author: Mr. Presiding Justice Burke

text:
    Steve Maezes and Emilia Maezes, Appellees, v. City of Chicago et al., Appellants.
    Gen. No. 41,890.

      Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed December 9, 1942.
    Barnet Hodes, Corporation Counsel, for certain appellant; James A. Velde, William J. Lancaster and L. Louis Karton, Assistant Corporation Counsel, of counsel.
    Ernst Buehler, Louis L. Fisher and Richard R. Mladic, all of Chicago, for certain other appellant.
    Beckman, Healy, Reid & Hough, of Chicago, for certain other appellant.

      Urion, Bishop & Sladkey and Aaron R. Eppstein, all of Chicago, for appellees; Howard F. Bishop and Robert F. Dewey, both of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On November 13, 1936 Steve Maezes and Emilia Maezes filed a complaint in the circuit court of Cook county against the City of Chicago, a municipal corporation, the Sanitary District of Chicago, a municipal corporation, William J. Newman Company, a corporation, Peoples Gas Light & Coke Company, a corporation, and Ready Coal & Construction Company, a corporation. On October 27,1938, pursuant to a stipulation, William J. Newman Company, a corporation, was dismissed and on the same day a one count amended complaint, which superseded the original complaint, was filed. The amended complaint charges the defendants with negligence in the construction of an intercepting sewer, in that while the sewer was being constructed in Jefferson street in Chicago, near plaintiffs’ premises, the work was so negligently carried on that the soil there settled, slipped, collapsed and caved in, by reason whereof the soil supporting plaintiffs’ building settled and as a proximate result the building and premises were damaged. Answers were filed by all defendants denying negligence, injury or damage. On November 4, 1939 there was filed an amendment as additional counts to the amended complaint. This consisted of three additional counts captioned Counts II, III and IV. In the three additional counts the charges of negligence were omitted and in none of them was there any charge against the Ready Coal & Construction Company. In Count II the allegations and charges are directed solely against the City of Chicago; in Count III, solely against the Sanitary District of Chicago, and in Count IV against the City of Chicago and the Sanitary District combined. The theory of all three of these counts is the right to damages for injury to property resulting from the construction of a public improvement, that is, damages resulting from the exercise of the right of eminent domain. The substance of the charges is that, without any claim of negligence, the City of Chicago and the Sanitary District by the excavating, tunneling and construction work done by them or under their supervision and control, or their authorization and consent, on and below the surface of the named streets, impaired and destroyed the sewer, water and other facilities, utilities, conduits and piping, serving and connecting with plaintiffs’ property and caused the buildings on plaintiffs’ property to crack, settle, etc.; that the result of said work is the taking pro tanto and the permanent damaging of plaintiffs’ property without their consent unless full and complete compensation for such taking and damaging is ascertained and paid, according to law and as provided by statute and the constitution; that such action is the taking and damaging of plaintiffs’ property in violation of the constitutional provision respecting eminent domain. The city and the Sanitary District filed answers, but as the Ready Coal & Construction Company was not named in the additional counts, no answer was filed by it. After the case went to trial and at the close of plaintiffs’ evidence, over the Ready Company’s objections, the court allowed plaintiffs to file an amendment to the amended complaint by adding additional Count V. In this plaintiffs charge that the Ready Company was liable for damages on the theories charged in Counts II, III and IV against the City of Chicago and the Sanitary District because of a provision in the contract between the Ready Company and the Sanitary District, which they claim bound the Ready Company for the payment of such damages. On motion of the plaintiffs the cause was dismissed as to the Peoples Gas Light & Coke Company, A trial before the court and a jury resulted in a verdict and judgment for the plaintiffs and against the three remaining defendants in the sum of $4,000, to reverse which this appeal is prosecuted.

Plaintiffs’ theory is that their property has been damaged for public use within the meaning of section 13, Article II of the Illinois Constitution; that the Sanitary District, the municipal corporation performing the public work resulting in the damage, is liable because of the constitutional provision and also because of section 19 of the Sanitary District Act (sec. 339, ch. 42, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 122.128]); that the City of Chicago, having jurisdiction and control over the streets, is liable because it authorized and permitted, by ordinance, the doing of the work in the street; that the Ready Company is liable because of the provisions of its contract with the Sanitary District assuming liability; and that all of the defendants are liable because the work done was intrinsically dangerous. The theory of the Sanitary District of Chicago is that it is not liable for any damages resulting from the execution of the work in the construction of a tunnel by the contractor, under the theory of eminent domain; that a distinction should be made between the execution of the work and the completed project, in other words, that this is not the type of damage intended to be covered by section 13, Article II, of the Constitution of 1870; that even if the damages claimed were covered by the constitution, the contractor, Ready Company, would become liable since it would then be exercising the Sanitary District’s power of eminent domain; that the contractor would further become liable under the indemnifying clause of the contract (Article 20); that the measure of damages is immaterial in so far as the contractor is concerned, since the action is not alone a direct action. against it, but also as a result of its agreement to keep and hold the Sanitary District harmless; that the amount of the judgment, no matter how ascertained, should be assessed against the contractor; that the evidence does not show a causal connection between the injuries complained of and the acts of the Sanitary District; that plaintiffs’ evidence of damages was improper and misleading, resulting in a verdict for an excessive amount; that notwithstanding that the negligence theory was withdrawn by reason of the instructions given and refused, the form of the verdict, and the refusal to give separate forms of verdict, the case went to the jury as though the question of negligence was in issue and the jury was instructed in such a manner that it had no alternative except to find for the plaintiffs. The theory of the contractor is that in constructing a public improvement it is not liable for damages to adjoining property resulting therefrom or the construction thereof, unless injury and damage are the result of the contractor’s negligence; that the provision of the contract between the Sanitary District and the contractor does not make the contractor liable; that this provision has no application to damages or injury resulting from the exercise of eminent domain, and only applies to acts of omission or commission by the contractor itself for which it would be liable; that in any event the measure of damages of which the Ready Company would be liable, if liable at all, would be the cost of repairing and replacing the injury to the buildings and not the difference in value of land and buildings before and after the improvement; that the evidence does not show a causal connection between the injuries complained of and the acts of the Ready Company; that plaintiffs ’ evidence of damages was improper and misleading, resulting in a verdict for an excessive amount; that notwithstanding that the negligence theory was withdrawn by reason of the instructions given and those refused, the form of verdict, and the refusal to give separate forms of verdict, the case went to the jury as though the question of negligence was in the case, and the jury was instructed in such a manner that it had no alternative except to find for the plaintiffs; that so far as the record shows, the injury and damage, if any, could have been caused by some independent act of someone and was not the result of the construction of the improvement itself, in which case recovery could only be had against the person at fault. The theory of the City of Chicago is that its grant of an easement in certain city streets to the Sanitary District for an intercepting sewer as part of the Sanitary District’s system of sewers is not an exercise by the City of Chicago of its right of eminent domain; and that the Sanitary District’s use of the streets does not render the City of Chicago liable under section 13 of Article II of the Illinois Constitution for any damages resulting" from the construction by the Sanitary District of a public improvement.

On October 14, 1927 the City of Chicago enacted an ordinance granting to the Sanitary District of Chicago an easement in certain designated streets in the city. The ordinance gave to the Sanitary District permission to “construct, reconstruct, repair, maintain and operate an intercepting sewer, drain and outlet, together with all appurtenances, hereinafter designated as ‘intercepting sewer,’ the same to be an adjunct of an addition to the Main Channel and West Side Sewage Treatment Works of the Sanitary District of Chicago.” The Sanitary District entered into a contract for the construction of the sewer with William J. Newman Company. This contract was subsequently assigned to the defendant, Ready Coal & Construction Company, which assumed all the obligations thereof. The construction of the sewer began at 16th and Jefferson streets, and the shaft was located there. Jefferson street is a north and south and 16th an east and west, street. From the shaft the work proceeded north and south. This case is concerned with the south heading, which started at the shaft, went south on Jefferson street to Canalport avenue, turned into Canalport avenue from Jefferson street and ran in a southwesterly direction on Canalport avenue to 22nd street. The top of the sewer was 16% feet below the surface of the street and the sewer was 20 feet 5 inches high and 21 feet 8 inches wide. This sewer was constructed as a tunnel and as excavation proceeded the soil on top and around the excavation was supported with steel liner plates, which in turn were supported from a needle beam. The digging was done by hand with clay knives. On November 12, 1934, between 8:30 and 9:00 a. m., men were working in the tunnel where it approached Canalport avenue. The air began leaking through the street pavement on Jefferson street about 6 or 8 feet east of the curb at Canalport and Jefferson. This continued for about 5 minutes, when the pavement caved in. At the time of the cave-in the excavation of the tunnel had reached the north curb line at Canalport avenue. Plaintiffs owned the real estate at the southwest corner of Jefferson street and Canalport avenue, improved with a two-story brick building in the front and a two-story frame building in the rear. The nearest point of plaintiffs’ buildings was 90 feet from the closest point of the cave-in. Between the point of the hole formed by the cave-in and the premises there was solid earth, after as well as before the cave-in. The brick pavement of Canalport avenue remained intact and the earth there was solid. There were two city water mains located where the cave-in occurred, a 6-inch and a 16-inch main. The 6-inch main was put in there in the 1870’s or early 1880’s, and Jefferson street was first paved in 1889 or 1890. The 16-inch main was constructed in 1933 or 1934. The 6-inch main was on the west side of Jefferson street at about the place where the air was coming through. The 16-inch main was on the east side of the street. The 6-inch main was old and rotten. The work in the tunnel was being done under air pressure of 6 to 7 pounds to the foot. The men were working in the tunnel excavating, bracing, placing the plates and concreting. They would tunnel about 20 feet and follow this with concrete. When the street caved in it was found that the 6-inch main was broken and that the water therefrom was pouring into the tunnel. Whether it had been broken before or broke at the time of the cave-in does not appear. Water continued to, flow from the 6-inch main into the hole and 15 minutes after the cave-in the hole extended to the bottom of the tunnel excavation, which was about 37 feet below the surface of the. street. The 16% feet of soil from the surface of the street down to the top of the tunnel excavation fell to the floor of the tunnel. The 16-inch main went down about a half hour after the cave-in and the water therefrom poured into the tunnel. The hole filled up with water in about an hour’s time and then the water overflowed into the street. The flow continued for about 2 hours, when the water was shut off by the city. This overflow extended from the street and went down to Canalport avenue and Jefferson street. As soon as the main was turned off, natural drainage through the sewers took the water off the street. The water was pumped out of the cave-in. Inside of 12 hours the water had gone down 16 or 18 feet in the hole itself. Within 2 days they started to sheathe and brace the hole so that they could go down and continue with the construction of the sewer. At the height of the overflow, the water was about 6 inches deep in the street right at the hole, and leveled off so that half a block away there was no water. Within 2% hours the water had disappeared from the streets. Twenty-four hours after the cave-in an inspection disclosed there was no disturbance to the surface of Canalport avenue, or to the brick work, or to the street car tracks or the ground underneath. After the cave-in, the ground extending from the northeast curb of Canalport and Jefferson was intact, and the soil between the top of the excavation and the surface of the street, throughout the 90 feet between the hole and plaintiffs’ premises, was intact and had not been disturbed when the tunnel was started again on January 29, 1935. On May 6, 1935 the work had progressed to 600 feet west of Canal- • port and Jefferson. The point at which work started on January 29th was Canalport and Jefferson in front of plaintiffs’ premises. The sewer was completed March 2, 1936.

Plaintiffs’ building, as 'well as others there, had basements below the street surface. The floor of plaintiffs’ basement was 7 feet 8 inches below the level of the street surface. As a consequence, when the water flowing down Jefferson street reached plaintiffs’ premises it flowed into the basement. Around 4 o’clock in the afternoon there was something like 3 feet of water in the basement, but as soon as the water was controlled this started to go down. The water stopped running on the street about 1 or 2 hours after the accident, thus no further water flowed into the basement from the street thereafter, and the water in the basement lowered through by drainage. The day after the accident most of the water was pumped out of the basement. Some water was there and pumping continued until April or May 1935, but at such a level that by placing planks on the floor a person could walk in the basement above the water. Mr. Walling, division superintendent of the Chicago Surface Lines, testified that 4 months after the cave-in the street car tracks- had to be raised 6 to 8 inches before service was resumed. No evidence was offered by plaintiffs to show any causal connection with the cave-in and the injury or damage to the property. Two witnesses testified on that point for defendants. Dr. Thomas C. Poulter, an engineer and physicist, testified that he had charge of the scientific program of the Second Byrd Antarctic Expedition; that he experimented with explosions and vibratory effects; that he had studied transmission of vibrations a great deal in soil, rock, water, ice and snow; the effect of explosions in producing those vibrations, and that he had done a great deal of work in soil mechanics, which is the study of the behavior of soils under various physical conditions ; and that he did experimental work in connection with the effect of water or moisture upon surrounding territory. He estimated that the amount of soil that caved in was in the neighborhood of a million pounds. He stated that any vibration to a building as far away as plaintiffs’ would be very slight; that if a mass of soil of this kind as it falls in takes place over a period of seconds, that disturbance, or any vibration that is set up, travels out at the rate of about a mile a second, so that the energy is dissipated over an enormous area very rapidly. The testimony of many lay witnesses who were familiar with the property shows that shortly after the construction of the sewer many structural cracks appeared in the foundation walls; that doors and windows, which previously • had opened freely, jammed and stuck; that the plaster walls throughout the building had cracked and in many places fallen; and that the floors, previously level, were out of plumb. All of this happened shortly after the doing of the work in the adjoining street. The work done involved the removal of large areas of soil in the construction of the tunnel. It is undisputed that the tunnel, when extended to Canalport avenue past plaintiffs’ property, was within 10 feet of the north edge of plaintiffs’ building. It is admitted by witnesses for the defendants that the construction of the sewer or tunnel caused material settlement of the street and sidewalks adjoining plaintiffs’ property.

Each defendant has filed separate briefs. The Beady Company contends that a contractor constructing a public improvement is not liable for damage to property, unless the damage is due to its fault. The Sanitary District maintains that the construction company, being an independent contractor, is liable for damage to property resulting from the execution of the work. Both the plaintiffs and the Sanitary District contend that under the provisions of Article 20 of the contract between the Beady Company and the Sanitary District, the Beady Company is bound to pay all of the damages. We will first consider the contention of the Beady Company that a contractor constructing a public improvement is not liable for damage to property unless the damage is due to its fault. We have carefully read and analyzed the cases cited on this proposition. Plaintiffs seek what is known as consequential damages. This term is applied to damages to or the destruction of property not actually taken. Prior to the Constitution of 1870 there could be no recovery for damage to private, property. In the case of Rigney v. City of Chicago, 102 Ill. 64, our Supreme Court decided that the amendment to the constitution that “private property shall not be taken or damaged for public use without just compensation” afforded a remedy to property that was damaged. The right to damages where the property is not taken is based on the same constitutional provision as the right to just compensation where property is taken. The tunnel was being constructed in a public street by the Sanitary District under the authority conferred upon it by the statutes. If plaintiffs’ property were taken by the Sanitary District there could be no question that the Sanitary District alone would have to pay the just compensation. It is obvious that the damage to plaintiffs’ property was caused by the construction of the tunnel. The tunnel was being constructed by the Sanitary District in fulfillment of its duties. As the construction of the tunnel was for the benefit of the Sanitary District and its taxpayers, consequential damages caused by such construction should be borne by the Sanitary District. It will be recalled that in this case the charges of negligence were abandoned and that plaintiffs are relying on the constitutional provision. The contractor is not charged with any negligence in the construction of the tunnel. Apparently, this contractor did the work in accordance with the plans and exercised due skill. In the case of People ex rel. Tyson v. Kelly, 379 Ill. 297, 301 (in discussing the case of People ex rel. First Nat. Bank v. Kingery, 369 Ill. 289) the court said: “Of course the director could not be required to personally respond in damages.” This language recognizes that the municipal corporation damaging property is the one which should be required to respond in damages. The case of Nelson v. McKensie-Hague Co., 192 Minn. 180, involved the construction of a bridge and the consequent damages due to vibrations through the use of dynamite. The court says that State highways are built by the State in its capacity as a sovereign and their construction is not merely authorized; it is directed. The court continues:

“The highway commissioner is the agent of the State for that purpose. Mandatory is his duty to construct roads and the bridges necessary to make them complete. Once he has contracted for their construction, it is the legal duty of the contractor to perform his contract. Such a contract makes the contractor the agent of the State and clothes him with something more than mere authority to proceed. It puts upon him the legal duty to do so. How, then, so long as he is guilty of no negligence or trespass does he commit a legal wrong in performing, in the only way it qan be performed, the affirmative duty he owes the State?
“If perchance, doing the work in the only way it can.be done results in consequential damage to third persons, there is of course fault — a misfeasance. But it is that of the State in not providing compensation for the damage before instituting the work. The making of such compensation is not the duty of the contractor. Upon what basis, then, can we hold him liable in damages for an obligation which neither legally nor morally is his, but is solely that of the sovereign State 1
“If the contractor in such case is to be held liable for consequential damages, it must follow irresistibly, that the highway commissioner is equally so. . . . It is well settled that an officer charged with the performance of such duties ... is not personally liable . . . for acts done within the scope of his authority unless it appears that the particular acts complained of were not only unnecessary, but were done corruptly or maliciously. . . . That does not exclude liability for an independent wrong such as negligence or trespass. . . . But no such tort is now charged against the present defendant who was proceeding with the performance of a lawful contract, an obligation to the sovereign State lawfully imposed upon it.”

To the same effect are the cases of DeBaker v. Southern Cal. Ry. Co., 106 Cal. 257; Eachus v. Los Angeles Consolidated Electric Ry. Co., 103 Cal. 614, Eachus v. City of Los Angeles, 130 Cal. 492; Atwater v. Trustees of Village of Canandaigua, 124 N. Y. 602. In Daegling v. Gilmore, 49 Ill. 248, an action brought by appellee against appellant, who was employed by one Schwartz to erect the walls of a brick building near appellee’s premises, it appears that while the building was in process of erection it was blown down, fell upon appellee’s house and crushed it, destroying his household property, killing his wife and child, and injuring himself and niece. The court said (249):

“It is urged, that appellant was not liable for inherent defects in the plan of the building furnished by the architect. In this, as in all other actions, a recovery cannot be had except for some neglect or violation of duty imposed by the law. As a general rule, one person is not responsible for the acts or omissions of another. It is, however, true, that there are certain relations, which, when they exist between parties, fender one person liable for the acts or defaults of others, as in case of master and servant, and principal'and agent, and in some other cases, where the doctrine of respond-eat superior is applied. But in this case none of these relations appear to have existed. Appellant was the contractor to perform the work, under the direction of the architect as the agent of the owner of the lot; and hence, appellant cannot by any known rule of law, be rendered liable for the acts of either the architect or the owner.
“Appellant had no right or power to control the acts of either and to hold him liable for them would be to reverse the rule and require the inferior to answer for the acts of the superior, or his principal — to render the servant liable for the acts of his master, and the agent for those of his principal.”

Our view is that the contractor, not being charged with any neglect in constructing the sewer, is not liable for the damage to the property unless it can be held under the provisions of Article 20 of the contract, which reads:

“The contractor covenants and agrees to pay all damages for injury to real or personal property, or for any injury sustained by any person growing out of any act or deed of the contractor, or his employees, that is in the nature of a legal liability, and he hereby agrees to indemnify and save the Sanitary District harmless against all suits and actions of every name and description brought against the Sanitary District for, or on account of any such injuries to real or personal property, or injuries received or sustained by any person or persons, caused by said contractor, his servants, agents or employees, in the execution of said work; or by or in consequence of any negligence in guarding the same; or by or on account of any omission or act of the contractor, his agents or employees; that the said contractor further agrees that so much of the money due him under and by virtue of this contract, as shall be considered necessary by the Board of Trustees of the Sanitary District, may be retained by the Sanitary District to protect itself against loss until such suit or claim for damages shall have been settled, and evidence to that effect shall have been furnished to the satisfaction of the Board of Trustees.”

Both the plaintiff and the Sanitary District argue that Article 20 binds the contractor to pay the damages claimed by plaintiff. We have held that the contractor is not obliged to pay the damages under the constitutional provision. We are now asked to decide whether the contractor is obligated to pay the damages by virtue of its contract with the Sanitary District. It (the contractor) is not charged with, nor does the evidence show it to be guilty of, any negligence. We agree with the contentions of the contractor that it is not liable under the contract to pay the damages occasioned by the construction of the sewer, where, as here, it exercised due care and skill in performing the contract. We agree with the contractor that under the language of the contract the construction of the sewer was not its act or deed, that there was no liability on its part, and that the injury was not the result of the execution of the work. The injury suffered by plaintiff was the consequence of the performance of the work undertaken by the Sanitary District.

The Sanitary District maintains that as the work was done by an independent contractor, it is not liable. The construction of the intercepting sewer was done by the Sanitary District pursuant to the corporate powers vested in it by the statutes of the State of Illinois. In City of Chicago v. Murdock, 212 Ill. 9, the city sought to escape liability for damage done to property as the result of the construction of a water tunnel upon the theory .that the work was done by an. independent contractor and therefore the doctrine of respondeat superior did not apply. The Supreme Court held that where the work was done by virtue of the corporate powers of the city, it was liable for damage done to private property regardless of the intervention of an independent contractor. We are satisfied that the Sanitary District is not relieved of liability because an independent contractor constructed the sewer. The Sanitary District also urges that if plaintiffs ’ property was injured as a result of the cave-in, which in turn resulted from negligence in the execution of the construction work, only the person whose negligent act caused or contributed to the injury is liable, and the action is in tort. The Sanitary District also contends that recovery can only be had under the constitutional provision where the injury is the necessary and unavoidable consequence of the improvement. The work done required the removal of large areas of soil in the construction of the tunnel. The tunnel, when extended in Canalport avenue beyond plaintiffs’ property, was within 10 feet of the north edge of their building. In our opinion the evidence amply supports a finding that the construction of the tunnel damaged plaintiffs’ property. The amount awarded by the jury apparently was reasonable.

The city contends that it is not liable under section 13 of Article II of the Constitution for damage to plaintiffs ’ property in view of the undisputed evidence that the improvement was made by the Sanitary District of Chicago. Plaintiffs contend that in permitting and authorizing public work to be done in the streets by ordinance, the city is liable for all damages resulting, even though it did not itself perform the work. The construction of the sewer was a Sanitary District improvement and not a public improvement of the City of Chicago. The city had no power to acquire or to construct an adjunct or auxiliary to a channel of the Sanitary District. (Sanitary Dist. of Chicago v. Commonwealth Edison Co., 357 Ill. 255.) The right of the city was limited to the granting of an easement to the Sanitary District to use the city streets for the construction of the sewer. When the Sanitary District, by appropriate ordinance, undertook to construct the intercepting sewer in Jefferson street, Canalport avenue and other streets, the City of Chicago could either voluntarily grant to the Sanitary District an easement to use the streets involved in the improvement, or could have waited until the Sanitary District condemned the city street under its statutory power of eminent domain. The city chose to grant the necessary easement. We agree that it did not thereby assume any obligation under the constitution to pay for any damages occasioned by reason of the construction of the sewer. Plaintiffs’ property was not damaged for public use by the city. The doctrine of intrinsic danger is not applicable to this case. That is a doctrine of tort liability. We have read the cases cited by plaintiffs in support of their contention as to the city’s liablity. No useful purpose will be served by analyzing them. Such cases involve liabilities in tort. The point raised here was not urged in such cases, nor were there other distinguishing features. We also agree with the city that the mere requirement that the work was to be done by the Sanitary District so as not unduly to injure existing facilities in the street, does not make the intercepting sewer a city project. The city owed a duty to its citizens to take care that the interference with city facilities should be kept at a minimum. We are firmly of the opinion that under the circumstances presented here the City of Chicago is not liable.

The Sanitary District also urges that the court erred in refusing to instruct the jury to find it not guilty of negligence as charged in the amended complaint, and in refusing to instruct the jury to find for it at the close of plaintiffs’ evidence and at the close of all the evidence. The court did not err in refusing to instruct the jury to find it not guilty of negligence for the reason that the charge of negligence was withdrawn. In our opinion the court rightfully decided not to direct a verdict for the Sanitary District as there was ample evidence for the jury to warrant the verdict against the Sanitary District.

Because of the views expressed the judgment of the circuit court of Cook county is affirmed as to the Sanitary District of Chicago, a municipal corporation, and reversed as to the City of Chicago, a municipal corporation, and the Beady Coal & Construction Company, a corporation, and judgment is entered here for costs for the City of Chicago, a municipal corporation, and the Beady Coal & Construction Company, a corporation, and against plaintiffs.

Affirmed in part and reversed in part.

Hebel and Kilby, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Burke Hebel, J.,

license: Public Domain

text:
    John E. Lotspiech, Appellee, v. Continental Illinois National Bank and Trust Company of Chicago et al., Appellants.
    Gen. No. 42,094.

      Heard in the third division of this court for the first district at the December term, 1941.
    Opinion filed December 9, 1942.
    Eckert & Peterson, of Chicago, for appellants; A. R. Peterson, Owen Rall and John B. Phillips, all of Chicago, of counsel.
    Ryan, Sinnott & Miller and Clarence F. Martin, all of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

In a trial in the circuit court of Cook county, John E. Lotspieeh, a physician, was awarded a verdict of $25,835 against the Continental Illinois National Bank and Trust Company, a national banking association, Marshall Field and G-eorge Bichardson for personal injuries suffered by him in an office building owned by the defendants. Motions for a judgment notwithstanding the verdict and in the alternative for a new trial were overruled. Judgment was entered on the verdict, to reverse which this appeal is prosecuted.

Plaintiff was licensed to practice medicine in 1927. He became a subtenant of another physician in the five-story office building at the northwest corner of South Shore Drive and 71st street, Chicago, in 1930, and remained such after the defendants became the owners and operators of the building in 1936. Plaintiff’s office was on the third floor. The building was largely tenanted by doctors and dentists, many of whom found it necessary to visit their offices after regular hours. A passenger elevator was in operation in the building on week days until 10 or 10 :30 p. m. This elevator was not in service on Sundays. The front door was locked on Sundays. The building has a lobby entrance to the south. A drug store occupies the first floor corner east of the entrance to the lobby, but there is no doorway from the lobby to the drug store. The outer entrance of the lobby consists of two swinging glass doors with glass transom above and glass panels at each side of the doors and transom. The inside doors have glass panels on the side. The inner doors are 6 feet inside of the outer doors. The lobby is a rectangle 10% feet wide, extending north about 24 feet from the inner doors to the elevator, the stairway being to the left of the elevator. On the east wall of the lobby, on the right side as one goes in, is a directory protruding slightly from the wall. Here it was customary to keep the rod or key with which to open the' door of the elevator when it was closed and when no one was in the car to open it. The stairway to the left of the elevator led upward to all floors. The lights in the lobby were controlled by a key switch in a recess on the west side of the lobby wall near the stairway, and after hours the lights were turned off. We agree with the statement of plaintiff that it was obviously impracticable to furnish offices for doctors and dentists without providing them with some means of using their offices whenever an .emergency might arise. To meet this situation a custom had grown up of furnishing keys for the building to all the occupants. The plaintiff was given one of the keys and used it to open the front door the evening of the accident. The evidence shows that the custom had also grown up, acquiesced in by the defendants, whereby the tenants were permitted to operate the elevator for themselves during periods when the operator was not on duty. As an interne, plaintiff learned to run an elevator. While no regular service was maintained in the building by defendants on Sundays, the engineer in charge who resided in the building, was in the habit of walking around the building and checking up on it once in a while. It was customary for the tenants to run the elevator after hours at night and on Sundays when the management did not furnish service. Plaintiff knew this, and defendants ’ engineer Taylor, now deceased, and other employees knew it. On Sunday, March 13, 1938 plaintiff drove Mervin La Rue, a friend and patient, to his office in defendants’ building for the purpose of treating him. They arrived at the building about 6:45 p. m. It was a cold, dark night. Plaintiff, using his key to the outer door to admit himself, told La Rue to wait inside the doorway, and went to get the rod or key for the elevator from the directory. Plaintiff knew the lobby of the building, was dark and that no elevator operator would be on duty. He also knew that no employees of the building were there at the time.- The lobby was dark, except for such light as came from the street lights outside. There were a number of switches on a panel in the wall. These switches, however, were all locked with a key and could only be operated by employees. The light over the first floor stair landing was also controlled by these switches and was out on this occasion. There was a 60 watt light at the top of the stairway on the second floor. Owing to a turn in the stairs this light was of no avail on the ground floor. The walls on either side of the lobby were solid, except for a door at the left rear, near the stairway. This door led to a store which was not open on the evening in question and no light came through it. The lobby was in total darkness. Access to the lobby from the street was gained through two sets of doors, flanked by glass panels. The doors were composed of heavy frames, inclosing panes of glass. A street light was placed slightly to the west of the entrance to the building. Apparently, this light was not turned on at the time of the accident. There was an electric light in the elevator which plaintiff intended to turn on. In a little grip, such as is carried by physicians, plaintiff had a flashlight, called a throat light. This was not used until after plaintiff suffered his unfortunate fall. Plaintiff did not know when he entered the building, whether the throat light was in his bag. Plaintiff proceeded without throat light or matches to the building directory, where he got the key or rod, and then went toward the elevator with bag and rod in hand. He set the bag down before he came to the elevator door and put his hand out to feel the elevator door. He did not feel the elevator door where he expected it to be. He then took a step forward, hit his foot, struck something and was precipitated into the elevator shaft through the door which had been left open. Mr. La Hue, the patient, who had become restless at the delay, called for the plaintiff and not getting a reply, went into the lobby to look for him. He heard a voice, lit some matches and saw that the elevator door was propped open by a sand container, or urn, and that the plaintiff was at the bottom of the shaft. Plaintiff directed the patient to look into his bag to see if he could find a small flashlight which was sometimes carried there. The patient took the bag out to the vestibule, where there was light enough to see, dumped the contents out, and found the flashlight and with assistance removed the plaintiff. The door of the elevator was self-closing, so that it would have closed itself had it not been propped open by the sand jar. The elevator was so constructed that when the door was open the car could not be moved until an emergency switch was used. The usual procedure followed by tenants when they operated the elevator themselves, was to take the key off the directory, open the elevator door, return the key to its position over the directory, then step into the elevator, shut the door and start the car. The elevator door would remain open when the elevator was at the floor level if pushed completely hack. The elevator door in the lobby closed automatically when the car started. If the door was prevented from closing, the car could not be moved away from the floor unless an emergency switch was used. A subtenant named Baker, an X-ray technician with offices .on the fourth floor, was' in the building at the time of the accident and for some time' previously. Baker worked doing some carpenter work in his office on the afternoon preceding the accident, and after going home for a tool around 4:30 or 5:00 o’clock, took the elevator up to the fourth floor, where it was stationed when the plaintiff fell down the shaft. Baker testified that he closed the elevator door when he took the elevator from the first floor. He started down with the elevator after the accident, but stopped' when La Rue shouted. Two doctors who likewise were tenants in the building testified that at no time did they have difficulty, in finding their way about the lobby, or in seeing the elevator door when the lights were off. Plaintiff’s office was on the third floor. As to who left the door of the elevator open, the record is barren of evidence or inference. The plaintiff suffered at least five fractured ribs, one of which punctured his lung, and he was kept in an oxygen tent. He had three nurses whose bills aggregated $387. His hospital bills were $860.30. ' His left humerus was so severely fractured that Dr. Magnuson performed a complicated operation on it, a reasonable charge for which would be $1,000. He testified that he lost at least $2,000 in income in 1938 and $2,500 in 1939. Defendants do not contend that the damages are excessive.

Defendants urge that they were not guilty of any negligence. They say that the real issue in the case is “who left the door open?” They point out that it was not shown that the defendants or their agents left the door open, that the defendants knew that the door was open, or that the door had been left open long enough to impute to them notice of that condition. They assert that the tenants and subtenants were allowed to use the elevator as a matter of convenience; that plaintiff’s office was on the third floor; that instead of walking up the stairway, he had over a period of many years used the elevator whenever it was at the ground floor; that on such occasions he would leave it at his floor so that he could use it in returning to the ground floor; that he was well advised of the custom of other tenants to do the same thing, and that it does not lie in his mouth to say, after becoming part and beneficiary of a system which was a convenience for him, that the owners of the building should be liable for the negligence of himself or Ms fellow tenants. Plaintiff maintains that defendants were guilty of negligence which proximately caused the accident, and that the issue is not as to who left the door open, but whether the defendants were guilty of negligence in the maintenance of the building. Plaintiff points out that defendants owed a duty to the tenants and subtenants to exercise ordinary care for their safety, and that defendants "furnished a stairway light on every floor in the building except the first floor, where it was needed most; that not only was there no light in the lobby but that none could be turned on because the switches were locked; that no light could be obtained except by turning on the light in the elevator and that the plaintiff was endeavoring to do this when he was injured. Plaintiff insists that the failure to light the lobby, apart from the negligent failure to keep the elevator door closed, in and of itself, would impose liability on the defendants, and urges that the duty of defendants to exercise reasonable care to safely maintain common ways under their control was fundamental and nondelegable. Furthermore, plaintiff places great reliance on the provision of section 1657(d) of the Revised Chicago Code of 1931, which reads:

“All hoistways, hatchways, elevator wells and wheel holes in any building, whether occupied or vacant, shall be securely fenced, enclosed or otherwise safely protected, and it shall be the duty of the owner, occupant or agent of any such building to keep all such means of protection closed at all times, except when it is necessary to have the same open in order that the said hatchways, elevator or hoisting apparatus may be used.”

Plaintiff asserts that under the provisions of the ordinance, the duty of keeping the elevator doors closed rested on defendants. He further insists that in any event the negligence of defendants in failing to light the lobby, joined and concurred with the negligence of the person who left the door open, was the proximate cause of the accident. Defendants argue that it is only fair that if plaintiff wanted the benefit and convenience of using the elevator himself, he should take the risk that some other tenant availing himself of the same privilege, would be negligent, and that if any such rule is to be applied) as is contended for by plaintiff, then the management of the building is driven to do one of two things: furnishing the elevator service and increasing the expense to the tenants, or saying to the tenants, “You may not use the elevator.” Defendants assert that the practice of the tenants using the elevator was an indication that it was a convenience to them, and that no rule or law ought to be announced which would preclude the management of the building from extending that accommodation for fear of being held liable for the negligence of the very persons accommodated. Defendants suggest that the landlord could not be expected to hire a man to follow his tenants around and keep the elevator doors closed at the very time when the landlord was saying he would not furnish elevator service because that would require the hiring of an operator during that period, and that if, as between the landlord and tenant, the landlord is assuming an obligation to keep the elevator doors closed, he might just as well furnish elevator service. Furthermore, defendants point out that the ordinance places the duty to keep the elevator door closed when not in use on the “owner, occupant or agent”; that an occupant of a building who is using an elevator has precisely the same responsibility to keep the elevator door closed as does the owner; that the ordinance does not single out the owner and place upon him the duty to keep doors closed unless he or his agents are the ones who are running the elevator; that the ordinance plainly indicates that the duty to keep the doors closed depends upon the situation in each case; that the ordinance establishes a rule of reasonable care that the elevator doors should be kept closed except when necessary to have the same open in order that the elevator may be used; and that the ordinance does not change any common law rule of liability between the landlord and the tenant, or between a third person on the one hand and the landlord on the other. Defendants assert that the burden was on the plaintiff notwithstanding the ordinance to show not only that the elevator door was open, but also that the defendants or their agents opened it, and that proving a mystery— that no one knows who opened the door — is not sufficient to impose liability under the facts of this case, where tenants such as the plaintiff wére using the elevator in the absence of building employees. Defendants say that the fact that violation of an ordinance may be prima facie evidence of negligence, does not answer the question — What constitutes a violation of the ordinance? Defendants further state that the fact that violation of an ordinance is prima facie evidence of negligence does not excuse the plaintiff from showing that it was the defendants who violated the ordinance. Defendants maintain that where there is a division of use of an instrumentality such as an elevator in this case, the plaintiff should not be permitted to recover from the defendants without proving that the defendants were the ones guilty of the negligence because it is entirely unjust to impose upon the owners liability for the negligence of their tenants. Defendants assert that the complaint does not charge them with being insurers of the plaintiff’s safety, and that the ordinance does not make them insurers. Defendants also charge that plaintiff successfully urged in the trial court that the cotenants of plaintiff were “vice-principals” of the owners.

We have carefully read the cases cited by the respective parties. In each of these cases the opposing party has been able to point out a distinguishing feature or features, which it is claimed, renders the cited case inapplicable to the- factual situation before us. We agree with plaintiff that defendants owed to their tenants the duty to exercise ordinary care for their safety. We are of the opinion that the defendants, as landlords, at all pertinent times, retained control over the building. This was a five-story office building, tenanted largely by doctors and dentists who have what is known as a neighborhood practice. The tenants frequently had occasion to use their offices on Sunday and at other times when the regular elevator operator was not on duty. Defendants furnished keys to the tenants. A fair inference from the evidence is that the tenants, including plaintiff, were invited to enter the building after hours, and that defendants knew that the tenants, including plaintiff, frequently came to the building after hours, and that the tenants frequently used the elevator after hours. We agree with plaintiff that the privilege granted to the tenants to operate the elevator after the regular operator went off duty, was not a gratuity. The defendants, knowing that over a period of years the tenants were so using the elevator, could have ordered them to desist. Presumably, the leases of the tenants expired at various times during the period when defendants were the owners of the property, and as the leases expired defendants could have insisted that the tenants give up the custom which had apparently grown into a right, of using the elevator. It cannot be doubted that the tenants had the right to use the elevator. Plaintiff relies on Murphy v. Illinois State Trust Co., 375 Ill, 310, and Steinberg v. Northern Ill. Tel. Co., 260 Ill. App. 538, as authority for the proposition that failure to light the lobby in and of itself would impose liability on the defendants. In the Steinberg case plaintiff, who was a traveling optometrist residing in Chicago, went to defendant’s telephone exchange at Sheridan for the purpose of putting in a call to his home. The only means of ingress and egress to the exchange was by an inclosed stairway of two flights. The first flight had 13 steps leading from the street to a landing, and the second flight had 4 steps from the landing to the second floor, where the exchange was located. The stairway was steep and the steps were 8 or 9 inches wide. After completing his errand, plaintiff left the telephone office and in attempting to walk down the stairs, fell, and was injured. There was no light on the stairway at the time of the accident and the first flight of stairs from the ground to the landing was dark. In sustaining judgment for the plaintiff, the court said (541):

“Defendant was maintaining a public telephone exchange. The only means of access to it was through the stairway and hall and the public was impliedly invited by the defendant to use them. Whether or not the defendant had leased or had control of the hall and stairway is immaterial. An invitation to enter premises carries with it the duty toward the person invited to provide reasonably safe, means of ingress and egress. (45 C. J. 834 Negligence.) An owner or occupant of land who, by. invitation, express or implied, induces or leads others to go upon premises for any lawful pupose is liable for injuries occasioned by his negligent failure to keep the land or its approaches in a reasonably safe condition. (Calvert v. Springfield Electric Light & Power Co., 231 Ill. 290; Bennett v. Louisville & Nashville R. Co., 102 U. S. 577, [26 U. S. L. Ed. 235]; 20 R. C. L. Negligence 56-57.”

It will be observed that in the Steinberg case it was not claimed that there was any defect in the stairway, the accident being caused solely by plaintiff’s inability to see in the darkness. Defendants seek to distinguish the Steinberg case by pointing out that it was the duty of the telephone company to keep the hall and stairway in a reasonably safe condition and sufficiently lighted so that the patrons of the exchange, which was open for business at the time of the accident, could see their way sufficiently to avoid the danger of falling, and that the normal condition of things demanded a light in order to be safe, whereas, in the instant case the accident was caused by an abnormal condition, the elevator door being improperly propped open by some unknown person. Defendants also point out that the misfortune of plaintiff in the instant case was not caused by improper construction of the elevator, and argue that it was not caused by an absence of light which would be necessary under normal operating conditions, but that under normal conditions the light was wholly unnecessary. In the Murphy case one of the charges of negligence was the failure of defendant to light a rear approach near an open cellar, by reason whereof the plaintiff, an invitee, fell through the open door and was injured. The court sustained a judgment for plaintiff. Miss Murphy alleged that she fell because of the negligence of the defendant in not having the cellarway surrounded by a guard-rail of some kind, and in not having the back porch around the cellarway sufficiently lighted. There was evidence that there was a lamp socket on the porch, but it was not used. ■ Defendants point out that in the Murphy case the negligence charged was a combination of wrongful construction, plus an absence of light, and that had there been a light then the wrongful construction, namely the omission of a proper guard-rail, might have prevented the accident. Defendant also states that in the Murphy case it was up to the landlord to furnish either an adequate guard-rail or a light, which would enable her to see that there was no guard-rail. They state that the Murphy case is totally unlike the instant case, where no charge of wrongful construction of the elevator or elevator doors has been made. In sustaining the judgment in the Murphy case, the Supreme Court said (313):

“The rule is that where only a portion of the premises is rented and the-landlord retains control of other parts of the same such as stairways, passageways, or cellarways, or where he rents the premises to several tenants, retaining control over a part of the same for the common use of the several tenants, he has the duty of exercising reasonable care to keep the premises in a reasonably safe condition and he is liable for an injury which results to persons, lawfully in such place, from failure to perform such duty. Shoninger Co. v. Mann, 219 Ill, 242.”

It is difficult to understand why in the instant case defendants lighted the hallways on the floors above the ground floor, but did not light the lobby. A consideration of all the facts and the cases cited convinces us that the failure of defendants to light the lobby and the negligence of the person who propped open the elevator door, presented to the jury a situation which justified a finding that such failure to light the lobby was one of the proximate contributing causes of the accident, without the negligence of both of which it would not have occurred. (Annen v. W. F. McLaughlin & Co., 189 Ill. App. 261.)

We now turn to a consideration of the charge that defendants are liable because of the provisions of the ordinance that the doors of elevator shafts should be kept closed, except when necessary to have the same open in order that the elevator may be used. The ordinance imposes the duty upon the “owner, occupant or agent.” Where the owner rents the entire premises and retains no control over the elevator, it is obvious that such owner would not be liable. In that situation the occupant would be liable. We have read the numerous cases cited by the respective parties on this proposition. There is a wide diversity of opinion. An extended discussion of these cases would not be helpful. We have stated that we agree with the position of plaintiff that the privilege granted to the tenants to operate the elevator when the regular operator was off duty, was not a gratuity. The ordinance must have a reasonable construction. Elevators and elevator shafts are dangerous mechanisms. The ordinance clearly contemplates that some owner, occupant or agent will be responsible that such elevators and shafts do not become traps. In the instant case defendants retained complete control of the building and all its appurtenances. Their engineer lived in the building and occasionally walked around the premises when the other employees were off duty. We agree with plaintiff that as long as defendants retained complete control of the building they could not delegate their duty under the' ordinance. To do so, would be to shift the responsibility of the landlord to unknown persons. Defendants argue that when the regular operator went off duty the responsibility imposed by the ordinance shifted from the defendants to the various tenants and occupants, as each one used the elevator. It is, of course, true that the tenant who propped the door open would be liable in any event. The present case is a good indication of how difficult it would be for an injured party to ascertain who left the door open. Our view is that under the Chicago ordinance the defendants, by giving the tenants permission to use the elevator, did not divest themselves of control and remained liable for negligence in the operation of the elevator and the shafts and appurtenances thereto. It follows that the court did not commit error in submitting the case to the jury on the proposition of the liability of defendants because of negligence in leaving the door to the elevator shaft open contrary to the ordinance.

Defendants insist that plaintiff was guilty of contributory negligence and point out that the night was dark, the lobby of the building was dark, the lights were off, that he used neither the flashlight which he had with him, or matches, to light his way; that he was not faced with any unexpected condition; that he knew the door of the building would be locked and the lights would be out' and that the elevator would not be in charge of any operator. He also knew that the lobby lights were operated by a key switch and that he could not turn them on, and he knew that the tenants frequently operated the elevator and that the key or rod to open the elevator was openly available to all, on top of the building directory. Defendants submit that under these circumstances he was guilty of contributory negligence. Plaintiff replies that on this occasion he acted precisely as he had many times before; that the lobby was dark, but under all the circumstances with which plaintiff was familiar it was a place of safety and not one of danger; that there was nothing in his past experience that would indicate that he would need a light any more than he would need one in walking across his own bedroom; that while he had a throat light in his bag, he testified that at the time of the occurrence he was not sure that he had it with him; that he had no reason to suspect that anything was wrong; that there was no evidence that he had any matches or other means of striking a light, and that he justifiably believed that the elevator door had to be closed before the car could be moved from the floor. We are of the opinion that this is an appropriate case for the application of the views expressed by our Supreme Court in Kelly v. Chicago City Ry. Co., 283 Ill. 640, 645:

“As a general proposition, the question of contributory negligence is one of fact for the jury under all the facts and circumstances shown by the evidence. (Bale v. Chicago Junction Railway Co., 259 Ill. 476,) but cases occasionally arise in which a person is so careless or his conduct so violative of all rational standards of conduct applicable to persons in a like situation that the court can say, as a matter of law, that no rational person would have acted as he did and render judgment for the defendant. This is not one of those cases.”

We conclude, as did the Supreme Court in the last mentioned case, that in the instant case the trial judge acted properly in submitting to the jury the proposition as to whether plaintiff was guilty of contributory negligence.

Defendants criticize the action of the trial judge in giving, at the request of plaintiff, the following instruction :

“It is alleged in the plaintiff’s complaint that on March 13th, 1938 the defendant owned and had control of a building at 2376 Bast 71st Street, in Chicago, and had control of the elevator, stairways, and other portions of the building used in common by the tenants thereof; that on said date the plaintiff was and for a long time had been a tenant in the said building; that it was frequently necessary or desirable for the plaintiff and other tenants to go to their offices on Sundays, holidays and at other times before and after regular office hours, and to use the elevator in said building to convey them from the lobby or ground floor to their respective offices; that the tenants of the said building, including plaintiff, used the said premises, as aforesaid, and the said elevator with the knowledge, permission and consent of the defendants; that on and prior to said date there was in effect in Chicago a certain ordinance which provided that elevator wells in any building should be securely fenced, enclosed or otherwise safely protected, and made it the duty of the owner of any such building to keep all' such means of protection closed at all times except when it was necessary to have them open in order to operate the elevator.
“It is further alleged that at said time and place the defendants: (a) After dark, carelessly and negligently allowed a certain door provided and placed as a guard to the opening to said elevator shaft at the main or ground floor of said building to be and remain open and out of position for safety when the said elevator was not at that floor, thereby, leaving said opening to said elevator shaft entirely open and unprotected against the danger of anyone near said opening falling therein, (b) After dark, carelessly and negligently failed to securely fence, enclose or otherwise safely protect said elevator shaft and carelessly and negligently failed to keep the means of protection of said elevator shaft closed at all times except when it was necessary to have the same open in order that said elevator might be used, contrary to the provisions of Section 1657 (d) Revised Chicago Code 1931, then and there in full force and effect, (c) Carelessly and negligently failed to guard the said elevator shaft, and carelessly and negligently failed to keep and maintain suitable and sufficient lights burning in, on or near said elevator, elevator shaft, and the approaches thereto, after dark, notwithstanding the defendants had notice and knowledge or could have had such notice or knowledge, in the exercise of ordinary care, that the plaintiff and other tenants of the building might be in and upon the said premises and using the' aforesaid elevator.
“If you believe from a preponderance of the evidence, under the instructions of the court, that the plaintiff has proved that the defendants were guilty of negligence, as above set forth and as alleged in his complaint, and that such negligence, if any, caused or proximately contributed to cause the accident and injury complained of in this case, and that the plaintiff was then and there and prior thereto in the exercise of ordinary care for his own safety, then you should find the defendants guilty.”

Defendants declare that this instruction was harmful in a number of ways. They assert that it consists of many apparently positive assertions in two long paragraphs with the statement made only at the beginning of the first paragraph that such assertions are those alleged in the plaintiff’s complaint. They say that the first paragraph consists of no fewer than six rather lengthy clauses, and that while on the printed page it is easy to see that each of the clauses is grammatically controlled by the opening words “it is alleged,” when the paragraph is read aloud simply as a part of a series of instructions, the mind very quickly accepts the statements as statements of fact rather than as mere allegations of plaintiff’s complaint. We are of the opinion that the jury would understand from the first paragraph of this instruction that the assertions are the allegations of plaintiff’s complaint. Defendants concede that on the printed page it is easy to see that each of the clauses is grammatically controlled by the opening words “it is alleged,” but that when the paragraph is read aloud as a part of a series of instructions, the mind accepts the statements as statements of fact rather than as allegations of the complaint. We do not agree that when the paragraph is read aloud the jury would misunderstand the meaning intended to be conveyed by the court. It should be borne in mind that after the instructions were read they were taken to the jury room by the jury, where the jurors had an opportunity to read the instructions. Defendants assert that the instruction cannot be excused on the theory that the trial court was charging the jury as to the issues because almost all of the statements made in the first long paragraph are allegations about which there are no disputes, and which were not issues'in the case. Defendants complain that the inclusion of these allegations was' damaging to defendants in that the tendency of a jury listening to a long recital of undisputed allegations is to accept the entire statement as correct, and that instead of defining the issues, an instruction of this character tends to obscure them. There is much to be said in favor of defendants’ views. However, we are satisfied that the jury after having listened to the opening statements of counsel, the presentation of the evidence and the arguments of counsel, would have a good understanding as to the points in dispute between the parties, and would not be led subconsciously to believe, because some of the allegations were undisputed, that all of them were undisputed. Defendants further criticize this instruction because the second paragraph commences with the language “it is further alleged” without saying where or by whom it is alleged. Defendants fear that the jury might understand that the court was making the allegations. They state that there was a serious possibility that this interpretation would be given to the second paragraph because of the concluding paragraph of the instruction, which tells the jury that “if you believe from a preponderance of the evidence, under the instructions of the court, that the plaintiff has proved that the defendants were guilty of negligence, as above set forth and as alleged in his complaint, and that such negligence, if any, caused or proximately contributed to cause the accident and injury complained of in this case, and that the plaintiff was then and there and prior thereto in the exercise of ordinary care for his own safety, then you should find the defendants guilty.” They state that the words of the concluding paragraph are open to the interpretation by a layman that there were two sets of negligence alleged — those set forth by the court and those alleged by plaintiff’s complaint. We are of the opinion that defendants’ fears are groundless. The jury would understand that the court was informing them as to plaintiff’s allegations. As reasonable men, the jurors knew that the court was not making any allegations. Defendants urge that subparagraphs (a) to (c) of the second paragraph of this instruction sound, when read aloud, like independent statements of fact; that when read from the printed page each is independently punctuated with a period, and in both instances are all remote - from the words “it is alleged in the plaintiff’s complaint.” These subparagraphs all follow a common clause ending with a colon. We agree with plaintiff that each of these subparagraphs must be read in conjunction with the introductory clause. In discussing subparagraph (c), defendants complain of the remoteness of this language from the idea expressed at the beginning that they are simply allegations of the plaintiff’s complaint. We are of the opinion that the jury would understand this instruction as telling them that the assertions were the allegations of the complaint. Defendants further object to this instruction by stating that in subparagraph (a) the words “carelessly and negligently” appear once; in subparagraph (b) they appear twice and in subparagraph (c) they appear twice, or a total of five times in the complete paragraph. They assert that the paragraph is carefully designed to condemn the defendants by a repetition of plaintiff’s allegations couched in the language of plaintiff’s complaint; that the instruction is needlessly repetitious if the only aim of the plaintiff is to inform the jury as to what the issues are in the case. The action is based on negligence. It was necessary for plaintiff to charge negligence in order to state a cause of action. We do not believe that the instruction needlessly repeated the words “carelessly and negligently.” Defendants call attention to the fact that the third paragraph of the instruction does not caution the jury that the recitals theretofore made by the court in the instruction are simply the allegations of the plaintiff’s complaint. Defendants emphasize that point because they say that certain cases which condemn the practice typified by this instruction have held the instruction not to be reversible error, where at the close of the instruction the court again makes it clear that the statements in the instruction are simply the allegations of plaintiff. It is true that the instruction does not have the cautionary direction that the recitals theretofore made by the court in the instructions are simply the allegations of plaintiff’s complaint. Nevertheless, we believe that the jury would understand that the assertions were merely the allegations of the complaint.

Defendants contend that the attempted summary of plaintiff’s complaint with respect to the Chicago ordinance is inaccurate and vitally prejudicial when applied to the facts of the case; that the instruction states that at the time of the misfortune to plaintiff there was in effect in Chicago a certain ordinance which provided that “elevator wells in any building should be securely fenced, inclosed or otherwise safely protected, and made it the duty of the owner of any such building to keep all such means of protection closed at all times except when it was necessary to have them open in order to operate the elevator.” Defendants also state that the allegation in the complaint places the duty not solely on the owner, as in the instruction, but on the “owner, occupant or agent.” Our discussion as to the application of the ordinance disposes of this point. In our opinion, under the factual situation presented by the record, the ordinance imposed upon the owner the duty of keeping the doors of the elevator shafts closed. Hence, the court properly omitted the words “occupant or agent.” Defendants state that the practice of setting out at length all of the allegations of the complaint has been repeatedly condemned, but that in each case some feature of the instruction or the clearness of the evidence saved the plaintiff from reversal. The most recent pronouncement on this subject appears in the case of Goldberg v. Capitol Freight Lines, Ltd., 314 Ill. App. 347. In that ease the instruction complained of set forth most of the allegations of the complaint, and concluded by telling the jury that if they believed from a preponderance of the evidence and under the instructions of the court, plaintiff had proved that defendants were guilty of one or more of the particular acts of negligence as set forth in the instruction, and that such negligence caused or proximately contributed to cause the accident, they should find the issues for the plaintiff. The attorneys for the plaintiff in that case are the attorneys who represent the plaintiff in this case and much of the language is the same as that of the instruction complained of now. Mr. Justice O’Connor, speaking for the court, said (360):

“We disapproved of the giving of a somewhat similar instruction in Cooney v. Hughes, 310 Ill. App. 371, but we did not reverse the judgment on that account, but said that so far as we were informed, a judgment had not been reversed by a court of review in this State on account of the giving of a similar instruction. We there also said: ‘We think the jury here was not misled. The facts were simple, the issues easily understood. We do disapprove instructions of this character,’ and we are still of the same opinion but when such an instruction is given, the court, in passing on its propriety, must keep in mind whether a number of adverbs are used or other coloring given to the allegations of the complaint. (Compare West Chicago R. R. Co. v. Lieserowits, 197 Ill. 607; Liska v. Chicago Rys. Co., 318 Ill. 570.) In the instant case we think the jury understood the issues involved. They were not so complicated as to confuse jurors who have the qualifications required by the law. Moreover, the court, at the request of the Bus Company, advised the jury that the complaint was an unsworn statement and did not tend to prove anything, and further, that the burden of proof was on plaintiff and not on defendant to prove the misconduct charged' in the complaint.”

In the instant case we are likewise of the opinion that the jury understood the issues. In Central Ry. Co. v. Bannister, 195 Ill. 48, the Supreme Court said (49):

“The language of the instructions criticized is to the effect that if the jury believe from the evidence, that the defendant was guilty, etc., as alleged in the declaration or some count thereof, they should find for the plaintiff. It seems to be thought improper to thus refer the jury to the charge of negligence alleged in the declaration. Had the instructions copied the allegations no objection could have been urged to them.” In West Chicago St. R. Co. v. Lieserowits, 197 Ill. 607, the court said (610):
“The instruction first states the claim made by the appellee, as stated in her declaration. This feature of the instruction is certainly unobjectionable under the decisions of this court. An instruction, telling the jury that, if they believe from the evidence the plaintiff has proved his or her case, as laid in his or her declaration, they will find the issues for the plaintiff, has been held to be unobjectionable. (Mt. Olive Coal Co. v. Rademacher, 190 Ill. 538, and cases cited.) ”

The true rule appears to be that it is the duty of the court to define the issues to the jury. We cannot find any case where our Supreme Court has found fault with the practice of defining the issues by telling the jury the allegations of the complaint. There are, of course, cases where it would be improper to employ the language of the complaint in informing the jury as to the issues, as, for instance, where there is no competent evidence to support the allegations. From an examination of the authorities, we conclude that the better practice would be to define the issues to the jury without referring them to the pleadings. However, if the issues are defined, the fact that the jury is told of the allegations in the pleadings is not harmful. In Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207, the court considered an instruction covering nearly two printed pages of the abstract and consist-, ing of three paragraphs. The instruction recited the allegations of the two count declaration. Our Supreme Court said (212):

“It is important that the issues be explained to the jury, but they should be stated clearly and concisely and all charges that are to be disregarded should be eliminated. • (Dickson v. Swift Co., 238 Ill. 62.) The mere fact that allegations of the declaration are copied into an instruction does not render it objectionable. (Liska v. Chicago Railways Co., 318 Ill. 570; Krieger v. Aurora Elgin and Chicago Railroad Co., 242 id. 544; Central Railway Co. v. Bannister, 195 id. 48;) but the incorporation into an instruction of the declaration with all its charges, some of which, after the proof is in, may be disregarded, tends to confuse the jury. ’ ’

The court did not reverse the judgment and stated that whatever error there was in the verbose recital of the charges in the declaration was cured by other instructions. From this case it appears that it is important that the issues be explained to the jury, that the issues should be stated clearly and concisely and that all charges that are to be disregarded should be eliminated. The instruction reciting the allegations of the first count of the declaration and concluding with the statement that if the jury found from a preponderance of the evidence, under the instructions of the court, that the plaintiff had proved his case as alleged in the count, then the jury should find the defendants guilty, was approved in the case of Liska v. Chicago Railways Co., 318 Ill. 570, 578.

Finally, defendants argue that the court erred in giving the following instruction:

‘ ‘ On the date of the accident and injury complained of by the plaintiff in this case, there was in full force and effect in the City of Chicago, Illinois, a certain ordinance which provided and provides as follows: ‘All hoistways, hatchways, elevator wells and wheel holes in any building whether occupied or vacant, shall be securely fenced, enclosed, or otherwise safely protected, and it shall be the duty of the owner, occupant or agent of any such building to keep all such means of protection closed at all times except when it is necessary to have the same open in order that the said hatchways, elevator or hoisting apparatus may be used.’ ”

Defendants urge that this is an abstract statement of the law and does not apply to the facts of the case, that the jury was not told what constituted a violation of the ordinance, nor whether the violation was conclusive against the defendants, or only prima facie evidence of negligence. Defendants cite the case of Burke v. Zwick, 299 Ill. App. 588, in support of the proposition that the giving of an abstract instruction is reversible error wherever it appears that the jury may have been misled. They state that where the action is based upon a statute such as the Mining Act (Mt. Olive & Staunton Coal Co. v. Rademacher, 190 Ill. 538,) the Dram Shop Act (Donley v. Hibbard, 222 Ill. 88), the Federal Employers’ Liability Act (Sells v. Grand Trunk Western Ry. Co., 206 Ill. App. 45), the Injuries Act (Greene v. L. Fish Furniture Co., 272 Ill. 148), then it is not erroneous to give an instruction on the statute in the language of the statute. Our view is that this instruction could not harm the defendants. The jury was informed about the ordinance in the instruction we have previously discussed. An instruction in the words of a statute, in a case based upon a statute, has been approved in numerous cases. We are of the opinion that the same rule is applicable to an instruction given in a case based on the violation of an ordinance.

For the reasons given, the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Kilby, J., concurs.

Hebel, J.,

concurs with the conclusion reached by the court, but does not agree with everything that is said by the court in its opinion.


author: Mb. Pbesiding Justice Bubke

text:
    Victoria Kostecki, Administratrix of Estate of Elizabeth Nilles, Deceased, and Mildred Keene, Administratrix of Estate of Loretta E. Kostecki, Deceased, Appellees, v. Guiseppe Zaffina, Administrator De Bonis Non of Estate of Wilbur Soden, Deceased, Appellee. Guiseppe Zaffina, Administrator De Bonis Non of Estate of Wilbur Soden, Deceased, for use of Victoria Kostecki, Administratrix, and Mildred Keene, Administratrix, Appellees, v. Utilities Insurance Company, Appellant.
    Gen. No. 42,116.
    Heard in the third division of this court for the first district at the February term, 1942.
    Opinion filed December 9, 1942.
    Schuyler & Hennessy, of Chicago, for appellant; Allan T. Gilbert and Jay Stough, both of Chicago, of counsel.
    Augustine J. Bowe and William J. Bowe, both of Chicago, for appellees; Johh D. Casey, of Chicago, of counsel.
   Reheabing Opinion.

Mb. Pbesiding Justice Bubke

delivered the opinion of the court.

On October 19,1936 Wilbur Soden purchased a 1937 Plymouth four-door sedan automobile bearing engine No. P4-28159 and factory serial No. 10115840. While he was driving this automobile at or near Blodgett, in Will county, Illinois on July 4, 1938 with Elizabeth Nilles and Lorétta E. Kostecki as guests, it collided with a railroad locomotive being operated by the Alton Railroad, resulting in the death of all occupants. On April 8, 1939 Victoria Kostecki, administratrix of the estate of Elizabeth Nilles, deceased, and Mildred Keene, administratrix of the estate of Loretta E. Kostecki, deceased, filed a complaint against the railroad company and Morris J. Drezner, as administrator of the estate of Wilbur Soden, deceased, and asked damages in the sum of $10,000 for each plaintiff. The railroad company was dismissed by plaintiffs before the trial. The trial resulted in judgments of $10,000 and $7,500 against the administrator of the estate of Wilbur Soden, deceased. These judgments being in no part satisfied, an affidavit of garnishment was filed on May 20,1941 and the Utilities Insurance Company was summoned as garnishee.- A trial before the court without a jury resulted in a judgment against the garnishee for $5,000 in favor of each plaintiff, to reverse which this appeal is prosecuted.

The garnishee maintains that it is not liable as the policy did not cover the automobile involved in the collision, and plaintiffs insist that the garnishee is liable because the policy covered the automobile. In 1935 the garnishee issued its policy of automobile liability insurance to Soden covering a 1935 Plymouth two-door sedan, engine No. PJ-121860, serial factory No. 2481012. The exact date on which the insured purchased this car does not appear, but certificate of title No. TO-450290 was issued thereon by the Secretary of State on April 29, 1935. The policy ran from April 29, 1935 to April 29, 1936. In 1936 a second policy was issued for the period from April 29,1936 to April 29,1937. On October 19, 1936 Soden bought a new car, a 1937 Plymouth four-door sedan, engine No. P4-28159, factory serial No. 10115840. Upon the insured’s application, the Secretary of State thereupon issued to him certificate of title No. N-851514 covering the new car. There is a conflict as to when the insured disposed of his first car. We find that the evidence shows that at the time the new car was purchased, the old car was taken in trade by the dealer. A third policy was issued for the period from April 29,1937 to April 29,1938. A fourth policy was issued for the period from April 29, 1938 to April 29,1939. Plaintiffs ’ claim is bottomed on the latter policy. On April 29,1938 Soden owned only one automobile, namely, the 1937 Plymouth sedan purchased on October 19,1936. This is the car involved in the accident. The first policy, issued in 1935, covered a 1935 Plymouth sedan, engine No. PJ-121860, serial factory No. 2481012. It is undisputed that this automobile was owned by the insured when the 1935 policy was issued. In the succeeding year a new policy was issued. Through some error the automobile was described in the policy as a 1936 model. However, the correct engine and serial numbers continued to identify it. When the insured purchased his new car in October 1936, he gave no notice to the garnishee that he had a new car or that he no longer owned the original car. The second policy and the subsequent policies described the same automobile as the first policy, except that through error the year of manufacture was given as 1936 instead of 1937, the body style, engine and factory numbers being correctly given. In the first policy covering the year beginning April 29, 1935, the automobile was described as a 1935 Plymouth two-door sedan and the engine and serial numbers were correctly given. In the policies covering the year beginning April 29, 1936. and the year beginning April 29, 1937, the same description was given as in the first policy issued, except that the automobile was erroneously described as a 1936 model. In the policy covering the year beginning April 29, 1938, the policy in question in this case, the description is the same as for the two years preceding. In the first three policies the numbers are given under the designation “Serial Number” and “Motor Number.” Below that listing appears the number 2481012, the serial number of the first car, and PJ-121860, the motor number of the first car. However, in the fourth policy the printed heading for the numbers reads: “Motor Number” and “Serial Number,” the terms having been transposed. Below that is typewritten the number 2481012, actually the serial number of the first car, and PJ-121860, actually the motor number of the first car. It is obvious that the typist who wrote up the fourth policy copied the previous policies, but failed to change the positions of the numbers to correspond with the' transposed terms. Neither the garnishee nor any of its agents knew prior to the accident on July 4,1938 that Soden had disposed of his first car, or that he was the owner of or operating the second car. The company at no time knew how many cars he owned, nor did his broker. Soden at one time gave notice of a change in his address, to take care of which the company furnished an indorsement. He gave no notice to the insurance company or to his broker, Joslyn, of the fact that he had bought a new car, or that he had sold the first car. In sending the policies, his broker wrote him asking if the policies were in order and requesting information should there be any changes.

Plaintiffs point out that the policy issued for each year was a separate contract, made without reference to the preceding year’s policy, and that in April 1938 both Soden and the insurance company knew that So-den owned and operated a Plymouth sedan, and state that when the policy was issued the company intended to provide Soden with insurance coverage on his sedan, that the policy issued insured Soden in the operation of a Plymouth sedan, and that only one car in the world answered that description, which was the sedan he owned. They also point out that the policy stated that the car had motor No. 2481012, which did not correspond with the motor number of any car Soden- ever owned, and that the car was described as a 1936 model, a model which he never owned. Plaintiffs argue that the mixup in numbers was a matter of which the company had notice when it issued the policy. They also contend that the motor and serial numbers are not material to the risk on a liability policy, and that Soden’s car was sufficiently identified by other descriptive items in the declaration.

We have read the cases cited by the parties in support of their respective contentions. It is true that at the time the insurance was placed and at the time of the accident, Soden had but one car. The evidence shows that in October 1936 he purchased a new car, but did not give this information to the insurance company. When the third and fourth policies were issued they bore substantially the same description as the first policy. The policy in effect at the time of the accident described the automobile as a two-door sedan with a certain motor and serial number. The car that he then owned and was driving was a four-door sedan purchased in October 1936, which, of course, had different motor and serial numbers than shown on his policy. We agree with the garnishee that this is not a case where the description of the car was inaccurate. The car covered by the policy was adequately described. The policy relied upon by plaintiffs describes the first car and not the second car. The evidence shows that the garnishee at no time had any knowledge or notice that the car covered by the policy issued to Soden as the insured, no longer belonged to him. His conduct was calculated to, and did lead the garnishee to believe that he still owned that car. The garnishee nad no knowledge as to how many cars Soden owned, nor did it have any knowledge that he acquired the ear actually involved in the accident. Soden accepted and retained possession of the policy in question even after having been asked if it was satisfactory and replying that it was. The record shows that the car intended to be covered by the contract of insurance was the car purchased in 1935, and not the car involved in the accident. The authorities hold that a misdescription of a particular car would not prevent recovery under the policy if it could be shown that the identity of the car involved in the accident was the same as the car whose operation was intended to be covered by the issued policy. This is not a case where there was a misdescription of the car. It is a case where the car described in the policy was not involved in the accident. It is clear to us that the car described in the policy on which plaintiffs rely was the first car purchased by Soden, and not the car involved in the collision. In their petition for rehearing, plaintiffs discuss our finding of fact that Soden disposed of his first car by turning it in to the dealer when he bought his second car in 1936. They argue that as Soden had disposed of the first car, he naturally intended to insure his liability while driving the second car, and that he did not intend to do anything as foolish as, to pay a premium for insuring the operation of a car which he no longer owned. Plaintiffs contend that the court overlooked the true nature of the insurance contract, and that it was not the car that was covered or insured, but Soden himself. No one will dispute that Soden was the insured. The contract was made between the insurance company and Soden, acting through his insurance broker, covering the operation of a certain automobile. The rights under the insuranee policy are determined by the language of the policy. The policy is a contract and embodies the' agreement of the parties. The unexpressed intention of Soden that the policy, which, by its terms, insured the operation of a car hé purchased in 1935 should in fact insure him in the operation of a different car which he purchased in 1936, cannot be given effect. This was not a case of mutual mistake. The neglect of Soden to procure a policy insuring him in the operation of the new car cannot be remedied by (in effect) making a new contract embracing his unexpressed intention. The parties make their own contracts.

The policy in suit insured Soden for the period from April 29, 1938 to April 29, 1939. Item No. 4 gives the description of “the automobile.” Item No. 5 states the purpose for which “the automobile” is to be used, as “pleasure and business.” Item No. 6 states that the insured is the sole owner of “the automobile.” The part of the policy designated as 1 ‘ Insuring Agreements” provides that the company is to pay because of injury or death arising out of the ownership, maintenance or use of “the automobile.” The part relating to property damage also,provides for payment by the company for damages because of injury or destruction of property arising out of the ownership, maintenance or use of “the automobile,” and also provides that the word “insured” covers- certain persons while using the automobile. The part of the policy designated as “Conditions” reads: “1. Automobile Defined. Two or More Automobiles. Except where specifically stated to the contrary, the word ‘automobile’ wherever used in this policy shall mean the motor vehicle . . . described herein.” It is manifest to us that the policy did not insure Soden in the operation of any automobile. It insured him in the operation of the automobile described in the policy. The result in this case may seem harsh, but the courts cannot make a contract for the parties. It is unfortunate that Soden did not take out a liability policy insuring against risks in the operation of the car purchased in October 1936.

Because of the views expressed, the judgment of the circuit court of Cook county is reversed and the garnishee is discharged.

Judgment reversed and garnishee discharged.

Hebel and Kilby, JJ., concur.