Appeal from the Circuit Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding. Judgment reversed and the cause
remanded with directions to enter judgment in favor of the third
party defendant and against the third party plaintiffs.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
Rehearing denied September 12, 1966.
This is an appeal from a judgment in favor of the third party plaintiffs who had filed third party actions against the third party defendant.
Joseph T. Ryerson & Son, Inc., hereinafter referred to as the owner Ryerson, is a corporation engaged in the business of fabricating and selling structural steel products and in connection with its business owns and operates a warehouse known as the "South Warehouse" at 2558 West 16th Street in Chicago, Illinois. Universal Fabricated Products Co., Inc., hereinafter referred to as the contractor Universal, is a corporation engaged in the manufacture, processing, fabricating, and sale of insulation materials. Industrial Maintenance, Inc., hereinafter referred to as the subcontractor Industrial, is a corporation engaged primarily in the construction business, specializing in sandblasting and painting of storage tanks for the petroleum industry and in general construction and maintenance work on structures and buildings. Charles P. Lind is president of subcontractor Industrial.
Owner Ryerson's South Warehouse is a rectangular building used primarily for the fabrication and storage of steel structural building materials. It is approximately two blocks long from north to south and is about 550 feet wide from east to west along 16th Street. The exterior walls and roofs are constructed of corrugated steel. The floor is concrete and the structure from the floor to the peaks of the roofs is equivalent to a height of three stories. The warehouse has "seven-peaked roofs" which divides the building into seven sections known as "spans." These "spans" are alphabetically identified from "A" to "F." The peaks of the roofs extend from east to west. These spans vary in their dimensions, from north to south, from 40 feet to 108 feet and run the entire width of the building from east to west. The roof is supported by vertical steel columns, placed 23 to 25 feet apart. They are approximately six inches wide and flat at the top. Steel beam trusses, about seven inches wide at the top with flanges which project upward from the upper surface, are located 25 feet apart and run from north to south. The space between two trusses is known as a "bay." There are 24 bays in each span. Three-inch steel beams run diagonally across the bays. There were two or more electric cranes in each span, which were not used in this project.
Early in January of 1953, owner Ryerson, became interested in placing a false ceiling in the south warehouse in order to reduce the cube of the building, which in turn would lessen the cost of heating the warehouse in winter and keeping it cool in the summer. A salesman from contractor Universal, called upon Robert Dent, director of engineering for owner Ryerson, to sell insulation fabrications, manufactured and sold by contractor Universal. This led to a series of conferences and the exchange of letters between Dent and William Waite, the manager of contractor Universal. In some of these meetings, Paul Gross, William Ourand and R.E. Wallace, engineers employed by owner Ryerson, were also present.
The concluding paragraph of a letter dated February 6, 1953, from Universal to Ryerson reads as follows:
We estimate that the above application can be installed complete for $0.80 to $0.90 per square foot of total area insulated. We are submitting this proposal for your information only. In order to prepare a firm bid, it will be necessary for us to spend considerable time in determining the actual areas involved, details of the steel structure, window and door areas, etc.
We understand that the warehouse is to continue in operation during erection of the insulation, and it will be necessary to reach a working agreement with Ryerson regarding the working conditions and available working areas for our erection crews.
We would appreciate your study of our intended application, and erection price. If the system is satisfactory and the price is generally in line, we will then make a complete study and submit a firm bid on this work.
/s/ William Waite. (Emphasis supplied.)
On July 10, 1953, contractor Universal, sent a lengthy letter to owner Ryerson, in which it set forth in detail the manner in which the work was to be performed, the material, and equipment to be used. The letter also quotes a firm price. We quote one of the paragraphs from said letter:
We would prefer to continue using the 2 x 2 mesh No. 14 gauge galvanized wire as opposed to previous suggestions of lighter mesh wire. If this wire is used, we do not believe it to be necessary to provide support rods in the larger spans D & E. Sufficient strength is available in the wire itself because one of our erection crew was walking on the wire until he was cautioned to use scaffolding only. (Emphasis supplied.)
Shortly before the date of the foregoing letter an experimental insulation was carried on in three bays of span F. This resulted from a combination of ideas between Waite of contractor, Universal, and Dent, of owner Ryerson. Their object was to determine the cost basis for the work and perfect the method of performing it. The purchase order for that job from owner Ryerson, to contractor Universal, was dated May 1, 1953. The actual work started about June 15 or 20, 1953. Mr. Gross was assigned to that job on behalf of owner Ryerson. Waite of contractor Universal, was also present during the experimental job, as were employees of subcontractor Industrial, including Lind.
For several weeks Dent and Waite discussed the installation of the insulation. They discussed the use of J-bolts for fixing steel wire mesh to the side of the span, the use of angle irons with flat bars to affix the extremities and the manner of connection of the wire mesh at the sides and end. They agreed that five-foot wide wire mesh was to be used in the bays in such position that one layer of wire mesh would overlap the other layer. The wire to be supplied in 150 foot lengths. The bays varied between 40 and 108 feet so that the rolls would have to be cut. This was to be done to minimize the waste of wire. The cost factor of the job to be performed was determined from the experimental job. The use of scaffolding on the larger job was not discussed. According to Waite of contractor Universal, "the insulation was not intended to be anything that would support one's weight. Nobody was supposed to walk on it."
Owner Ryerson, was supposed to supply all of the metal components but the hog or pen rings. Waite had a conversation with Dent relative to the pen or hog rings prior to the start of the experimental work. It was also set forth in one of the exhibits, 12-C, that owner Ryerson, was to supply all metal component parts except pen rings. Contractor Universal, sent the pen rings to owner Ryerson, and charged for them. It also supplied pen rings to subcontractor Industrial. The ...