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Drewick v. Republic Steel Corp.

NOVEMBER 3, 1967.






Appeal from the Circuit Court of Cook County; the Hon. CASIMIR V. CWIKLINSKI, Judge, presiding. Reversed in part, affirmed in part.


This appeal is taken from an action originally brought by Evelyn M. Drewick, plaintiff, against Interstate Terminals, Inc., Republic Steel Corporation, and Henry Pfutzenreuter & Sons, defendants. The action was brought to recover damages for personal injuries alleged to have resulted when the plaintiff, on April 18, 1955, was struck by a window which fell or was blown from the building occupied by her employer, Interstate Dispatch, Inc. Interstate Terminals, Inc. filed a third-party action for indemnity against Republic Steel Corporation and Henry Pfutzenreuter & Sons. The actions were tried simultaneously.

At the close of plaintiff's case the trial court directed a verdict in favor of Henry Pfutzenreuter & Sons. Interstate Terminals, Inc. then dismissed its third-party complaint against that concern. The jury returned a verdict for the plaintiff against Interstate Terminals, Inc., in the amount of $105,500, and found in favor of Republic Steel Corporation on the original third-party complaint. This appeal is taken by Interstate Terminals, Inc. from the judgments on these verdicts. The evidence discloses the following facts:

On the night of April 18, 1955, the plaintiff finished her work as a billing clerk at about 9 p.m., and left the building occupied by her employer, Interstate Dispatch, Inc., at 3636 South Western Avenue, Chicago. She was walking towards her car which was parked against the north wall of the building, and as she passed under a row of windows on the north wall, a steel ventilator window sash fell and struck her on the head and shoulders, causing the injuries complained of. After being struck by the window she was dazed but did not lose consciousness; she was helped back into the office and the police were called. She was then taken to the office of Dr. Mirmelli, at which time she was bleeding profusely from cuts on the face and left shoulder which had been cut to the bone. The doctor applied first-aid treatment and she was then taken to the Mother Cabrini Hospital where she remained under the care of Dr. Mirmelli until May 7, 1955. He continued to see her up to September 8, 1955, by which time the wounds had healed but elevated scars were left, and he advised plastic surgery. Plastic surgery was performed by Dr. Paul Greely. She later had treatments from Dr. Piersynski, who found permanent injuries in her body. Dr. Mirmelli examined the plaintiff on April 12, 1961, and found two scars on the cheek which were of a permanent nature, and other permanent scars on her body.

Interstate Dispatch, Inc. was an interstate carrier of freight by motor vehicle. About 1947, Interstate Terminals, Inc. was incorporated, and Interstate Dispatch, Inc. became the owner of the entire corporate stock of Interstate Terminals, Inc. Interstate Terminals was organized originally to buy land and construct a building in Chicago for use as a general office and Chicago terminal for Interstate Dispatch. Interstate Terminals then purchased a parcel of vacant land at 3636 South Western Avenue, and engaged the firm of Belli and Belli to prepare plans and specifications for the building. The contract for construction was awarded to Henry Pfutzenreuter & Sons. The building was completed by Pfutzenreuter and approved by the architects, then turned over to Interstate Terminals. The entire land and building were then leased by Interstate Terminals to Interstate Dispatch under a written long-term lease dated July 1, 1948, which lease was still in effect at the time of the accident on April 18, 1955, and Interstate Dispatch was occupying the premises, pursuant to the lease. By its terms the lease obligated Interstate Dispatch, as lessee, to maintain and keep the premises in repair. The window involved in this suit was located in the area used by Interstate Dispatch for dispatching and billing.

From the time it was incorporated to the date of the accident some of the officers of Interstate Terminals were also officers of Interstate Dispatch; thus at the time of the accident, the president of both corporations was M.E. Holt, and the secretary of both companies was Russell E. Berry, an attorney. Mr. Holt's office, as president of Interstate Dispatch, was in the general office section of the building, where he kept necessary records of Interstate Terminals.

The window in question was a commercial projected steel sash window, ordered by Pfutzenreuter from Truscon Steel Company, which is now a division of Republic Steel. The windows were fabricated, sold and delivered to the job by Truscon, then installed by Harry Pasco, pursuant to a subcontract with Truscon. The window involved in this suit was one of the original windows installed at the time the building was constructed. The top and bottom sections of glass in the unit are fixed and stationary. The middle section can be opened by pushing it out with a handle at the bottom of the section, and is called a ventilator. On each side of the ventilator is a steel arm, one end of which is fastened to the ventilator frame by rivets. The other end is fastened to a friction shoe which slides up and down in a channel at the side of the frame. This friction shoe serves to hold the window open at the desired position. This middle ventilator section is the part of the window which fell out at the time of the accident.

The ventilator section was inspected on the morning after the accident by A.C. Hrubes, director of safety for Insterstate Dispatch. Mr. Hrubes observed that the rivets were broken or sheared off on both arms at the point where the arms were fixed to the ventilator section. He noticed that at the point where the rivets were sheared the metal was very shiny; there were no rust marks or discoloration, and the metal was porous.

The theory of defendant-appellant, Interstate Terminals, is as follows:

1. The premises were leased by Interstate Terminals to Interstate Dispatch, and by the lease that company was obligated to repair and maintain the premises; therefore, as a matter of law, Interstate Terminals was not liable for the injury.

2. Under the terms of the lease and under the facts, Interstate Terminals did not have control and management of the premises where the accident occurred, and consequently the doctrine of res ipsa loquitur did not apply against it, and the court erred in submitting the case against Interstate Terminals to the jury on that doctrine and giving the jury an instruction thereon.

3. The court failed to recognize Interstate Terminals as a corporate entity separate and distinct from Interstate Dispatch.

4. The defendant, Interstate Terminals, was deprived of a fair and proper trial.

5. The verdict and judgment in favor of the plaintiff is grossly excessive.

The plaintiff's theory is that:

1. Defendant, Interstate Terminals, never actually gave up possession and control of the building from which the ...

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