APPEAL from the Circuit Court of Cook County; the Hon. CHARLES
C. WILSON, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment for plaintiff for personal injuries to Catherine Mangan, who allegedly fell as a result of encountering a mouse in her apartment.
The action was originally brought by Catherine Mangan herself against Herbert J. Johnson, owner of the apartment building, in which she resided, F.C. Pilgrim & Company (Pilgrim), which managed the building, and Edward Melone, a janitor in the building. While the action was pending, Catherine Mangan died and her daughter-in-law, Mildred Mangan, was appointed special administrator of the Estate of Catherine Mangan. Herbert J. Johnson also died during the pendency of the suit and Donald Messinger was appointed special administrator of his estate. Edward Melone was never served with summons and was dismissed during the trial. The jury returned a verdict in the sum of $20,000 against Donald Messinger as special administrator of the estate of Herbert J. Johnson, and further found no liability on the part of F.C. Pilgrim & Company. The estate of Herbert J. Johnson by Donald Messinger as special administrator prosecutes this appeal from the judgment entered on the jury verdict and from the order denying the defendant's post-trial motion.
The record discloses the following pertinent facts and testimony: On January 31, 1968, Catherine Mangan, 83 years of age and in good health, resided alone in a four-room ground-floor apartment in the subject building located in Oak Park, Illinois. The building housed 38 apartments, was owned by Herbert J. Johnson, and was managed by F.C. Pilgrim & Company.
At about 4 p.m. on the above date, Catherine Mangan was visited by her daughter-in-law, Mildred Mangan, who was a registered nurse. Mildred Mangan testified at trial that she stayed about 30 minutes before leaving and that her mother-in-law appeared fine. Later that same day she tried to telephone Catherine, but received no answer, which was unusual. She thereupon called the lady who lived upstairs from her mother-in-law and was told by her that she had "heard moaning down there." Mildred responded that they would be "right over." Mildred, her husband, Edward Mangan, and her two daughters by a previous marriage, Bernadette and Mary Beth, thereupon drove to Catherine Mangan's apartment, arriving some time after 7 p.m. Upon arrival, Edward Mangan, who had a key, attempted to open the door, but could not, because Catherine Mangan's body was immediately inside the door lying against it. They pushed the door open enough for Bernadette to gain entry. At this time Edward Mangan exclaimed "My God, Mom, what happened to you?" Catherine replied, "A mouse jumped out of the oven, and I fell." Mildred Mangan further testified that Catherine's right arm and right leg had friction burns on them, and the left leg was "turned out." An ambulance was summoned and Catherine was taken to the hospital where she remained for over two months. She died in December of 1971.
On cross-examination Mildred Mangan testified that her mother-in-law was moaning and crying when they arrived. She told them that she went to take biscuits out of the oven and when she opened the door, the mouse jumped out. Mildred "observed the oven door open and the biscuits there and her supper was simmering on the stove." Mildred recalled seeing mice on the property but could not say exactly how many times.
Mary Beth Wojcik, Mildred Mangan's daughter by a previous marriage, testified that she accompanied her mother, her stepfather Edward Mangan, and her sister Bernadette to Catherine Mangan's apartment on the evening of January 31, 1968. She essentially corroborated her mother's testimony that Catherine was lying inside in front of the door when they arrived, that her sister Bernadette squeezed through to open it and that her "stepfather was real excited and nervous" and said to his mother Catherine "What happened to you?" Catherine, who was also "excited" and "in pain" replied that she had been frightened by a mouse and fell.
Doctor George J. Hallenbeck, a physician and surgeon, testified that he saw Catherine on the evening of her injury. Her history was first taken by an intern, but he testified that he would also "take my own histories and * * * review the intern's to see whether or not we differ or not. If no difference, I sign it." He reviewed Catherine Mangan's history and confirmed and approved it. According to the report as testified to by Doctor Hallenbeck, she complained of pain in the hip and had stated "that while at home she saw a mouse in the kitchen. It frightened her and she fell on her left side injuring her hip. * * *" X-rays were taken under his direction and indicated a fracture of the left hip. He operated on her on February 2, 1968, making an 8- to 10-inch incision in the left leg, placing the bones in proximity to one another, and then inserting a Frederick's pin affixed by a special plate screwed to the pin.
Mabel Judy was living in an apartment on the second floor of the subject building at the time of Catherine Mangan's injury. She testified she heard rustling noises in the walls and had seen a mouse in one of the other tenant's traps.
Maureen Halpin testified that she had lived in the same apartment building on the third floor until September of 1967. She said that there was one receptacle or chute for garbage for the two apartments on each floor. There were no restrictions on the type of garbage that would go into the chute. Raw garbage would descend in the chute to the basement, where it was burned. When she would from time to time carry larger bundles of garbage to the basement receptacle itself, she saw mice. This occurred many times. She complained to the janitor several times, and, although she wasn't sure, probably also to Pilgrim & Company. She also found mice in her apartment and she and her husband set traps and caught them regularly. She once observed a mouse on her stove and once in her refrigerator. She made further complaints and every month or so two men would come and put pellets down in her apartment. No change in the condition of her apartment was apparent, however, due to their efforts.
Norine Berk resided in the apartment building on the first floor from June 1964 until May 1972. Mrs. Mangan lived directly across from her. Each two apartments had incinerators outside their back doors for disposal of garbage. She always kept lights on in her apartment because she had a serious mouse problem. She saw mice on several occasions and mouse excrement at other times, and also heard noises in the wall. On one occasion she saw Catherine Mangan dispose of a mouse in the incinerator. She complained to the janitor first, then to Pilgrim about once a month. Mr. Johnson was also called by her and told about it. After the incinerators were turned off and professional exterminators were hired, she did not have that great a problem any more. It appeared to her that the improvement came after Mrs. Mangan's injury, however.
Gina Bendola, called by plaintiff as an adverse witness, testified that she was a secretary at F.C. Pilgrim & Company, and that the company's duties were to handle the affairs of each building for the owner, collect rents, pay bills, pay the janitors, take care of complaints, and hire repairmen. She personally remembered receiving a complaint over the telephone from Mrs. Mangan in the fall of 1967 about mice in the subject building, and also one from Miss Berk. Exterminators were hired to remedy the situation. She reviewed reports of Pilgrim showing expenditures for the subject building. One statement indicated that the building was "owner occupied," i.e., Herbert J. Johnson lived in the building.
Defendants presented as a witness Richard Lenz, vice president of Charles Lenz Company, a scavenger service which serviced the subject building. He testified that the janitor would carry the garbage from each flat down to the basement and put it in the incinerator and burn it, and his company visited the building about once a week to carry out the incinerator ash. It appeared to him that the basement was neat and clean, but he did not know anything about the rest of the building.
George Hoffman testified for defendants that he was an exterminator hired by F.C. Pilgrim & Company to service the subject building. He employed and instructed one Jim Dugan to service the building. Dugan would visit the building once a month and ask tenants who answered the door whether they had a problem. If so, he would lay down poison or traps. On cross-examination Hoffman testified that garbage is considered a breeding place for mice, and that mice multiply rapidly. He said that traps do not rid a place of all the mice, but only catch those that are around.
Lawrence Dugan testified that he would accompany his father, Jim Dugan, in servicing buildings as an exterminator. He said that they received complaints about mice in October of 1967 at the subject building. His father would leave poison ...