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Starkey v. Brown Oil Co.

SEPTEMBER 7, 1966.

JAMES STARKEY, PLAINTIFF-APPELLANT,

v.

BROWN OIL COMPANY, A CORPORATION, AND PHILLIPS PETROLEUM COMPANY, A CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of LaSalle County; the Hon. HOWARD C. RYAN, Judge, presiding. Judgment for defendant affirmed and cause remanded. STOUDER, J.

Rehearing denied October 7, 1966.

This is an appeal from an order of court granting judgment for Defendant notwithstanding the verdict for Plaintiff. The facts, which follow, are not in dispute.

Plaintiff, Appellant herein, while painting a pole at a service station on May 10, 1963, was injured when the pole broke, causing the ladder on which Plaintiff was standing, to fall. The service station was operated by Defendant, George Small, on a month-to-month verbal agreement with Defendant, Brown Oil Company, the owner of the premises. Brown Oil Company was a jobber for the exclusive distribution of the products of Phillips Petroleum Company, a third Defendant, to service stations in and around Ottawa, Illinois, including Small's Service Station. The pole in question was owned by Brown Oil Company. By another contract between Phillips Co. and Brown Co. called "Jobber's Painting Contract," Phillips agreed to paint Brown Oil Co. sign poles. Although the service station, where the pole was maintained, was leased by Brown Co. to George Small on a month-to-month lease, the evidence indicates clearly that Brown Co. retained control over the area of its poles and signs.

On April 4, 1963, Valley Painting and Decorating Service, Plaintiff's employer, entered into a written contract with Phillips to paint the pole. Plaintiff with a co-worker, started painting at the station shortly before the accident.

The pole in question was a hollow, ungalvanized, black iron pipe about twenty-eight feet long and tapering from six inches at the base to two inches at the top. It was attached at the base to a four-foot pier or drum by four bolts and had a side arm to hold a sign with a hole two inches in diameter in the pole opposite the side arm. The exterior of the pole was painted white and there were rust spots on the outside in the area of the bolts.

The pole had previously been situated at another filling station where it had been installed sometime prior to 1944. Mr. Hill, President of Brown Oil, purchased the service station in 1944 thereafter conveying it to Brown Oil Co. upon its organization in 1947. On December 12, 1960, the pole had been moved and erected at the scene of the accident and on January 23, 1961, had been taken down in order that the sign which it supported could be raised by setting the pole on the four-foot pier or drum. The pole could be removed and replaced with a truck crane.

At the time the pole was moved in 1960 and when it was re-erected in 1961 some rust was observed by the person who handled the pole. He stated that at that time, in his opinion, the pole was in condition to be reinstalled. He further testified that his opinion was based only on visual observation, that he performed no other tests to determine the condition of the pole. The President of Brown Oil Company testified that he had observed the pole in passing and saw nothing wrong with it. Plaintiff and his co-worker also inspected the exterior of the pole just prior to commencing the painting operation and saw nothing to indicate that the pole was unsafe.

The usual and customary practice in painting poles of this type is for the painter to support an extension ladder against the pole and ascend the pole to paint. As Plaintiff was engaged in painting the pole, it snapped eight to ten inches from the base and Plaintiff fell to the pavement twenty-five to thirty feet below. The pole at the site of the break, was very rusty on the interior, the sound metal on the exterior being described as paper thin.

The principal controverted facts involved the questions of what care Defendant had taken to preserve and maintain the pole and to inspect it; when the hole opposite the side arm had been made, and whether it was covered or uncovered; and what Defendant should reasonably have been expected to do to anticipate and prevent the injury.

Suit was filed against Small as tenant operator and thereafter voluntarily dismissed as to him, against Brown Oil Company as owner of the premises, and against Phillips Petroleum Company as being in control of the equipment for the painting operation. The complaint contained two counts, one based on the theory of general negligence under the maxim res ipsa loquitur and the other on the theory of specific common-law negligence. At the conclusion of Plaintiff's case the lower court allowed a motion by Phillips Petroleum Company for a directed verdict on both counts, and a motion by Brown Oil Company for a directed verdict on the res ipsa count.

At the conclusion of all the evidence, the jury returned a verdict for Plaintiff and against Defendant, Brown Oil Company, in the amount of $25,000. Brown Oil Company then filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial which motion was allowed by the trial court. In the order granting Defendant's motion, the court below found that Plaintiff had produced no evidence of negligence on the part of Brown Oil Company and further held that National Builders Bank of Chicago v. Schuham, 319 Ill. App. 546, 49 N.E.2d 825, was controlling. Plaintiff appeals from this order and from the order directing a verdict for Phillips Petroleum Company, asking that the first be reversed and the verdict be reinstated or in the alternative a new trial granted, and that the second be reversed and a new trial granted.

We shall first consider the propriety of the appeal from the order directing a verdict in favor of Phillips Petroleum Company. Chapter 110, § 68.1(2), Ill Rev Stats, provides "Relief desired after trial in jury cases, heretofore sought by reserved motions for directed verdict or motions for judgment non obstante veredicto, for judgment notwithstanding the verdict, in arrest of judgment or for new trial, must be sought in a single post-trial motion. . . . The post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof, and must state the relief desired, as for example, the entry of a judgment, the granting of a new trial, or other appropriate relief. . . . A party may not urge as error on review of the ruling on his post-trial motion any point, ground or relief not particularly specified in the motion." Section 68.1(5) provides "Any party who fails to seek a new trial in his post-trial motion, either conditionally or unconditionally, as herein provided, waives the right to apply for a new trial, except in cases in which the jury has failed to reach a verdict."

[1-3] Plaintiff argues that the ruling of the trial court on a motion for directed verdict is a decision made in the progress of the trial and subject to review by a court of appeal without a motion for a new trial. In our opinion this argument begs the question. Were we to review the lower court's ruling on the motion for directed verdict and find such ruling in error, this, in itself would be of no benefit to Plaintiff. Plaintiff desires further that we grant him the relief of a new trial and this we cannot do in the absence of a post-trial motion praying for such relief. Section 68.1(2) and (5) we deem to be mandatory. (Knab v. Alden's Irving Park, Inc., 49 Ill. App.2d 371, 199 N.E.2d 815; County Board of School Trustees of Macon County v. Batchelder, et al., 7 Ill.2d 178, 130 N.E.2d 175, and Perez v. The Baltimore & Ohio R. Co., et al., 24 Ill. App.2d 204, 164 N.E.2d 209.) Since we find that Plaintiff's appeal as to Defendant Phillips Petroleum Company must fail for his failure to request a new trial in the lower court, it is unnecessary to consider Plaintiff's other points as regards this Defendant.

With respect to Plaintiff's appeal from the order allowing judgment notwithstanding the verdict or, in the alternative, a new trial, as moved by Defendant, Brown Oil Co., other principles must control. The rules governing what a court may consider on a motion for judgment notwithstanding the verdict have been often stated and are well settled. ". . . the sole question presented to the court is whether, admitting the evidence in favor of the Plaintiff to be true, that evidence, together with all legitimate conclusions and inferences fairly tends to sustain Plaintiff's cause of action. We have no right to pass upon the credibility of the witnesses, to consider any purported impeachments, the weight thereof, or the weight of the testimony, since the motions admit the evidence in favor of Plaintiff to be true, together with all legitimate conclusions and inferences. Viceeli v. Cummings, et al., 322 Ill. App. 559, 54 N.E.2d 717." Elbers v. Standard Oil Co., 331 Ill. ...


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