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Simmons v. Columbus Venetian Stevens Bldgs.

FEBRUARY 4, 1959.




Appeal from the Circuit Court of Cook county; the Hon. B. FAIN TUCKER, Judge, presiding. Affirmed.


Rehearing denied February 4, 1959.

February 28, 1958. Additional opinion,

The plaintiff, appellant here, is a tenant of the defendant, appellee. The action is for damages for injuries to the plaintiff allegedly caused by the negligence of the defendant in the maintenance of the halls and stairways. The defendant asserts as an affirmative defense the existence of an exculpatory clause in the lease existing between the parties. Judgment for the defendant was entered in the trial court on the pleadings.

The error of which the plaintiff complains is that the trial court abused its discretion in allowing the filing of a pleading setting forth an affirmative defense two years and seven months after the complaint was filed and after the jury had been selected and sworn and was ready to try the issues, and that the trial court further erred in entering a judgment for the defendant based on the affirmative defense filed, which set forth an exculpatory clause in the lease between the plaintiff and the defendant.

As this judgment was entered upon the pleadings, it becomes necessary to consider them in detail.

The complaint was filed by the plaintiff on October 1, 1954. It set forth, among other things, that the defendant on March 3, 1953 was possessed of and had charge and control of and was operating certain premises located at 31 North State Street in Chicago, Illinois, which was an office building, to which the general public was invited to come, and that he, the plaintiff, was on that day exercising ordinary care for his own safety and was rightfully in the premises at the invitation of the defendant, and that it was the duty of the defendant to exercise ordinary care to have the premises in a safe condition for the use of the plaintiff, and that at the time aforesaid the defendant negligently and improperly equipped, managed, conducted and kept the office building and stairs thereto, and, because of the negligence of the defendant, the plaintiff in walking upon said steps was caused to step upon certain vegetable debris, oil, wax or defectively worn marble steps, and he was caused to slip, stumble, trip and fall down upon the floor with great force and violence, and that as a proximate result of the negligence of the defendant the plaintiff was greatly hurt, bruised and wounded, and divers bones of his body and limbs were broken, crushed and maimed, and he sustained severe and permanent injuries to various parts of his body, and he asked for damages of $50,000.

The defendant answered that on the date alleged it was possessed of and in charge of those portions of the premises described in the complaint which were not under the exclusive control of the tenants thereof, and admitted that the building was laid out and equipped as an office building. It denied that the plaintiff was in the exercise of due care and denied its own negligence or improper conduct, and denied that the plaintiff suffered the injuries alleged, but says "that it was its sole duty to exercise ordinary care in the operation, management and control of that portion of the premises which was not under the exclusive control of the tenants thereof."

Upon notice and petition the court ordered the cause advanced for trial, and later, upon notice, a rule was served upon the plaintiff to submit to a physical examination, which he did, and thereafter interrogatories were submitted by the defendant and answered. Then the cause was assigned for trial.

After two days had been consumed in the picking of a jury the defendant filed its motion for summary judgment, setting forth for the first time in the record that the plaintiff was a lessee of the defendant on March 3, 1953, and attached a photo copy of the lease and set forth the exculpatory clause in the lease, which is as follows:

"6. Waiver of Certain Claims: The Lessor shall not be liable, and the Lessee waives all claims for damage to person or property sustained by the Lessee or by any occupant of the Building or premises or by any other person resulting from the Building or any part of it or any equipment or appurtenance becoming out of repair, or resulting from any accident in or about the Building, or resulting directly or indirectly from any act or neglect of any tenant or occupant of the Building or of any other person. . . ."

and claimed as a matter of law that by virtue of the provisions of the lease the plaintiff was not entitled to recover against the defendant for damages. The court, after hearing the defendant's motion for summary judgment, overruled the motion without prejudice, gave the defendant leave to file within five days its amendment to its answer, and the plaintiff leave to plead or reply thereto within five days.

Subsequent to that order the defendant filed a further additional and affirmative defense, setting forth the existence of the lease and the provisions of the exculpatory clause, as set forth in the previous motion for summary judgment, and prayed for the entry of a judgment in favor of the defendant.

The plaintiff then filed his motion to strike the further additional and affirmative defense filed by the defendant, in which he set forth the filing of the complaint, filing of the answer, the subpoenaing of the records of the Columbus Hospital and the taking of the deposition of the plaintiff by the defendant, the motion to advance and the granting of the motion, the order for examination and the physical examination of the plaintiff by the defendant, the filing of interrogatories and the answers thereto, and pointing out that the first record of the affirmative defense was after the jury had been selected, which was in April 1957, and that the complaint had been filed in October 1954, and the fact that in the original answer, which had not been withdrawn, the defendant had alleged its duty, as heretofore set forth, and pointed out that the plaintiff was 74 years of age. The trial court overruled the plaintiff's motion to strike and gave five days to reply to the affirmative defense.

The defendant then moved for the involuntary dismissal of the cause or for judgment on the pleadings in the alternative to the motion for summary judgment, setting forth the exculpatory clause and urging its legal effect and alleging that because of it the complaint was insufficient in its allegations in regard to negligence. The plaintiff then filed his reply to the further additional affirmative defense in which he admitted the existence of the lease and that he occupied a certain portion of the building at 31 North State Street in pursuance to the lease and that it was in that building that he received his injuries; that at the time the lease was submitted to him, on or about December 1, 1952, he was told by the landlord or his duly authorized agent to sign the lease and return it to the defendant prior to January 1, 1953 or he would have to vacate the premises. Plaintiff also filed his further reply to the additional and affirmative defense, stating that he rents only the portion of the premises at 31 North State Street known as Room 901, located on the west side of the building; that the accident occurred in that portion of the stairway located between the 9th and 10th floors on the southeast side of the building and that the stairs are open and used by both the general public and the tenants of the building and that it is not a part of the premises leased to the plaintiff; that the building is a skyscraper containing more than 100 tenants, consisting of numerous retail jewelry establishments, wholesale jewelry establishments, manufacturing jewelers and numerous other retail establishments to which the general public is invited, expressly or by implication, and that the building is visited by thousands of the general public every week and that they use said public stairway. He also sets forth that except for the period between 1920 and 1923 he has been a tenant of the building for 37 years, engaged in the business of the manufacture of fine jewelry by hand and that he maintained his office and workshop in the premises; that 80 per cent of his business is derived from tenants in defendant's building; that if he was obliged to vacate the premises for his failure or refusal to sign the lease he would lose more than 80 per cent of his normal volume of business, which, because of the fact he was 74 years of age, means that plaintiff would be obliged to discontinue his business, and that because of these facts he would have executed any lease presented to him by the defendant provided the rental was not prohibitive. Plaintiff further alleges that there was disparity of bargaining power between the parties to the lease, so that to enforce it would result in great injustice; that he had no freedom of choice in entering into the lease; that he had either to accept what was offered or be deprived of the advantages of remaining as a tenant in the building; that plaintiff was not able to deal at arm's length with the defendant and upon equal terms, so that the social position or social relationship of the parties is opposed to and diametrically in conflict with the operation of the exculpatory clause of the lease, and the plaintiff asked for an immediate trial.

The defendant filed a motion to strike certain portions of plaintiff's reply, which motion to strike was overruled by the court, and thereafter the following order was entered by the trial court:

"This cause having come on to be heard upon the complaint herein, the answer of the defendant thereto, the further, additional and affirmative defense, including a true and correct copy of a lease marked `Defendant's Exhibit A' attached thereto, plaintiff's reply to the further, additional and affirmative defense and further reply to further, additional and affirmative defense, and upon defendant's motion in the alternative, for dismissal or for judgment on the pleadings, due notice having been given, the parties hereto being present by their counsel, and the court, being fully advised in the premises, having heard arguments of counsel, doth find that the court has jurisdiction of the subject matter of this cause and the parties thereto.

"The court further finds that the said lease existing between plaintiff and defendant at the time set forth in plaintiff's complaint is a valid and subsisting lease containing an exculpatory clause binding upon the parties, and therefore finds the issues in favor of the defendant.

"Now, therefore, in consideration of the premises, it is hereby ordered, adjudged and decreed that judgment be and the same is hereby entered for the defendant.

"Therefore, it is considered by the court that the plaintiff take nothing by his said suit and that defendant go hence without day, no costs to be assessed against either party."

It is of course true that if the defendant had filed the affirmative defense in regard to the exculpatory clause at the time it filed its original answer, there would have originally arisen the question of law, upon which this case was decided in the trial court, and its ultimate determination would have been advanced by years — years which are of extreme importance to a man 74 years of age. This had the effect of denying the plaintiff the speedy justice to which he was entitled, and there is no explanation in the record as to why the defendant proceeded in the manner so detrimental to the plaintiff's interest.

On the other hand, there is to be set off against that argument the fact that if the defendant has a good defense at law, it would appear to be a great injustice not to allow that defense to be submitted to the court by the defendant, even though its conduct in presenting it was not entirely free from culpability. It is also to be noted that the incident occurred March 31, 1953, and that the complaint, filed October 1, 1954, alleged plaintiff's position as an invitee, while he must have known, and is certainly chargeable with notice not only of the lease but also of its terms.

It is certainly the tendency of justice in our age that causes should not be determined by the technicalities of procedure but the court should attempt to do substantial justice when all the facts are completely disclosed. The provisions of the Illinois Revised Statutes, chap. 110, sec. 46(1), being the Civil Practice Act, provide liberally for amendments to pleadings at any time before the final judgment. And the rule is stated in 30 I.L.P., Pleading, sec. 108, p. 84 as follows: "Within statutory limits, the time when a pleading may be amended rests largely in the sound discretion of the trial court, whether application for leave to amend be sought after issue has been joined, during the trial, after the close of the evidence or conclusion of the trial, or before or after the verdict." These facts and this rule certainly leave the matter one of discretion with the trial court, and we are not prepared to say there was any abuse of discretion in denying the summary judgment, allowing the filing of the amendment to the answer to the complaint as an affirmative defense, and the filing of a reply thereto and the entry of a judgment on the pleadings as a matter of procedure.

As late as 1953, in the case of Jackson v. First Nat. Bank, 415 Ill. 453, the Illinois Supreme Court, in a well reasoned and carefully considered decision, found that as far as the State of Illinois was concerned there was nothing contrary to its public policy in the use of exculpatory clauses in leases between landlords and tenants, and pointed out that such agreements were purely private affairs and that there was no evidence of disparity of bargaining power between the parties; and, in a factual situation involving an injury which took place on a stairway used in common by the tenant and others, held that a clause very similar to the one in the instant case was sufficiently broad to cover the waiver of the tenant's rights to proceed against the defendant because of the alleged negligent conduct in operating, maintaining or repairing its building, and that such a clause was valid and enforceable. And again, in 1955, in the case of Cerny-Pickas & Co. v. C.R. Jahn Co., 7 Ill.2d 393, the court referred to its decision in the Jackson case and stated that the effect of public policy upon exculpatory clauses in leases had been considered and that it was not necessary to repeat it.

We recently had before us a case (O'Callaghan v. Waller & Beckwith Realty Co., 15 Ill. App.2d 349) where the plaintiff, as a tenant, had signed with the landlord a form lease containing an exculpatory clause and had not questioned the clause. The evidence showed she was required to move from her previous apartment and that she wanted this apartment to be near a relative. We held that the clause was sufficiently broad to cover the condition alleged to be the cause of the injury and that under the circumstances of that case we were bound by the decision in the Jackson case and that the tenant had waived her right against the negligence of the landlord and could not recover. The frequency with which these cases arise and the very basic nature of the questions of public policy involved, cause us to consider the underlying principles affecting the public policy to see if any real difference exists from the Jackson case which would warrant us coming to a different conclusion in this matter.

The public policy of any given jurisdiction is usually determined by its constitution, legislative enactments and its judicial decisions. People ex rel. Nelson v. Wiersema State Bank, 361 Ill. 75, 86. "The meaning of the phrase `public policy' is vague and variable; there are no fixed rules by which to determine what it is. It has never been defined by the courts, but has been left loose and free of definition. . . ." Steele v. Drummond, 275 U.S. 199, 205. "There is no precise definition of public policy, and consequently no absolute rule by which a contract can be measured or tested to determine whether or not it is contrary to public policy. Each case, as it arises, must be judged and determined according to its own peculiar circumstances." First Trust & Savings Bank v. Powers, 393 Ill. 97, 102.

The questions of public policy which are in conflict in exculpatory clause situations are: (1) A person should be liable for the negligent breach of a duty which he owes to another, and, (2) A person should have the right to freely contract about his affairs.

The first, relating to liability for negligence, is based largely upon decisions of the courts, buttressed sometimes by statutory enactment, and seldom, if ever, mentioned in constitutions. Its foundations rest broad and deep in the history of the common-law. The common-law developed the rights and obligations of the parties to certain relationships and determined that damages be awarded for the negligent breach of those obligations. Typical examples of these relationships and ...

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