Appeal from the Superior Court of Cook County; the Hon. WALKER
BUTLER, Judge, presiding. Affirmed in part, reversed in part, and
cause remanded with directions.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
Rehearing denied May 20, 1965.
This suit presents a group of causes commingling law and equity. All arise out of the collapse of portions of the east and north walls of a building at 733 West Fulton Street, in Chicago, Illinois, used as a wholesale fish market. The collapse allegedly was due to inadequate shoring and bracing of the building by Santucci Construction Company (Santucci) while excavating for a sewer to be built as part of the Northwest Superhighway. The plaintiffs are the Bella Kay Building Corporation (Bella Kay) which owned the building, and Walter's Union Market, Inc., (Walter's) a tenant in the building. The defendants are the City of Chicago (City) and Santucci, the contractor, which have also filed cross-claims against each other. No questions are raised on the pleadings. It will serve the purpose of clarification if we tabulate the disputes, what they involve, the dispositions made of them, and the appeals taken, and consider them in that order.
Bella Kay sought to enforce specifically a stipulation in a prior condemnation proceeding by which the City agreed to protect and maintain the east wall of the building during the construction of the Northwest Superhighway, or, in the alternative, to recover damages from the City for breach of the stipulation.
Bella Kay obtained a decree for $63,585.91 damages against the City, from which decree the City has appealed.
In the same complaint, Walter's seeks from the City (Claim II) and from Santucci (Claim III) the damages it suffered as the result of the collapse of the walls.
The master recommended and the court ordered that these claims be transferred to the law docket for trial by jury, and the jury returned a verdict in favor of Walter's in the sum of $6,000 against the City, and in the sum of $12,000 against Santucci, and judgments were entered thereon.
The City did not appeal from the judgment for $6,000. Santucci has appealed from the judgment on the verdict against it. Walter's has cross-appealed on the ground that both verdicts were inadequate.
The City filed a counterclaim against Santucci (Claim IV) and Santucci filed a counterclaim against the City (Claim V). Each counterclaim prayed that the counter-defendant be required to pay whatever amounts Bella Kay and Walter's should recover against the counterclaimants.
The counterclaims were tried by the same jury which tried Walter's claims against the City and Santucci. The jury returned a verdict against both the City and Santucci on their counterclaims against each other, and both have appealed.
The overriding issue on this appeal is between the City and Santucci as to which should bear the loss caused Bella Kay and Walter's by the collapse of the building. Santucci argues that the City prepared inadequate and misleading plans, while the City argues that, under its contract with Santucci and the bond which Santucci gave, Santucci is responsible, and that in any event, it was Santucci's inadequate shoring and bracing that were the cause of the collapse. Other questions involve the amount of Bella Kay's and Walter's damages and the admissibility of certain evidence. For an orderly presentation of this complex litigation, the statement of facts will be followed by consideration of Bella Kay's claim against the City (Claim I), Walter's claim against the City (Claim II) and against Santucci (Claim III) and City's (Claim IV) and Santucci's (Claim V) claims against each other.
Prior to 1950, Morris Fisheries (a forerunner of Bella Kay) owned the property at 729-33 West Fulton Street, Chicago. The property was improved with a building, the east part of which was four stories high, and the west part, one story. The City filed a condemnation proceeding to acquire the four-story part of the property as right-of-way for the Northwest Superhighway. The two parts of the building had a common adjoining wall, and a stipulation was entered into between Morris Fisheries, predecessor of Bella Kay, and the City with respect to that wall. This stipulation was included in and made a part of the 1951 judgment order in the condemnation case. That judgment provided, inter alia:
"the City of Chicago shall at its expense knock down and demolish the westerly wall of the premises condemned to the height of the one-story building remaining west of and adjacent to the building condemned herein, provide the necessary coping for said wall, brick up the present opening in said wall, and protect and maintain said wall during the construction of the Superhighway."
By mesne conveyances Bella Kay acquired title to the premises in 1954 and has owned it since that time. It leased the entire premises to Walter's, which conducted a wholesale fish business therein. The principal shareholders in Bella Kay are also the principal shareholders in Walter's.
On or about March 14, 1957, Santucci and the City entered into a contract for the construction of a sewer as a part of the Northwest Superhighway. Under the terms of the contract, the City specifically called Santucci's attention to the one-story building at 733 West Fulton Street in which plaintiffs Bella Kay and Walter's were located and said that Santucci "shall exercise special care in working adjacent to this building and shall use such methods, subject to the approval of the Commissioner, as will insure against any movement of earth or settlement of the building foundation. . . ." Santucci was under obligation to furnish, place and maintain all sheeting, bracing and lining required to properly maintain trenches and other excavations in the open cut and to prevent all movements of the soil, pavement, utilities or other structures outside the trench pit or tunnel. The sheeting, bracing and lining was to be so placed as to allow the work to be constructed on the lines and grades shown on the plans or established by the Commissioner.
The contract further provided that where buildings or existing structures are shown on the plans, the information (given by the City) is believed to be accurate, but that it is not so guaranteed and that Santucci shall satisfy itself by such methods as it may prefer as to the character of the ground and the location of all structures that may be encountered in the course of the construction of the work. (Emphasis supplied.) Under the terms of the contract, work was to begin only after Santucci's proposed order of procedure in performing the work, and the methods, structures and equipment to be employed by it in so doing had been submitted to and approved by the City's engineer in writing. It was further provided, however, that the acceptance or approval of any method of procedure employed by Santucci should not in any manner relieve Santucci of responsibility or from any liability whatsoever on account of any procedure or method employed by it, or due to any failure or movement of any structure or equipment furnished by it. In other words, the City anticipated the type of claim now made by Santucci and provided against it. The City had the right to stop all work under the contract if it was not done according to the plans.
With respect to Santucci's liability for property damage and its duty to indemnify the City, the contract stated:
"The contractor covenants and agrees to pay all damages for injuries to real or personal property growing out of any negligent act or deed or any negligent ommission to act of the Contractor or any sub-contractor or any servant, agent or employee of the Contractor or any sub-contractor in the performance of work under the contract, and to indemnify, save and keep the City harmless against all liabilities, judgments, costs, damages and expenses which may in anywise come against the City for or on account of injuries to real or personal property caused by any negligent act or deed, or any negligent ommission to act, of the Contractor or any sub-contractor or any servant, agent or employee of the Contractor or any sub-contractor in the performance of said work. . . ."
Santucci provided a surety bond as required, which among other things, recited:
"Now, if the said Contractor [Santucci] shall in all respects well and truly keep and perform the said contract on its part, in accordance with the terms thereof and the plans and specifications therein referred to, and in the time and manner therein prescribed and further shall indemnify, keep and save harmless the City of Chicago against all liabilities, judgments, costs, damages and expenses which may in any wise come against said City of Chicago, in consequence of the granting of such contract, or which may in any wise result from the carelessness or neglect of said Contractor, its Agents, Employees or Workmen, ...