Appeal from the Circuit Court of Cook County, Municipal
Department, First Municipal District; the Hon. JOSEPH M. WOSIK,
Judge, presiding. Judgment affirmed.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 9, 1968.
Plaintiff, Mary Koenig, filed suit for personal injuries against 399 Corporation and obtained a judgment based upon a jury verdict for $6,200. From this judgment 399 Corporation has appealed.
It will be necessary to set forth pertinent parts of the pleadings in order to explain the issues presented.
Mary Koenig in her statement of claim alleged that she was a business invitee as an employee, agent and servant of Dr. White, a tenant in defendant 399 Corporation's building located at 399 West Fullerton Parkway, Chicago, Illinois; that plaintiff, while in the exercise of due care, was injured when an elevator in which she was riding fell as a result of the negligence of an employee of the defendant 399 Corporation when said elevator fell or rapidly descended, striking the bottom of the shaft with great force.
Defendant 399 Corporation on May 20, 1960, filed an answer in which it admitted that it maintained, operated and controlled the automatic passenger elevator in question and denied that plaintiff was injured and that defendant was guilty of negligence. More than six years later, on November 4, 1966, by leave of court, defendant filed its amended answer and in it denied that it maintained, operated or controlled any automatic passenger or freight elevator in its building. Defendant further denied that plaintiff was a passenger in its elevator, but admitted, however, that plaintiff was on the elevator. The defendant also alleged in its answer that the elevator stopped because the plaintiff improperly operated the button therein or failed to close the door securely, breaking the circuit therein. The amended answer further alleged that at the time of plaintiff's injuries the elevator was maintained, repaired and serviced by Reliance Elevator Manufacturing Company, and that plaintiff controlled the elevator in which she was riding and that she was contributorily negligent.
Thereafter, defendant filed a third-party complaint against Reliance Elevator Manufacturing Company in which the third-party plaintiff alleged that it had entered into a written contract with Reliance Elevator Manufacturing Company, a corporation, third-party defendant, whereby the third-party defendant impliedly stated by written contract that it agreed to maintain, service and repair continuously an elevator of the third-party plaintiff on its premises at 399 West Fullerton Parkway, Chicago, Illinois; that notwithstanding its duty to repair the passenger and freight elevators at 399 West Fullerton Parkway, Chicago, Illinois, the third-party defendant failed to do so and did one or more of eight negligent acts set forth in the third-party complaint. This paragraph of the third-party complaint then asserts the following:
"That because of one or more or all of the aforesaid negligent acts or omissions, the elevator did operate in a dangerous, defective manner so as to cause one Mary Koenig, who was operating said elevator, to sustain personal injuries as alleged in her Complaint."
When the case came before the trial judge after the jury was impaneled but out of its presence, the plaintiff moved for the entry of a judgment on the pleadings as to liability in her favor. Argument took place in the judge's chambers. The judge allowed the plaintiff's motion and defendant moved to amend its third-party complaint on its face by the insertion of the word "if" before certain allegations in paragraphs 7 and 8 of the third-party complaint. Paragraph 7 directly charged the third-party defendant with acts of negligence and paragraph 8 charged that due to one or more of the negligent acts or omissions Mary Koenig, the plaintiff, was injured as alleged in her complaint. The amendment sought by the third-party plaintiff to that complaint would have made the allegations of paragraphs 7 and 8 contingent upon the plaintiff having proved negligence of the defendant. In other words, the third-party plaintiff in its original third-party complaint had admitted that the injuries to plaintiff were caused by one or more of the negligent acts of the third-party defendant. Since this constituted an admission by the defendant (third-party plaintiff) that Mary Koenig was injured as alleged in her complaint, third-party plaintiff sought to amend its complaint to avoid that implication. This amendment was allowed and the third-party plaintiff merely attached to the complaint a part of a sheet of a court reporter's transcript setting forth the nature of the amendments sought and a conversation between Mr. Wiacek and the court.
The following points have been raised by the defendant (third-party plaintiff) in this appeal: (1) the answer denied the plaintiff was in the exercise of due care, therefore it was improper for the court to enter judgment on the pleadings as to liability; (2) plaintiff must plead and prove freedom from contributory negligence, and (3) it was error to permit a doctor to testify that the negligent act had caused the injury.
[1-5] The defendant argues as to the first point that since the answer of the defendant denied that the plaintiff was in the exercise of due care, the court erred in directing a verdict as to liability in favor of the plaintiff. In support of this the defendant cites Bresler Ice Cream Co. v. The Millionaires Club, Inc., 71 Ill. App.2d 342, 218 N.E.2d 891, wherein the court stated at page 344:
"While any party may seasonably move for judgment on the pleadings (Ill Rev Stats 1963, c 110, sec 45(5)) such judgment in favor of the plaintiff is improperly granted where the answer to a complaint sets forth any legal defense to the action. Thillens, Inc. v. Hodge, 2 Ill.2d 45, 116 N.E.2d 886."
Other cases to the same effect are cited by the defendant. Defendant, however, by its amended answer explained the so-called acts of negligence or lack of due care by stating that the elevator stopped "because the plaintiff improperly operated the button therein or failed to close the door securely breaking the circuit therein." We must bear in mind that the defendant was in the position of a common carrier and was required to exercise the highest degree of care for persons riding in its elevator. It further had the duty of furnishing cars which were safe and were equipped with protective appliances. If the injury was caused by the plaintiff improperly operating a button on the elevator, or because she failed to close the door securely breaking the circuit therein, the defendant would necessarily have to be held negligent for controlling and supplying an automatic elevator which could be caused to first stop and then to drop by an improper operation of a button. Likewise, the defendant would have been guilty of negligence in owning and supplying an automatic elevator which would first stop and then drop if the door was not closed securely. Neither of these acts, if true, ...