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Ciskoski v. Michalsen

JULY 3, 1958.

MILDRED CISKOSKI, ADMINISTRATRIX OF ESTATE OF CLARELAIN URBAN, DECEASED, APPELLEE,

v.

J.M. MICHALSEN, APPELLANT. MILDRED URBAN, ADMINISTRATRIX OF ESTATE OF WILLIAM X. URBAN, DECEASED, APPELLEE,

v.

J.M. MICHALSEN, APPELLANT.



Appeal from the Circuit Court of Cook county; the Hon. WILLIAM J. WIMBISCUS, Judge, presiding. Affirmed.

JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

These are personal injury actions to recover damages for the deaths, through asphyxiation, of William X. Urban and Clarelain Urban, his wife. The actions were consolidated in the trial court. The jury assessed damages at $20,000 for the death of William and of $12,000 for the death of Clarelain. Judgments were entered on the verdicts. Defendant appeals.

Mr. Urban was 26 years of age, a certified public accountant, and with a life expectancy of 43.33 years. His wife was 25 years of age, employed, and with a life expectancy of 49.28 years. They were survived by two minor children, a boy of 4 years and a girl of 21 months.

At approximately noon, Sunday, May 25, 1952, Mrs. Rose Corsiglia, mother of Mrs. Urban, using a key, entered the Urbans' second floor apartment and found her daughter, son-in-law and their two children, unconscious. The Urbans and their son were lying on a davenport in the living room, which was customarily used by them as a bed. The daughter was in an adjoining bedroom. All were clad in night clothes. Neither Mr. nor Mrs. Urban regained consciousness. She died the same day, and he died about 13 days later. The cause of both deaths was carbon monoxide poisoning.

Defendant J.M. Michalsen was the owner of the apartment building, located at 3845 North Paulina Street, Chicago, Illinois. The building was two stories high, of an older type, and containing a number of apartments, rented to various tenants. The Urbans had occupied a 4-room apartment since the latter part of 1949.

Mrs. Corsiglia and a married son occupied apartments in the same building. She entered through the kitchen door and became aware of heat from the lighted gas hot water heater, located in that room. All windows in the apartment were tightly closed. She shut off the gas and turned on the bathroom faucets, which caused steam to pour through the apartment. She then entered the living room and found the Urbans (all unconscious). The police, firemen, a gas company worker and a newspaper photographer, were soon on the scene.

Mrs. Corsiglia testified that she saw the gas company employee (who died before the trial) pull the gas hot water heater vent pipe out of the chimney; that the opening of the chimney was completely plugged with soot; that he scooped the debris out of the opening into a dishpan; and that subsequently she placed the debris in a shopping bag, enclosing a piece of that day's newspaper, and put the pan and the bag with its contents and paper into a large box and put them away. They were received in evidence, and a witness for defendant said the debris contained "very little soot. It is more of a mortar sand." A police lieutenant testified he saw the gas company employee "removing something or other from the hole in the wall, the combination of soot and rust and what have you."

A newspaper photographer identified plaintiffs' exhibits 1, 2 and 3 as prints of photographs taken by him and correctly portraying the scene he witnessed when he entered the Urban apartment. Exhibits 1 and 3 are photographs showing firemen applying pulmotors and administering oxygen to Mr. and Mrs. Urban, who are unconscious on the davenport bed in the living room.

The gas hot water heater had a 3-inch vent pipe leading into a circular entrance hole in the wall, 6 inches in diameter and extending through 5 inches to a flue, which terminated just above the roof. The flue chamber leading to the roof was rectangular. The flue chamber ended about 5 inches below the 6-inch entrance hole, forming a well about 5 inches deep. The flue was one of two flues in a common brick chimney, separated by a 4-inch brick wall. One flue serviced the Urban second floor apartment, and the other serviced the first floor apartment. The Urban apartment flue had but two openings — the 6-inch inlet hole leading from the kitchen and the other opening, being the outlet, where the flue ended just above the roof. The chimney, containing the two flues, had 4-inch brick walls, one wall being flush with and a part of the building wall. The two flues were side by side, so that the back of each flue chamber was part of the external building wall. The front of the chimney extended into the building proper, with each apartment inlet hole being directly opposite the external wall. The two flues project above the roof, each ending with a 24-inch circular tile extension.

The gas hot water heater was lighted with a match and turned off and on by hand. It had been installed in the apartment previous to the occupancy of the Urbans and had been used by the Urbans from time to time to heat water during their two-year occupancy, prior to the occurrence. There was no testimony by anyone as to the removal of the vent pipe leading into the flue chamber at any time prior to the date of the occurrence. Apparently the Urbans were month-to-month tenants, and there is no testimony to indicate any agreement on behalf of the landlord to make repairs to the apartment rented to the Urbans.

The principal question is whether or not the landlord defendant retained sufficient control of the flue chamber involved in this case, to give rise to a duty to maintain it in a reasonably safe condition, and precluding a finding in his favor as a matter of law.

In the absence of special agreement, a tenant takes the premises as he finds them, subject to his own risk, and there is no implied covenant that they are fit for habitation or that they are in any particular condition of repair. Farmer v. Alton Building & Loan Ass'n, 294 Ill. App. 206, 212, 213 (1938); Shields v. J.H. Dole Co., 186 Ill. App. 250, 255, 256.

It is well settled that a landlord is not responsible for defects in the premises at the time of the letting, unless they were latent, and the landlord has been guilty of fraud and deceit in the letting, nor is he bound to repair unless he has expressly agreed so to do at the time of the letting. May v. DiCenso, 277 Ill. App. 248, 255 (1934). Also, it is the rule that where the landlord 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 ...


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