Appeal from the Circuit Court of Lake County; the Hon. BERNARD
M. DECKER, Judge, presiding. Affirmed in part, reversed in part.
Socony Mobil Oil Company, Inc. and Lester H. Keepper and Martha Keepper appeal from a judgment rendered against them, upon a verdict of a jury, for $46,500 in favor of the plaintiff, Frank M. Hendricks.
The count of the complaint upon which the cause went to trial alleged that the plaintiff was injured at a gasoline filling station while attempting to repair some flood lights on the top of a steel pole, which broke off at its base, causing the plaintiff and the ladder on which he was standing, and which he had leaned against the pole, to fall.
The defendants to the action against whom a judgment was sought, were Socony Mobil Oil Company, Inc., hereinafter referred to as Socony, which was the wholesale supplier of petroleum products to the station, Carlos W. Smith, who was the tenant in possession and the operator of the filling station, Lester Keepper and Martha Keepper, who were the owners of the land where the station was located, and George C. Peterson Company.
The complaint alleged that the defendants were the owners, lessors or lessees of certain described premises located on the south side of Skokie Highway in the Village of Gurnee, Lake County, Illinois; that the defendants conducted a restaurant and gasoline filling station on said premises; that there was affixed to said premises a high metal pole, at the top of which was affixed certain electrical fixtures for the purpose of flood lighting the area upon which the business activities of the defendants were conducted.
The complaint then alleged that the defendants and each or all of them entered into a contract with Orville Cote, doing business as Cote Electric Company to repair the electrical connections and lighting fixtures on this metal pole; that plaintiff was an employee of Cote Electrical Company, and, on October 30, 1957, was engaged as an electrician, and in the course of his employment, was working on an extension ladder alongside the light pole.
The complaint then averred, among other things, that it was the duty of the defendants to provide plaintiff with a reasonably safe place to perform his work as an electrician upon said premises; that defendants failed to protect the pole from moisture, and allowed water to collect at the base of the pole, resulting in the pole becoming weak and unsafe, due to the rusting thereof; that defendants failed to maintain said pole in a safe condition; and that plaintiff, while so working on said extension ladder, was caused to fall from the ladder to the terrain below, and thereby suffered extensive temporary and permanent injuries.
Lester Keepper and Martha Keepper filed their separate answers in which they admitted the ownership of a portion of the property described in the complaint, but averred that they were not in control thereof. By their answer they averred that they had leased the premises to Carlos W. Smith and Evelyn Smith, and that the light pole and the other fixtures and equipment of the filling station was the property, and under the control, of the George C. Peterson Company.
Socony Mobil Oil Company and the George C. Peterson Company filed their joint answer in which they averred that the George C. Peterson Company was, for many years prior to September, 1957, a distributor of the products of Socony; that in the month of September, 1957, the George C. Peterson Company assigned to Socony, for a valuable consideration, all its rights, title, interests and assets to Socony, and that Socony assumed all the obligations of the Peterson Company, and on October 9, 1957, the Peterson Company was liquidated and dissolved, and surrendered its right to do business in Illinois.
These defendants, by their answer, denied that they were the owners, lessors, lessees, or agents or servants of the owners, lessors or lessees of said premises, denied all allegations of negligence, and averred that on September 12, 1957, Socony entered into a written contract with Carlos W. Smith by the terms of which they loaned to Smith, at his request, two gasoline tanks, pumps, air compressors, flood lights, and other described equipment; that upon this equipment, Smith agreed to pay all taxes and keep the same in good repair. In consideration of so doing, the equipment was to be used solely for Socony's products. This answer denied that these defendants maintained or had under their control this light pole or any of the fixtures or equipment on or about this filling station. These defendants denied all charges of negligence, and averred that plaintiff failed to exercise ordinary care and caution for his own safety at the time he was injured.
The separate answer of Carlos W. Smith and Evelyn Smith stated that they rented the premises described in the complaint; that they had no control over the maintenance, upkeep, or dominion over the gasoline pumps, signs, electrical equipment, or light pole; that all of the equipment, including the light pole; was the property of, and under the control of, the George C. Peterson Company; that these defendants had nothing to do with this light pole or with the ladder used by plaintiff, or with inducing, causing, or hiring the plaintiff to enter upon the premises for any purpose.
The issues made by the pleadings were submitted to a jury, resulting in a verdict in favor of the plaintiff and against Socony, George C. Peterson Company, Lester Keepper, and Martha Keepper. The jury found the defendant, Carlos W. Smith not guilty and answered in the negative this special interrogatory: "Did George C. Peterson Company, on October 30, 1957, own, lease, manage or control the pole in question?" The jury answered in the affirmative this interrogatory: "Did Socony Oil Company, Inc., on October 30, 1957, own, lease, manage, or control the pole in question?" The jury found the defendant Carlos W. Smith not guilty. The trial court sustained the post-trial motion of George C. Peterson Company and rendered judgment, notwithstanding the verdict, in favor of the defendant, George C. Peterson Company, in bar of the action against this defendant.
The post-trial motions of Lester Keepper and Martha Keepper, and Socony, were denied and the record is before us for review upon the appeal of Lester Keepper, Martha Keepper, and Socony Mobil Oil Company.
It was the theory of the plaintiff in the lower court and he contends here that the evidence discloses that Lester Keepper and Martha Keepper were the owners of the premises upon which plaintiff sustained his injuries; that he was rightfully on said premises as an invitee for a purpose connected with the business which these owners permitted to be conducted thereon; that these defendants owed a duty to plaintiff to exercise due care to keep the premises in a reasonably safe condition; that they breached this duty by failing to warn plaintiff of a defective and dangerous condition which patently existed at the time the premises were leased and, at the time of the injury to ...