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

Decision Date20 January 1947
Docket NumberNo. 29415.,29415.
Citation70 N.E.2d 604,395 Ill. 429
CourtIllinois Supreme Court


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

Action by the Westinghouse Electric Elevator Company against the La Salle Monroe Building Corporation to recover for the death of plaintiff's employee while working in a building owned by the defendant. From a judgment for the plaintiff, the defendant appealed to the Appellate Court. From a judgment of the Appellate Court, 326 Ill.App. 598, 63 N.E.2d 411, affirming the superior court's judgment, the defendant appeals.

Judgment of the Appellate Court affirmed.

Barrett, Barrett, Costello & Barrett, of Chicago (Wendell H. Shanner, of Chicago, of counsel), for appellant.

Abraham Lepine, of Chicago (Yates, Roche & Grotefeld, of Chicago, of counsel), for appellee.

STONE, Justice.

Appellant seeks reversal of a judgment of the Appellate Court, First District, affirming a judgment of the superior court for $5500 against it, based upon sections 6 and 29 of the Workmen's Compensation Act, Ill.Rev.Stat.1945, c. 48, ss 143, 166.

Appellee contracted to reconstruct certain elevators in appellant's building. An employee of appellee, one Reichert, was so injured, by the falling of one of the elevators being worked upon, that he died. Appellee paid compensation and sued to recover the amount so paid on the ground that the injury of which Reichert died was occasioned through the negligence of appellant's servants.

It appears that one Castiglia, an employee of appellant, on request of a subcontractor, moved one of the elevators to the top of the building fourteen stories high, after getting consent to do so of one Sparks, one of the engineers of appellant's building. After taking the elevator up, Castiglia put it on neutral and left it with no one attending it. The cage broke loose from its moorings and fell to the ground and in so doing caught Reichert who had his head in the elevator shaft on the tenth floor, in the performance of his duties, so injuring him that he died. It is conceded that Castiglia was in the employ of appellant, and that the injury, and death of Richert was due to Castiglia's negligence in leaving the elevator untended. The main contention of appellant is that under the contract it had with appellee, the latter agreed to indemnify it against such damages as arose in this case. It is also argued that Sparks had no authority to direct Castiglia to take the elevator to the top of the building and, as there was no proof that Sparks had such authority, there was therefore no evidence in the record which created a fact question for the jury, and appellant is not precluded from review on assignment of error here. It is also argued that the trial court committed prejudicial errors in the trial of the case, both as to admission of evidence and in instructing the jury.

Both appellant and appellee were operating under the Workmen's Compensation Act. The two most westerly elevators of appellant's building, including the one where the accident occurred, were turned over to appellee during reconstruction. Solid barricades were built on each floor and the old door frames or grills were removed. A door in each barricade, usually kept locked, was the only access to No. 1 and 2 elevator wells.

But three workmen were on the job when the accident occurred, Reichert, an employee of appellee, one Rotchford and one Daley, employees of a subcontractor taking out the grills of the old elevators. Rotchford requested Castiglia, an elevator operator in the employ of appellant, to take car No. 1 to the fourteenth floor. Castiglia obtained instructions from Sparks, one of appellant's engineers and the only one of appellant's engineers then on the job, and took the elevator up to the fourteenth floor, and, as we have seen, put the lever in neutral, and, after a few minutes, left by way of the barricade door, which he locked. He returned to the first floor in another car.

Before the work started it was understood between appellee's superintendent and one Harr, building superintendent of appellant, that appellee was to have entire control of the elevator shafts and wells. One Keith, an elevator operator, testified that he received instructions from Harr, prior to July 21, 1939, not to operate elevators when construction was underway. Harr was not available and did not testify. The contract required appellee to have a superintendent or responsible person present on the work at all times. Wallace J. O'Brien was the only person meeting that requirement, and he was supervising other jobs at the time and was not present at the time of the accident.

The language of the contract, upon which appellant's affirmative defense was based, reads as follows:

‘The contractor agrees to provide and pay compensation for injuries sustained by any of his employees 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 employees and agents, the Architects and Engineers, and the City of Chicago, wholly harmless from any 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.’

The question first to be considered is whether the clauses of the contract quoted were broad enough to indemnify and save appellant harmless from all claims or demands arising out of the death of appellee's employee and as a matter of law precluded appellee's cause of action. Appellant insists that these provisions of the contract are broad enough to indemnify appellant against all claims made by appellee against appellant, including injuries to appellee's employees received through the negligence of appellant's employee Castiglia.

It is a general rule governing the...

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