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Smith v. Seiber

OPINION FILED JULY 31, 1984.

DEBBIE SMITH, PLAINTIFF-APPELLEE,

v.

JAMES A. SEIBER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County; the Hon. Richard Goldenhersh, Judge, presiding.

JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 4, 1984.

Defendant, James A. Seiber, appeals from a judgment of the circuit court of St. Clair County awarding plaintiff, Debbie Smith, $2,659.75 compensatory damages and $20,000 punitive damages for personal injury.

Defendant contends on appeal that: (1) the trial court erred by denying defendant's motion to dismiss count II of plaintiff's complaint which alleged wilful and wanton misconduct; (2) the trial court erred by allowing the plaintiff's mother to testify regarding a telephone conversation; (3) plaintiff failed to prove that she was an invitee; (4) the jury's verdict was against the manifest weight of the evidence; (5) a portion of plaintiff's closing argument to the jury denied defendant a fair trial; (6) the trial court erred by submitting the issue of punitive damages to the jury; and (7) the punitive damages awarded were excessive.

Plaintiff's complaint alleged, inter alia, that on August 7, 1980, she was a business invitee on the defendant's premises and suffered injuries due to defendant's negligence. Subsequently, plaintiff was granted leave to add a second count to her original complaint in which she sought punitive damages for defendant's wilful and wanton misconduct.

Plaintiff testified that she and her husband drove past a former dwelling of hers located at 8716 Botanical Street in Caseyville, and noticed that the house was unoccupied. Plaintiff said she knew that her mother was looking for a house to rent, so she found the telephone number of Seiber Sanitation, from whom she had previously rented the house, and suggested that her mother call and ask if the house was for rent. Plaintiff testified that around 5 p.m. on August 7, 1980, she and her family, including her mother, went to look at the house at 8716 Botanical. According to plaintiff, the gate to the driveway was open and there were no signs of any kind posted on the house or around the property. Plaintiff testified that she and her family approached the front door of the house but found it to be nailed shut. Consequently, she went to the side of the house, where there was a porch and another door. This side door was open, so the family entered and examined the house's interior. Plaintiff stated that afterward she stepped down from the house's kitchen onto the porch and the porch collapsed, resulting in a fracture to her ankle.

Marie Sutton, plaintiff's mother, testified, over defendant's objection, that she called the telephone number plaintiff had given her sometime around 12 p.m. on August 7, 1980. Mrs. Sutton testified that the woman who answered the phone identified the number as belonging to Seiber Sanitation. Mrs. Sutton stated that she asked the woman who answered the phone if she could speak with Jim Seiber. Mrs. Sutton stated that the woman who answered, who identified herself as defendant's wife, told Mrs. Sutton that defendant was not there and asked if she could help. Mrs. Sutton testified that she asked Mrs. Seiber if the house plaintiff had seen on Botanical Street was for rent. According to Mrs. Sutton, Mrs. Seiber told her that she thought the house was for rent, gave Mrs. Sutton the address, and told Mrs. Sutton that she could go look at the house. Mrs. Sutton related that Mrs. Seiber also informed her that she believed that the rent was $150 and informed Mrs. Sutton that defendant handled the rental of the property. Mrs. Sutton also gave testimony which corroborated plaintiff's testimony as to what had occurred when the family investigated the premises.

William Roy Baum, an employee of Seiber Sanitation, testified that the house on 8716 Botanical Street had been rented by defendant in the past and that he had repaired the porch for defendant in 1978 or 1979. Mr. Baum stated that defendant supplied him with used lumber to repair the porch at 8716 Botanical Street and that there were no bannisters on the porch. Mr. Baum testified that since the porch was leaning when he went to repair it, he leveled it and nailed it back to the house. Mr. Baum stated that the wood on the porch had begun to rot and that defendant told him to do what he could with the porch and that more permanent repairs could be made later if necessary. Mr. Baum testified that he and defendant put up the gate to the driveway and had placed "No Trespassing" and "Keep Out" signs on the gate and the house.

John F. Carmen, a tenant of defendant, testified that he was presently living at the house located at 8716 Botanical Street, the premises in which plaintiff's injuries were alleged to have occurred. He said he had lived there once before in 1977 or 1978. Mr. Carmen testified that the porch was in bad condition and rotten when he lived there. Mr. Carmen said that in 1978 he had asked defendant to repair something in the house but defendant refused to do so. Mr. Carmen stated that he had moved back to 8716 Botanical Street because he had been evicted from his home and was in dire need of housing. According to Mr. Carmen's testimony, the house was badly in need of repairs.

Plaintiff's husband, Haven Smith, testified that when he rented from defendant he had requested that defendant make a number of repairs on the premises, but defendant never had the repairs made.

Dr. Henry M. Hurd testified as to plaintiff's injuries.

Defendant testified that he rents very little property and was primarily in the trash hauling business. He stated that he knew wood was subject to dry rot and had the porch at 8716 Botanical repaired sometime in 1979 because it was rotten. Defendant related that he supplied lumber for the porch repair which had previously been used for concrete forms. Defendant said that he believed that the lumber had been chemically treated so that it would not rot. Over defendant's objection, a financial statement showing defendant's net worth to be $1,692,870 was admitted into evidence. Defendant further testified that he did not wish to rent 8716 Botanical Street in 1980 and denied giving plaintiff permission to go onto the property.

Clifford R. Phelps, who resided at 8720 Botanical Street at the time of plaintiff's injury, testified that in May 1980 a tenant of 8716 Botanical Street had damaged the side porch of the house by backing a truck into it, knocking it off its foundation. Mr. Phelps said that the porch was in a broken-down state after that incident. Mr. Phelps testified that on the date plaintiff fell there were "Keep Out" and "No Trespassing" signs posted at 8716 Botanical Street and that when he left for work that morning the gate had been closed.

Mr. Phelps' wife, Wilma Phelps, and his son, Terry Phelps, both testified that they saw plaintiff prior to her fall. Both Wilma and Terry Phelps corroborated Mr. Phelps' testimony that there were "Keep Out" and "No Trespassing" signs posted at 8716 Botanical Street and the gate was closed. Terry Phelps also related ...


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