Carson v. Weston Hotel Corp., Gen. Nos. 45924

• Decision Date: 07 October 1953
• Docket Number: 46016,45975,Gen. Nos. 45924
• Citation: 115 N.E.2d 800,351 Ill.App. 523
• Parties: CARSON v. WESTON HOTEL CORP. et al. (three cases).
• Court: United States Appellate Court of Illinois

Page 800

115 N.E.2d 800 351 Ill.App. 523 CARSON
v.
WESTON HOTEL CORP. et al. (three cases). Gen. Nos. 45924, 46016, 45975. Appellate Court of Illinois, First District, Third Division. Oct. 7, 1953.

Page 802

McNamara, Voigt, Greene and Nordstrand, Albert M. Howard, Chicago, Oswell G. Treadway, Chicago, of counsel, for Marshall Field III.

[351 Ill.App. 528] Sherwin & Sherwin, Chicago, for A. C. Lubker, d/b/a Signal Service Co.

Clarence M. Dunagan, Chicago, Charles D. Snewind, Chicago, of counsel, for Erskine B. Carson.

Page 803

Baker, McKenzie, Hightower & Brainerd, Chicago, John C. McKenzie, Donald J. Donovan, Chicago, of counsel, for Weston Hotel Corp.

Andrew D. Collins for Wire Rope Corp. of America.

KILEY, Justice.

This is the second appeal in this personal injury action. Plaintiff, a resident guest of the Weston Hotel, was injured when the hoisting cables of the elevator in which the was riding broke and the elevator fell from the fourth floor to the basement. The third amended complaint named Weston Hotel Corporation, Wire Rope Corporation of America, A. C. Lubker, Marshall Field III and Otis Elevator Company defendants. Weston answered. Field's motion to strike was denied and he answered. The rest of the defendants also made motions to strike. These motions were sustained and the suit dismissed as to the Otis Elevator Co., Wire Rope Corp., and Lubker and judgment entered accordingly. The first appeal was by plaintiff from these judgments and this Court affirmed as to Otis Elevator and reversed as to Wire Rope Corporation and Lubker. Garson v. Weston Hotel Corp., 342 Ill.App. 602, 97 N.E.2d 620.

On remandment the issues were tried before a jury. At close of plaintiff's case Lubker and Field moved for directed verdicts. The motions were denied and they rested without introducing evidence. Verdicts were returned against Lubker and Field in the sum of $75,000. They have appealed from the judgments on these verdicts. Weston and Wire Rope introduced evidence and the jury found them not guilty. Plaintiff has appealed[351 Ill.App. 529] from the judgments on those verdicts. The three appeals have been consolidated in this Court.

I

Marshall Field contends that the complaint is insufficient to support the judgment against him because the court struck the only allegations charging Field with negligence and plaintiff failed to file amendments. We infer that by failing to amend, on leave given, plaintiff stood by the complaint, since in this Court he argues that the trial court erred in sustaining the motion to strike. Though plaintiff prevailed and was in no position to cross-appeal from the judgment in his favor and could not cross-appeal from a mere ruling on a motion to strike, he is entitled to complain of error in the ruling. Supreme Court Rule 39, Ill.Rev.Stat.1951, c. 110, § 259.39; Kanousis v. Lasham Cartage Company, 332 Ill.App. 525, 534, 76 N.E.2d 239.

Field's motion to strike was directed at paragraphs 8, 9, 10, 11, 12 and 13 of Count V of plaintiff third amended complaint. Plaintiff agreed to the striking of the last nine lines of paragraph 8, alleging a partnership between Field and Weston Hotel Corporation. He also agreed to the striking of paragraph 9, alleging that Field leased the premises to Weston with knowledge of a latent defect in the elevator, namely the absence of a slack cable device required by City ordinance. With respect to the ruling on those parts of the complaint, plaintiff has waived his right to complain.

What remained of Count V, after the elimination of the parts noted, charged the at the 'time of leasing' by Field to Weston the elevator 'cable, safety devices and appurtenances' were defective and unsafe; that Field knew or should have known of the condition and should have corrected to notified Weston to correct the condition, but failed in his duty to do so, and 'leased' [351 Ill.App. 530] the premises with the defective equipment as a result of which the elevator fell etc. (Par. 8.) It also alleged that Field knew the elevator was 'latently defective' infailing to have a safety device, and knew or should have known that 'leasing' the premises with the elevator lacking 'safety car or counterweight and * * * slack cable stopping device' would probably cause injury and that plaintiff was injured as the proximate result of this conduct. (Par. 10.) It further alleged, in the alternative, that 'at the time of leasing' the elevator equipment, including the hoisting

Page 804

drum, were in an 'operating condition' but subsequently through wear and tear, and not through Weston's negligence, the drum became worn so that the cable in winding overlapped, was thus weakened and as a result broke, causing the elevator to fall. (Par. 12.) Finally, it alleged that at the 'time of leasing' the elevator was in such a defective...