Arado v. Epstein

• Decision Date: 23 May 1944
• Docket Number: Gen. No. 42856.
• Citation: 55 N.E.2d 561,323 Ill.App. 194
• Parties: ARADO ET AL. v. EPSTEIN ET AL.
• Court: United States Appellate Court of Illinois

323 Ill.App. 194

55 N.E.2d 561

ARADO ET AL.

v.EPSTEIN ET AL.

Gen. No. 42856.

Appellate Court of Illinois, First District, Second Division.

May 23, 1944.

Appeal from Circuit Court, Cook County; John J. Wallace, Judge.

Action by Frank Arado and others against Michael Epstein and Joseph Epstein, doing business as Kedzie Plumbing & Heating Company, to recover damages for the loss of plaintiffs' property by fire allegedly caused by negligence of defendants. The trial court directed a verdict for defendants, and plaintiffs appeal.

Reversed and remanded for new trial. Julius S. Neale, of Chicago (Walter E. Moss, of Chicago, of counsel), for appellants.

Burt A. Crowe, of Chicago, for appellees.

SCANLAN, Justice.

In a tort action there was a trial before the court and a jury, and at the conclusion of plaintiffs' case the trial court, on motion of defendants, directed the jury to return a verdict finding defendants not guilty. From a judgment entered upon the verdict plaintiffs appeal.

The complaint alleges that Frank Arado and Sam Arado, plaintiffs, were the owners of certain real estate situated in Chicago; that the premises were improved with a one story brick building and basement, which were leased to Sol Greenblatt and J. Dolin, doing business as Three Corner Liquor Store, plaintiffs, who were in possession and control of the premises on December 1, 1941, and that on said date they entered into an oral agreement with defendant Kedzie Plumbing & Heating Company, a corporation, to make certain improvements, alterations and repairs in the basement of said premises and to install a sump pump so that the basement of the premises would be at all times in a dry condition in order that plaintiffs might store their goods, wares and merchandise therein; that on December 17, 1941, defendant corporation, through its agents or servants, was in the exclusive possession and control of the basement of the premises and it then and there became and was the duty of said defendant to make the installationand do the repair work so as not to endanger or injure the premises of plaintiffs; that on said date the defendant, wholly disregarding its duty as aforesaid, was then and there using a lighted plumber's furnace or blow torch and other equipment in such a careless, negligent and reckless manner so that the premises of plaintiffs became ignited and said premises were then and there partly destroyed by fire; that all of said plaintiffs were at all times in the exercise of due care and caution for the safety and preservation of said premises, which were in a first class condition before the fire; that as a direct and proximate result of the negligence of said defendant, through its agents or servants, the fire from defendant's lighted equipment, as aforesaid, ignited said premises and a fire broke out, as a result of which fire the personal property of plaintiffs Sol Greenblatt and J. Dolin, doing business as Three Corner Liquor Store, consisting of their stock and equipment, was greatly damaged and destroyed, and the building of plaintiffs Frank Arado and Sam Arado was then and there ignited and broke out into fire, and as a result of the fire the building was greatly damaged and destroyed, and all of plaintiffs sustained damages. The complaint then alleges the damages sustained by the various plaintiffs. The material parts of defendants' answer are: “* * * (2) These defendants admit that they entered into an agreement with Sol Greenblatt and J. Dolin to make certain improvements, alterations and repairs in the basement of the premises described in the plaintiff's complaint. (3) These defendants deny each and every allegation in the plaintiff's complaint except the allegations herein expressly admitted and say that they were not, nor were either of them, guilty of any of the acts charged by the plaintiffs in their complaint; that the accident and damages, if any, arising therefrom were not caused through any negligence or carelessness on the part of these defendants, their agents or servants; that they did no act nor omitted to do any act which in any way caused the accident and damage complained of.”

“ ‘A motion to instruct the jury to find for the defendant is in the nature of a demurrer to the evidence, and the rule is that the evidence so demurred to, in its aspect most favorable to the plaintiff, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff. The evidence is not weighed, and all contradictory evidence or explanatory circumstances must be rejected. The question presented on such motion is whether there is any evidence fairly tending to prove the plaintiff's declaration. In reviewing the action of the court of which complaint is made, we do not weigh the evidence; we can look only at that which is favorable to appellant. Yess v. Yess, 255 Ill. 414, 99 N.E. 687;McCune v. Reynolds, 288 Ill. 188, 123 N.E. 317;Lloyd v. Rush, 273 Ill. 489, 113 N.E. 122.’ Hunter v. Troup, 315 Ill. 293, 296, 297, 146 N.E. 321, 322.” Mahan v. Richardson, 284 Ill.App. 493, 1 N.E.2d 100, 101. See, also, Wolever v. Curtiss Candy Co., 293 Ill.App. 586, 597, 13 N.E.2d 197;Cooper v. Safeway Lines, Inc., 304 Ill.App. 302, 312, 313, 26 N.E.2d 632;McCarthy v. Rorrison, 283 Ill.App. 129.

The premises in question consist of a one story three cornered brick store building with basement, at 2201 South Pulaski road, Chicago. The front of the building is on Pulaski road, one side is on 22d street, and the other side on Ogden avenue. The building is about seventy-five feet long. The only entrance to or exit from the basement was through a 6 x 3 trap door at the back or east part of the building, where it comes to a point. There was a wooden stairway from the basement to the trap door. There were no windows in the basement and the ventilation of the basement was through the trap door and a number of open granite slots about one and one-half inches wide in the bulkhead, about nine or ten feet from the basement floor. The building was owned by Frank and Sam Arado, plaintiffs, and the tenants, Sol Greenblatt and Joseph Dolin, doing business as the Three Corner Liquor Store, plaintiffs, had operated a liquor store in the building since the repeal of the Eighteenth Amendment. They stored their liquors, empty barrels, and wooden cases filled with empty bottles in the basement. There was no heating arrangement in the basement. It was equipped with electric lights and had a cement floor from wall to wall. The floor slanted toward several small holes in it, where the water drained off. The basement was always damp and wet; water seeped in, and in heavy rainstorms water backed up in the basement and it became “smelly.” Three weeks before the fire the tenants employed defendants to install a sump pump and sewer system, at a cost of $425, that would eliminate the water in the basement and prevent flooding. The fire occurred on December 17, 1941. Defendants started work a day or two before the fire. On the day before the fire there was no gas in the basement and it was in good shape. When Dolin opened the premises at 8:30 a. m. on December 17, one of the employees of defendants, Israel Turner, was waiting outside with his tools. Dolin warned him to be very careful with cigarets and fire, because there was alcohol in the basement, and Turner answered that he had been in the plumbing business twenty-five years, knew his business, and did careful work. He then went into the basement and started to work. A second employee of defendants, who was burned to death in the fire, came about nine o'clock and went to work in the basement. Joseph Epstein, one of the defendants, came about 9:45 or 10 o'clock a. m. and went into the basement. No one but Epstein and the two workmen were in the basement. About 11 o'clock, while Dolin was in the front part of the shop waiting on customers, Epstein suddenly jumped out of the trap door from the basement. He was hollering, “Fire,” and fire was coming from the basement. Dolin tried to call the fire department but the fire became so hot that he had to rush from the place. The fire lasted for an hour and a half and the damage to the store and fixtures of Sol Greenblatt and Joseph Dolin amounted to...