Kirchner v. Kuhlman

• Decision Date: 09 June 1948
• Docket Number: Gen. No. 44207.
• Citation: 79 N.E.2d 628,334 Ill.App. 339
• Parties: KIRCHNER et al. v. KUHLMAN.
• Court: United States Appellate Court of Illinois

334 Ill.App. 339

79 N.E.2d 628

KIRCHNER et al.

v.KUHLMAN.

Gen. No. 44207.

Appellate Court of Illinois, First District, Third Division.

May 26, 1948.

Rehearing Denied June 9, 1948.

Appeal from Superior Court, Cook County; John F. Haas, Judge.

Action by Edwin W. Kirchner, doing business as Kirchner Printing House, and others, against Allen B. Kuhlman, doing business as Chicago Decorating Company, to recover damages resulting from a fire alleged to have been caused by the negligence of defendant. Judgment for defendant, and plaintiffs appeal.

Affirmed.Julius S. Neale, of Chicago (Walter E. Moss, of Chicago, of counsel), for appellants.

Heth, Lister & Flynn, of Chicago, (John A. Menk, of Chicago, of counsel), for appellee.

LEWE, Presiding Justice.

This is an action to recover damages resulting from a fire alleged to have been caused by the negligence of defendant. There was a jury trial and verdict and judgment in favor of defendant. Plaintiffs' motions for judgment notwithstanding the verdict and for a new trial were overruled. Plaintiffs appeal.

Plaintiffs James F. Leahy, Sarah F. Leahy and Vera L. Schendorf, owners of a six-story fireproof building commonly known as 226-232 Ontario Street in the City of Chicago, leased the entire fourth floor of their building to plaintiff Edwin W. Kirchner who there operates a printing business. On June 23, 1944 plaintiff James F. Leahy entered into a written contract with defendant a painting contractor, to paint and decorate the premises occupied by Kirchner. About eleven o'clock in the morning on June 12, 1944, while defendant's employees were painting Kirchner's premises, a fire occurred causing the damage complained of.

Plaintiffs rely upon the doctrine of res ipsa loquitur. Defendant maintains that the doctrine of res ipsa loquitur is not applicable because the evidence fails to show that defendant had exclusive control of the premises where the fire occurred.

According to the plat appearing in the record the building here involved is located on the northeast corner of Ontario and Franklin streets with a frontage of ninety-seven feet on Ontario Street and extending north along Franklin Street one hundred feet to a public alley. The fourth floor occupied by Kirchner is open and the view across the floor is unobstructed except for enclosed freight and passenger elevator shafts and sixteen equally spaced supporting pillars. The freight elevator shaft is located about midway between the east and west walls and twenty feet south of the north wall of the building. There are two thirty-inch doors sixteen feet apart in the north wall opposite the freight elevator shaft and leading to a fire escape attached to the outside of the north wall.

On July 1, 1944, Kirchner, who usually employed eighteen or twenty persons, had shut down his printing establishment for a period of two weeks. On the morning of the fire three of Kirchner's employees were on the premises: Jeanne Syljebeck a bookkeeper, Frank Kratovil and Laddie Balik.

Kratovil, called by plaintiffs, testified in substance that on the morning of July 12 defendant's equipment, consisting of ladders, tarpaulins and paints was on the north or alley side of the floor; that near the freight elevator shaft a fifty-gallon drum of benzine with a spigot was lying ‘on a little horse’; that standing directly beneath the spigot of the drum of benzine was an empty five-gallon paint can; that the only thing in operation that morning was an air compressor driven by a small gasoline motor, used in spraying paint, and that the power driven air compressor was just in front of the fire escape door.

The witness further testified that about eleven o'clock someone hollered ‘fire!’; that at the time he was wiping paint spray from printing presses at the southwest corner of the premises; that he grabbed a fire extinguisher from a nearby pillar and rushed to the fire; that he saw a flame coming out of the paint can beneath the drum of benzine; that the spigot was open and as the paint can overflowed the flames spread and ignited paper and other combustible material nearby.

Balik, called by plaintiff, testified that Kratovil had charge of the plant and gave the ‘orders'; that at the time someone called ‘fire!’ he was at the nothwest corner of the floor; that he saw the fire coming out of the ‘big container’ and the ‘flames leading down into the can’ underneath it; that there were two empty crates over near the fire escape, ‘one had paper in it’ and ‘maybe the other one had a few sheets in it; the paper in the crates was not scrap from the paper cutting machines, it was mostly from lunches and so forth’; that the fire was two or three feet away from the crates, and that the fire in the paint can later ignited crates of waste paper.

The witness further testified that none of the printing presses was running; that ‘the gas lights on the presses were turned off, and the switches pulled’; that there was no debris and paper on the floor; that there was a hundred pounds or so in the crate, ‘newspapers and stuff like that’; and that on the morning of the fire the witness at Kratovil's direction ‘moved everything from the wall to clear the way’ for defendant's employees.

Jeanne Syljebeck testified that she was working on her records when one of the painters ‘came rushing in and asked me to call the fire department.’

When the fire occurred defendant's employees Schlivka, Gale, Kerley, and Pfeiffer were engaged in painting and decorating the premises occupied by Kirchner. The defendant was not present.

Schlivka, called by defendant, testified that he was the first person at...