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Ellguth v. Blackstone Hotel





Appeal by defendant from the Superior Court of Cook County; the Hon. U.S. SCHWARTZ, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1949. Affirmed. Opinion filed May 8, 1950. Released for publication May 23, 1950.


Plaintiff sued defendant for personal injuries, resulting from the alleged negligence of defendant. Upon a trial with a jury, a verdict for $35,000 was returned for plaintiff, and a special interrogatory, answered by the jury in the affirmative, found that plaintiff at the time of the occurrence was in the exercise of due care and caution for his own safety. Alternative motions for judgment notwithstanding the verdict and for a new trial were filed by defendant and overruled by the trial court. The court required plaintiff to file a remittitur of $7,000, and judgment was entered for $28,000, from which defendant appeals.

The theory of plaintiff's complaint was that plaintiff was an invitee of defendant, upon defendant's premises in connection with the dismantling and removal of some old coolers in the basement of the hotel property operated by defendant.

The grounds urged for reversal are that the facts establish that plaintiff was a licensee and not an invitee; that plaintiff was guilty of negligence as a matter of law; that plaintiff's instructions Nos. 7, 10 and 13 are erroneous; that the verdict and judgment are against the manifest weight of the evidence; and that the judgment is excessive.

It appears from the evidence that at the time of the accident, plaintiff was 75 years of age, 6 feet tall, and blind in his left eye from early childhood, but otherwise in good health. Shortly before the accident, he was working occasionally as a contractor of odd jobs, employing two or three men, earning approximately $1,000 per year. In the basement of the Blackstone Hotel, operated by defendant, were several old refrigerators, located in a storage room. They were made of wood and plaster and contained some iron pipe. Approximately 140 feet west of this storage room was located a tunnel that ran underneath an alley and connected the basement of the Blackstone Hotel with that of the Blackstone Theatre, located across the alley. A passageway about 8 feet wide and 8 feet high led from the storage room to the entrance of the tunnel. The tunnel was about 18 feet long. There was a metal door at the entrance to the tunnel, which was always kept open. Defendant, for a number of years prior to the accident in question, had made use of this tunnel to get to its paint shop and equipment, but beginning shortly before the month of July 1946, the tunnel was used daily by the engineer to go over and check the vacuum pumps which supplied the theatre with heat and steam, and without question, defendant had control of the tunnel. It is undisputed that there was no natural light penetrating the areaway leading to the tunnel, but there was maintained in this areaway two 100 watt incandescent lamps. There is a dispute in the evidence as to whether these lamps were burning at the time of the accident. It also appears that some of the pipe and timbers removed from these refrigerators were 15 feet or more in length and could not be taken up on the service elevator that ran from the basement of the hotel to the floor above.

Defendant's witness Davidson, superintendent of maintenance, and defendant's witness Douglas, his assistant, maintained their headquarters in the engine room of the hotel building, located not far distant from the areaway in question. Davidson testified that on the day of the accident, July 11, 1946, plaintiff and Douglas came to him to inquire whether they could take the pipes up on the elevator; that he told them it could not be done without cutting the pipe, whereupon plaintiff told him that the pipes had been sold, that the value was in their length, and he had to get them out without cutting them. Davidson did not testify that he told plaintiff he could not use the areaway or the tunnel or prohibited him in any way from doing so. He testified that he "thought" Douglas told Ellguth in his presence that the use of the tunnel would be very dangerous, but Douglas nowhere in his testimony claims to have made any such statement. Douglas merely said: "I advised him it is not good policy to take pipes under the theatre because the theatre don't belong to us." Also, in the presence of plaintiff, when Davidson was asked whether the pipes could be taken on the elevator, Davidson replied: "It is not good policy to do that." There is not one word of testimony on the part of Davidson or Douglas that they refused to allow plaintiff to go through the passageway or tunnel. Plaintiff was anxious to ascertain whether it would be feasible to take the material through the tunnel, and it was clearly for that purpose that Douglas led him through the passageway. Douglas testified that plaintiff insisted on ascertaining whether the pipes and timber could be taken through the tunnel and removed to the street or alley; that he thereupon led plaintiff through this areaway in question to the tunnel, and that plaintiff had his hand or arm on his shoulder as they were walking through the areaway. Plaintiff testified in connection with this incident that Douglas said, "Come on, follow me, I will show you." Douglas further testified that neither of them had any flashlight, and that suddenly plaintiff yelled something about his eye. It appears that some metal object or hook, protruding in this areaway, struck plaintiff's eye, injuring the eyeball, destroying all vision, and thereafter plaintiff became totally blind.

[1-3] If plaintiff was a licensee and not an invitee, the rule is well settled that defendant owed him no duty except not to wantonly and wilfully injure him, but if, under the facts, he was an invitee, then defendant owed him the duty to exercise reasonable care and caution in keeping the area or corridor in question reasonably safe for use by plaintiff. The test as to when one is an invitee or licensee is whether one comes by the owner's invitation to transact business in which the parties are mutually interested. Milauskis v. Terminal Ry. Ass'n of St. Louis, 286 Ill. 547, 555; Pauckner v. Wakem, 231 Ill. 276; Jones v. 20 North Wacker Drive Bldg. Corp., 332 Ill. App. 382, 385. If a person is upon the premises of the owner by an invitation, express or implied, and not by mere permission, then such owner owes him a duty to exercise ordinary care to keep the premises in a reasonably safe condition. Jones v. 20 North Wacker Drive Bldg. Corp., supra.

It depends upon the circumstances in each particular case whether the invitation can be held to extend to the place where the injury occurred. The holding in McNamara v. MacLean, 302 Mass. 428, 19 N.E.2d 544, upon the facts there involved, is directly contrary to the holding of our Supreme Court in John Spry Lumber Co. v. Duggan, 182 Ill. 218, and Pauckner v. Wakem, supra. Connole v. Floyd Plant Food Co. (Mo. App.), 96 S.W.2d 655, and like cases cited, upon the facts are not applicable. In the Spry case, plaintiff was engaged in unloading lumber from a boat by passing the lumber from the boat to defendant's employees upon the dock owned and controlled by defendant. Plaintiff was an employee of an independent contractor. While so engaged in his work, plaintiff was obliged to respond to a call from nature and proceeded from the boat to a water closet upon the dock owned by defendant. It does not appear from the opinion whether there were any toilet facilities on the boat. When plaintiff left the boat and walked upon defendant's dock in the direction of the water closet, some lumber, which had been negligently piled up by defendant's employees, fell upon plaintiff and injured him. The court there held (p. 222):

"Finally, counsel for appellant contend that if appellee was an employee of Hunt, the appellant owed him no duty in the matter of keeping the surroundings upon the dock reasonably safe. In other words, it is argued that he was a mere licensee upon the premises of appellant. To this we cannot assent. Appellee was not a mere licensee, enjoying a license subject to its attendant perils. He was not upon the premises merely for his own convenience and pleasure. On the contrary, there was a relationship between him and appellant, arising from the contract between appellant and his employer, Hunt. The class of cases, many of which are cited, wherein one visiting premises for his own pleasure or convenience is held to accept all perils accompanying the license, do not apply here. When appellant, for the purposes of his own business, contracted with Hunt to bring appellee and others to unload its vessel, it thereby not only invited, but contracted for, the presence of appellee, and became obligated to exercise reasonable care for his safety while upon his premises. (Samuelson v. Cleveland, 49 Mich. 164; Drennan v. Grady, 167 Mass. 415; Evansville v. Griffin, 100 Ind. 221: Powers v. Harlow, 53 Mich. 507; Welch v. McCallister, 15 Mo. App. 492; Bennett v. Railroad Co. 102 U.S. 577; Indermauer v. Dawes, 1 L.R.C.P. 274; Heaven v. Pender, 11 L.R.Q.B. Div. 503.) The jury could not have properly found, from the evidence, that the appellee was merely a licensee."

Again, in Pauckner v. Wakem, supra, upon the question of contributory negligence, it was argued that if it was too dark for him to see, he should not have gone along a dark and unknown passway without a light. Upon that question, the court said:

"Under the evidence it was a proper question for the jury to determine whether appellee was guilty of contributory negligence."

The interest of the defendant in the instant case was to have the refrigerators dismantled and removed. The interest of the plaintiff was to do the dismantling and remove the material. Since there was no prohibition directed to plaintiff by defendant's authorized agents against going through the areaway for the purpose of determining whether the material could be taken through for removal to the street or alley, and since the authorized agent of defendant undisputably led plaintiff through the areaway in question, it is clear to us that the undertaking of plaintiff, at the time of the accident in question, was in connection with the business in which the parties were mutually interested. When led by defendant's witness Douglas, through the areaway, it was clearly an invitation to plaintiff to use that areaway. Upon the admitted facts, plaintiff must be regarded, as a matter of law, an invitee and not a licensee or trespasser.

Instruction No. 10, complained of, reads:

"The jury is instructed that plaintiff, in his complaint filed in this case, has charged that the defendant by and through its agent and servant negligently did one or more of the following acts which were ...

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