Westinghouse Elec. Elevator Co. v. La Salle Monroe Bldg. Corp.

• Decision Date: 16 November 1945
• Docket Number: Gen. No. 43327.
• Citation: 326 Ill.App. 598,63 N.E.2d 411
• Parties: WESTINGHOUSE ELECTRIC ELEVATOR CO. v. LA SALLE MONROE BLDG. CORPORATION.
• Court: United States Appellate Court of Illinois

326 Ill.App. 598

63 N.E.2d 411

WESTINGHOUSE ELECTRIC ELEVATOR CO.

v.LA SALLE MONROE BLDG. CORPORATION.

Gen. No. 43327.

Appellate Court of Illinois, First District, First Division.

Oct. 15, 1945.

Rehearing Denied Nov. 16, 1945.

Appeal from Superior Court, Cook County; Charles A. Williams, Judge.

Action by Westinghouse Electric Elevator Company against La Salle Monroe Building Corporation to recover for death of plaintiff's employee while working in building owned by defendant.From a judgment for plaintiff, the defendant appeals.

Affirmed.Barrett, Barrett, Costello & Barrett, of Chicago, for appellant.

Abraham Lepine, of Chicago, for appellee.

MATCHETT, Presiding Justice.

April 12, 1939, defendant, owner of an office building at 39 South LaSalle Street, fourteen stories high, made a contract with plaintiff to construct certain improvements on it, particularly the elevators.Mr. O'Brien, assistant superintendent of construction for plaintiff, on June 21 met Mr. Harr, defendant's building manager, and Mr. Lowenberg, representing the architect, and agreed on a program for the work.

ElevatorsNos. 1 and 2(most westernly elevators of the building) were to be turned over to plaintiff.The new elevators required doors and frames should be installed first.Solid barricades were to be built on each floor by another contractor.These were built so that ingress and egress from the areas behind the barricades by doors, usually kept locked.The barricades were so built as to include the elevator shafts of elevators Nos. 1 and 2.The old grillwork and door frames were removed by another contractor.Rough ‘bucks'(metal elevator or door frames) were installed instead.This work was begun on the 14th floor and continued downward from floor to floor.

Clarence Reichert was an employee of plaintiff on the job.He was a journeyman electrician installing signal lanterns in the boxes of the bucks.The lanterns were being put in around the openings of shaft No. 1 on the different floors.Both plaintiff and defendant were operating under the Workmen's Compensation Act.

Reichert was working behind the barricades on the 10th floor.There was no eye witness to the occurrence, but the manner in which he usually did his work was described to the jury.He would place a stepladder on the hallway floor about six inches from and parallel with the openings into the elevator wall.He then went up the ladder and drilled screw holes through the top part of the buck.In completing the operation he would lean over the upper frame to break off the protruding ends of the screws with pliers.This brought his head, arms, and shoulders into the elevator shaft.The evidence tends to show that while in that position he was struck by a falling elevator car and received injuries from which a little later he died.The occurrence took place about 3:30 P. M. on July 21, 1939.

The elevator was of the hydraulic type.The operator moved it by a lever extending upward through the floor of the car.Only three workmen were on the job when the accident occurred.Two of them were Mr. Rotchford and Mr. Daley, working for the Dahlstrom company, a sub-contractor.They had just completed removing frames nd grillwork in front of the elevator shafts Nos. 1 and 2, working in the well at the bottom of the shaft on the first floor.They knew Reichert was working on a floor higher up and the kind of work he was doing.Shortly before the accident he came down to borrow some washers.Rotchford went to the second floor, got the washers and gave them to him.ElevatorNo. 1 was then at the bottom of the shaft, ‘killed’ and out of service.Rotchford and Daley wished to have the car taken to the 14th floor, the top of the building.Castiglia was an elevator operator in the service of the owner.Rotchford asked him to take the car to the top, and Castiglia took it there, put the lever in neutral and after a few minutes left, passing through the barricade door, which he locked.He went back to the first floor in another car.

Rotchford was the only person who saw the car come down through the shaft.He felt the ‘governor rope’ against his elbow and, looking up, saw the elevator car at the 4th floor, coming down ‘fast.’He grabbed his partner, Daley, and together they jumped out of its way.Photographs are in evidence showing the situation.

Mr. Sparks was one of five engineers of the building employed by the defendant.He was not chief engineer on the day of the accident, but he was in charge when the accident occurred.He had the shift from 3:00 P. M. to 11:00 P. M. of that day.He says he talked with Castiglia after Rotchford asked Castiglia to take the elevator to the 14th floor, and that Castiglia told him what Rotchford wished him to do.He said he told Castiglia he could take the elevator to the 14th floor if he wished it done.Sparks says the engineer of the building was the boss of the elevator starter.

Before the work was started O'Brien was present and heard Harr tell the elevator starter that plaintiff was to have entire control of the elevator shafts and wells.Keith, an elevator operator, said the operators had received instructions from Harr prior to the 21st of July, 1939, not to operate elevators when construction was under way.Harr did not testify.He was a non-resident and was not available.The contract required plaintiff to have a superintendent or responsible person present on the work at all times.Mr. O'Brien was the only person meeting this requirement, and he was supervising other jobs concurrently.He was not present at the time of the accident.

The action of plaintiff is based on Sections 6 and 29 of the Workmen's Compensation Act of Illinois, ch. 48, §§ 143, 166, Ill.Rev.Stat.1943.The complaint avers the relationship created by the contract of April 12, 1939, between plaintiff contractor and the defendant owner; the employment of Reichert, his death under circumstances described, obligating plaintiff under the compensation law to pay compensation to his wife and children; plaintiff's payment thereof and its subrogation under the act to the right of action of the representative of Reichert against the defendant for its negligence which caused his death.

The trial was by jury.At the close of all the evidence there was a motion by the defendant for an instructed verdict, as also was a motion by plaintiff for an instruction in its favor.Both were denied.The jury returned a verdict for the plaintiff for $5,500.The court overruled motions by defendant for judgment notwithstanding or a new trial and entered judgment on the verdict, from which defendant appeals.

The principal defense interposed at the trial was that by the terms of the contract between plaintiff and defendantthe plaintiff contractor agreed to indemnify and hold harmless the defendant owner from this claim on which the action is based.This affirmative defense was interposed three times by pleadings which set up the very language of the contract on which defendant relied and three times it was stricken by the court.The major contention of the defendant on this appeal is that the court erred in striking this pleading.The language of the contract is as follows:

‘The contractor agrees to provide and pay compensation for injuries sustained by any of his employes arising out of or in the course of employment on the within mentioned building, in accordance with the requirements of the State Laws, and further agrees to carry insurance in a company satisfactory to the owner fully protecting himself, the Architects and Engineers, the Consulting Engineer, and the Owner against claims which may be made under said laws and agrees to deposit said policy or a true copy thereof (or a certificate from the Insurance Company issuing said policy, showing insurance in force) with the Architects and Engineers.

* * *

‘The contractor further agrees to indemnify and hold the owner, the owner's employes and agents, the Architects and Engineers, and the City of Chicago, wholly harmless from and damages, claims, demands or suit by any person or persons arising out of any acts or omissions by the Contractor, his agents, servants or employes in the course of any work done in connection with any of the matters set out in these specifications, and the contractor shall carry at his own expense insurance in a company satisfactory to the owner to cover the aforesaid liabilities.’

It is argued that either of the above paragraphs discloses the intention of the parties that plaintiff contractor should bear the burden of any liability resulting from the negligence of the owner defendant in connection with work to be done under the contract, and that the repetition in the second paragraph makes this intention quite certain.We do not find that intention in either paragraph.Each consists of a single sentence.The subject matter of the first is compensation for injuries to the employees of the contractor.For these the contractor agrees to ‘provide and pay’ according to ‘State Laws.’He also agrees to ‘carry insurance’ protecting himself, the architects and engineers and ‘Owner’ against claims which may be ‘made under said laws,’ to deposit the same, etc.There is not a word about the negligence of the owner or any one in the sentence.

The second paragraph might be designated as the indemnity clause.This paragraph likewise contains a single sentence.The subject matter is indemnity.The contractor agrees to do this for persons named, including the ‘Owner.’The indemnity is limited, however, to claims, demands, etc. ‘arising out of any acts or omissions by the Contractor, his agents,’ etc.This clause by inference excludes negligence of the owner as we interpret it.

Section 29 of the Compensation Act expressly and clearly covers negligence.In view of the language there used, we hold that any intention to require the contractor to assume the burden of the owners own negligence would have to be clearly and...