Ellguth v. Blackstone Hotel

• Court: Illinois Supreme Court
• Writing for the Court: GUNN
• Citation: Ellguth v. Blackstone Hotel, 408 Ill. 343, 97 N.E.2d 290 (Ill. 1951)
• Decision Date: 18 January 1951
• Docket Number: No. 31652,31652
• Parties: ELLGUTH v. BLACKSTONE HOTEL, Inc.

Page 290

97 N.E.2d 290

408 Ill. 343

ELLGUTH v. BLACKSTONE HOTEL, Inc.

No. 31652.

Supreme Court of Illinois.

Jan. 18, 1951.

Rehearing Denied March 19, 1951.

John J. Maciejewski, Chicago (Charles D. Snewind, Chicago, of counsel), for appellant.

Joseph Barbera, Chicago, for appellee.

GUNN, Justice.

We have allowed an appeal from the Appellate Court for the First District, which affirmed a judgment in favor of the plaintiff in the superior court of Cook County. The principal question involved is whether the plaintiff was an invitee or licensee when injured upon premises controlled by the defendant. The decision of this point will largely determine the merits of the case.

The facts as disclosed by the record in the case are as follows: At the time of the accident, plaintiff was 75 years of age, 6 feet tall, and blind in his left eye from childhood, but otherwise in good health. Shortly before the accident, he was working occasionally as a contractor of odd jobs, employing two or three men, earning approximately $1000 per year. In the basement of the Blackstone Hotel, operated by defendant, were several old refrigerators, located in a storage room. They were made of wood and plaster and contained some iron pipe. Approximately 140 feet west of this storage room was located a tunnel that ran underneath an alley and connected the basement of the Blackstone Hotel with that of the Blackstone Theatre, located across the alley. A passageway about 8 feet wide and 8 feet high led from the storage room to the entrance of the tunnel. The tunnel was about 18 feet long. There was a metal door at the entrance to the tunnel, which was always kept open. Defendant, for a number of years prior to the accident in question, had made use of this tunnel to get to its paint shop and equipment, but beginning shortly before the month of July, 1946, the tunnel was used daily by the engineer to go over and check the vacuum pumps which supplied the theater with heat and steam, and, without question, defendant had control of the tunnel. It is undisputed that there was no natural light penetrating the areaway leading to the tunnel, but there was maintained in this areaway two 100-watt incandescent lamps. There is a dispute in the evidence as to whether these lamps were burning at the time of the accident. It also appears that some of the pipe and timbers removed from these refrigerators were 15 feet or more in length and could not be taken up on the service elevator that ran from the basement of the hotel to the floor above.

Defendant's witness Davidson, superintendent of maintenance, and defendant's witness Douglas, his assistant, maintained their headquarters in the engine room of the hotel building, located not far distant from the areaway in question. Davidson testified that on the day of the accident, July 11, 1946, plaintiff and Douglas came to him to inquire whether they could take the pipes up on the elevator; that he told them it could not be done without cutting the pipe, whereupon plaintiff told him that the pipes had been sold, that the value was in their length, and he had to get them out without cutting them. Davidson did not testify that he told plaintiff he could not use the areaway or the tunnel or that he prohibited him in any way from doing so. He testified that he 'thought' Douglas told Ellguth in his presence that the use of the tunnel would be very dangerous, but Douglas nowhere in his testimony claims to have made any such statement. Douglas merely said: 'I advised him it is not good policy to take pipes under the theater because the theater don't belong to us.' Also, in the presence of plaintiff, when Davidson was asked whether the pipes could be taken on the elevator, Dividson replied: 'It is not good policy to do that.' There is not one word of testimony on the part of Davidson or Douglas that they refused to allow plaintiff to go through the passageway or tunnel. Plaintiff was anxious to ascertain whether it would be feasible to take the material through the tunnel, and it was clearly for that purpose that Douglas led him through the passageway. Douglas testified that plaintiff insisted on ascertaining whether the pipes and timber could be taken through the tunnel and removed to the street or alley; that he thereupon led plaintiff through this areaway in question to the tunnel, and that plaintiff had his hand or arm on his shoulder as they were walking through the areaway. Plaintiff testified in connection with this incident that Douglas said, 'Come on, follow me, I will show you.' Douglas further testified that neither of them had any flashlight, and that suddenly plaintiff yelled something about his eye. It appears that some metal object or hook, protruding in this areaway, struck plaintiff's eye, injuring the eyeball, destroying all vision, and thereafter plaintiff became totally blind.

The majority opinion of the Appellate Court upon these facts concludes: 'Upon the admitted facts, plaintiff must be regarded, as a matter of law, an invitee and not a licensee or trespasser.' (340 Ill.App. 587, 92 N.E.2d 502, 505.) A dissenting opinion filed in the case, with equal clarity states: 'Upon the uncontradicted evidence plaintiff herein was, at best, a mere licensee at the time and place of the accident, and defendant was only liable for his wilful and wanton injury.' While it is true there is a difference among the members of the Appellate Court, the law makes the opinion of the majority the opinion of the court (Ill.Rev.Stat.1949, chap. 37, par. 31), and we are bound by its finding of fact, unless we can say as a matter of law the evidence does not, with all of its reasonable inferences, sustain the judgment. Seiders v. Henry, 347 Ill. 467, 180 N.E. 462; Ahlenius v. Bunn & Humphreys, Inc., 358 Ill. 155, 192 N.E. 824, 95 A.L.R. 913.

The materiality of the question of whether plaintiff was an invitee or licensee arises from the fact that a heavier duty of care is placed upon an owner of premises toward an invitee than toward a licensee or trespasser. Toward an invitee the owner of premises must use reasonable care and caution in keeping the premises reasonably safe for use by such invitee; while toward a licensee no duty is owed by such owner, except not to wantonly and wilfully injure him. Pauckner v. Wakem, 231 Ill. 276, 83 N.E. 202, 14 L.R.A.,N.S., 1118; Milauskis v. Terminal Railroad Ass'n, 286 Ill. 547, 122 N.E. 78. To be upon premises by an implied invitation means that the person is there present for a purpose connected with the business in which the owner of the premises is engaged, or which he permits to be carried on. John Spry Lumber Co. v. Duggan, 182 Ill. 218, 54 N.E. 1002; Pauckner v. Wakem, 231 Ill. 276, 83 N.E. 202, 14 L.R.A.,N.S., 1118; Calvert v. Springfield Electric Light...