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Tozzi v. Testa

OPINION FILED JULY 7, 1981.

ALFEO TOZZI, D/B/A ALFEO TOZZI INTERIORS, PLAINTIFF-APPELLANT,

v.

JIM TESTA, D/B/A JIM TESTA CONSTRUCTION COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Will County; the Hon. CHARLES P. CONNOR, Judge, presiding.

MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

The plaintiff, Alfeo Tozzi Interiors, brought an action against the defendant, Jim Testa d/b/a Jim Testa Construction Company, in the Circuit Court of Will County for damages resulting from a fire. After trial by jury a verdict was returned in favor of the defendant and a special interrogatory submitted to the jury as to whether or not the plaintiff was guilty of contributory negligence was answered in the affirmative.

The litigation between the parties to this appeal had its inception when Ricardo Tozzi, son, manager, and vice president of the plaintiff business, employed the defendant to construct a metal carpet rack system in the plaintiff's warehouse. Initially a bolted metal rack was to be installed; however, the defendant, a welder by trade, recommended that the rack be built by welding angle iron together. This recommendation was followed and the defendant, working evenings and on Saturday, commenced the project sometime in the latter part of February or early part of March of 1978. On the night of April 3, 1978, after the defendant had been working for approximately 1 1/2 hours, certain padding located in the work area was ignited by sparks which occur from an arc welding operation. The defendant and Alfeo Tozzi were unable to control the fire, which raged until extinguished by the fire department. As a result of the fire the warehouse and a considerable amount of the merchandise contained therein, i.e., furniture, carpeting and drapery material, was damaged. Some of the damage was from the fire itself and some from smoke and water damage. A further recitation of the facts will be set forth as they become pertinent to the issues raised in this appeal.

The plaintiff first asserts that the trial court erred when it failed to grant the plaintiff's motion for a directed verdict and judgment notwithstanding the verdict. It is also the contention of the plaintiff that the jury's verdict and its answer to the "contributory negligence" interrogatory are contrary to the manifest weight of the evidence. These two issues will be considered together since the requisite factual analysis of the evidence is the same as to each issue as are the standards of law to be applied.

Testimony adduced at trial disclosed that the defendant Testa is a self-employed, professional welder and that he had been a welder for 13 years. Due to other job commitments it was agreed that Testa would build the rack for the plaintiff by working evenings and on Saturdays. For his work Testa was to be paid $22 per hour and to be reimbursed for materials which he purchased. There was an agreement or understanding between the parties that the Tozzis, father and son, would assist Testa by carrying tools and angle iron and holding them in place as the same were being welded. It was Testa's testimony that the Tozzis would also serve as fire watchers. The Tozzis deny that there was ever any conversation concerning the subject of fire watchers. The matter of "fire watchers" was first injected into the case by the testimony of Testa at the trial. Prior to trial when Testa's deposition was taken the duty of the Tozzis as helpers was described as follows:

"Question: What did their labor consist of?

Answer: Carry stuff, carry angles, hold the angle open while I welded them."

There was further testimony by Testa that he and the Tozzis moved merchandise away from the areas where he was to weld. The testimony on this subject is as follows:

"Question: You told the Tozzis where to move the stuff?

Answer: Not directly. We — kind of a joint venture. What I thought was far enough, what they thought was far enough, and we moved it."

We further deem the following testimony of the defendant Testa pertinent:

"Question: Prior to the fire, Mr. Testa, did either Al Tozzi or Rick Tozzi ask you whether there was any danger as to fire?

Answer: Yes.

Question: When you were ...


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