Edmonds v. Heil

• Decision Date: 17 February 1948
• Docket Number: Gen. No. 44060.
• Citation: 333 Ill.App. 497,77 N.E.2d 863
• Parties: EDMONDS et al. v. HEIL et al.
• Court: United States Appellate Court of Illinois

333 Ill.App. 497

77 N.E.2d 863

EDMONDS et al.

v.HEIL et al.

Gen. No. 44060.

Appellate Court of Illinois, First District, Second Division.

Feb. 17, 1948.

Appeal from Superior Court, Cook County; Donald S. McKinlay, Judge.

Action by Robert S. Edmonds and another against George Heil and another for damages from destruction of personal property by fire. From a judgment in favor of the named plaintiff, the defendants appeal.

Affirmed.Vogel & Bunge, of Chicago (L. H. Vogel and Forrest S. Blunk, both of Chicago, of counsel), for appellants.

Edmund M. Sinnott and Joseph F. Sheen, both of Chicago, for appellees.

SULLIVAN, Justice.

By this appeal defendants, George Heil and Myrtle G. Heil, seek to reverse a judgment for $8,200 entered against them and in favor of Robert S. Edmonds. The defendants filed a separate appeal, Appellate Court General Number 44061, from a judgment for $5,500 entered against them and in favor of George S. Robinson. These two appeals have been consolidated for hearing in this court.

A single complaint was filed by the plaintiffs, Edmonds and Robinson, against Florence K. Burnham and her agents, George Heil and Myrtle G. Heil, to recover damages for the destruction of their furniture, fixtures and other personal property as result of a fire in the building in which plaintiffs resided with their families. The suit was dismissed as to Florence K. Burnham, the owner of the building, for want of service of process. The case was tried before the court and a jury. Two verdicts were returned by the jury, one finding defendants guilty as to the plaintiff Edmonds and assessing his damages at $8,200 and the other finding defendants guilty as to the plaintiff Robinson and assessing his damages at $5,500. The judgments appealed from were entered on the respective verdicts. It is not claimed that the damages awarded are excessive.

Plaintiffs' complaint consisted of two counts. The first count as amended alleged in substance that on or about December 31, 1941 plaintiffs were tenants in the duplex apartment building located at 1205 Hull Terrace, Evanston, Illinois, which property was owned by Florence K. Burnham and was maintained, controlled and operated by her through her agents, the defendants, George Heil and Myrtle G. Heil; that the defendants reserved to themselves exclusive control, operation and maintenance of the boiler room in the basement of the building and the heating apparatus therein; and that the defendants were obligated to maintain and operate the building and the appurtenances thereto, including the heating apparatus, in a reasonably safe manner. The complaint then proceeded with the following allegations:

‘3. Notwithstanding this duty, and in wilful disregard of the rights of the plaintiffs, the defendants, George Heil and Myrtle G. Heil, were guilty of one or more of the following items of negligence:

* * *

‘(b) Employed incompetent, negligent help to operate said heating plant and permitted in their employ a person to fire said heating plant who immediately preceding the time and place of the fire in question was under the influence of liquor, and who, immediately preceding the fire, fired the heating plant in an improper and unworkmanlike manner.’

Count one of the complaint further alleged that as a result of said negligence the defendants knew or by the exercise of ordinary care could have known that the building in question caught fire and in a short space of time said building and the contents thereof, including the personal property of plaintiffs, were completely destroyed; that the fire occurred about 6 a. m. on January 1, 1942; and that plaintiffs and each of them were exercising due care and caution for the safety and preservation of their property at and prior to the time the fire occurred.

Count two of the complaint, omitting all but the charging part thereof, alleged that ‘the plaintiffs, and each of them, were in the exercise of due care and caution for the safety of themselves and their property, and for its preservation from injury and harm’; that ‘notwithstanding the defendants' duty to use due care and caution in the maintenance, operation and control of said heating apparatus and appurtenances, by reason of the defendants' negligent use of materials and apparatus necessary for the task in hand and under its control, and by reason of the defendants' negligent, management, operation and care of same, a combustion took place within said basement where said heating apparatus and appurtenances were located, and a conflagration ensued upon said premises'; and that ‘as a direct and proximate result of said conflagration, the household goods, furniture, wearing apparel, effects and all other property’ of the plaintiffs, Robert S. Edmonds and George S. Robinson, ‘were consumed by fire’; and that ‘said fire occurred on, to wit: January 1, 1942, at or about the hour of 6:00 a. m.’

Defendants' answer admitted the allegation contained in both counts of the complaint that they reserved to themselves exclusive control, operation and maintenance of the boiler room and the heating apparatus therein but denied that they were guilty of negligence as charged in either the first or second count of the complaint.

For a proper understanding of the questions presented for our determination it is necessary to set forth rather fully the salient facts and circumstances shown by the evidence.

For three months immediately preceding the fire Robinson occupied the apartment on the first floor of the building in question as a tenant. He lived there with his wife and two children, a daughter 6 years old and a son 3 years old. Edmonds occupied the second floor apartment as a tenant for about 4 years prior to the fire. He lived there with his wife and two daughters, one then 20 years old and the other 11 years old. No one lived in the building except Robinson and Edmonds and their families. Both apartments consisted of seven rooms, similarly arranged. The building was on the north side of the street, facing south.

Robinson's living room was in the front or south portion of his apartment. It was about 20 feet long and 20 feet wide. Immediately to the rear or north of the living room was the bedroom of Robinson and his wife. Robinson's bedroom was separated from the living room by a partition. To the rear of his bedroom there was a bathroom, just north of which was his childrens' bedroom. The other rooms in the apartment were north of the childrens' bedroom, the kitchen being at the extreme rear.

The boiler room was in the front or south end of the basement. It extended back about 20 feet from the front wall and was about 30 feet wide. It was separated from the rest of the basement by a wooden partition with a door in the center thereof. This partition, according to Robinson's wife, was ‘about under’ the partition that separated the living room in their apartment from their bedroom. The heating plant was approximately opposite the center of the west wall of the boiler room and about 3 or 4 feet from said wall. It was directly under Robinson's living room, as was most of the boiler room. There was a door in the rear of the building at ground level and immediately inside this dor there was a landing. There was an enclosed inside stairway from this landing to the kitchen doors of both apartments and there was a short open stairway from said landing to the basement floor.

Mrs. Robinson testified that ‘around six o'clock’ on the morning of January 2, 1942 she was awakened by noise the janitor made as he was working around the heating plant; that about five or six minutes elapsed from the time she first heard him until she heard the basement door close; that she then ‘dozed off’ for about 15 minutes, when she ‘heard the floor cracking * * * and thought it was her little boy coming in’; that when she called and her child did not answer, she ‘sat up’ and saw ‘fire coming out of the corner of the bedroom * * * on the partition between the living room and the bedroom’; that ‘there was a lot of flames and smoke’ coming from said partition; that she awakened her husband and told him that there was a fire; that she telephoned the fire department, while her husband aroused the children; that they all hurried to the kitchen door, which ‘was the nearest way out’; that when they opened the kitchen door, they had ‘to slam it shut’ immediately, because the enclosed rear stairway was filled with thick, black, gas smoke; that they then hurried through the apartment toward the front of the building; that at that time the apartment was filled with smoke and there were ‘flames' in her bedroom and on the west wall of the living room north of the fire place; that ‘all four of us' went out through the vestibule onto the front porch, that the temperature was ‘around zero’ and they were all in their night clothes; and that as soon as they got outside, ‘away from the smoke and fire,’ her husband aroused the Edmonds family.

Mrs. Robinson testified further that they had a Christmas tree in the bay window of their living room which was decorated with about 60 Noma lights; that the light bulbs were so placed on the tree that they were in close proximity to its branches and needles; that said lights were connected in several series and were so constructed and arranged that one extension cord plugged into a wall socket furnished electric current for all of them; that the tree was about 15 or 18 feet south of the partition between the living room and her bedroom; that the lights on the Christmas tree were turned on about 5 p. m. on New Year's Day and remained on until about 9 p. m. that night, when her husband disconnected them by pulling the plug on the extension cord from the wall socket.

The testimony of George S. Robinson was to the same effect as that of his wife, except that he stated that when he was awakened by his wife and she directed his attention to the southwest corner of the bedroom, he saw that ‘the flames...