, or water-closets for gen- plied, by the owners, that appellant would eral use, or a passenger elevator, for com- operate through others, and that it was mon or general use, the owners of buildings authorized to do so, either on its own acin which passenger elevators are operated count, or on the owner's account. Ordinariare regarded as common carriers, certainly ly the test of agency, or master and servas to those in the rightful use of the building, or for whom they are provided. McGrell v. Buffalo, etc., Co., 153 N. Y. 265, 47 N. E. 305; Bourgo v. White, 159 Mass. 216, 34 N. E. 191; Griffen v. Manice, 166 N. Y. 188, 59 N. E. 925, 52 L. R. A. 922, 82 Am. St. Rep. 630; Bogendoerfer v. Jacobs, 97 App. Div. 355, 89 N. Y. Supp. 1051; Stewart v. Harvard College, 12 Allen (Mass.) 58; Ellis v. Waldron, 19 R. I. 369, 33 Atl. 869; Kentucky, etc., Co. v. Camp, 97 Ky. 424, 30 S. W. 1010; Hartford, etc., Co. v. Sollitt, 172 Ill. 222, 50 N. E. 178, 64 Am. St. Rep. 35; Ohio, etc., Co. v. Wernke, 42 Ind. App. 326, 84 N. E. 999; Marker v. Mitchell (C. C.) 54 Fed. 637, Id., 62 Fed. 139, 10 C. C. A. 306, 25 L. R. A. 33; Goodsell v. Taylor, 41 Minn. 207, 42 N. W. 873, 4 L. R. A. 673, 16 Am. St. Rep. 700; Treadwell v. Whittier, 80 Cal. 574, 22 Pac. 266, 5 L. R. A. 498, 13 Am. St. Rep. 175; Springer v. Ford, 189 Ill. 430, 59 N. E. 953, 52 L. R. A. 930, 82 Am. St. Rep. 464, and cases cited; Luckel v. Century, etc., Co., 177 Mo. 608, 76 S. W. 1035. ant, is that of authority to control the liability for wages. Bentley v. Edwards (1905) 100 Md. 652, 60 Atl. 283. See note to Hardy v. Shedden Co. (78 Fed. 610, 24 C. C. A. 261, 47 U. S. App. 362), 37 L. R. A. 33; Sacker v. Waddell, 98 Md. 43, 56 Atl. 399, 103 Am. St. Rep. 374; Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922. So far as the complaint discloses, that authority was vested in appellant. [2] But the question still remains: Is the agent liable? Much of the disagreement among the decided cases seems to arise out of attempts, and perhaps success, in distinguishing between acts of nonfeasance and misfeasance, and in the application of the rule that for an act of nonfeasance an agent is only liable to his principal upon the ground of the lack of privity between him and third persons, and holding the agent only for misfeasance. We shall not attempt to cite the cases, for they are very numerous. The real ground, as we see it, for the application, or nonapplication, of the rule, In such cases it is the landlord's duty to as to liability, is not one of agency, but a keep the premises and appliances, over which question of the duty imposed by general he exerts control, in a reasonably safe con- principles of law, upon the owner, or those dition for use, and as to elevators to exer- in control of property for him, to so use or cise the highest care, as a duty owing by manage the property as not to injure the law, to third persons who have a right to property of another, by its negligent use, or their use, or for whom they are provided. to injure the person of another who is Domenicis v. Fleisher, 195 Mass. 281, 81 N. where he has a right to be, or is in the use E. 191; Andrews v. Williamson, 193 Mass. of property for which use he pays. That 92, 78 N. E. 737, 118 Am. St. Rep. 452; Loo- there is a privity in law, by virtue of which ney v. McLean, 129 Mass. 33, 37 Am. Rep. every one in charge of property is under 295; Readman v. Conway, 126 Mass. 374; obligation to so use it as not to injure anMiller v. Hancock (1893) 2 Q. B. 177; Har- other. It is a duty imposed by law, it is groves v. Hartopp (1905) 1 K. B. 472; McMartin v. Hannay, 10 Ct. of Sess. Cas. 3d Ser. (Can.) 411; Griffen v. Manice, supra; Bogendoerfer v. Jacobs, supra; Stewart v. Harvard College, supra; Ellis v. Waldron, supra; Springer v. Ford, supra, and cases there cited: This landlord's duty he cannot delegatè, and escape liability himself, for injury aris true, but privity arises from the obligation to those in a situation to insist upon its respect, and the neglect of performance must. in order to render the agent liable, be neglect of performance of a duty which he owes third persons, independent of and apart from the agency which arises from contract. The distinction is pointed out in Dean v. Brock, 11 Ind. App. 507, 510, 38 N. E. 829, upon which appellant relies, supported by Osborne | others, by some wrong, whether it be a v. Morgan, 130 Mass. 102, 39 Am. Rep. 437. wrong of omission or a wrong of commisIn the latter case it is said: "And it is sion, as where he fails or neglects to use doubtless true that if an agent never does reasonable care and diligence in the peranything towards carrying out his contract formance of his duties, he will be personally with his principal, but wholly omits and neg- responsible to a third person who is injured lects to do so, the principal is the only per- by reason of such misfeasance"-citing son who can maintain any action against many cases, and continuing: "The agent's him for the nonfeasance. But if the agent liability in such cases is not based upon the once actually undertakes and enters upon the ground of agency, but on the ground that he execution of a particular work, it is his duty is a wrongdoer, and, as such, is responsible to use reasonable care in the manner of ex- for the injury he may cause. It is not his ecuting it, so as not to cause any injury to contract with his principal which exposes third persons which may be the natural con- him to, or protects him from, liability to sequence of his acts; and he cannot, by third persons, but his common-law obligation abandoning its execution," or failing to give to so use that which he controls as not to attention to the necessary consequences in injure others." In section 596 are drawn its execution, and "leaving things in a dan- to our minds very satisfactory definitions of, gerous condition, exempt himself from liabil- and distinctions between, nonfeasance, misity to any person who suffers injury by rea-feasance, and malfeasance. "A servant is son of his having so left them without prop- personally liable to third persons when his er safeguards. This is not nonfeasance, or doing nothing; but it is misfeasance, doing improperly." The court later says: "The plaintiff's action is not founded on any contract, but is an action of tort for injuries which, according to the common experience of mankind, were a natural consequence of the defendants' negligence. The fact that a wrongful act is a breach of a contract between the wrongdoer and one person does not exempt him from the responsibility for it as a tort to a third person injured thereby"-citing cases. Under the first branch of that case as cited in Dean v. Brock, the question would resolve itself into the inquiry as to what is the particular work undertaken. Was it the general management and control of the building, in which was included the care of the elevator, or was it only the specific matter of the care of the elevator, which was undertaken and neglected? In Shearman & Redfield on Negligence (5th Ed.) vol. 1, § 243, after stating the general rule as to nonliability of agents as such, for acts of nonfeasance, and citing Dean v. Brock, supra, it is said in the note: "But where premises owned by a nonresident are placed in the hands of a resident real estate agent, with authority to make repairs, lease, etc., and the agent permits such premises to become dangerous for want of care, he will be liable to any person who is injured by such dangerous condition of the premises"-citing Baird v. Shipman, 132 Ill. 16, 23 N. E. 384, 7 L. R. A. 128, 22 Am. St. Rep. 504, affirming 33 Ill. App. 503. In Clark & Styles on Agency, after stating the general rule, in section 504, of nonliability of agents to third persons so far as contractual obligations are concerned, it is stated in the next section (595): "But where an agent is guilty of misfeasance, that is, where he has actually entered upon the performance of b's duties to his principal, and in doing so fails to respect the rights of wrongful act is the direct and proximate cause of the injury, whether such wrongful act be one of nonfeasance, or misfeasance." 6 Cur. Law, p. 605. See note to Baird v. Shipman (132 Ill. 16, 23 N. E. 384, 7 L. R. A. 128), 22 Am. St. Rep. 504; note to Mayer v. Thompson, 104 Ala. 611, 16 South. 620, 28 L. R. A. 433, 53 Am. St. Rep. 88; 1 Va. Law Reg. 780, note; Ward v. Pullman, etc., Co., 131 Ky. 142, 114 S. W. 754, 25 L. R. A. (N. S.) 343; Banningan v. Woodbury, 158 Mich. 206, 122 N. W. 531, 133 Am. St. Rep. 371, and note; Carter & Harris v. Atlántic, etc., Co., 84 S. C. 546, 66 S. E. 997; Kenney v. Lane, 9 Tex. Civ. App. 150, 36 S. W. 1063; Nowell v. Wright, 3 Allen (Mass.) 166, 80 Am. Dec. 62; Campbell v. Portland, etc., Co., 62 Me. 552, 16 Am. Rep. 503; Ferrier v. Terpannier, 24 Can. S. Ct. 86; Banningan v. Atland, 132 N. W. 77; Greenberg v. Whitcomb, etc., Co., 90 Wis. 225, 63 N. W. 93, 28 L. R. A. 439, 48 Am. St. Rep. 911; Huffcut on Agency, §§ 212, 291. In Jaggard on Torts, § 98, the question is discussed, and liability is held to exist irrespective of agency, by virtue of a commonlaw duty to third persons. The note refers to the like doctrine and distinction as laid down by Mechem on Agency, § 572, and Wharton on Negligence, § 535, where the latter declares that the distinction "between nonfeasance and misfeasance cannot longer be sustained." Am. & Eng. Encyc. 2, pp. 1161–1164, and notes; Horner v. Lawrence, 37 N. J. Law, 46; Consolidated, etc., Co. v. Connor, 114 Md. 140, 78 Atl. 725, 32 L. R. A. (N. S.) 809; Hagerty v. Montana, etc., Co., 38 Mont. 69, 98 Pac. 643, 25 L. R. A. (N. S.) 356; Carson v. Quinn, 127 Mo. App. 525, 105 S. W. 1088; Harriman v. Stowe, 57 Mo. 93; Southern Ry. Co. v. Rowe, 2 Ga. App. 557, 59 S. E. 462; Stiewel v. Borman, 63 Ark. 30, 37 S. W. 404; Ellis v. McNaughton, 76 Mich. 237, 42 N. W. 1113, 15 Am. St. Rep. 308. In Lough v. Davis, 30 Wash. 204, 70 Pac. |