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Behrens v. W.s. Bills & Sons

MAY 12, 1972.

FRANK BEHRENS ET AL., PLAINTIFFS-APPELLEES,

v.

W.S. BILLS AND SONS, INC. ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of La Salle County; the Hon. THOMAS R. CLYDESDALE, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

This is an appeal from the judgment of the Circuit Court of La Salle County in the sum of $66,000 against W.S. Bills and Sons, Inc. and Union Corporation, defendants. The trial court entered summary judgment in favor of plaintiffs Frank Behrens, Betty Moore and Pauline Lucas as against defendants on the issue of their liability to plaintiffs, and, thereafter, following a jury determination of the amount of damages, entered judgment on the jury verdict.

The action was instituted by plaintiffs for damages which were sustained when a building on the property leased by plaintiffs collapsed as a result of an excavation made on adjoining property by defendants. Defendant Union Corporation was the owner of the property and defendant W.S. Bills and Sons, Inc., was the contractor which excavated for the owner.

The action was instituted under the provisions of Chapter 70, Paragraph 10 of 1967 Illinois Revised Statutes which dealt with the "protection of adjacent landowners". The paragraph is contained in the current 1971 Illinois Revised Statutes as Section 51, Chapter 17 1/2. On appeal in this case, defendants contend that no liability was alleged or established under the act; that plaintiffs did not furnish the license required by the act; and that plaintiffs complaint did not justify a recovery thereunder. Defendants also contend that the damages awarded were manifestly excessive and based on improper instructions and inadmissible evidence. A contention is also made that a new trial should be granted by reason of the fact that insurance was prejudicially mentioned to the jury.

Plaintiffs, a father and his two daughters, operated a children's apparel retail store in Streator, Illinois, which had been in operation for more than 17 years and was located in premises which were leased from Charlotte Proud. The lease in force at the time of the destruction of the building was for a term of five years with approximately 4 and 1/2 years of the lease remaining at the time the building collapsed.

The Union Corporation owned the adjoining premises and had hired the Bills Corporation as a general contractor to demolish Union's existing building, to excavate thereon and to construct a new building. During the process of excavation, the Proud building collapsed. As a result thereof, plaintiffs filed their action under Paragraph 10 of Chapter 70 of 1967 Illinois Revised Statutes referred to.

We have had occasion to discuss at considerable length the effect of such section of the Act and of the right of the owner to recover damages as against the same defendants resulting from this occurrence in Proud v. W.S. Bills and Sons, Inc., 119 Ill. App.2d 33, 255 N.E.2d 64. Section 6 of the Act referred to expressly contains language which specifies that the owner or possessor of the land on which the excavation is being made "shall also be liable to occupants and tenants of such adjoining lands or structures thereon for any damage to their property or business * * *." As we pointed out (in Proud), Paragraph 10 of Chapter 70 of 1967 Illinois Revised Statutes, provided for strict liability of owners or possessors of land for damage to adjoining land and structures resulting from excavation below a so-called "standard depth" if such adjoining owner or possessor had received "the necessary license to enter on" the adjoining land in order to protect it. The standard depth referred to was 8 feet and excavations below such standard depth are expressly covered by the provisions of such act. The collapse of the building, as we had indicated in the Proud case, resulted proximately from the excavation and from defendants' failure to provide the required subjacent and lateral support.

In the trial of this cause, plaintiffs had moved for summary judgment and supplemented the pleadings by affidavits, answers to interrogatories and depositions including certain exhibits (which included the written lease between plaintiffs and Charlotte Proud). They also incorporated the agreement between Charlotte Proud and Union Corporation. Under such agreement Union Corporation surrendered its right to the party wall which formerly had existed between the Proud building and the Union building and Charlotte Proud permitted Union to enter her building and Union obligated itself thereafter to protect the wall. The wall was to remain an integral part of the Proud building. Another exhibit which was submitted was the contract by which Union hired Bills. It included an affidavit of the chairman of Union National Bank of Streator, the occupant of the new building to be constructed, and stated the ownership of that building and the adjacent location of the premises, and referred to Union's plan to excavate the land to a depth of approximately 12 feet. Union's agreement to protect Charlotte Proud and her building and to save her harmless from structural damage to what had formerly been the party wall, together with Union's hiring of Bills to undertake the demolition of the old bank building and the excavation as well as the construction of the new building (including the agreement to protect the former party wall) were likewise incorporated. Bills agreement to hold Union harmless was also included therein.

It was established specifically by affidavit that the Bills Company pursuant to the contract with Union Corporation, excavated to a depth of approximately 12 feet; that Bills placed certain supports under the wall and that the supports were insufficient to hold the wall in place by reason of which the wall cracked and collapsed and caused the roof and the walls of the Proud building to collapse and fall. Certain photographs attached as exhibits showed the destruction. Union National Bank of Streator had subsequently purchased the Proud building and the claim or cause of action resulting from its destruction. It was also shown that no prior tests were made to determine whether the building to be demolished was a source of lateral support for the Proud building.

The Bills Corporation resisted the granting of summary judgment and alleged that the cause of the collapse was a question of fact, and that plaintiffs' exhibits related to Union's agreement with Charlotte Proud the lessor and not with the plaintiffs as lessees. The Bills Corporation claimed that plaintiffs had the sole right to license Union to enter the property.

After the trial court had entered summary judgment, plaintiffs moved to amend their complaint by alleging that the excavation was 12 feet deep, being deeper than the "standard depth" of foundations; and that defendants had been given the necessary license to enter plaintiffs' premises but had failed to furnish the subjacent and lateral support required by the statute. When the record was submitted on appeal, neither an order allowing the motion to amend, nor the amendment appeared therein. Plaintiffs attempted to correct the omission by inserting the amendment by letter. Defendants claimed they had not seen any order permitting plaintiffs to file the amendment and they believe that none existed. Plaintiffs asserted that the omission of the amendment was due to an inadvertent error of the Clerk of the Court. Plaintiffs, therefore, asked that we allow amendment of the pleadings under Supreme Court Rule 362 of this State to cause the pleadings to conform to the proof presented in the trial court.

• 1 We agree that the issues raised in the amendment presented were supported by the proof presented with plaintiffs' motion for summary judgment, and that there would be no prejudice or surprise to defendants if such amendments were incorporated formally in the pleadings on appeal. The amendments were necessary to aver the additional elements required by the statute. Since we consider the objections by defendants to have been essentially technical we allow the amendment to be filed. The filing of the amendment, we conclude, simply caused the pleadings to set forth formally what all the parties had regarded as material issues in this case. The count of the complaint as amended now sufficiently states the elements to establish a cause of action under said Paragraph 10 of Chapter 70 of the 1967 Illinois Revised Statutes.

• 2, 3 The first issue which we are required to determine is whether the contractor which performed the excavation could be held strictly liable to plaintiffs under such section. We resolved this question in Proud v. W.S. Bills & Sons, Inc., supra, at the time of the decision in such case. In that case we determined that an independent contractor or an owner who excavates property to a depth greater than the "standard depth" may be liable as the "owner" or "possessor" of land under such section of the Act to the occupants of adjoining lands for damages proximately caused by the excavation. It is not necessary that we repeat at length the basis for our decision in such case which we now determine is applicable to permit lessees to maintain action as against the contractor and the owner in the present case. Section 6 of said Paragraph 10 of 1967 Illinois Revised Statutes expressly includes "tenants" as parties who may recover for damage to property or business proximately resulting from injury to the land or structures under the terms of the Act.

We indicated in our previous decision that the statute under consideration was passed in 1957 and that it changed the common law rule with regard to the duty to support adjacent land. The statute under consideration, when the excavation exceeded 8 feet, placed the responsibility on the party excavating to support the land and the adjacent property. We pointed out that it is apparent that the policy of the 1957 statute was to protect property owners and tenants with improved property, whenever an excavation is being made on adjoining land exceeding 8 feet in depth. It was observed that if a contractor making such excavation were to be held subject to strict liability, along with ...


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