Ciaglo v. Ciaglo

• Decision Date: 11 February 1959
• Docket Number: Gen. No. 47443
• Citation: 156 N.E.2d 376,20 Ill.App.2d 360
• Parties: Caroline CIAGLO, Appellant, v. Walter F. CIAGLO, Theodore P. Majesz and Walter Kansteiner, Appellees. . First District, Third Division
• Court: United States Appellate Court of Illinois

Page 376

156 N.E.2d 376

20 Ill.App.2d 360

Caroline CIAGLO, Appellant, v. Walter F. CIAGLO, Theodore P. Majesz and Walter Kansteiner, Appellees.

Gen. No. 47443.

Appellate Court of Illinois.

First District, Third Division.

Feb. 11, 1959.

Joseph Barbera and Albert A. Brown, Chicago (Charles D. Snewind, Chicago, of counsel), for appellant.

Beverly & Pause, Chicago (Frank J. Pause, Chicago, of counsel), for Walter F. Ciaglo.

Hinshaw, Culbertson, Moelmann & Hoban, Chicago (Oswell G. Treadway, Chicago, of counsel), for Walter Kansteiner.

FRIEND, Presiding Justice.

While picking plums on a farm in Wisconsin during a visit to her son who operated the farm, plaintiff fell from a ladder and was injured. She sued Walter Kansteiner, the owner, her son and one Majesz, an assistant manager, who was never served with process. At the close of all the evidence, the court instructed the jury to find defendants not guilty. Plaintiff appeals from an order denying her motion for a new trial and from the judgment entered on the verdicts.

The principal question presented, one of law and fact, is whether plaintiff was an invitee or a licensee, and involves the degree of care that defendants owed her under the attendant circumstances. There is substantially no dispute as to the salient facts. Kansteiner in 1951 purchased a dairy farm near Koshkonong, Wisconsin, consisting of two tracts, one of one hundred ninety acres on which were located the usual farm buildings, and the other of eighty and one-half acres situated about three-quarters of a mile distant and used principally for pasture. Kansteiner, a salesman by occupation, resided in Evanston, Illinois, and knew little about farming. He had employed one E.D. Comstock, a "farm manager," who acted as agent for owners of farms in that area, to advise him on matters concerning the proper management of the farm, and to arrange for the leasing of it to a competent tenant. On September 24, 1953, Comstock, on behalf of Kansteiner, leased the farm to Walter Ciaglo and Florence, his wife, for the period beginning March 1, 1954 and ending February 28, 1955. The lease consisted of two parts: a farm-operating contract and a livestock-share lease. The rent reserved was the sum of one dollar and approximately fifty per cent of the proceeds realized on the crop and livestock products during the term of the lease. The lease was on printed forms described by the parties as used for short-term dairy-farm leases. It contained the usual provisions and covenants employed to assure the conservation of the farm lands and of the livestock, reserved right of entry for the removal of natural resources, inspection, the making of improvements, preparing the ground for crops to be harvested the following year, and for crop-storage space. It designated the acreage which might be planted to certain crops, provided for the number of jointly owned cows and young stock that should be kept, for the sharing of certain expenses such as seed, fertilizer, etc., and contained various conditions by which the tenant agreed to work and operate the farm at his own expense and in accordance with good husbandry. Provision was made for the division of livestock prior to the termination of the lease, for forfeiture in case of default on the part of the tenant, for a landlord's lien upon the crops and livestock, and for surrender of possession on the day the lease terminated.

After Ciaglo took possession he operated the farm in accordance with the lease which provided that he and Kansteiner share equally the expenses and the profits. On the purchase of feed, for example, the dealer billed one-half to Kansteiner and one-half to Ciaglo; with respect to payment for the farm milk, the purchasing dairy sent two checks in equal amounts, one to Kansteiner and the other to Ciaglo. This was a dairy-farm operation; grain and hay were grown for feed, and only the surplus was sold.

To the rear of the house there was a three-to four-acre pasture, enclosed by a woven wire fence, as well as by an old stone fence which had fallen into disrepair. Along this fence were several plum trees, varying in number from three to ten, as related by the witnesses. Kansteiner called them "volunteer" or "wild plum trees" which had not received any care. It was in this enclosure that Ciaglo kept the yearlings, about ten head in all. They were fed two or three times a day with hay, grain and silage.

Plaintiff is the mother of defendant Ciaglo and resides in Chicago, Illinois. She had done janitress work in Chicago buildings for many years. Immediately prior to going to her son's farm she had been employed at the American Furniture Mart but was laid off about July 1, 1954. The following month she had gone up to the farm and had stayed about a week, then returned to Chicago to pick up her unemployment check. Over the Labor-Day week-end her other son and daughter-in-law, who lived with her in Chicago, accompanied by two of their children, drove her back to the farm following a phone call from her son in Wisconsin telling her that he had injured his finger. The Chicago Ciaglos returned home after Labor Day, but plaintiff remained at the farm, where she attended to some of the usual housekeeping and farm chores--she washed dishes, cleaned kitchen cabinets, fed the chickens and the yearlings.

Plaintiff testified that at breakfast on September 15, 1954, the day of the accident, her son told her: "You go, Ma, help Florence pick up the plums"; he added that he was going to take the plums to town and sell them. She stated that her son had not agreed to pay her any money; plum picking was evidently one among a number of farm chores that she was performing. Accordingly, following breakfast, plaintiff, accompanied by her daughter-in-law Florence, went out to pick plums. Plaintiff reached the plums by ladder, and after she had filled a small basket, she would descend from the ladder and place the plums on the ground. She stated that there were two ladders in the immediate vicinity of the trees, that she used one approximately eight or ten feet high, while her daughter-in- law took the smaller of the two ladders. In the morning the two women worked within five to seven feet of each other, but in the afternoon, after lunch, plaintiff worked alone. Her son had had his silo-filler on loan to a neighboring farmer, and that day he had spent all the forenoon and part of the afternoon dismantling the filler so that he could bring it back to his own farm. About two-thirty he returned momentarily to his own farm prior to setting out to pick up his children at school; at that time he glimpsed his mother in the orchard "picking the plums off of the ground." When, about four o'clock, he returned with his silo-filler, he heard a yell, ran to the enclosure, and found plaintiff against a tree in a sitting position. According to Ciaglo, she told him that she had fallen off the ladder. Plaintiff testified that immediately prior to the accident she saw one of the yearlings with its head against the ladder on which she was standing, causing it to shake; she became frightened, caught hold of a tree branch which broke, and fell to the ground. A doctor was called, and on his arrival plaintiff was taken to a hospital.

In her complaint plaintiff alleged that Ciaglo, Majesz and Kansteiner operated the farm under a written agreement of a joint venture. In her amendment thereto she alleged that the defendants operated the farm as...