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Mccleod v. Nel-co Corp.

OPINION FILED MAY 15, 1953

WILLIS J. MCCLEOD AND ANNA MCCLEOD, PLAINTIFFS-APPELLEES,

v.

NEL-CO CORPORATION, DEFENDANT-APPELLANT.



Appeal by defendant from the Circuit Court of Winnebago county; the Hon. WILLIAM R. DUSHER, Judge, presiding. Heard in this court at the February term, 1953. Judgment affirmed as to Anna McCleod, MR. PRESIDING JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.

While the plaintiffs were sleeping in a double bed in a room in defendant's hotel in the City of Rockford, which they had previously rented on a monthly basis, some plaster fell from the ceiling upon them. To recover the damages for the injuries alleged to have been sustained upon this occasion, this action was instituted.

Count one alleged that the defendant owned, operated and managed the Hotel Nelson in the City of Rockford; that the plaintiffs had rented a room in the hotel at $60 per month and were occupying the room which was under the exclusive management, control and possession of the defendant; that about one o'clock on the morning of July 21, 1949, after the plaintiffs had retired, and as the proximate result of the negligence of defendant, several large pieces of plaster fell on the plaintiffs as they slept, as a result of which Willis J. McCleod was injured. Count two made the same allegations and averred that Mrs. McCleod was injured. The answer of the defendant admitted that it owned, operated, managed and possessed the hotel and invited the public to occupy quarters therein for various periods of time at stipulated rental but denied all other allegations of the complaint. A jury trial resulted in verdicts in favor of the plaintiff, Willis J. McCleod, for $7,500 and in favor of Anna McCleod for $500. After overruling motions for judgment notwithstanding the verdicts and for a new trial, judgment was rendered upon the verdicts and this appeal follows.

The record discloses that in the summer of 1949 Willis McCleod was fifty-five years of age, lived at Lake Villa, and was employed as manager of a Rexair branch office in Rockford. As such manager he sold and serviced vacuum cleaners and trained personnel. He and his wife traveled to and from Lake Villa and Rockford, occasionally staying overnight at the Nelson Hotel in Rockford. On July 19, 1949, in order to have a regular room in Rockford, they rented room 216 at the Nelson Hotel at a monthly rental of $60.

On the evening of July 21, 1949, the McCleods retired about ten o'clock. While asleep, about three hours later, they were awakened by a crash of plaster falling from the ceiling. Both Mr. and Mrs. McCleod were struck by the falling plaster. Mr. McCleod testified that he received a three-inch cut on his head and a three-inch cut on his left shoulder; that both cuts were bleeding, and he immediately called the desk and Dr. Bernard E. Bolotoff, the house physician, came and dressed the wounds but no stitches were taken. Both appellees testified they were covered with dust and blood and their room was filled with dust. Mrs. McCleod testified that she had an asthmatic condition and that dust was one of her allergies; that her arm and chest were bruised and after the house physician had cared for them and cleaned and dressed their wounds, they were assigned to another room, and later in the morning they went to the hospital at Dr. Bolotoff's suggestion and X-rays were taken but no fractures were found.

Dr. Bolotoff testified that immediately after the accident he examined appellees and found that Mr. McCleod had a cut on the left side of his head and an abrasion on his left shoulder; that he cleansed the wounds with antiseptic and bandaged them; that at this time Mrs. McCleod was upset; that her left arm from elbow up and her left side from her ribs down to her thigh were bruised; that he does not recall when the X-rays were taken but he continued to treat both of them for a week or so, and they seemed to be improving satisfactorily; that by the application of heat their pain was relieved and there were no complications.

Appellees remained in Rockford for a month after the accident and then returned to their home in Lake Villa. On September 6, 1949, Mr. McCleod went to his family physician, Dr. Floyd Cannon at Waukegan, who testified that he was engaged in the general practice of medicine, knew appellees and had taken care of them over a period of years; that Mr. McCleod upon his first visit complained of pain in his left shoulder, left neck and left arm; that he treated him with short-wave applications, which afforded no relief, and then used electric heat applications which relieved his pain somewhat; that on November 2, 1949, X-rays were made which showed no fracture; that between September 6, 1949, and December 9, 1949, he treated him thirteen times; that he again treated him four times in August and November, 1950, three times in December, 1951, and three times in March 1952; that he found a scar over the shoulder blade area on the left side of the back; that Mr. McCleod was unable to lift his left hand above his head as well as he could his right hand, and that he diagnosed his trouble as traumatic neuritis or inflammation of the nerves due to injury, and expressed his opinion that the condition he found may recur as neuritis or arthritis.

Dr. Cannon further testified that Mrs. McCleod came to his office practically every time her husband was there and gave the same history and complained of asthmatic attacks which she said were worse following the accident. Dr. Cannon stated that he had treated her previously and had X-rayed her chest in 1947; that she had an enlarged hypertensive type heart and after the accident he treated her and removed a small tumor, about the size of a walnut, over her left elbow which she did not have prior to the accident. The doctor testified that in his opinion the accident did not cause this tumor but was aggravated by it and that her asthmatic attacks were worse since the accident. For the services of Dr. Cannon, appellees were charged $225, and Dr. Cannon testified that he rendered them bills from time to time and that he kept no record separating the treatments to each and could not separate his charges but it should be about $112.50 for each. Dr. Bolotoff testified that his bill of $56 was submitted to appellant and paid.

The evidence further discloses that the portion of the hotel where room 216 was located was built about 1895; that the room was approximately 12 x 16 feet and the ceiling 16 feet high. Mr. McCleod testified that the area of the ceiling from which the plaster fell was three feet by six or seven feet and that the plaster was over an inch in thickness. The manager of the hotel, Mr. Hardwick, testified he measured this area the next morning following the accident and that the area from which the plaster fell was twelve inches by eighteen inches and the plaster was one-eighth of an inch thick. Mr. Hardwick further testified that he had been manager of the hotel since January 1949, and did not know whether the room had ever been replastered since it was built or not; that he inspected the entire hotel when he took over the management and made an inspection of room 216 every thirty days thereafter; that there were no cracks in the plaster on the ceiling prior to July 21, 1949; that he had never seen any cracks in the plaster and none had been reported to him. It further appeared that the inspection made consisted of looking at the ceiling from the floor.

Appellee, Willis J. McCleod, testified that at the time of the accident his salary, expense account, and commissions averaged around $600 per month, which included his wife's services; that after the accident he was unable to continue with the Rexair Company; that he didn't have strength enough to take vacuum cleaners apart and put them back together, and that this weakness lasted for a year or so; that his left arm and shoulder were useless; that "if I do anything, even try to turn the wheel of my car I will get a pain in my shoulder, if I try to wind up the window on the door of the car I will get a pain, if I lift a pail of water I will get a sharp pain in my shoulder, anytime I try to raise my arm higher than my shoulder I get a sharp pain in my shoulder," and concluded by stating that at the time of the trial (July 14-15, 1952) this arm "is painful most of the time." Prior to the accident this appellee testified his health and arm had been very good. Mr. McCleod further testified that in September 1949, he bought an uncompleted cement block house in Waukegan for his son; that he worked upon this house, as a carpenter, for some time (doing all his work with his right hand), charging his son $1,000 for the services he rendered although he estimated the value of the work he did at $1,500. From August 1950, until April 1951, his earnings as a carpenter averaged $400 per month.

It is insisted by counsel for appellant that the trial court erroneously held that the doctrine of res ipsa loquitur applied; that the trial court also erred in giving certain instructions on behalf of the plaintiffs and erroneously refused to give an instruction offered by the defendant; that the verdicts are against the manifest weight of the evidence, and the verdict in favor of Willis J. McCleod is excessive.

Counsel for both parties state that there is no reported case in this State where a recovery has been sought under facts such as disclosed by this record and that our Appellate Courts have not had occasion to determine whether, under the facts and circumstances shown here, the doctrine of res ipsa loquitur applies. The author of the article on Innkeepers in 43 C.J.S. sec. 22 at pages 1177-8, citing, among other cases, Pollard v. Broadway Central Hotel Corp., 353 Ill. 312 states that it is the duty of an innkeeper to keep his building and premises in a condition reasonably safe for the use of his guests, that he is obliged to use ordinary or reasonable care to accomplish this, that the guest is entitled to rely on, or assume, the performance of his duty and that a violation of such duty constitutes negligence.

In 38 Am. Jur. 1003, title "Res Ipsa Loquitur," sec. 306, it is said that this doctrine has had frequent application in cases of injuries resulting from falling objects and substances; that in order to invoke this doctrine in an action for injury from a falling object, the fall of the object must, according to common experience, be so unusual in occurrence, when due care is exercised by the defendant, as to carry inherent probability of negligence on his part. On pages 1004-5, sec. 307 of the same article it is said that it is usually held that a customer who is injured by the unexplained fall of an object while in a store causing injury to him, may invoke the doctrine of res ipsa loquitur, citing Anderson v. McCarthy Dry Goods Co., 49 Wn. 398, 95 P. 325, 16 L.R.A. (N.S.) 931 and Law v. Morris, 102 N.J.L. 650, 133 A. 427, 46 A.L.R. 1108.

The author of the article on Negligence in 38 Am. Jur. 989, sec. 295, under the title "Res Ipsa Loquitur" says that "The conclusion to be drawn from the cases as to what constitutes the rule of res ipsa loquitur is that proof that the thing which caused the injury to the plaintiff was under the control and management of the defendant and that the occurrence was such as in the ordinary course of things would not happen if those who had its control or management used proper care, affords sufficient evidence, or as sometimes stated by the courts, reasonable evidence, in the absence of explanation by the defendant, that the injury arose from or was caused by the defendant's want of due care." Citing among other cases O'Rourke v. Marshall Field & Co., 307 Ill. 197, Feldman v. Chicago R. Co., 289 Ill. 25, and Hart v. Washington Park Club, 157 Ill. 9, Mabee v. Sutliff & Case Co., 335 Ill. App. 353, 404 Ill. 27. The requirement that before the rule can be applied it must appear that the instrumentality was under the management and control of the defendant does not mean or is not limited to actual physical control but refers rather to the right of control at the time. Cruce v. Gulf, Mobile and Ohio R. Co., a Missouri case reported in 361 Mo. 1138, 238 S.W.2d 674, 677.

In Dittiger v. Isal Realty Corp., 290 N.Y. 492, 49 N.E.2d 980, it appeared that Frank Dittiger was employed by a painting contractor to decorate a vacant apartment in defendant's building. A portion of the plaster ceiling of the apartment fell upon him and he was injured. In its opinion the court said that the case was one where mere proof of the happening, without any further proof of defendant's default, called for an explanation from the defendant; that the doctrine or rule of res ipsa loquitur applied and that the defendant failed to explain the accident in such a way as to overcome the case made out by plaintiff's proof of the sudden fall of the plaster. The court stated that, traditionally, the courts have used the rule of res ipsa loquitur in cases of injuries from falling objects; that most of such cases involve injuries to persons walking or driving on public streets but that a number of cases, throughout the country, apply the rule of res ipsa loquitur to the fall of plaster from a ceiling. The court then concluded; "Our holding that this is a res ipsa loquitur case imposes on the owner no intolerable burden of absolute liability. It means only that defendant was put to the necessity of coming forward with an explanation of the accident so as to overcome the ...


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