Appeal from the Circuit Court of Cook County; the Hon. HUGO M.
FRIEND, Judge, presiding. Reversed and remanded.
Plaintiff appeals from an order of the trial court, final and appealable in form, dismissing an action for personal injuries. The complaint, originally filed by Oscar Schek, alleges that he was injured by the negligent operation of defendant's train while he, Schek, was upon the station platform in the exercise of his ordinary care for his own safety. Subsequent to the filing of the complaint, the conservator was substituted as plaintiff.
Defendant's motion, with pertinent exhibits attached, alleged that Schek was a news vendor engaged in the operation of his business at the time of the occurrence under a certain license agreement dated February 9, 1960, with Union News Company, which granted to Schek the privilege of operating a newsstand in the subway, and that by the agreement, Schek undertook to indemnify and save harmless Union News and the defendant against liability for injury to any person, including himself, in connection with the operation of the newsstand.
In the motion it is further alleged that Union granted such license pursuant to an agreement with the defendant whereby Union was granted the exclusive right and privilege of installing, maintaining and operating newsstands on the defendant's subway passenger platforms. In such agreement, Union undertook to indemnify defendant against all actions and claims, including (1) injury to any person arising through the negligence of Union's licensees, or to which their negligence should contribute, and (2) damages for injury to any licensee of Union while in or upon the platform of the defendant when engaged in the news vending business. The agreement between the defendant and Union, effective at the date of the contract between Schek and Union, was dated October 22, 1954.
In its motion, defendant contends that the action is barred by either, or both, the undertaking of Schek to indemnify the defendant, or the indemnity of the defendant given by Schek's licensor, Union News, but that Schek had no greater right against the defendant than had Union.
The agreement, dated February 9, 1960, between Schek, called the licensee, and Union, called the licensor, provides that Union grants to Schek the privilege of operating a newsstand at a named station of defendant; that the newsstand and its appurtenances are the property of Schek, to be located in and upon a space platted as per a drawing specified, and that Schek is to maintain and repair the same in a good condition; that Schek is to pay the sum of $80 per month on the first of each month, subject to cancellation on five days' written notice, or upon the termination of the agreement between Union and the defendant. The agreement provides that Union shall have a first lien on licensee's interest, which may be foreclosed in equity, and for which a receiver may be appointed. Union reserved the right to inspect plaintiff's newsstand, and there was provision that Union could specify that certain merchandise be sold. The agreement also provided that it was to be:
". . . subject and subordinate to all of the terms and conditions of agreement. . . ."
between the defendant and Union.
The language of exculpation and indemnity at issue is as follows:
"Licensee hereby assumes all risk of and liability for loss or damage to property owned by Licensee or third persons, and any injury to or death of any persons (including Licensee), by reason of the condition or operation of said newsstand, and Licensee shall indemnify and save harmless Licensor and Chicago Transit Authority from all claims for any such loss, damage, injury or death, whether caused by the negligence of Licensor, Chicago Transit Authority, their agents or employees, or otherwise. Licensor shall provide a policy of public liability insurance, insuring Chicago Transit Authority, Licensor and Licensee, against any loss, cost, damage or expense by reason of injury to or death of any person or person's arising from, growing out of, or in any way connected with the operation of the licensed premises, up to the limits of $25,000 for injury to or death of any one person, and $100,000 for injury to or death of any number of persons in any one accident. Licensee shall pay Licensor for procuring said insurance $2.00 per month."
The agreement in effect between the defendant and Union gives the latter the exclusive right and privilege to install, maintain and operate newsstands on the premises of the defendant, and, in effect, permits Union to operate, or license others to operate (a) newsstands then owned by defendant, (b) newsstands owned by Union, and (c) newsstands owned by licensees of Union.
The agreement for indemnity between defendant and Union is in the following language:
"Company shall indemnify and hold harmless Authority by insurance coverage in amounts and with a company or companies satisfactory to Authority, against all loss and against all suits, actions, claims liability, judgments for damages, costs and expenses arising from the sale ...