Appeal by defendants from the Superior Court of Cook county;
the Hon. GEORGE M. FISHER, Judge, presiding. Heard in the second
division of this court for the first district at the February
term, 1952. Judgment reversed and cause remanded. Opinion filed
November 25, 1952. Released for publication December 16, 1952.
MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT.
Plaintiffs, husband and wife, were tenants of part of a building damaged by fire on October 21, 1948 located at 5640-42 West North avenue, Chicago, Illinois, the beneficial owners of which were defendants Rose Klek and Stanley Koy, and the legal title held by defendant City National Bank and Trust Company, as trustee. The complaint alleged that the fire was caused through the negligence of defendants. The corporate defendant was dismissed from the case, and the individual defendants appeal from a judgment entered on a verdict in the sum of $8,625 in favor of plaintiffs.
The premises leased by plaintiffs were a store and portion of a basement, part of a three-story structure having 50-foot frontage facing south on North avenue and depth of 70 feet. There were two stores at street level, one of which was occupied by plaintiffs for the retail sales of linoleum, carpeting, tile and wall covering, the other by a tavern. There were four 5-room apartments and two 2 1/2 room apartments above the stores. The basement ran the full length of the building, but was divided approximately in halves by a cement wall between 5642 and 5640. The front, or south portion, of the basement at 5642 was occupied by the plaintiffs as a storeroom and was separated from the remainder of the basement by a trellis partition with a door. Immediately to the north of this partition and extending along the west wall of 5642 were six sheds, about five feet deep, which were occupied by tenants of the building other than plaintiffs for storage purposes. The rear, or north portion, of the basement at 5642 contained laundry facilities for the use of all the tenants of the building and the remainder was used for drying laundry. Wiring, both electric and telephone, some with fuse box connections, ran along certain portions of the basement. The exact location of this wiring, particularly where it connected with fuse boxes, finds the record in considerable confusion.
Plaintiffs' complaint alleges that defendants "had exclusive control, management and possession of certain portions of said basement," and (1) negligently and carelessly permitted an electric meter or fuse box "to be and to have exposed, loose and open wires," and (2) "carelessly and negligently failed to keep and maintain said premises in proper and fit repair." The defendants' answer denied exclusive control and management of the building, and alleged that the fire in question had its origin in portions of the structure not under control of defendants but in the store or basement occupied by plaintiffs and under their exclusive control. Defendants pleaded a provision of the lease as follows:
"Seventh: Lessor shall not be liable to lessee for any damage or injury to him or his property occasioned by the failure of Lessor to keep said premises in repair, and shall not be liable for any injury done or occasioned by wind or by or from any defect of plumbing, electric wiring, or of insulation thereof * * * nor for any damage or injury arising from any act, omission or negligence of co-tenants, or of other persons, occupants of the same building, or of adjoining or contiguous buildings, or of owners of adjacent or contiguous property, or of Lessor's agents or Lessor himself, all claims for any such damage or injury being hereby expressly waived by Lessee."
A motion to strike from the pleading that portion of the above seventh clause of the lease commencing "nor for any damage or injury arising from any act, omission or negligence of co-tenants etc." was allowed.
It thus becomes apparent from the pleadings that whether or not the fire in question occurred in a portion of the premises under the control of the defendants and whether or not the instrumentality which caused the fire was within the exclusive control of defendants were material issues.
Defendants' principal attack is centered upon plaintiffs' instruction No. 1, which purportedly summarizes the pleadings and which, after such summary, directs a verdict for the plaintiffs. Pertinent portions of the instruction follow:
"The plaintiffs herein claim:
"1. That the defendants were actively engaged in the operation, management and control of the premises located at 5642 West North Avenue, in the City of Chicago.
"4. That the defendants, individually and collectively, by themselves and through their agents, were guilty of:
"a. Negligently and carelessly permitted an electric meter or fuse box to be and to have exposed, loose and open wires.
"b. Negligently and carelessly failed to keep and maintain said premises in proper and fit repair.
"Defendants deny that they were guilty of negligence in any way and that the fire occurred as a proximate result of their negligence and further deny that the plaintiffs exercised all due ...