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Collgood, Inc. v. Sands Drug Co.

JUNE 8, 1972.

COLLGOOD, INC. ET AL., PLAINTIFFS-APPELLEES,

v.

SANDS DRUG COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. JOSEPH E. FLEMING, Judge, presiding.

MR. PRESIDING JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

Plaintiffs brought this action to recover for smoke and water damage to their personal property sustained as a result of a fire which occurred in a warehouse occupied by plaintiffs and defendant Sands. The complaint alleged specific negligence and, in the alternative, res ipsa loquitur. At trial evidence was offered by plaintiffs in support of both theories, and to show the amount of damages. At the close of plaintiffs' case, the trial court, on motion, directed a verdict for defendant Sav-Co. At the close of all the evidence, the trial court denied plaintiffs' motion for a directed verdict on the specific negligence count, granted plaintiffs' motion for a directed verdict on the res ipsa loquitur count, and granted plaintiffs' motion for a directed verdict as to the amount of damages sustained. Defendant appeals. We affirm.

The testimony revealed that plaintiffs and defendant Sands were licensees and defendant Sav-Co was licensor of certain commercial premises used as a shopping center. The licensees jointly occupied a large warehouse which was subdivided by chickenwire partitions. Each subdivision was adjacent to and connected with the selling area of a licensee. Sav-Co provided regular night janitor and security service to all licensees except for defendant Sands. The night crew would never enter Sands' storage area unless requested. The foreman of the night crew testified that neither he nor his crew entered the Sands storage area on the night before the fire.

At approximately 8:00 on the morning of the fire, several Sands employees arrived at work early, as planned, in order to install some fixtures. They entered the premises during a pre-arranged break in the burglar alarm system. Except for the night crew, they were the only persons present at the shopping center between 8:00 and 9:00 A.M. At approximately 9:00 A.M., the fire department arrived on the scene in response to an alarm. The fire chief testified that when he entered the warehouse, he noticed a fire located in the Sands storage area. He pried open the locked door leading into that area, where he observed an electric space heater with red hot filaments. The heater was situated less than a foot from a burning cardboard box. Other nearby merchandise was also on fire. Dense smoke filled the entire warehouse, and water poured down from the overhead sprinkler system. The fire chief's testimony further indicated that the fire had burned a "V" pattern up the wall, and that the space heater was located near the focal point of the "V". On the basis of his investigation conducted subsequent to the morning in question, he ruled out electrical wiring or fixtures as a cause of the fire. In his expert opinion, the fire was caused by the space heater. The same conclusion was reached by plaintiffs' second expert witness, a qualified fire inspector, who testified from the facts presented in hypothetical form.

The balance of plaintiffs' evidence went to prove up damages. Plaintiffs attempted to establish fair market value of the damaged property before the fire on the basis of business records and inventory receipts, and after the fire with the testimony of George Pulley, an insurance adjuster with several years experience in estimating fire losses. Pulley's testimony was based upon his own personal inspection, conducted immediately after the fire, of the damage sustained by each plaintiff. Pulley's estimates had also been used in preparation of certain subrogation receipts which were introduced into evidence, over objection of defendant, for the limited purpose of proving plaintiff's right to proceed against defendant.

In defendant's case, John Kennedy, a fire and explosion investigator who had previously been employed by two manufacturers of space heaters, testified that he had conducted an experiment for the purposes of this litigation wherein a similar space heater was placed varying distances from a similar cardboard box for a total of six hours without causing a fire.

On appeal, defendant-appellant Sands charges that the trial court erred in directing a verdict for plaintiffs on the res ipsa loquitur count, and for damages, inasmuch as subrogation receipts are improper evidence of damages.

• 1-5 Res ipsa loquitur literally means "the thing speaks for itself". It allows a rebuttable presumption of negligence to arise upon a proper showing that a particular thing happened. "The occurrence is, of itself, evidence of negligence." (Byrne v. Boadle (Exchequer 1863), 159 Eng. Rep. 299.) To create a presumption of negligence plaintiff must show that the occurrence actually took place; that the instrumentality of the occurrence was in the exclusive management and control of defendant or his agents; that the occurrence was not of the type which ordinarily happens in the absence of negligence; and that plaintiff was not contributorily negligent. (Prosser, Law of Torts, 4th ed.; Metz v. Central Illinois Electric & Gas Co., 32 Ill.2d 446.) The purpose of the doctrine of res ipsa loquitur is to "allow proof of negligence by circumstantial evidence when the direct evidence is primarily within the knowledge and control of the defendant. Like any other proof, it may be explained or rebutted by the opposing party." Metz v. Central Illinois Electric & Gas Co., supra.

• 6-8 Plaintiff fulfilled the requirements necessary to create a presumption of negligence in res ipso loquitur. First, there is no dispute that a fire occurred. Second, plaintiff offered substantial and uncontradicted evidence that the agents of defendant Sands were in exclusive management and control of the premises where the fire started. The only others present in the building on that morning, the agents of defendant, Sav-Co, had not once entered defendant Sands' storage area during the preceding night. Third, a fire such as this is not of a type which ordinarily happens in the absence of negligence. Illinois courts have frequently allowed res ipsa loquitur to operate in cases involving fires. (Edmonds v. Heil, 333 Ill. App. 497; Oakdale Bldg. Corp. v. Smithereen Co., 322 Ill. App. 222; Arado v. Epstein, 323 Ill. App. 194.) In the instant case, plaintiffs were able to show that a fire occurred in an area under the exclusive management and control of defendant Sands. Moreover, plaintiffs offered evidence to rule out what would seem to be the most likely alternative cause: faulty wiring or fixtures. These circumstances, taken together with the occurrence itself, are sufficient to raise the presumption of defendant's negligence.

Defendant also contends that Illinois law does not permit a plaintiff to recover in res ipsa loquitur when his pleadings allege and his evidence attempts to show specific negligence. Defendant argues that by attempting to prove that the electric space heater was the instrumentality which proximately caused the fire, plaintiffs chose to rely upon proof of specific acts of negligence relating to a specific instrumentality and are thereby precluded from urging that defendant's general negligence and some unidentified instrumentality caused plaintiffs' loss.

• 9 Defendant argues persuasively, and with seeming case support in Illinois, that the above theory accurately states Illinois law. We do not agree. The cases cited by defendant in support of its argument can be separated into two distinct types, neither of which apply to the present case: First, are those in which the plaintiff, whose original complaint alleged specific negligence only, seeks to introduce the theory of res ipsa loquitur for the first time on appeal. (O'Rourke v. Field & Co., 307 Ill. 197; Kerby v. Chicago Motor Coach Co., 28 Ill. App.2d 259.) Illinois courts have consistently refused to allow plaintiff to introduce a new theory of his case on appeal when such change would unfairly surprise an adversary or deprive him of the right to present mitigating or contradictory evidence on that theory. The second line of cases cited by appellant are those in which both specific negligence and res ipsa loquitur were alleged in the pleadings, but the evidence at trial unequivocally proved the instrumentality of the alleged negligence. (Turner v. Wallace, 71 Ill. App.2d 160.) In Turner, the only question was whether certain known conduct of defendant amounted to negligence. The Appellate Court held that an instruction of res ipsa loquitur should be refused "where, at the conclusion of the evidence in a case, the specific and actual force which initiated the motion, or set the instrumentality in operation is known (and) there is no reason for inference that some other unknown negligent act or force is responsible * * *."

In the instant case, plaintiffs' complaint contains alternative allegations of specific negligence and res ipsa loquitur. Therefore, the Kerby line of cases cited by appellant cannot apply. Moreover, since the plaintiff made out only a prima facie case on the specific negligence count (defendant offered some credible evidence to show that the space heater was not the specific instrumentality which caused the fire), the Turner line of cases cannot apply. We believe that unless the plaintiff had unequivocally proved the instrumentality, he ought not be deprived of the right to plead and present evidence of res ipsa loquitur. As stated by the court of the Second Appellate District:

"To hold that proof of specific negligence precludes the application of the res ipsa doctrine could lead to the absurd result of weak proof of specific negligence voiding a strong inference of general negligence. Such a rule would compel plaintiff to elect, before the disclosures of proof, which theory he would adopt; it is without justification. If there is an inference of general negligence and proof of specific negligence, but reasonable men may differ as to the effect of this evidence, it should be then for a jury to determine under which theory, if any, the plaintiff should prevail." Erckman v. Northern Illinois Gas Co., 61 Ill. App.2d 137.

• 10, 11 When the plaintiff alleges res ipsa loquitur and attempts to prove it at trial, an alternative pleading and attempted proof of specific negligence will not preclude his recovery in general negligence, so long as the evidence of specific negligence does not show the instrumentality unequivocally, such that no other possible inference can be drawn. It is clear that plaintiff in the ...


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