Nelson v. Union Wire Rope Corp., 37795

CourtSupreme Court of Illinois
Citation31 Ill.2d 69,199 N.E.2d 769
Docket NumberNo. 37795,37795
PartiesCharles Joseph NELSON et al., Appellants, v. UNION WIRE ROPE CORPORATION et al., Appellees.
Decision Date18 March 1964

Page 769

199 N.E.2d 769
31 Ill.2d 69
Charles Joseph NELSON et al., Appellants,
No. 37795.
Supreme Court of Illinois.
March 18, 1964.

[31 Ill.2d 71]

Page 772

James A. Dooley, Chicago, for appellant.

Winston, Strawn, Smith & Patterson, and Berchem, Schwantes & Thuma, Chicago (George B. Christensen, Charles J. Calderini, Donald N. Berchem, and Edward J. Wendrow, Chicago, of counsel), for American Mutual Liability Ins. Co.

Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago (Max Ex. Wildman and Frederick W. Temple, Chicago, of counsel), for Archer Iron Works, Inc.

Hinshaw, Culbertson, Moelmann & Hoban, Chicago (John M. Moelmann, Oswell G. Treadway, and Thomas J. Weithers, Chicago, of counsel), for Union Wire Rope Corp.

Reid, Ochsenschlager, Murphy & Hupp, Aurora, amicus curiae.

KLINGBIEL, Chief Justice.

The 18 plaintiffs in this case brought suit in the superior court of Cook County to recover for personal injuries and wrongful deaths suffered on March 19, 1957, when a temporary construction hoist, being operated in conjunction with the erection of a multi-story courthouse in the city of Jacksonville, Florida, plunged a distance of six floors with 19 workmen aboard. Seven were killed and the remainder were severely injured. Two of the plaintiffs, (we use the term to include plaintiffs' decedents,) were employees of George D. Auchter Company, the general contractor which owned and operated the hoist, while the balance were employees of Auchter's subcontractors on the project. The actions, later consolidated, were brought against Union Wire Rope Company, manufacturer of a cable that broke, Archer Iron Works, designer and manufacturer of the hoist and a safety device thereon which failed to half the fall, and American Mutual Liability Insurance Company, the workmen's compensation and public liability carrier for Auchter, which was charged with the [31 Ill.2d 72] negligent performance of gratuitous safety inspections and safety engineering service.

Following an extended trial, judgments were entered on jury verdicts finding the defendants Union Wire and Archer Iron not guilty, and finding defendant American Mutual guilty and liable for damages assessed in a total amount of $1,569.400. On appeal, both by plaintiffs and American Mutual, the Appellate Court for the First District Affirmed the judgments in favor of Union Wire and Archer Iron, but reversed outright the judgments against American Mutual. (Nelson v. Union Wire Rope Corp., 39 Ill.App.2d 73, 187 N.E.2d 425.) We have allowed the plaintiffs' petition for leave to appeal to further review the matter. In addition, we have granted leave to several insurance groups to file a brief as amici curiae.

As a matter of initial concern it is unnecessary in our opinion to completely detail the respective pleadings, proof, arguments and authorities advanced in relation to the issues on review between plaintiffs and defendants Archer Iron and Union Wire. Although we do not necessarily adopt all that is said by the Appellate Court, particularly with respect to its concepts of various rules of evidence, and we do not approve of some aspects of Archer's presentation in this court, we are in basic accord with the court's judgments as to these two defendants and see no beneficial purpose in repetition or further analysis of those phases of the litigation. Gould v. Gould, 408 Ill. 526, 97 N.E.2d 826; Kamienski

Page 773

v. Bluebird Air Service, Inc., 389 Ill. 462, 59 N.E.2d 853.

The substance of plaintiffs' complaint against American Mutual, (hereafter referred to as defendant) and the theory they have consistently adhered to, is that the insurance company had gratuitously undertaken to make safety inspections of the practices and equipment of Auchter, its insured, and had carelessly and negligently performed the said inspections, as the proximate result of which plaintiffs were injured and killed. Other specifications charged that [31 Ill.2d 73] defendant had carelessly and negligently failed to detect and report; that the hoist's safety mechanism was inadequate and defective; that the tower was improperly designed and manufactured in that it did not have sufficient strength to permit the safety device to function; that the cable was in a worn condition; that the hoist was being used for the transportation of personnel in violation of a city ordinance, and that a sheave on the hoist was of improper size in violation of a city ordinance. A concluding specification charged that defendant had negligently failed to warn Auchter against the unsafe practice of permitting personnel to ride on the hoist. In answer, defendant denied that it had undertaken, gratuitously or otherwise, to make such safety inspections, or that such safety inspections of practices, machinery or hoists had in fact occurred, and denied that it had been guilty of negligence of any kind, or in the respects specifically charged. Further, defendant denied that it had made periodic or regular surveys or inspections of the premises or equipment, and while admitting that an employee had made intermittent and infrequent surveys and inspections of the premises, it denied that they had pertained to or included the hoist, and alleged that they were for the sole purpose of keeping itself advised of the risk it had insured. As a first affirmative defense defendant alleged that, because it was the general contracotr's compensation carrier, it was not subject to suit as a third party tort feasor under the Florida Workmen's Compensation Act; as a second affirmative defense it was alleged that if it had in fact performed safety inspections as plaintiffs charged, it became a subcontractor and was thus immune from tort liability to plaintiffs by virtue of the Florida act.

Under these pleadings, and the proof and arguments advanced to sustain them, we are confronted with three principal issues, to be determined under the law of Florida as the situs of the occurrence and the State whose laws [31 Ill.2d 74] regulate the relationship of the parties. (Mithen v. Jeffery, 259 Ill. 372, 102 N.E. 778.) Those issues may be stated as follows: fist, was a valid common-law action proved against defendant in this case; second, were plaintiffs' causes of action against defendant taken from them by the Florida Workmen's Compensation Act; and, third, did defendant, by making safety inspections, become a subcontractor on the courthouse project so as to gain immunity from tort liability under the act?

Before considering the particular facts of this case, we think it well to examine the legal foundation upon which plaintiffs' actions are based. Originating with the decision of Coggs v. Bernard, 2 Lord Raymond 909, it has come to be a recognized principle that liability can arise from the negligent performance of a voluntary undertaking. In our times a clear and oftcited statement of the principle is te language of Justice Cardozo in Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 276, 23 A.L.R. 1425, when he said: 'It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.' (See also: 38 Am.Jur., Neg. sec. 17; 5 Harvard Law Review 222.) Florida, like Illinois, has recognized the doctrine. (Banfield v. Addington, 104 Fla. 661, 140 So. 893, 896; United States v. Lawter (5th cir.), 219 F.2d 559; United States v. DeVane (5th cir.), 306 F.2d 182; Triolo v. Frisella, 3 Ill.App.2d 200, 121 N.E.2d

Page 774

49) In addition, Florida has frequently stated that it will adhere to the views of the Restatement of Torts, (Propper v. Kesner (Fla.1958) 104 So.2d 1; Tampa Drug Co. v. Wait (Fla.1958), 103 So.2d 603, 75 A.L.R.2d 765; Matthews v. Lawnlite Co. (Fla.1958), 88 So.2d 299,) where the doctrine is stated in this manner: '(1) One who gratuitously renders services to another, * * * is subject to liability for bodily harm caused to the other by his failure, while so doing, to exercise such competence and skill as he possesses.' § 323(1).

[31 Ill.2d 75] Our Appellate Court, in considering the doctrine as stated in the Restatement, concluded that it was 'properly applicable only in situations involving active negligence, or misfeasance,' (39 Ill.App.2d at 129, 187 N.E.2d at 451,) an earlier portion of its opinion indicating that it equated the terms 'active negligence' and 'misfeasance' as meaning the 'creation of a risk, or danger,' and it belief that defendant here could not be liable for a gratuitous undertaking unless it was guilty of negligence which 'caused the hoist to fall.' (39 Ill.App.2d at 122, 187 N.E.2d 425.) In this we believe the court was plainly wrong. The language that a volunteer is liable for failure to use such competence and skill as he possesses does not admit to a conclusion that the only duty of the volunteer is to refrain from positive acts of negligence. Moreover, in those cases, subsequently discussed, where insurers have incurred liability as the result of gratuitous inspections of machines and equipment, liability rested upon a breach of the duty to make the inspections with due care, not upon acts which 'created' dangers or defects, or which caused the occurrence by which injury was received. (See: Van Winkle v. American Steam Boiler Co., 52 N.J.L. 240, 242, 19 A. 472; Hartford Steam Boiler Inspection & Insurance Co. v. Pabst Brewing Co. (7th cir.), 201 F. 617.) As is shown by defendant's own citation of authority, viz., Viducich v. Greater New York Mutual Insurance Co., 80 N.J.Super, 15, 192 A.2d 596, plaintiffs, to support their actions, had only to show (1) that defendant undertook to make safety inspections and to render safety engineering services under circumstances which created a duty on defendant, owed to plaintiffs, to perform its undertakings with due care, and (2) that the gratuitous undertakings were negligently performed, such negligence resulting...

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