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La Salle Nat. Bank v. Feldman

DECEMBER 28, 1966.

LA SALLE NATIONAL BANK, ADMINISTRATOR OF THE ESTATE OF JOHNETTA SPEARMAN, DECEASED, PLAINTIFF-APPELLEE,

v.

JACOB FELDMAN, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. THOMAS C. DONOVAN, Judge, presiding. Judgment adverse to defendants reversed with judgment in Appellate Court for defendants.

MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

This is an appeal by defendants from a judgment for $15,000 in favor of plaintiff as Administrator of the Estate of Johnetta Spearman, Deceased, a child of less than two years of age, who was fatally injured in a fire which occurred in an apartment rented by defendants to Johnetta's parents. Plaintiff's theory of the case is that defendants were negligent in failing to provide and maintain an adequate electrical system in the building, thereby allowing the condition which caused the fire and resulting death. Defendants contend that plaintiff's evidence failed to prove any negligence on their part and that, consequently, the trial court's refusal to direct a verdict for defendants constituted reversible error.

We shall first consider the testimony of deceased's mother. In August, 1959, she rented a three-room first floor rear apartment in a building jointly owned by defendants. The building was three stories high and was divided into twelve apartments. On November 13, 1959, at about 9:00 p.m., Mrs. Spearman put her three children to bed, but they did not go to sleep right away. She then turned out all the lights in the apartment because she was going to visit with Mildred, a neighbor, and she told this to Lorenzo, her three-year-old son. Mildred lived in a building located a short distance from the defendants' building, only a backyard separating the two buildings. A few minutes after Mrs. Spearman arrived at Mildred's apartment, she heard Lorenzo come up the stairs crying. As Mrs. Spearman stepped out of Mildred's apartment to take Lorenzo home, she smelled smoke and could see flames through her bedroom window across the yard. She immediately ran downstairs and across the yard to her own apartment. She found the deceased in the kitchen in a badly burned condition. She was able to assist her other child to safety. Deceased was taken to the County Hospital and died shortly thereafter.

There were no eyewitnesses to testify as to the origin of the fire. Plaintiff therefore called an expert witness to give his opinion as to the cause of the fire, and it is on his testimony that plaintiff's case must stand or fall. Florian Kaitis testified that he was a duly licensed architect; that his training and experience included a period of employment by the Department of Buildings in the City of Chicago; that his duties during such employment included making inspections of fires and hazardous buildings.

Kaitis then testified concerning the instant case. Three days after the occurrence, at the request of plaintiff, he visited the premises. His examination of the interior of Mrs. Spearman's apartment revealed that the fire had started somewhere in the bedroom. He observed that at about the center of the north wall of the bedroom a piece of armored cable was hanging down and apparently had been cut off recently, since it had not been subjected to the fire. In the basement of the building he observed that the fuse box was located in a space almost directly below the Spearman bedroom. The fuse box contained holders for twenty-eight separate fuses, and there was a legend on the door of the fuse box indicating which fuses served which apartments. Of the twenty-eight fuse holders, or sockets, twenty-seven had fuses in them, while one was empty. He next located the fuse switch which the legend indicated served the Spearman apartment. The first fuse socket was empty, and the other held a fifteen-ampere fuse which he removed. Behind this fuse he found a penny with three burn marks on its back and a burn mark on its rim. Such burn marks are typically caused by the short-circuiting of a fuse holder at a time when there is severe overcurrent. At least fifty amperes of current would be necessary to cause such markings.

Continuing with Kaitis' testimony, he returned to the bedroom to look for any electrical wires that might be there. He found two such wires, one a telephone wire and the other a flexible lamp cord. The latter was composed of pieces of wire spliced together. It had been subjected to much heat and at one point of the cord some strands of wire were fused together. The general cause of such fusing is a short, which did, in fact, exist at the place of fusing of the subject wire. Kaitis then testified that the purpose of a fuse is to prevent the circuit or wire from overheating; that if something happens to cause overheating of the wire, the fuse is supposed to burn out and thus stop the current from flowing; that if a penny is placed behind a fuse, the fuse becomes useless, the current flows directly through the penny instead of the fuse, and the burning out of the fuse does not cut off the accelerated flow of current.

Kaitis was next asked whether a safer fuse box arrangement could have been used by defendants. He answered that a Type-S fuse is a safer fuse than the E-base fuse used by defendants, since it consists of an adapter which fits into the fuse holder, and once the adapter is installed it cannot be removed without damaging the fuse. Kaitis testified further that a penny could not have been inserted in an S-type fuse because it would accommodate only an object which could be manipulated over the sides to make contact with the side clips to produce a short circuit. He said that S-type fuses were in general use in the City of Chicago on the date of the occurrence.

On cross-examination, Kaitis admitted that the penny could have been placed in the fuse box during the three days after the fire and before his examination; that as to the lamp cord, the only way he could tell the wire had been shorted was from the fusing of some of the wires, and that there would be nothing ordinarily present in the apartment that would cause sufficient heat for such fusing. Kaitis would not say that the short circuit in the cord definitely caused the fire, but, instead, conceded that the fire could have been caused by a child playing with matches. Indeed, he said, "I do not know what caused the fire." In addition, Kaitis admitted that he relied on the fuse-box legend and never actually checked to make sure that the fuse and the penny he examined were in the box that serviced the Spearman apartment.

The remainder of the material testimony was supplied by defendants' witnesses. Edward M. Crowe testified that he is a Captain in the Chicago Fire Department and Acting Battalion Chief; that he has been with the Fire Department for twenty-one years and was present at the fire in question, which was a fast-spreading fire with intense heat — definitely hot enough to burn the insulation off wire and melt the copper wire; that when he arrived, he found the bedroom to be the hot spot where the fire had started; that he thoroughly checked the electrical installations, the wiring of the building, lamps, lamp cords and plugs in the wall, and was unable to determine the cause of the fire. He was at the scene one hour and thirty-five minutes. On further examination, Crowe testified that the first thing he checks at a fire such as this is the fuse box; that the placing of a penny behind a fuse is a common cause of fires; that he immediately checked the fuse box in the basement of defendants' building, and if he had found a defect of any kind, he would have put it down in his report; that he made no mention of a defect in the fuse box in his report which stated "undetermined cause." His conclusion was made in consultation with Chief Murphy who was also at the scene and had 40 years' experience in the Fire Department.

John W. DiTambell, an electrical contractor and licensed electrician, testified that in November of 1958 Mr. Feldman hired him to do some electrical work on the premises in question and, specifically, to remedy certain defects listed in a letter from the City Electrical Department. DiTambell stated that he did everything that was required by the letter; that he put fuses in the fuse box which was a kind in use in many buildings of that type in 1959.

Donald Coutts, an electrical inspector for the City of Chicago, testified that he inspected the premises in March of 1959 pursuant to a reinspection concerning the letter of violations which had been sent to the premises in October, 1958. He found that all the violations listed in the letter had been corrected. Coutta testified that he again inspected the premises within a week or two after the fire and found no violations with regard to the fuse box.

The errors assigned by defendants are as follows: (1) Defendants' motion for directed verdict should have been allowed; (2) the testimony of Florian Kaitis should not have been admitted since it was based solely on knowledge obtained through post-occurrence observation; and (3) portions of the closing argument by plaintiff's counsel were inflammatory and so prejudicial as to require a reversal.

The primary question raised on this appeal is whether there is any competent evidence to support the allegation that defendants were negligent. If not, the trial court erred in overruling defendants' motion for directed verdict. Paul Harris Furniture Co. v. Morse, 10 Ill.2d 28, 139 N.E.2d 275. Such a motion presents the fundamental question of whether the record contains any evidence which, in itself, and, taken with all its intendments most favorable to the opposing party, tends to prove the essential elements of that party's case. Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847; Gorczynski v. Nugent, 402 Ill. 147, 83 N.E.2d 495. We turn, then, to a comparison of plaintiff's allegations with the evidence introduced.

The major part of plaintiff's case is predicated upon five separate conclusions expressed in the testimony of its expert witness, Florian Kaitis, who examined the premises three days after the fire. The first conclusion testified to by Kaitis is that of the existence of a short circuit in the lamp cord in the Spearman bedroom. It is obvious that the existence of a short circuit in the lamp cord, in and of itself, does not establish negligence on the part of defendants. The short circuit may have occurred before or after the fire. Moreover, there is no evidence in the record to explain how the lamp cord became a part of the electrical system of the Spearman apartment. For all that appears in the record, it is possible, if not probable, that Mrs. Spearman ...


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