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Woodward v. Mettille

OPINION FILED FEBRUARY 1, 1980.

KENNETH WOODWARD, D/B/A WOODWARD WELDING, JOHNSON PATTERN AND MACHINE WORKS, INC., ET AL., PLAINTIFFS-APPELLANTS,

v.

DANNY METTILLE ET AL., DEFENDANTS. — (GENO MONTERASTELLI, DEFENDANT-APPELLEE.)



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

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

___ N.E.2d ___ This is an appeal by plaintiffs Kenneth Woodward, Johnson Pattern and Machine Works, and Ashland Oil Company (hereinafter "plaintiffs") from the judgments of the circuit court entered in favor of defendant Geno Monterastelli in plaintiffs' actions against defendant. Prior to trial, plaintiffs' actions against defendants Paul and Danny Mettille were severed by the trial court from the present action. The only defendant in the instant case is Geno Monterastelli.

The suits grew out of a fire which originated in an Ottawa, Illinois, building owned by the defendant Monterastelli, which fire then spread to the adjacent premises of the plaintiffs. The plaintiffs' complaints included counts setting forth their theories of recovery based upon (1) res ipsa loquitur, (2) failure to take precautions with regard to an inherently dangerous activity, and (3) negligent hiring of an independent contractor. At the close of plaintiffs' case, the trial court directed a verdict for defendant as to the counts based upon res ipsa loquitur and the conduct of an inherently dangerous activity. The case was finally submitted to the jury on the negligent hiring theory. The jury returned general verdicts for the defendant as to all three plaintiffs. The jury also made specific findings, by way of special interrogatories, that each of the plaintiffs was contributorily negligent. The plaintiffs appeal from the directed verdicts, the denial of their own directed verdict motion, and the general verdict and special findings of the jury. Numerous issues are raised, including questions as to the directed verdicts, the severance of the other defendants, the findings of contributory negligence, rulings on the evidence, prejudicial closing argument, a denial of plaintiffs' motion to amend their complaint, and eight jury instructions. A total of 10 issues, with 11 separate subissues, are raised by the appellant-plaintiffs. No purpose would be served by setting them out at this time, and we shall take them up individually after a recitation of pertinent factual background.

The record discloses that the defendant Geno Monterastelli owned a large warehouse building in Ottawa, Illinois, which was part of a larger building complex known as the King-Hamilton Complex. The buildings occupied approximately 500 square feet. Adjacent to the complex on one side was a tavern owned and operated by Monterastelli. On the other side of the complex and adjacent thereto were two structures owned by plaintiff Johnson Pattern and Machine Works (hereinafter Johnson Pattern). The front half of one of these buildings, a woodframe structure, was rented to plaintiff Kenneth Woodward, d/b/a Woodward Welding. Johnson Pattern used the back half of that building for storage. The next building, a cement block building, housed the offices and pattern and machine shops of Johnson Pattern. Monterastelli owned the King-Hamilton Complex (including therein the King-Hamilton Building, which had been originally built in 1840). Plaintiff Ashland Oil Company, a wholesale distributor of tires, leased two locations in the complex for storage of its tires.

The evidence indicates that in December 1974, and for some time prior thereto, the King-Hamilton Building, within the complex, had been in a state of decay and disrepair. The windows were broken out and the walls and roof needed repair. The building was empty on the inside, with the exception of a three-story brick building located and constructed inside of the four-story King-Hamilton Building. The interior building was rented to E & J Foundry. The evidence indicated that in December 1974, at the time of the fire, all that was visible inside the King-Hamilton Building were 12 by 12 wooden beams and a wooden plank floor. The interior support timbers had paint and fuel oil soaked into them from previous tenants' manufacturing businesses. The floor at some places was decayed, and a portion had been dropped by Monterastelli to prevent a fire. The boiler in the building was not operable and was located in the middle of the building in a room all by itself. The utilities had been taken out of the building. The water had been disconnected, and all power to the building had been severed. There was no gas or propane in the building and nothing of a combustible nature on the first floor except the wooden plank flooring.

Approximately two to three months prior to December 4, 1974, Geno Monterastelli had given Paul and Danny Mettille permission to cut and remove the boiler from the King-Hamilton Building. The Mettilles sold the scrap metal they removed, and there was nothing to indicate that Monterastelli received any part of the moneys received for the scrap metal. Paul Mettille was an experienced welder. Shortly after having been given permission to remove the boiler, Paul and Danny Mettille went to plaintiff Kenneth Woodward for the purpose of getting him to open a gate between his shop, adjacent to the building, and the King-Hamilton Building. They needed to enter the building through that access in order to get their equipment into the building. The cutting equipment was in the back of Danny Mettille's pickup truck. Woodward at first refused to let them into the building through his gate. Later, Geno Monterastelli returned with the Mettilles, and Woodward ultimately allowed the Mettilles into the King-Hamilton Building. The Mettilles backed the pickup into the building. The truck contained their cutting torches and two sets of oxygen and acetylene tanks. During the following months, Woodward regularly saw the men enter the premises to do work and also take scrap metal therefrom for the purpose of sale.

The evidence demonstrated that while Monterastelli had only given the Mettilles express permission to remove the boiler, he was aware that in their work they were also removing pipes and other iron from the building. Monterastelli was also aware that they were using cutting torches in their work, and he was aware of the condition of his building and the fact of the adjacent business neighbors. There was conflicting testimony concerning the presence of fire extinguishers in the building, but Monterastelli, while claiming that such were present, admitted that he had not checked them and did not know if they were operable. Monterastelli stated that he took no precautions or participation with respect to the cutting operations within the building and that he only visited the building once during the several months the Mettilles worked therein.

Approximately four to six weeks prior to December 4, 1974, Kenneth Woodward went into the boiler room of the King-Hamilton Building from his adjacent business premises. There is no indication in the record that he sought, or needed to seek, anyone's permission to enter the King-Hamilton Building. Woodward had been the go-between supplier of oxygen and acetylene for the Mettilles during their scrapping work in the building. The Mettilles would purchase the tanks from another dealer but Woodward would store the full and the used tanks at his business. It was from Woodward that the Mettilles would pick up full tanks and to him that they would deliver the spent tanks. When Woodward went into the building on the occasion some four to six weeks before the fire, he found the Mettilles cutting on the boiler. Woodward testified that he saw no fire extinguishers in the room, that the tanks of fuel were standing upright and not secured, and that the hoses from the tanks were on the ground alongside the boiler. When asked at trial for his opinion as to the carefulness of the work habits he observed during that visit, Woodward stated his opinion that the Mettilles were operating the cutting torches in a hazardous manner. He based that conclusion on the fact that the interior of the building was combustible and on the failure to have fire extinguishers and someone to man them nearby the work. He also stated that the tanks ought to have been secured and the hoses off the ground. Woodward also testified that he had known Paul Mettille for about four years and that Mettille had a reputation for carelessness in the community. He testified that he had, on other occasions, seen Mettille inside the building under the influence of alcohol. There is no indication that he ever apprised Monterastelli of any of his observations or knowledge concerning Mettille and the cutting work he was doing.

Stan Dale, general manager for plaintiff Johnson Pattern, also knew Paul and Danny Mettille. Several months prior to the December 4 fire, he noted them working in the King-Hamilton Building, removing pipe and iron. Dale was also aware of the general rundown condition of the building. Don Bowersox, assistant manager for Ashland Oil, had never been in the building, but he was aware of its condition. Several weeks before the fire, an employee had informed him that people were using a cutting torch in the building to remove scrap metal. He reported this fact to his general manager, but no further inquiries or inspection was made by anyone from Ashland Oil Company.

On the day of the fire, December 4, 1974, Paul Mettille had gone to the King-Hamilton Building around 10:30 or 11 in the morning. He was alone that day. He was cutting pipe at a place located away from the boiler but still on the first floor. He had lunch at Monterastelli's tavern, as he would several times a week, and on this day he had a couple of beers during lunch. He testified that those beers were the only alcohol he consumed that day prior to the fire. He returned to work about 1 p.m. and started again cutting on the water pipes. At about 3 or 3:30 he was cutting a vertical water pipe located about six inches from the floor when a piece of hot slag fell into a crack between two pieces of wooden flooring by a beam. "Slag" is a term used by welders to refer to the red hot molten metal which oftentimes results from cutting metal. Mettille stated that he could not get at the slag, a ball about the size of a charcoal briquet, located in a crack between floor boards. The wood began smoldering.

Mettille immediately went to the Woodward Welding shop next door and there he told Kenneth Woodward that he had a little fire in the building and needed some water to put it out. Present during that conversation was Don Link, an employee of Johnson Pattern who then reported the conversation to Stan Dale, Johnson's general manager. Woodward later testified that Mettille's eyes were unusual and that he smelled liquor on his breath. Woodward also was to testify later that he was of the opinion that Mettille was under the influence of alcohol, although not "stoned or out of it." As noted, Mettille himself testified that he had only two beers and never drank heavily while doing heavy work such as that involved in the scrapping operations. Don Link, present during the conversation, stated that he noted nothing unusual about Mettille's condition on the day of the fire. At any rate, Mettille got two five-gallon buckets of water from Woodward and returned to his work area and the slag fire. It had taken between 10 and 15 minutes to get the water, and when he returned the spot was bigger and red. He poured the water down the crack and it sizzled. He noticed no glowing and no smoke. He then went back to Woodward's to get two more buckets of water and a pry bar. With the bar he opened the crack so that the water was better able to get at the hot spot, and he again poured the water on the area. He may also have poured another bucket or two on the spot. No one from Woodward Welding or Johnson Pattern accompanied Mettille back to the area of the fire or made any independent inquiry or examination. Mettille stayed in the building near the area of the fire until about 4:45 p.m. to make certain that the fire was out. He did not see or smell any smoke nor any other evidence that the fire continued to burn. He left around 5 p.m. and passed through Woodward Welding on his way out. Kenneth Woodward testified that he noticed a half-pint of whiskey in Mettille's back pocket as he left. Mettille testified at trial that he may have had such a bottle, but he stated that he did not drink from it during his work on that day. Neither Woodward nor anyone from Johnson Pattern made any further inquiry concerning the fire, nor did they inspect the premises or inform Monterastelli or the fire department of its occurrence.

At about 9:52 p.m. on December 4, the Ottawa fire department responded to a fire call at the King-Hamilton Building. When the department arrived at the scene, the middle of that structure was a roaring inferno. The buildings owned by plaintiffs had not yet been affected at the time the department arrived. Later, the fire spread to Woodward Welding, Johnson Pattern, and the metal warehouse of Ashland Oil. The fire destroyed the wood frame building occupied by Woodward Welding and Johnson Pattern, as well as part of the cement building owned and occupied by Johnson Pattern. All of Ashland Oil's stored tires were destroyed. Kenneth Woodward sought damages of $12,330. Johnson Pattern claimed damages of $86,626 and Ashland Oil made claims totaling $142,275. The plaintiffs brought suits seeking these recoveries.

Each of the plaintiffs filed a separate suit against Geno Monterastelli with the Mettilles later added as additional defendants. The Mettilles neither answered nor entered an appearance. At the time of trial they had not responded and had not obtained counsel. No default had been taken by plaintiffs. On the first day of trial, Monterastelli moved for a severance from the Mettilles. The trial court, over plaintiffs' objections, granted the motion and the trial proceeded. Recovery theories were advanced based upon the conduct of an inherently dangerous activity, res ipsa loquitur, and negligent hiring.

In addition to the evidence already set forth, other pertinent evidence was produced at trial. Paul Mettille, testifying as a witness for plaintiffs, admitted that he was an alcoholic and that he had a problem with alcoholism during the two-month period prior to the fire. During this time he was consuming as much as a quart of whiskey a day at times. As previously noted, Mettille, however, denied that he drank while doing heavy work, such as that on the day of the fire; and he specifically denied that he had anything more than two bottles of beer, during lunch, on the day of the fire. Mettille also indicated that while he stopped in at Monterastelli's tavern a couple or three times a week for lunch, he did his heavy drinking elsewhere. Monterastelli, for his part, denied knowing that Mettille was an alcoholic, stating that he had never seen him when he appeared to be drunk. Other testimony, from local construction union personnel, was to the effect that Paul Mettille was a careful and experienced welder and worker ...


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