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Stein v. Lindquist

FEBRUARY 18, 1966.

SHERIDAN STEIN, PLAINTIFF-APPELLEE,

v.

J. THEODORE LINDQUIST AND N. HENRY HOGSTROM, D/B/A LIND-HOG MACHINE COMPANY, DEFENDANTS, AND OHIO CASUALTY INSURANCE COMPANY, GARNISHEE-DEFENDANT AND APPELLANT. OTTO W. BARNES AND JOHN M. LONG, INTERVENING PETITIONERS AND APPELLEES,

v.

OHIO CASUALTY INSURANCE COMPANY, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. DONALD S. McKINLAY, Judge, presiding. Affirmed in part, reversed in part and judgments entered here.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Garnishee-defendant, Ohio Casualty Insurance Company, appeals from judgments entered against it totaling $15,000. The garnishment judgments are based on plaintiff's unpaid personal injury action judgment against the insureds of the garnishee-defendant.

Plaintiff, Sheridan Stein, was injured when a hoist collapsed while he was using it. He brought suit against defendants, J. Theodore Lindquist and N. Henry Hogstrom, d/b/a Lind-Hog Machine Company, owners of the premises on which he was injured. Ohio Casualty, the O.L.T. insurer of the premises, denied coverage under an elevator exclusion in its policy, and defendants Lindquist and Hogstrom were required to employ counsel to defend the action. Lindquist retained Otto W. Barnes and Hogstrom retained John M. Long.

In a non-jury trial of the personal injury action, judgment was entered on July 17, 1963, in favor of plaintiff Stein for $10,000. The instant garnishment proceedings are grounded on this judgment. Barnes and Long, in separate petitions, intervened to recover reasonable attorneys' fees allegedly due because Ohio Casualty failed to defend the basic action.

On September 30, 1964, judgment was entered against the garnishee-defendant in favor of plaintiff Stein for the sum of $10,000 "plus interest from the 17th day of July, 1963."

On November 4, 1964, after hearing evidence on behalf of petitioners, Barnes and Long, and the respondent, Ohio Casualty, the court entered an order finding that Ohio Casualty had refused to defend the action instituted by Stein "on the sole ground that the accident or occurrence, claim or suit did not come within the terms or coverages of the policy of insurance . . .," and that petitioner Otto W. Barnes defended the action on behalf of defendant Lindquist, and that $2,500 would be a fair and reasonable fee for his services, and that petitioner John M. Long defended the action on behalf of defendant Hogstrom, and that $2,500 would be a fair and reasonable fee for his services. Judgments for $2,500 each were entered for both Barnes and Long against Ohio Casualty, and the instant appeal followed.

The garnishee-defendant, Ohio Casualty, contends: (1) "that the trial court erred in giving judgment against the insurer because the accident alleged in plaintiff's complaint was not covered by its policy of insurance and was expressly excluded from the coverage of its policy"; (2) "that the trial court erred in allowing interest to the plaintiff from the date of the tort judgment when it gave judgment against the insurer in the garnishment"; and (3) "that the fees allowed by the trial court to the intervening petitioners were excessive in the circumstances."

The instant record contains the pleadings and judgment order in the tort action, the garnishment affidavit of plaintiff, answers to interrogatories by garnishee, the intervening petitions of Barnes and Long and answers of Ohio Casualty, the insurance policy, and a transcript of the testimony offered on the question of attorneys' fees.

The affidavit for garnishment alleged the entry of the judgment on July 17, 1963, and "that there is unpaid on the judgment $10,000 and `Legal rate until Paid.'" The answers of the garnishee-defendant to interrogatories are in the negative as to whether garnishee-defendant had any property or was indebted to the judgment debtors.

Initially, we consider defendant's contention that the basic occurrence was not covered by its policy of insurance. The judgment order entered on September 30, 1964, states that the court heard the arguments of counsel, and "examined the pleadings, the judgment order entered by Judge Epstein, the insurance policies and the findings of the trial court in the original tort action. . . ." Therefore, and in the absence of anything else in the record, our inquiry on this point is limited to the pleadings and judgment order in the tort action and the insurance policy.

Plaintiff's amended complaint alleges that his employer occupied a portion of the second floor at 4432 North Kedzie Avenue, Chicago, as a commercial photographic house, under a lease arrangement with Lindquist and Hogstrom; that on July 6, 1956, plaintiff and a co-employee were using a hoist located at the rear of the second floor, and plaintiff was injured when the brickwork and hoisting collapsed and fell on him, inflicting injuries of a permanent nature. The allegations of negligence are the following:

(a) Initially constructed the above-mentioned hoist in an unsafe manner in that it did not contain adequate supporting structural members:

(b) Erected or constructed the above-mentioned hoist or crane without first securing a permit to do so from the City of Chicago;

(c) Failed to warn the plaintiff of the existence of a structural weakness of the cornice or section of said roof wherein said ...


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