Marcovitz v. Hergenrether

• Decision Date: 22 February 1922
• Docket Number: No. 13987.,13987.
• Parties: MARCOVITZ v. HERGENRETHER et al.
• Court: Illinois Supreme Court

302 Ill. 162

134 N.E. 85

MARCOVITZ

v.HERGENRETHER et al.

No. 13987.

Supreme Court of Illinois.

Feb. 22, 1922.

Action by Harry Marcovitz, administrator of Isidor Marks, deceased, against Joseph Hergenrether and others. From a judgment for defendants on demurrer, plaintiff appeals.

Affirmed.Appeal from Superior Court, Cook County; Joseph B. David, judge.

Sonnenschein, Berkson, Lautmann & Levinson, of Chicago (Edward P. Morse, of Chicago, of counsel), for appellant.

Benjamin B. Morris and Aaron R. Eppstein, both of Chicago, for appellees.

DUNCAN, J.

Appellant, Harry Marcovitz, as administrator of the estate of Isidor Marks, deceased, filed his declaration in the superior court of Cook County against appellees, Joseph Hergenrether, J. Leo Hergenrether, Harry Edidin, and Bernard Edidin, for damages on account of the death of his intestate. The declaration as finally amended consisted of two counts. Appellees filed general and special demurrers to the amended declaration, which were sustained by the court. Appellant elected to abide by his amended declaration, and judgment was entered against him and in favor of appellees. The trial judge certified that the cause was one in which the validity of a municipal ordinance was involved, and that the public interest required that the appeal be taken directly to this court, which was done.

The first count of the amended declaration, omitting the mere formal parts thereof, charges as follows:

The defendants Harry Edidin and Bernard Edidin on March 4, 1919, were the owners of, and the defendants Joseph Hergenrether and J. Leo Hergenrether were lessees of, the premises known as 57 East Forty-Third street, in Chicago, Cook county. In the premises so owned and leased there was a certain hoistway or elevator well in which there was a certain elevator or other hoisting apparatus, which hoistway or elevator well and elevator and hoisting apparatus were then and there owned by the defendants Harry and Bernard Edidin, and were then and there leased and operated by the defendants Joseph and J. Leo Hergenrether. On the day aforesaid, March 4, 1919, there was in full force and effect in the city of Chicago a certainordinance which provided, among other things, as follows:

‘All freight elevators shall be provided with a guard at least six feet high. All elevator cabs or cars, whether used for freight or passengers, shall be provided with some device whereby the car or cab may be held in the event of accident to the shipper rope or hoisting machinery or controlling apparatus. * * * All hoistways, hatchways, elevator wells and wheel holes in any building, whether occupied or vacant, shall be securely fenced, inclosed or otherwise safely protected, and it shall be the duty of the owner, occupant or agent of any such building to keep all such means of protection closed at all times, except when it is necessary to have the same open in order that the said hatchways, elevators or hoisting apparatus may be used.’

The deceased was on the day aforesaid owner of a teaming business, and was at the time of the occurrence hereinafter mentioned engaged in unloading certain materials from one of his wagons used in the teaming business into the elevator or hoisting apparatus in the hoistway or elevator well owned, leased, and operated by the respective defendants aforesaid. The defendants, notwithstanding their duty in this behalf, carelessly, negligently, unlawfully, and wrongfully failed to securely fence, inclose, or otherwise safely protect the hoistway or elevator well then and there owned, leased, and operated by them, and carelessly, negligently, unlawfully, and wrongfully failed to keep said means of protection closed, and had the defendants provided a means of protection as by the ordinance provided it would not have been necessary, in order that the hatchway and hoisting apparatus might be used as they were being used at the time of the occurrence set forth, to have the means of protection open, and as a direct result and consequence of the carelessness and negligence of the defendants, and while the deceased was in the exercise of all due care and caution for his own safety, he unavoidably slipped and fell from his wagon into the open hoistway or elevator well, and as a direct result thereof sustained an injury, as a result of which he soon thereafter, on the same day, died.

The second count contains the same allegations, in substance, as the first count and is not substantially different from that count, except that it contains, just preceding the last paragraph, the further allegations that said elevator had been raised for some distance-five feet-above the level of the opening provided as a means of ingress and egress to the elevator well or hoistway, and that it then and there became and was the duty of the defendants to securely fence and inclose or otherwise safely protect the hoistway or elevator well and the space below the floor of the elevator or hoisting apparatus.

The declaration concluded with an allegation that the deceased left a widow and six sons and daughters, the issuing of letters of administration to the plaintiff, and the ad damnum clause.

The demurrers were general and special and were properly sustained by the court as to both counts. Neither count states any cause of action against the defendants the Edidins, the owners of the property in question. In order to charge owners of leased premises with responsibility for the existence of the alleged defective elevator, elevator well, or hoistway, it was necessary for plaintiff to allege and prove that...