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Carson v. Weston Hotel Corp.

OPINION FILED OCTOBER 7, 1953

ERSKINE B. CARSON, PLAINTIFF-APPELLEE,

v.

WESTON HOTEL CORPORATION ET AL., DEFENDANTS. ON APPEAL OF MARSHALL FIELD III, DEFENDANT-APPELLANT. ERSKINE B. CARSON, PLAINTIFF-APPELLEE,

v.

WESTON HOTEL CORPORATION ET AL., DEFENDANTS. ON APPEAL OF A.C. LUBKER, TRADING AS ELEVATOR SIGNAL AND SERVICE COMPANY, DEFENDANT-APPELLANT. ERSKINE B. CARSON, PLAINTIFF-APPELLANT,

v.

WESTON HOTEL CORPORATION AND WIRE ROPE CORPORATION OF AMERICA, DEFENDANTS-APPELLEES.



Appeal by defendants in General Numbers 45924 and 46016; by plaintiff in General Number 45975; from the Superior Court of Cook county; the Hon. JOHN E. PAVLIK, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1952. General Number 45924: Judgment reversed. General Number 46016: Judgment reversed and cause remanded. General Number 45975: Judgment for Wire Rope Corp. of America affirmed. Judgment for Weston Hotel Corp. reversed and cause remanded. Opinion filed October 7, 1953. Released for publication December 14, 1953.

MR. JUSTICE KILEY DELIVERED THE OPINION OF THE COURT.

This is the second appeal in this personal injury action. Plaintiff, a resident guest of the Weston Hotel, was injured when the hoisting cables of the elevator in which he was riding broke and the elevator fell from the fourth floor to the basement. The third amended complaint named Weston Hotel Corporation, Wire Rope Corporation of America, A.C. Lubker, Marshall Field III and Otis Elevator Company defendants. Weston answered. Field's motion to strike was denied and he answered. The rest of the defendants also made motions to strike. These motions were sustained and the suit dismissed as to the Otis Elevator Co., Wire Rope Corp., and Lubker and judgments entered accordingly. The first appeal was by plaintiff from these judgments and this court affirmed as to Otis Elevator and reversed as to Wire Rope Corporation and Lubker. Carson v. Weston Hotel Corp., 342 Ill. App. 602.

On remandment the issues were tried before a jury. At close of plaintiff's case Lubker and Field moved for directed verdicts. The motions were denied and they rested without introducing evidence. Verdicts were returned against Lubker and Field in the sum of $75,000. They have appealed from the judgments on these verdicts. Weston and Wire Rope introduced evidence and the jury found them not guilty. Plaintiff has appealed from the judgments on those verdicts. The three appeals have been consolidated in this court.

I

Marshall Field contends that the complaint is insufficient to support the judgment against him because the court struck the only allegations charging Field with negligence and plaintiff failed to file amendments. We infer that by failing to amend, on leave given, plaintiff stood by the complaint, since in this court he argues that the trial court erred in sustaining the motion to strike. Though plaintiff prevailed and was in no position to cross-appeal from the judgment in his favor and could not cross-appeal from a mere ruling on a motion to strike, he is entitled to complain of error in the ruling. Supreme Court Rule 39; Kanousis v. Lasham Cartage Co., 332 Ill. App. 525, 534.

Field's motion to strike was directed at paragraphs 8-9-10-11-12 and 13 of Count V of plaintiff's third amended complaint. Plaintiff agreed to the striking of the last nine lines of paragraph 8, alleging a partnership between Field and Weston Hotel Corporation. He also agreed to the striking of paragraph 9, alleging that Field leased the premises to Weston with knowledge of a latent defect in the elevator, namely the absence of a slack cable device required by City Ordinance. With respect to the ruling on those parts of the complaint, plaintiff has waived his right to complain.

What remained of Count V, after the elimination of the parts noted, charged that at the "time of leasing" by Field to Weston the elevator "cable, safety devices and appurtenances" were defective and unsafe; that Field knew or should have known of the condition and should have corrected or notified Weston to correct the condition, but failed in his duty to do so, and "leased" the premises with the defective equipment as a result of which the elevator fell etc. (Par. 8). It also alleged that Field knew the elevator was "latently defective" in failing to have a safety device, and knew or should have known that "leasing" the premises with the elevator lacking "safety car or counterweight and . . . slack cable stopping device" would probably cause injury and that plaintiff was injured as the proximate result of this conduct (Par. 10). It further alleged, in the alternative, that "at the time of leasing" the elevator equipment, including the hoisting drum, were in an "operating condition" but subsequently through wear and tear, and not through Weston's negligence, the drum became worn so that the cable in winding overlapped, was thus weakened and as a result broke, causing the elevator to fall (Par. 12). Finally, it alleged that at the "time of leasing" the elevator was in such a defective condition that it was a nuisance (Par. 13).

We think those allegations sufficiently charge negligence on the part of Field. We think defects with respect to the pleading of conclusions were cured by the answer and verdict.

Field contends that plaintiff's evidence and the applicable rules of law, covering the liability of landlord and tenant, conclusively show that plaintiff has no cause of action against him.

The premises in question consisted of five stories and a basement. The first floor consisted of stores and a lobby. The entire premises were leased to Weston May 29, 1937 by separate leases for ten years by the then owners. In January, 1942 the terms were extended to June 30, 1952. In December, 1945 the owners deeded their interests to Field, subject to the leases, which were assigned to him. The leases were in effect when plaintiff was injured February 9, 1949.

The general rule in Illinois is that a tenant or occupant of the leased premises and not the owner is responsible for injuries resulting from the defective condition of the demised premises. Wagner v. Kepler, 411 Ill. 368; West Chicago Masonic Ass'n v. Cohn, 192 Ill. 210; Jackson v. 919 Corporation, 344 Ill. App. 519. The owner may be made liable if the lease imposes upon him the duty to repair; if the dangerous or defective condition causing the injury was in existence when the lease was made; or if the condition causing the injury was a nuisance. West Chicago Masonic Ass'n v. Cohn.

[7-11] We are satisfied from a study of the lease that Weston had the primary obligation to keep and maintain the elevator in a safe and good condition of order and repair. The reservation of the right to repair if Weston did not fulfill its duty to repair and of the right to inspect in order to determine whether the duty was performed did not oblige Field to repair the elevator drum. Jackson v. 919 Corporation, 344 Ill. App. 519. Neither did the fact that Field made inspections and repairs (which he was under no obligation to make), on the smokestack, sidewalks and water tanks. Jackson v. 919 Corporation. The reservation in the lease gave Field no control over the elevators, and the rule is that he is not, under those circumstances, liable for injury due to its defective and unsafe condition not in existence when the lease was made. We conclude that the lease imposed no obligation on Field to repair. This is clear from the lease. There is no question of fact for the jury on the element of an agreement by the landlord to repair.

Plaintiff does not argue here in support of the judgment on the theory of a nuisance existing at the time of the leasing. There is no basis for the claim that because of the stores, occupied by others than Weston, the elevator was in possession and control of Field as the elevator in Kopta v. Greer Shop Training, Inc., 327 Ill. App. 470 was in control of Greer. The lease covered the stores, though one provision might indicate that they were excluded. Since exclusive control was in Weston, there is no basis for a claim against Field under the doctrine of res ipsa loquitur.

There is no evidence tending to prove that when the lease was made in 1937, the elevator equipment was in a dangerous or defective condition. There is no evidence that the guide for the cable was then missing or that the ridges on the drum had been worn so as to render it dangerous or defective. Plaintiff does not claim that there is evidence which tends to make that proof. There is no evidence that Field assumed greater obligations under the lease than his assignors with respect to repairs. Furthermore, Weston was in possession of the entire premises for eight years before the lease was assigned to Field. Shield v. J.H. Dole Co., 186 Ill. App. 250. In the absence of proof of any agreement to repair or that the elevator equipment was in ...


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