Nelson v. Union Wire Rope Corp.

69 Ill.2d v. Stacey, 320; People Ill.2d Spencer, People v. 25 27 Miller, Jackson, People v. Ill.2d 274; v. 258, 263; People F.2d Ragen, States v. cir.) United (7th Ill.2d 584-585. 579. remarks con that several contends the defendant Lastly, created prejudicial closing tained State’s argument defense error. In quality light argument at the trial this contention nature the evidence produced merit not be disturbed. is without will judgment Swets, People Ill.2d 418, 423. criminal court Cook judgment County

affirmed.

Judgment affirmed.

(No. 37795 . al., et vs. Union Charles Nelson Joseph Appellants, Rope Corporation al., et Wire Appellees.

Opinion March filed 1964. Schaefer, House, Underwood, J., J., J., dissenting. A. Dooley, for Chicago, appellants. James Winston, Strawn, Patterson, Smith & Ber- chem, both of Thuma, & Chicago, Schwantes (George B. Christensen, Donald N. Calderini, Charles Ber- J. and Edward chem, Wendrow, counsel,) appellee J. Liability American Mutual Ins. Co. Kirkland, Ellis, Hodson, Masters, Chaffetz & Chicago, and Frederick . (Max Temple, E. Wildman W. counsel,) appellee Works, Archer Iron Inc. Murphy

Reid, Ochsenschlager, of Au- Hupp, rora, Thomp- (L. M. Ochsenschlager, and Charles F. son, counsel,) for amici curiae. Jr., Klingbiel Mr. Chief delivered the opinion Justice the court: The 18 plaintiffs this case suit in the brought superior court of Cook County to recover for and personal injuries wrongful deaths suffered on March 19, 1957, when hoist, construction temporary being operated conjunc- tion with the erection of a courthouse in the multi-story Florida, city of Jacksonville, a distance of six plunged floors with workmen aboard. Seven were killed and the remainder were injured. Two of the severely plaintiffs, use term to include (we were em- plaintiffs’ decedents,) D. Auchter ployees George con- Company, general hoist, tractor which owned and while the operated balance were of Auchter’s employees subcontractors on the actions, consolidated, The later project. brought Union Wire Rope Company, manufacturer of a broke, Works, cable that Archer Iron and manu- designer facturer of the hoist and a device thereon which safety fall, halt the failed to and American Mutual In- Liability surance the workmen’s Company, and compensation public Auchter, carrier for which with charged and safety

negligent performance gratuitous inspections service. safety engineering trial, an extended were entered judgments

Following verdicts jury defendants Union Wire finding Archer American Iron defendant guilty, finding Mutual and liable for assessed in a total guilty damages amount of On both $1,569,400. appeal, plaintiffs Mutual, American Court for the First District Appellate affirmed the in favor of and Archer judgments Union Wire Iron, but reversed American outright judgments against Mutual. Corp., v. Union Wire Ill. (Nelson Rope App. 2d We have allowed the leave 73.) plaintiffs’ petition addition, further review the matter. In have appeal we leave granted to several insurance to file a brief as groups amici curiae.

aAs matter of initial concern it is our unnecessary detail opinion completely respective pleadings, proof, arguments and authorities advanced in relation to issues on review between Archer defendants Iron plaintiffs and Union Wire. we do not all Although necessarily adopt Court, that is said with Appellate particularly respect evidence, to its various rules and we do not concepts of some Archer’s approve aspects presentation court, are in we basic accord with the court’s as judgments to these two defendants and see beneficial no purpose further of those analysis repetition phases litiga Gould, tion. Gould v. Ill. Kamienski Bluebird Service, Air Inc. Ill. 462. substance American plaintiffs’ complaint against

Mutual, referred to (hereafter and the defendant) to, have theory they adhered is that the insur- consistently ance had undertaken make company gratuitously Auchter, of the and inspections practices equipment insured, and had and carelessly negligently performed as the said result of which inspections, proximate plaintiffs killed. Other that were and injured specifications charged failed detect and defendant had carelessly negligently inade- mechanism was and that the hoist’s safety report: defective; de- was and that the tower improperly quate have sufficient and manufactured in that it did not signed function; that device strength permit condition; cable in a that the hoist was being was worn of a used for the violation transportation personnel ordinance, that a the hoist of im- city and sheave on was A size in violation of a ordinance. city concluding proper failed that defendant had specification charged negligently to warn Auchter the unsafe practice permitting answer, to ride In denied hoist. defendant personnel undertaken, otherwise, that it make had or gratuitously such safety or that such inspections, safety inspections occurred, or hoists had fact and practices, machinery kind, denied that it been had of any guilty negligence Further, or defendant respects specifically charged. denied had made in- or or periodic surveys regular and spections premises while equipment, admitting that an had made intermittent employee sur- infrequent veys it denied that had inspections premises, they hoist, to or included the pertained they alleged for the sole itself advised of the purpose keeping risk it had insured. aAs first affirmative defense defendant that, because was the alleged contractor’s com- general carrier, it pensation subject suit as a third party feasor tort under the Florida Workmen’s Compensation Act; as a second affirmative defense it was alleged if it had fact performed safety as inspections plaintiffs it became a charged, subcontractor and was thus immune from tort virtue plaintiffs by of the Florida act.

Under these and the pleadings, proof arguments them, sustain advanced to we are confronted with three issues, to be determined under principal the law of Florida the situs of the occurrence and the State whose laws 74

regulate v. relationships parties. (Mithen Jeffery, first, Ill. Those issues 372.) stated as follows: may 259 was a valid common-law action defendant proved against case; second, causes of action plaintiffs’ against defendant taken from them the Florida Work by Act; and, third, men’s defendant, did Compensation making safety become a inspections, subcontractor on courthouse as to so from tort lia project immunity gain bility under the act? case,

Before considering facts of this particular we think it well to examine the foundation legal which plaintiffs’ actions are based. with the Originating decision of Coggs Bernard, v. 2 Lord it has come Raymond 909, be a can recognized liability arise from the principle negligent aof In performance our voluntary undertaking. times a clear and oft-cited statement of the is the principle language Cardozo Glanzer v. Shepard, Justice 233 N.Y. 236, N.E. 275, when he “It is ancient said: 135 learning act, one who assumes to even gra though tuitously, may become thereby subject to duty acting if carefully, he acts at all.” also: Am. (See Jur., Neg. 38 sec. 17; Florida, Harvard Law Review Illi like 222.) 5 nois, has the doctrine. recognized v. (Banfield Addington, Lawter, Fla. United States v. 893, 896; So. 104 140 (5th DeVane, F.2d cir.) United States v. 559; (5th 219 182; Frisella, F.2d cir.) Triolo v. Ill. 2d App. 200.) 306 addition, In Florida has stated that it will adhere frequently Torts, to the views of the Restatement of (Propper Kesner, 1; (Fla. So. 2d 1958,) Co. v. Tampa Drug Wait, (Fla. So. 2d 1958,) Matthews v. Lawnlite Co. (Fla. 1958,) 2d So. where the doctrine is 299,) “ stated this manner: One (1) who renders gratuitously * * * another, services to subject harm failure, caused bodily other his while so to exercise such doing, and skill as he competence pos sesses.” 323(1). § doctrine Court, in considering

Our Appellate that it was Restatement, “properly concluded stated in the active negligence, involving in situations only applicable an earlier misfeasance,” portion 129,) Ill. 2d at (39 App. “active the terms equated indicating opinion “creation of as meaning “misfeasance” negligence” here could risk, that defendant and its belief or danger,” unless was undertaking for a gratuitous not be liable fall.” (39 “caused the hoist to of negligence guilty court In this we believe the was Ill. 2d at 122.) App. is liable for The that a volunteer language plainly wrong. and skill as he does failure to use such possesses competence of the volunteer only duty not admit a conclusion to Moreover, refrain acts of from negligence. positive cases, discussed, insurers have in those where subsequently incurred as the result of liability gratuitous inspections and a breach machines upon rested equipment, care, to make with due duty inspections defects, caused which “created” or which acts dangers the occurrence which was received. Van injury (See: v. American Steam-Boiler Ins. Co. 240, Winkle N.J.L. 19 52 Steam Boiler & Insurance Inspection Alt. 472; Hartford Co. 201 Fed. As is shown defendant’s 617.) (7th cir.), viz., New citation of v. Greater own Viducich authority, A. 2d York Mutual Insurance Co. 80 15, Super. N.J. actions, show their had only 596, support plaintiffs, make that defendant undertook to (1) safety inspections services under and to render circum engineering defendant, which created a owed to duty stances plain tiffs, care, its with due perform undertakings that the (2) gratuitous undertakings negligently per formed, such negligence resulting proximately plaintiffs’ See also: McClure v. Hoopeston deaths and Gas injuries. Electric Co. Ill. v. Otis Elevator 89, Devaney 28, Co. Ill. 33. new, authority,

There is old respectable gra- tuitous by insurers under such inspections may made. circumstances as to create an enforceable duty persons known and unknown. The of these is Smith v. latest American 102 N.H. Insurance Co. Employers’ 530, 163 A. 2d a decision which errone- our Court Appellate dismissed as on a contract ously being based solely agree- In ment. that case the alleged complaint plaintiff carrier, that the workmen’s employer’s compensation accident, some con- time to the had prior gratuitously ducted at the insured’s monthly inspections plant, extended to an air exploded injured compressor plaintiff, insured. New employee Hampshire court, in tort action sustaining validity plaintiff’s carrier, held such conduct created gratuitous duty to use due care which extended clearly injured In Steam employee. Boiler & Inspection Insur- Hartford ance Co. v. Pabst Co. Brewing 201 Fed. (7th cir.) where boilers the insurer gratuitously inspected by exploded, had been force for months and it held policy that the insurer’s continuous re- conduct inspection and (the last the month to the port being prior explosion,) with the coupled as to representations advertising broad and value of its 201 F. at scope inspections, (see: 629), were of force to show both the “probative undertaking and the duty relation of the which the action parties upon thereof be negligence performance may predi- cated.” this the court said: Following “Inspection boilers care and skill necessarily requires perform- use, and, ance for in their thus safety when undertaken by assured, the Insurance to serve as a benefit to Company the arises, the with or in- duty without contract to obligation to exercise reasonable care spect, and skill each inspec- ** made, tion so at (201 Fed. 629.) Van Winkle v. American Steam-Boiler Ins. Co. 52 240, Atl. 472, a situation in- presented where the N.J.L. surance 19 a issued a boiler

company policy covering owned

77 to inspect itself the reserved to right Co. Ivanhoe Paper and dam- blew It subsequently up boiler. such and examine Ivan- Winkle, that of to adjacent of Van the building aged Jersey insurer. New the hoe, suit against brought who not could it was obvious court, plaintiff after first stating Ivanhoe and the between the contract suit on his predicate it was the issue before concluded that insurance company, under the the insurer the acts done by the effect of legal contract, affected the as they rights plaintiff, insofar commented that the The court the contract. to stranger boiler, if the and that insurer was not bound to inspect How- could arise. not no to plaintiff had done so that the insurer had ever, the disclosed the facts of case and had also under- made inspections repeated gratuitously the a certificate stating furnish its insured with taken to valve, which conduct on load that could put the insurer had become obli- caused the court conclude a careful It was stated (at make page gated inspection. seem that there is a broader : “And would Atl.) defined, above on which the than the one present ground that in all in which It is this: cases any case can be based. act, an undertakes person performance of if skill, will be with care and highly dangerous done unknown, lives one or more known or persons, persons law, as a facto, imposes, public duty, obligation ipso exercise such care and skill.” While (Emphasis ours.) case in Van Winkle Viducich anafyzing recently New York Mutual Insurance Co. 80 Super. Greater N.J. court mani- A.2d New 596, Jersey appeals 15, again the view that inspections fested repeated of certificates of Ivanhoe’s guidance furnishing created a were circumstances which duty engineer care. with due insurer inspect 2d Aetna & Co. Casualty Surety

In Sheridan v. Wash. the insurer issued an insurance P.2d policy elevator, reserving inspection. right policy 78

Thereafter, the insurer made making periodic inspections, to the owner and also re- as an ordinance reports city An of a tenant in the in- employee building quired. jured defective elevator by door suit brought insurer, who defended that had no under plaintiff rights it was not liable in- policy reason of .the by made. After spections numerous cases reviewing holding that the of a voluntary renders one liable assumption duty for its the court negligent performance, concluded (100 P.2d at : “Our 1031) conclusion is that respondent’s maintainable, action is not virtue of by im- any obligation insurance, posed by policy but because of the legal responsibility attaching as the voluntary assumption, owner’s agent, duty proper inspection report- to the ing city.” To same effect is Bollin Elevator v. Construction & Repair Co. Pa. 7, A.2d 361 63 19. hand, On the other defendant, relied upon are Viducich Greater New York Mutual Insurance Co. 80 Super. 15, A.2d 596; Zamecki v. Acci- N.J. Hartford dent & Co. Indemnity 202 Md. 54, A.2d and Ul- Crown welling v. Coach 206 Cal. Corp. 2d Cal. 96, App. where 631, Reptr. circumstances of the 'in- gratuitous insurers were spections by held create no enforceable duty However, to the case, involved. in plaintiffs but Viducich one venture, was made of a inspection new business and it ap- peared the only purpose was to de- inspection termine the “insurer’s remuneration.” Under such circum- stances the New court Jersey held no duty with inspect due care had arisen as to the an plaintiff, employee'of insured who was later injured due to the absence of a guard on a machine. Comparably, an Ulwelling, inspection October, insured’s buses was for purpose account, a new rating while a subsequent inspection Janu- ary, made after had policy issued and months before the occurrence suit, was done prompted basis, on did not sampling include the bus involved in- a trained or expert and was performed mishap, circumstances, that showing as well as proof These spector. safety engineering the insurer’s gratuitous 80% 75% services were service, led Cali- directed to road patrol not of such were fornia to conclude inspections court insurer any duty owing would nature as impose upon the latter either or being representa- passengers plaintiffs, shaft in a bus that crashed when a drive of passengers tives In the the air brake system. and damaged separated case, was decided on the was Zamecki pleadings, alleged by patron injured collapse temporary had that insurer gratuitously promoter’s grandstand stands, to ad- and had failed and inspected negligently The vise of their construction. faulty Maryland plaintiff view, court, in would to be a distinct what appear minority that was of the no could arise from volun- opinion duty mainte- from tary inspection, distinguished voluntary nance. case proof present fully negates any concept defendant’s gratuitous

that its inspections solely internal and own likewise refutes the purposes, allega- in its answer tions denying safety had inspections made, been or that it had made and in- regular periodic At the time and to the spections. immediately date prior took Auchter out and compensation public the courthouse defendant policies project, constantly those who insured with would represented receive extra and safety countless benefits monetary through services of defendant’s “safety experts” “safety engi- neers.” An referred symbol to as advertising "Mr. and Friendly” a series adopted, of advertisements in both national and trade (cid:127)placed publications, such repre- as the were made: "In following sentations case (1) after case, month, month after American Mutual’s safety engi- service has neering contractors all over the helped country costs;” reduce accidents and (2) insureds “have worked hand in with hand American Mutual Safety Engi- neers to build into after safety every job;” (3) explaining that one insured had saved money, method was stated to be: “Close between cooperation and Hittig Management American Mutual Safety Engineers designing oper- an effective ating “Thanks program;” (4) * * * investigation hazard thorough analysis occurred, immediate when accidents have investigations known firm has been nationally able to maintain a ac- good cident record and to lower costs.” These operating are but samplings many stated, but, that could be representations the tenor of each of the general, advertisements ad- mitted in evidence was that the safety took an engineers active in the safety part the insureds programs lives, saved limbs and A former money. executive of de- fendant, to the directly function of testifying the safety stated that it was to engineers, the insureds to reduce help accidents and to determine what were or were not unsafe From all of the evidence it practices. that defend- appears ant’s and the various safety engineers, financial and safety benefits claimed to inure to insureds as a result of their services, safety were its chief engineering stock in trade. as certainly, beyond appears shadow of a doubt Just the services gratuitously given by were engineers for solely defendant’s own purposes. Auchter, one stated, “Mr. Friendly” ads had done business with defendant for 20 years. Because Auchter was risk from whom annual premiums excess defendant, received $25,000 Auchter was clas- risk”, such, as a sified and as was “special given defendant’s services. At and to engineering prior occurrence involved, here defendant’s who employee serviced Auchter McClain, was H. D. its district engineer the State "of Florida. Before that he had been district engineer Tennessee, and had many years élevators inspected foir defendant. in the summer first went site job

McClain on, was going while the demolition of previous buildings and there be no but the purpose appears question so as this visit conditions was to determine report determine allow defendant’s underwriting department form's started on and rates of insurance. Construction 10, and while sometime 1955, October building prior visits to McClain’s he made but seven testimony fell, the site to March last (the when hoist up 19, 1957, 12, such visit witnesses for plaintiff being February 1957,) testified he was "on the site more said McClain frequently. hours, his visits he about four which would averaged during over house- go the entire himself with project, concerning conditions, hazards, the hazards of keeping machine Further, falls and he stated that falling objects. during Avent, visit he ad- every would see either Arthur Auchter’s ministrative on the engineer job, Sidney Hodge, project with whom he discussed conditions superintendent, he whom found co-operative.

After each visit or made various McClain inspection, Auchter, to his own reports and wrote a letter company the insured. His first visit after construction started took 11, over October place 10 and and his 1955, engineering on this report occasion stated: “A visit been scheduled has * * * in November At that time the engineer pre- 1955. to continue his pares accident work and to as- prevention sist the assured safe.” next formal making job followed a visit McClain on report January wherein he wrote: “Service in have been set forth plans and reports service previous bi-monthly basis upon regular has been scheduled to this until There- job completion.” after, formal were reports submitted visits in showing March, and October of in June, September Febru- ary of In the it was said: September report 1957. “The of this visit was a maintenance purpose periodic visit to observe this operations and to main- project continued his

tain holder On each occasion engineer- service.” policy and analyzed that he had ing reports represented inspected hazards, “Machine and “serious” "catastrophe” including form, listed hazards.” On a McClain separate report and de- used on machinery job being equipment scribed their After June, 1956', use and operation. form there “elevators” on the noted project, hoists, in- which were as owned by builder’s “typed” sured. His em- each visit formally

Following reported said, McClain, have also wrote letters as we ployer, Auchter the visits and describing making representations of which the are “I to again following (1) plan typical: will visit both within a few weeks and Jacksonville the above as a continuation of our service to jobs again you in the “I early control accident possibility(2) plan visits in November to assist your superintendents(3) our service your "Continuing engineering you making * * * I of your safe made operations survey opera- tions and from an over-all found job practices standpoint “Continuing from a satisfactory safety standpoint(4) our service a maintenance of your engineering you loss control I at the called program, jobs caption(5) at “To assist further accident control your job, you of the I the frame to Mr. he suggested ground Hodge builder’s hoist.”

Copies engineer’s reports inspection in- well as recommendations made to the surveys, any sured, were transmitted defendant’s depart- various ments, A sales and former including engineering. employee if at time the any sales testified department with, the recommendations were not sales depart- complied that there ment would be to contact the risk to see requested said, recommendations,” “Normal he was compliance. action on the de- any would not sales require part nature would be fol- but those “urgent” partment, to see it was whose duty the sales lowed manager up on immediate part that there compliance if home office were Instructions from the insured. with, cancella- not recommendations were urgent complied cancelled. be the risk normally tion notices would issued and with The exact action taken engineering department but it to recommendations does regard fully appear, that, least, does at went one occasion McClain appear with some recalcitrance on when he met president Auchter’s one part Hodge, superintendent, project the men his with whom discussed directly inspec- McClain visit, tions and On each McClain findings. succeeding would check see if carried out. his recommendations were

Taken in its all this evidence leads entirety, solely the conclusion that defendant did undertake to gratuitously make render safety inspections safety engineering services on the courthouse and that such inspec- project, tions were planned, and directed to the periodic circumstances, on the Under these employees project. in some parallel instances and exceed in others the Smith, cases, circumstances in the Pabst and Van Winkle defendant, our devolved owed to opinion duty to make plaintiffs, care. with due Of inspections certainty, defendant’s efforts to characterize Mc- present Clain’s activities as “casual but observation” for its nothing “own cannot purposes,” be with the squared scope activities which were in the represented advertising, reports and letters before any question liability arose. We hold that an enforceable duty to did arise as the result plaintiffs of defendant’s gratuitous in this undertaking case.

Before looking the evidence to the issue of relating whether defendant care, failed to use due or the skill and competence possessed, of its performance gra- tuitous we think it undertaking, well to first consider de- fendant’s contentions: (1) that absence of reliance any by either Auchter or plaintiffs upon McClain to inspect actions;

hoist is a bar to the that defendant’s plaintiffs’ (2) absence of control over Auchter or the hoist is a bar actions; and that the plaintiffs’ absence of be- (3) privity tween and defendant is a bar to actions. plaintiffs plaintiffs’ order, these contentions reverse

Treating upon claim of the need for privity may disposed quickly. Florida, like Illinois and the vast majority jurisdictions, has since refused long the ancient shield of permit a to insulate tort feasor from the privity consequences his Hoskins conduct. v. Jackson Grain Co. negligent (See: So. 2d (Fla.) 514; Wintersteen v. National Cooperage 63 and Co. Durham Woodenware Ill. Ele v. Warner 361 vator Co. 166 Mfg. Ohio St. N.E.2d 31, 10.) Speaking 139 actor, as to the of a directly a Florida liability gratuitous 661, court stated Ban Fla. So. Addington, field “And even man ‘where a interferes he gratuitously, 893: in a reasonable bound to act and manner according prudent to the circumstances and of the case. And opportunities fact, be, if is not affected so that he is by duty acting reward, contract, under other words and bemay ” * * distinct, The *.’ liable the contract. two duties are that defendant the circumstance did not con

Similarly, trol Auchter its and relieve or cannot equipment employees it from for the its liability consequences (Cf. negligence. Burton Kahn v. James Co. Ill.2d Defendant’s 620.) control, here not arise virtue its or did duty by right control, the and neither did it arise as the result equipment, with Auchter or its The any relationship employees. duty arose, rather, of law from defendant’s by own operation Moreover, and course of conduct. gratuitous independent are not based a defect charges negligence plaintiffs’ upon or conduct of Auchter’s upon equipment employees, but defendant’s negligent performance of its upon gra Smith, Pabst tuitous and Van undertaking. Winkle cases, Frisella, as Triolo v. Ill. as well 2d are a App. control of the of any concept rejection complete to the liability occurs is essential where negligence premises actor. of a gratuitous reliance is the element of contention that

Defendant’s is founded upon essential liability plaintiffs nonfeas with “only that defendant was charged premise situation, risk, ance, or dangerous a failure to report at and Ill. 2d 122,) already existing,” (39 App. that whenever a arises from duty undertaking,

argument otherwise, non the sine foi qua gratuitous nonfeasance, i.e. the undertaking, the omission to perform is reliance was di whom person undertaking however, rected or This person injured. theory, either overlooks or defendant was misapprehends misfeasance, to-wit, with under charged gratuitously took to make and inspections equipment prac insured, tices of its that it had “carelessly negli the said on a certain gently performed elevator inspections or hoist that as a direct so result cer thereof proximate tain injured decedents of certain plaintiffs plain killed.” tiffs Defendant was not (Emphasis ours.) charged with omitting which perform undertaking or Auchter or relied plaintiffs to under expected upon take, DeVane, United States (see: v. F.2d (5th cir.) 306 Torts, of Restatement 183; but was 325,) with charged § undertaken to having perform lawful inspections, act, and with done having so carelessly and negligently. Smith v. American (See: Ins. Co. N.H. Employers’ 102 Torts, A.2d 530, Restatement of 564; (1).) § 163 323 to act defendant By became undertaking subject to a duty with to the manner respect v. performance. (Banfield 661, Fla. So. Addington, Roesler v. 893, 896; 104 140 National Bank Liberty 2 Ill. Chicago, 2d 54, App. 58-59; Marks Nambil v. Co. Realty N.Y. N.E. 256, 245 157 out, That as have 130.) we duty, extended to pointed plain- 86 care,

tiffs and awas to use due duty or as Restatement it, of Torts defendant’s such puts was “to exercise duty and skill as competence (it) possesses.” 323(1). § We think it clear under the law defendant’s liability for the of its negligent as dis performance undertaking, from a failure tinguished is not limited to such perform, as have persons relied act in might but extends upon stead to such persons defendant could have reasonably foreseen would be as the endangered result of negligent It is performance. axiomatic that owes all every person others a to exercise duty care ordinary to guard against injury flows as a naturally reasonably probable act, foreseeable of his consequence and that such does duty contract, not depend upon privity interest or the proxim ity but extends to relationship, remote and unknown per sons. v. (Kahn James Burton 622; Co. Ill.2d 614, Winter 5 steen v. National Co. Cooperage Ill. Smith 103; American Insurance Employers’ Co. 102 N.H. 530, 163 A. 2d 564; Van Winkle v. American Steam-Boiler Ins. Co. 240, Atl. 472, 475; Ziraldo v. Lynch 52 N.J.L. Cf. Co. Torts, Ill. Restatement Plain (2).) § tiffs, as workmen on the were the chief project, beneficiaries of the safety inspection safety engineering services defendant, rendered by and we need not labor the point that defendant could have reasonably and foreseen expected would be they failure endangered to use due care.

To sustain its claim that reliance is essential to its liabil- defendant ity relies heavily Viducich v. Greater New York Mutual Insurance Co. 80 Super. 15, A.2d N.J. 596, and drawn from upon analogies the Restatements of Torts Agency, and Contracts. The language Viducuch however, relied opinion upon, has little persua- sion. Not does it only dictum, to be appear but the New Jersey court itself left unanswered the whether question' of reliance an proof is absolute essential “in case in every which it is to hold a sought gratuitous undertaker.” (192

87 ad- Restatements of the sections Nor do at 601.) A.2d controlling or have any persuasive defendant by vanced of Restatement of this case. Section analogy 378 sec- Torts and of Restatement section Agency, 325 reference all have of Contracts the Restatement tion of 90 he was because is injured a where person to the situation because of from acting act or to forbear induced to either None another. apply of or reliance conduct promises upon are and, moreover, actions here, plaintiffs’ the facts the Restatement section 323(1) predicated upon un- aof Torts, viz., gratuitous performance negligent as a basis reliance does not require dertaking, manner, of the Restatement In like section liability. here; to liability it has reference value has no

Agency failure to unexcused from arising agent’s “subsequent a manner as to act,” acted in such after having previously him. others to rely cause his or upon principal is if reliance Auchter have Plaintiffs argued them, such is essential defendant’s liability proof that Auchter had fact that the find with reason could jury making relied defendant’s Without safety inspections. evidence, believe an extended we analysis pertinent However, there is merit this contention. reliance, stated, it reasons already enough say Auchter, either was not an absolute essential by plaintiffs to the the defendant this case. liability and maintenance

Relying largely upon cases inspection where were de scope duty liability undertaking, contract, termined Co. v. Otis Elevator (e.g. Wolfmeyer Embert, Elevator (Mo.) S.W.2d Otis Co. v. Md. A. 2d Blackhawk Hotels Co. v. 876; F.2d defendant also injects Bonfoey, (8th cir.) 232,) contention that be liable to if it had as only it could plaintiffs the hoist and sumed Auchter’s entirely duty inspecting find, however, that at cable. We do not such condition in- taches to of one making safety gratuitously Smith, In the Van and Pabst cases duty Winkle spections. even and were found to arise the voluntary though had been and we are the inspections periodic, by persuaded in Van Winkle that the became holding gratuitous inspector use as subject to an enforceable due care “as duty soon took this machine.” part, practically, management of Moreover, A.2d at in it is fundamental the law (19 475.) that there be more than one negligence may proximate Pinero, (De La cause Concha v. So.2d injury, (Fla.) 104 Miller, St. Louis Co. v. Ill. and Bridge 465,) is for one liable conduct whether contributed negligent in whole inor to the so as it part plaintiff’s injury, long was one of the causes proximate injury. facts, to the material the

Turning Auchter purchased construction hoist Iron late from Archer erected it at the courthouse in May, ten project months the before occurrence which led to ac- plaintiffs’ bail, attached, tions. The hoist the with was raised platform a and lowered steel by cable and moved vertical along guide side, on rails each guide the rails being attached to the tubular metal which made the hoist Built pipes up tower. the bail was a a into device known as “broken safety,” rope of two serrated consisting jaws, “dogs,” opposite two rails. The guide remained retracted dogs so long of the car from the weight cable hanging exerted pres- bail, on but, sure of the top the action of cams through would extend out springs, rails engage guide as soon as was released pressure on cable. The pressure and traction exerted by rails thus dogs was guide arrest fall gravitational of the supposed As platform. detail in the greater of the explained opinion Appellate Court, a new ¿4-inch cable manufactured Union Wire installed, was and a line one-part between the rigged drum, motor, hoist and a activated aby which the cable was wound. To accomplish two new rigging, sheaves furnished Archer Iron were These employed. inches, inner diameter of an outer had sheaves Within the bed groove. 16 incres at diameter of Auchter, into operation, hoist had gone time after the short re-rigged platform, to slow down speed sheave third affixing line by made a cable and two-part and had sheave, used which was This the bail. top in- had an construction yard, Auchter’s from been obtained It inches. was plain less than 10 ner diameter of slightly view, accessible inspection. and easily build- used to the hoist was transport

Once operation it was and, during materials except period ing in the record the uncontroverted proof being re-rigged, laborers, on the of all project, that categories personnel executives, the rode on constantly company and supervisors that stair- time it fell. There was evidence to the hoist up ill-lit, cluttered under construction were in the building ways closed; materials, scaffolds, and sometimes and waste with hoist by use of the that the greatest and it further appears the of times. On day atwas starting quitting personnel time, an- occurrence, at 18 plaintiffs quitting at fifth floor level. on other workman got platform so, broke and the had done the cable platform After they the ground. to plunged cable, the sheave added by the accident

Following Auchter, tower were sent to of the hoist and portions Laboratories, an testing impartial Pittsburgh Testing tests and all From inspec- upon by parties. agency agreed of testimony uncontradicted it was the virtually tions made a wear due to that excessive cable participating experts safety the broken and the rope sheave inadequacy faulty Examina- causes of the tragedy. contributing device were disinte- revealed that was of the cable practically tion feet, that and it was ascertained distance of 21 for a grated cable a where the had occurred at point passed the break in the sheave The bed of the three sheaves. groove all over found to be worn corrugated Auchter was added a and when measured with herringbone pattern, gauge was found to be out contour due to uneven wear groove condition, on the walls. This patterns groove according witness, would cable to abnormal expert subject forces and actions which would hasten its wear. skidding wire cable bends around sheaves at Since an angle all witnesses agreed there was a direct relation degrees, sheave, between cable wear and the size and condition of the and, in there such that a cable regard, testimony expert sheave, over 10-inch passing would wear out 2*4 times than one faster over a 16-inch sheave. passing

Scientific tests the tower its broken rope device, detail, which we deem it revealed that unnecessary forces exerted rails the serrated guide jaws, caused the rails deflect such dogs, outwards to a degree device, the safety with the fifth from platform falling level, floor could halt a fall of only which was pounds, but in excess the hoist pounds weight platform.

It is contention that made plaintiffs’ safety inspections care, with due or which such care and skill as the safety would have engineer disclosed the possessed, dangerous conditions which caused the De ultimately hoist fall. fendant, front, which has argued on conceivable con every tends first its safety and services did not inspections hoist, extend but that McClain made only casual and visual observations of the hoist as a matter of inter general the est. evidence Considering most strongly plaintiffs’ favor and it every reasonable intendment giving favorable them, as we must under the circumstances of the appeal, McLean, (Pennington Seeds Chi v. Ill.2d Transit Co. cago Ill. it is our conclusion that 571,) the could find jury reasonably that the of McClain’s scope safety did extend to the hoist. inspections

When queried directly as the his between relationship hoist, visits the and periodic McClain stated: “I did not this as man inspect Auchter or equipment employed as by I was interested sub-contractor. any a man employed whole, as a it to the job related of equipment this piece I mean By on exposure the job. to whatever exposure these bear out His activities damage.” injury property after the hoist first visit In on his June, 1956, admissions. ex- did many things McClain went into operation, kind the He determined observation. tended casual beyond hoist; the the device on safety sighted and operation the rails, the essential to see if the guide functioning device, from ascertained good alignment; safety made; had been test of the device that safety Hodge drop the determined loading; with discussed Hodge anticipated used; calcu- size and the cable being breaking point times had a factor of seven lated that cable determined the hoist loaded rigging capacity; with it had been discussed changed; how Hodge visit, On the lubrication and maintenance the cable. same McClain, version, his “suggested” Hodge it tower be grounded against although Hodge put lightning, me McClain told way: “Early job to get Indeed, I tower did that.” shows with- grounded. proof out Mc- every contradiction recommendation made by Clain was with. complied other occasions if

On McClain checked to see the tower over, it had wires to from keep guy toppling inspected the brake drums for the oil that cause presence might Further, the brakes to that he at- his slip. gave appears hoist on tention visit after started every operating, his specific testimony being: “On last February (the visit before I made usual occurrence) my visual ob- servation of the I saw tower. the lift platforms going up and down and seemed they smooth. I reasonably didn’t * * * notice out of order. It was anything custom my I visited look at when job cable between the swivel deflector sheave I engine. noticed nothing gave me concern.” any And particular while trial McClain’s observation,”

characterization of his conduct was “visual visit, the he made after each before the reports question arose, that he made and sur- represented inspections hazards, of machine one veys form that report indicating short, the insured was two In builder’s hoists. the operating tenor and intendment of all the evidence is that defendant’s services did extend the gratuitous engineering hoist. record, There uncontradicted evidence includ- himself, ing of McClain that testimony in order to inspect a cable it is clean adequately necessary to off the at grease intervals, run the hand the cable along feeling spurs, to use a magnifying close and to glass inspection use a the strands in spike separate order to locate breaks there that valley rope. Similarly, is evidence of a sheave would entail of a complete inspection use of a hammer and groove guage, magnifying glass test seek for cracks. McClain did none of these things. Instead, he examined the sheave merely at of bail top and, as he see it only insofar could from the as ground noted, at looked the cable “between only the deflector sheave and the motor.” An elevator experienced passenger inspec- tor for his McClain his failure make company, explained cable a detailed and sheaves by stating inspection not classified rated hoist was elevator. of this testified explanation, McClain he had been Apropos told that there initially would be no Hodge riding hoist, he denied had ever ridden the or had hoist seen it, men and stated that he had known of riding this prac- tice he recommended would have it. As opposed this, workmen on two the project testified had seen they hoist, Avent, McClain while riding project manager, and two workmen that men testified Hodge, riding McClain hoist while was on the premises. Many im- testified men rode the witnesses hoist all partial day the hoist went into it like- from time long operation, wise that it was the custom for work- appears Jacksonville function whose hoists. jury, ride construction men to lies, reason could with the truth determine where was to knew, or that McClain from all the evidence conclude of hoist, known, the were riding that should have personnel elevator. and fact it as a using passenger in to insist that McClain’s failure adequately

Plaintiffs of a the cable and sheaves was negligent performance spect hand, Defendant, other on the the gratuitous undertaking. shows its that the evidence argues merely gratuitous a and thorough inspec services did not extend to complete contends that and its and tion hoist components, in the way enough cannot be held doing negligent the resolu of For believe services. our we gratuitous part in its traditional func tion the issue rested with jury tion of facts amount to whether particular determining exercise of due care or a want thereof. The courts Florida, Illinois, like those of have held consistently what is and what is not a case is negligence particular court, a for the for the and not generally question jury Lumber Fla. So. (Weis-Patterson Co. King, 342, 177 Orr v. Avon Florida Citrus Fla. 313, 318; 306, Corp. 130 612; Rudnick, 2d Ney So. Handel v. (Fla.) So. v. Yellow Cab Co. 2 Ill.2d and we find stated 84,) Twitchell, “The de Cobb v. Fla. So. 188: 539, 108 be case avoid of care to used to any given gree required circum must be to the according of negligence imputation or in to reasonably stances danger proportion similar care as sufficientunder such is ordinarily anticipated; and secure circumstances to avoid danger safety.” stated, As and fair- reasonable jury previously men reach all of the evi- minded could the conclusion from re- dence that the interest and of defendant with activity claim to the hoist were not limited to spect post-accident extended, observation, of casual but in fact once as McClain testified, dam- to whatever and injury exposure property attended of the hoist on the age operation project. in- no or safety

Auchter company employed safety engineer own, first of its and this was spector experi- company’s this, metal As ence with a manufactured hoist. opposed McClain was trained and practicing safety engineer, as a aware fully elevator qualified inspector sheaves between cable wear and relationship proper sure and safe Under all of only both. way inspect circumstances, Mc- most circumstance particularly knew, known, Clain or should have were riding personnel hoist, think fair- we the same of reasonable and jury minded men could that the ordinary conclude exercise of care, or the skill competence safety engineer have possessed, would McClain required adequately sheave, at least the cable and to insure properly inspect that such In inspections were made. being regard latter, McClain did ascertain whether defendant’s insured was hoist, the but no see inspecting clearly made effort to that safe and there adequate were made. While inspections was some as conflict to the whether Auchter was inspecting all, cable at the who testified that he did had employee so instruction, no that special conceded he did not training sheaves, examine the and testified that his cable inspections were on the and accomplished by getting merely platform at the cable as the ran the looking operator slowly platform This, the the of tower down top again. according was expert testimony, tantamount to no at all. inspection the its Claiming privilege judgment supporting record, Court basis Appellate any appearing Becker (see: Ill. Hazel v. Billings, Hoopeston- asserts, Danville Motor Co. Ill. Bus defendant ad 38,) court, for the first mittedly time that it cannot guilty because there is negligence no evidence that careful reasonably cable McClain inspection would have that it disclosed was unsafe. itWhile is our opinion there is no basis in the proper record to this con- permit made, In Leichtenberg, re Estate (see: to be tention merits. untenable Ill.2d 545, 548-549,) equally that the small of the discloses body The whole evidence cable caused excessive defective sheave added Auchter wear and damage. could also

We are in accord with jury plaintiffs McClain, find from under the the evidence that reasonably case, of the failed exercise due care with circumstances most im- device on the hoist. The respect safety are, McClain, circumstances unlike portant again, hoist, the evi- manufacturer under chargeable hoist, dence with knowledge were personnel riding and that trained matter McClain was experienced devices, such whereas Auchter’s testing employees not. There is evidence that of the safety proper testing device would have been to make two tests with the drop of the manufacturer’s platform bearing rated load. 120% this, As he made one test opposed testified but Hodge and that by merely raising unloaded to a platform of six to feet height eight it fall. McClain knew letting and, device, of importance safety de- previously tailed, once the hoist was into put took operation steps device, determine the type alignment rails and whether functional tests had been He made. did not, however, concern himself with the of the test adequacy later, then or knew, even he known, though or should have that the was in hoist effect utilized as a being passenger elevator. made, Had test been adequate and had McClain exercised the safety engineering skill situation de- manded, it would have been discovered that the safety factor of the device in only excess pounds plat- 300 form weight. whole,

Considering as a record we cannot say law, a matter of that the evidence fails establish a reason- able basis from which the jury could arrive at the con- con- that defendant was of negligence

elusion guilty injuries tributed in whole or part, plaintiffs’ deaths. that the next defendant’s affirmative defense

Turning Florida it immunity Workmen’s Act gives Compensation said, tort-feasor, from suit as a be to use third party may Elevator the words of the Fabricius v. Montgomery court Co. (Iowa) the real 361, N.W.2d question pre- sented is whether there is the Florida act which anything of their at common law deprives plaintiffs right proceed against workmen’s carrier for the general compensation contractor. The Florida act expressly preserves em- ployee’s common-law action a third tort- party feasor, without who shall or shall not be third stating party tort-feasors, (F.S.A. sec. but it con- 440.39(1),) may here, ceded without the need of act detailed analysis or the judicial it, Auchter, decisions as the construing contractor, general is immune from suit as a third party tort-feasor both as to its own employees and employees of its subcontractors. Coast Con- Brickley (See: Gulf struction Co. Thus, Fla. So.2d stated 265.) contention, differently, terms of the issue defendant’s defendant, raised is whether as the carrier compensation contractor, in- general enjoys tort of its immunity sured. The has never precise been problem passed upon case; the Florida courts factual of this how- setting ever, we find clear-cut decisions treating upon question of tort under immunity compellingly situations analogous which stand as to our decision. guidelines is Frantz v. McBee

Most Co. persuasive (Fla. 1955) So.2d where was held that Florida act did not extend from suit as a immunity third party worker, tort-feasor to a or fellow in- co-employee, act, After jured workman. out pointing Florida States, unlike those of some did not in terms express give from suit as a third co-employee immunity tort- party feasor, the court said of the act and the construction to be “It ‘The it: placed only provides liability in be exclusive shall employer prescribed § 440.10 ** in other such liability employer of all place ; Section expressly pre- (emphasis supplied) 440.11 serves to an a concurrent injured employee remedy against tort-feasor, a to who third without definition as party is a tort-feasor.’ Section There ‘third 440.39(1). party is in our Act or. necessary which expressly nothing inference this court to hold requires Legislature rule intended to the common-law abrogate respecting to an of a injured liability employee negligent coemployee. Under these circumstances and under the rules ordinary construction, we cannot read into statute statutory inbe of a derogation which would common-law provision an injured right employee.” issue,

To further resolve in ato con- response tention that v. Giller language Younger Co. Contracting Fla. So. tort 335, 690, required to be immunity extended in Mc- court continued co-employee, Bee decision : “A recent decision (pp. 799-800) court, Jones Florida Power So.2d Corp. (Fla. 1954) 72 285, charts the which we should our path follow here, much decision more than does dictum case, In case. the Jones held Younger we that ‘It is the liability to secure compensation gives employer suit immunity from as a third tort-feasor. His im- party suit munity from is commensurate with his liability is, securing more no less.’ compensation There —no course, no on the liability of an part secure employee to for a compensation And since co-employee. there no the Act, under there is no suit immunity under from the Act." (Emphasis ours.)

Again, Jones v. Florida Power Corp. (Fla. 1954), 72 So.2d where the claimed power company tort immunity as the “common employer” employees two inde- in a construction project contractors engaged

pendent “The record does at the court said page the company, 289: show, Corporation, there nor is any allegation, em- in which plaintiff the construction project secure compensation was liable for and required ployed, as an' and Grinnell ‘employer’ of Burns for the employees And, as here- construction job. in this engaged particular under as an noted, employer there was no liability if tofore the third suit as a Act, party immunity there was no from ours.) tort-feasor(Emphasis re- it that these decisions believe obvious patently

We from suit claim to immunity us to defendant’s reject quire - act does the Florida as a third tort-feasor. Nowhere party be the exclusive that the act shall provide compensation carriet;, that such or remedy against employer’s provide tort- from as a third carrier shall suit enjoy immunity party feasor, for it would and us to read those into provisions of Florida admonition the stern and ignore persistent workman courts that the action of an injured common-law takes in the act which is unless there is preserved something Tours, Fla. Trail v. Tamiami away. (See: Hartquist cir.) (5th Martin v. Theockary, So. 533, 538; is 220 F.2d But of even greater 900, 901.) significance in the Jones failure to meet the test laid down defendant’s immunity McBee for determination of decisions the Florida from suit a third tort-feasor. Under party act, neither the carrier an has for employer compensation for nor the to secure workmen’s liability compensation duty insured, of its for the of its or employees employees subcontractors, does not insured’s and thus possess tort essential immunity. requisite as it that there no the act must is Conceding provision from which suits immunity gives plaintiffs’ express terms, the use of the defendant contends generally his insured” in some sec- alternative or phrase “employer act, tions section Florida (particularly 440.39 action a third common-law wherein employee’s in- is manifests a tort-feasor preserved,) legislative party and his insurance carrier for tent to the employer equate from a third all suit as including purposes, immunity party to the of the act tort-feasor. we look Whether language itself, construction, or to the basic rules of statutory stand. contention cannot act

The Florida does not include the insurer in its definition reads as but follows: employer, “(4) Term means the and all state subdivi- ‘employer’ political thereof, sions all public quasi-public corporations therein, every person carrying employment, aof deceased or the receiver legal representative person trustees of sec. any person.” (F.S.A. 440.02(4).) Had been a intent to there legislative equate employer act, its insurance carrier for all under the purposes surely this definition have them. would section equated Again, sec. 440.11, (F.S.A. 440.11,) necessarily key raised, section to the issue the legislature that the provided “employer” shall be ex- compensation and in of all clusive other such liability to place employee. The “insurer” is not mentioned word either or separately and under the fundamental conjunctively, rule of statutory that the mention of construction one excludes all thing mentioned,' Hotel, v. other not Sea Isle things (Dobbs (Fla. So.2d the insurer is 341,) thus excluded from 1952) 56 the exclusive the liability Once imposed upon employer. it be remarked that had it may been intent of again, Florida to legislature insurer equate employer it all would likewise have conferred purposes, exclu- sive insurer in this section. reached, section was

When the legislature, by 440.39 subparagraph (1), preserved employee’s common-law action third tort-feasors. No party exception máde as to insurance carriers the fact the suc- despite went ceeding to subparagraphs great out lengths spell his or in the event employee carriers of such the rights suit. Having entitled bring were brought-or dependents and status of out the rights taken the spell pains have ex- would insurer, think the Florida legislature we had that been to insurers immunity tort granted pressly its intent. in some the word “employer” the use of

Similarly, act, the words using “employer, while sections of others, rules of under the in has significance his insurer” are to that state words employed construction which and that the use by legis- their given meanings, plain and wholly in one instance certain lature of language results indicates different another different language Commission v. Florida Racing intended. (See: were State Am. Jur., So.2d 1949) (Fla. Bourquardez, intent Statutes, it been the legislative sec. Had 274.) his in- and liabilities of all duties employer rights, as the matter of surer to be particularly equated, the insurer have mentioned exclusive would liability, sections, mention while failing alternate some as an in others. Mays point A case convincingly precisely F. 2d Insurance Co. (3rd cir.) 174, Mutual Liberty reversed an earlier was filed August There, at 211 F. decision Supp. district court reported 541. case, im- carrier claimed compensation present tort-feasor because suit as a third party from munity instances em- Act some Compensation Pennsylvania or insurer.” the alternative phrase “employer, ployed however, like exactly definition of “employer,” statutory act, the insurer. Florida made no mention of definition, the to this Circuit Court Appeals Pointing in that “In this definition section supports said: respect for when the intended of Mays, legislature position the insurer with did so specifically employer, equate clear, un- terms. Its failure to do so in the in unequivocal Pa. Purdon’s Stat. definition found ambiguous § JJ not intend to blend Ann. is an indication that it did § their jural personalities.”

Defendant next that the third tort-feasor party urges of section must referred to (1) subparagraph 440.39 carrier, than the insurance be some other necessarily person substance, because the succeeding subparagraphs provide, that an insurance carrier is to the right subrogated third tort- or his dependents against party employee feasor the extent benefits that the paid; compensation or common-law action shall be brought by employee his and for the use and benefit dependents individually, insurer, be, if or the case com- employer may as benefits have been or pensation paid; employer the insurer shall have a lien the extent of medical benefits that the compensation or insurer paid; employer the action the third if may bring tort-feasor against party or his have not done employee dependents so within and that year; where suit is brought by employer insurer, no settlement be made shall except upon agree- ment of the injured or his employee (See: dependents. F.S.A., sec. 440.39.) defendant contends that Specifically, if a carrier can compensation be sued as a third tort- party feasor, the absurd and result will incongruous be that an insurer will have a and lien right subrogation itself, the event suit, not start employee does the insurer will be placed position with or settling itself. suing not without Although some surface appeal, we find defendant’s claim to from immunity suit as a third tort-feasor party such has been reasoning judicially under rejected circumstances and statutes not materially different from those of this case.

One such case is Fabricius v. Montgomery Elevator Co. That, (Iowa too, 1963) N.W.2d awas suit by 361. his employee against employer’s carrier compensation tort-feasor, a third party involved the compensation which, Florida, neither act of Iowa like that of expressly the the insurer nor made the act tort granted immunity Also, like the Florida exclusive the insurer. against remedy act, the insurer the of subroga- the Iowa statute gave right the lien effected by employee tion and any recovery against In that such the third tort-feasor. against party holding n the lien did not and subrogation provisions operate give “If the em- court stated: insurer tort Iowa immunity him, from what action'is taken away common-law ployee’s insurance it cannot be the policy. has done so? Certainly re- statute that do not find a imperatively compels We be indemnified and subro- the insurer may sult. Because It not deal with the result. does does not gated compel Likewise, argu- we are not matter. subject persuaded in the of suing position ment the insurer would placed in- intended the It is easier to believe legislature itself. extent paid.” a set-off to the of compensation surer to have ours.) at (121 364-365.) (Emphasis N.W.2d case is Mays Liberty A even more recent second and F.2d 174, cir. Insurance (3rd 1963) Mutual Company, There, in reaching have alluded. to which we previously lien provisions a conclusion that subrogation confer act did not Pennsylvania compensation tort- as a third from suit immunity party insurer employer’s Fabricius, feasor, quoted court reasoning adopted sub- above, that the article with dealing likewise held no “relates solely and lien procedure” rogation “em- the act which defined the section of manner modified of the insurance carrier. exclusion to the ployer” interest that a matter of more than note passing We Fabricius cases both examined and May the courts case, Court this instant of our Appellate the opinion conclusion rejected Ill. 2d 73,) apparent App. (39 construed as Florida’s was to be a such as statute in the matter of with the the insurer employer equating tort immunity. Insurance Co. in Smith v. American

Finally, Employers’ contended the 102 N.H. A.2d when was act disclosed of the New subrogation provisions Hampshire intent the insurance carrier immunity legislative give tort-feasor, from suit as a third court party responded “This contention fails to take into account : (p. 567) fact that claim the carrier is for a tort here it as third committed allegedly person against the defendant would to the plaintiff. Payment plaintiff by carrier, nor in its as a but not be under the status policy * * * far as rather as an third So independent party. concerned, its that of an defendant is alleged liability law, out of an under the but one employer, arising alleged breach of a common-law duty.”

And while Florida courts have not considered the effect of the lien and insofar as affect subrogation provisions they of a common-law carrier to an compensation or their injured his decisions make it employee dependents, clear that those are not to-be construed enough provisions or of limiting depriving of action employee right himto third tort-feasors. In Hart preserved against party Tours, v. Tamiami Trail quist Inc. Fla. So. 328, 139 190 where it was contended an 533, could not employee -maintain his action he common-law because had not the -notice given- act, court required subrogation provision held that such “was not intended to curtail or requirement affect the remedies of the existing employee against Nor is it third construed as a limitation party. of an commence an action right .employee -against Likewise,

a in Frantz McBee third v. Co. person.” (Fla.) So.2d the court brushed aside the idea that 796, 77 of its act would a common- prevent subrogation provision law action when from co-employee, against quoted National Lead Co. v. Sylcox 543, App. S.W.2d 225 Mo. 38 “Such conclusion lead to 497, say: may complications the enforcement of the employer’s but right subrogation,

104 con- and necessary nevertheless think it is the

we logical of our local act.” be drawn from the clusion to language militate are still other factors which against There basis, tort immunity defendant’s effort gain as to the circumstance that the least of which is 17 not the insurer this case defendant was plaintiffs concerned, Insofar as are their those employers. plaintiffs is thus not subroga- defendant possessed rights tion, lien, suit or the commencement of other rights upon believe, circumstance, This we which its theory hinges. Smith, both the (163 serves to observation emphasize cases, at Fabricius at 364,) A.2d N.W.2d 567,) (121 here are not brought that the suits of the nature prosecuted carrier, defendant of insurance status something required negligent performance act, in its do under the but compensation independent status as a tort-feasor for the negligent performance Accident act. Schulz v. Standard completely gratuitous Cf. F. Ins. Co. (D.C. Wash.) Supp. 415.

Nor, when the differences and circumstances statutory noted, citation of suit are is defendant aided its extensive Aetna In other Sarber v. notably from jurisdictions, Life F.2d surance Co. (9th cir.) 434; Hughes Maryland 1101; Schulz v. Co. Mo. S.W.2d Casualty App. Accident Insurance Co. F. (D.C. Wash.) Standard Martin Ins. Co. Casualty v. Consolidated Supp. In F.2d each case was recovery sought cir.) (5th 896. from of indus resulting for or death injury aggravation furnished trial the medical treatment of doctors injuries or insurance carriers or employed pursuant policy in contrast to the situation statutory obligation, present en defendant are the actions based upon where conduct. Of how tirely gratuitous greater significance, ever, in each which were statutory provisions jurisdiction insurance carriers with either charged primary expressly of else for the liability payment compensation, permitted for that of to be substituted of the carrier liability involved statute "the California is Typical employer. “If the case, employer had provision:

Sarber which and if after for liability insured against compensation, is be served causes to the insurer of suffering any injury assumed has claimant a notice on any compensation claimant any and agreed compensation pay liable, shall be relieved is such employer the employer which claimant to such liability compensation the Commission.” of a such notice with filing copy Statutes, Vol. (Schneider, Compensation Workmen’s 220-221; is Another emphasis ours.) example pp. case in the Hughes

Missouri statute under consideration liabil- “If the be insured his which provided; employer he is insured hereunder shall be and direct. ity primary If his his shall be insurer shall liability secondary Anno., liable hereunder.” Stat. directly (Mo. primarily sec. The ratio decidendi all 3325; emphasis ours.) cases was the acts the carriers charged since expressly with the carrier likewise liability employer, entitled to immunities of an employer. act has no Florida which provision comparable liable makes the insurer

expressly directly primarily to an injured and neither does make express employee, to be insurer provision liability permits Defendant, substituted for the liability employer. however, authorities, in an effort to find for its application would have us read a direction legislative of primary act, into liability section and substitution of 440.42 into section secs. (F.S.A. 440.41 440.42 from the 440.41). Apart effect of the Florida decisions act in construction of the Florida holding derogation of the common-law of an be avoided rights employee wherever Frantz McBee Co. possible, (e.g., (Fla. 1955) So.2d we merit 796,) find no substantive to defend- contentions, ant’s it is when particularly remembered that the Florida test for tort is the immunity duty liability to secure compensation.

Section sec. (F.S.A. reads as 440.41) follows: 440.41 “In any case where the insurer, in not a self employer order that the for liability this compensation proposed by be most chapter may effectively the by discharged employer, and in order that the administration this in chapter of such respect facilitated, liability the may Commission shall by regulation for the provide the carrier discharge, for such of such employer, of the obligations duties employer of such respect this liability, imposed by chap- ter the as it upon employer, considers order proper effectuate the provisions For such chapter. pur- notice to poses (1) or an knowledge of the employer occurrence shall be injury notice to or knowledge carrier; of the of the (2) jurisdiction employer by Commission or court any under this shall be chapter juris- carrier, diction of the and (3) any requirement by Commission, order, or any Court under any compensation or decision shall be finding the carrier in the binding upon same manner and to same extent as upon employer.” Next in order section (F.S.A. sec. 440.42) pro- 440.42 vides, with to insurance respect issued under the policies act: or contract “Every of insurance policy issued under of this shall contain authority chapter (a) provision out the carry 440.41, Section provisions (b) or insolvency provision bankruptcy employer therein shall not relieve the discharge carrier from or payment compensation disability death sustained the life of such employee during contract.” policy think clear that these We sections do not reflect a intent to legislative place primary liability compensation insurer, or to permit insurer to be substituted for the liability of In the employer. first the sections do not deal simply with the place, subject matter, was dealt with early act when Every employer stated section “(1) legislature 440.10: * * * shall of this chapter, within provisions coming his employees be liable for and shall secure payment sec. (F.S.A., sections.” the under payable compensation face, more is, Instead, on its no section 440.10(1).) 440.41 to than an procedure administrative provision relating the Florida Commis the has authorized wherein legislature sion, regulations whereby as deems to make proper, “im the liability insurer most may effectively discharge ours.) (Emphasis this on employer.” posed by chapter insurer, an adminis to the but is not transferred Liability dis may the carrier whereby trative is provided facility if it had Manifestly, liability employer. charge insurer been the intent to make the primarily legislative need to for have been no liable there would compensation, to discharge an means for insurer administrative supply for the insured’s The insurer substituted liability. not to secure com as to the for duty employer, in section 440.10, pensation solely placed employer notice, but with jurisdiction compliance only respect Fabricius with As court indicated in commission orders. N.W.2d Elevator Co. Montgomery (Iowa 1963) situation, such limited sub under 361, 366, comparable construed as for cannot be stitution purposes procedural common-law action. away taking employee’s manner, manifests no intent to In like section 440.42 in what the insurer liable derogation make primarily in but control the 440.10, only was said section seeks to the liabil- the insurer end that the obligation contract will not be defeated compensation ity employer latter’s or most insolvency Only bankruptcy. it be arduous of constructions could said this section be a was intended to limitation on a common- right law their in preserved employees action dependents (1). section 440.39 conclude there the Florida act which is nothing

We and the reflects a intent to equate employer legislative as to im- insurer all purposes, particularly employer’s or, tort-feasor, as state from suit a third munity party from another we find nothing perspective, proposition the act serves to an injured which employee deprive the em- his of a common-law action against dependents carrier. ployer’s compensation

Subcontractors, for reasons need be stated detail, from suit as a enjoy immunity third tort- party - act, feasor under the & Sheet Florida (Miami Roofing Kindt, Metal Co. v. 2d are next and we (Fla.) 840) So. confronted with defendant’s second affirmative defense tort Defendant seeking gain immunity ground. does not claim to have entered into a subcontract with Auchter, but its is that if it found to have made theory on the safety inspections plaintiffs’ project charged it became an en- on the complaint, employer project titled the same from as common-law actions immunity other Florida subcontractors and on the employers project. decisions, however, the that defendant arose negate concept to the status of a on subcontractor or the employer project as the result of its gratuitous inspections.

The term “subcontractor” is not in the defined Florida act, but section in “In case a con- provides part: 440.10 tractor sublets of his any part contract work parts a contractors, subcontractor or all the of of such employees contractor and subcontractor or subcontractors engaged such contract work shall be deemed to be in one employed * * business, and the same *.” (F.S.A. 440.10.) sec. two Upon occasions Florida Court has said Supreme with reference to this “The clear language: implication this Act is that part there must be a contractual contractor, obligation on the of the a of which part portion he sublets ‘underlet,’ to another. ‘sublet’ To means to Web- ster’s New International Dictionary; context which used, is here is effect of to an- subletting pass person a contract under other an obligation ours.) (Emphasig so obligated.” ‘subletting’ primarily 1962) Co. (Fla. Steel (Street Safway Scaffold (Fla. 1954) Power v. Florida Corp. Jones So.2d 38, here there subletting no Not was only 285, 289.) So.2d a defendant, Auchter’s duty provide but by Auchter for his employees safe of work employees place nor a obligation, was a contractual his not subcontractors work,” of defendant and no theory the “contract part could make it so. and deci- section virtue of

By language 440.10 discuss, deem necessary sional evolution we do not rule, has a “common workings Florida employer” v. Poston demonstrated by Equipment which are best Smith In case a Rentals, So.2d general Inc. (Fla.) 578. a Poston for use on a con- rented crane from contractor a struction loaned an operator helper was project Smith, an to run the machine. employee general contractor, fell from the injured was when bucket crane, and a suit Poston brought charging and the In operator with helper negligence. holding even act remedy, was Smith’s exclusive compensation subcontractor, the court said Poston was though men, : “If the were lent who (p. 579) part contract, rental were in the construction actually engaged process contractor, under the direction the general they action fellow servants statutory purpose under a ‘common who liable to secure employer’ pay- ment of workmen’s for all of them.” (Em- compensation efforts phasis Defendant’s to take supplied.) advantage of this decision and “common rule to employer” gain McClain, tort cannot Its was immunity succeed. employee, not in the “construction when he made engaged process” his he was not under the direction safety inspections; or and, more, contractor; control of the Auch- what is general ter was liable not to secure the payment compensation also: McClain. v. Tamiami Trail (See Hartquist

Tours, Inc. Fla. So. More in here is 533.) point 328 190 the Florida court’s decision Goldstein v. Acme Concrete Co. So.2d where held that (Fla.) was “common rule did a employer” not extend to materialman who was concrete ready-mixed to a con- delivering general carrier, a tractor on construction site. A like compensation materialman, work, and, a no of the contract performs part case, in this it is to be remembered McClain remained under defendant’s control and was on the site to serve as defendant’s well as those of its insured. purposes In accord with the of Florida that its policy compensa- tion act is not to be one of a interpreted com- depriving it, mon-law unless the right statute and in clearly requires face conclusions reached under acts in comparable v. Mutual Mays Co. F.2d Liberty Insurance (3rd cir.) 323 Fabricius 174; Elevator Co. Montgomery (Iowa) N.W.2d v. American Insurance Smith Employers’ Co. 102 N.H. A.2d conclude that 564, we plaintiffs’ suits denied them defendant Florida Act. Workmen’s Compensation cases,

As true in the Mays, was Fabricius and Smith the defendant and amici curiae press argument would be contrary public policy permit recovery tort-feasor, against a carrier as third compensation party result will be contending curtailment safety to the ultimate detriment of men inspections working This, their families. been appeal rejected has soundly cases cited and we see little purpose repeating them, found expanding upon reasoning logic add that the and value of the in- except scope safety thus in an effort to spections, represented sustain con- tention, inconsistent are with highly defendant’s claims under the phase of- the case that the negligence activity observation,” “casual for its engineer only Furthermore, own whether we look to the law purposes.

Ill Illinois, policy such a of public of Florida question Properties for not for the courts. General the legislature Illinois Co. Fla. 18 So.2d West 908; v. Greening, 154 Cicero, Ill. ern Town People Electric Co. v. 282 Ill. ex Cooper, rel. Carruthers v. 404 395. Court, that no found common- having Appellate defendant and

law action was against apparently proved de defense as its treatment of the affirmative considering errors,” cisional, “certain trial (39 declined to pass upon Ill. 2d at defendant as by entitling advanced 135,) App. Defendant, it to a Foreman v. new trial. relying upon Holsman, ex Hahn Hurley, 10 Ill. 2d rel. v. 551, People decisions, Ill. insists 2d and similar now cause be remanded to the “to Court pass upon Appellate serious not by issues were passed upon Appellate Court, Mu the errors American assigned particularly by tual new trial.” leave granted Upon plaintiffs, briefs of the in the have Court parties presented Appellate here, been filed with the record (Cf. City Railway Chicago Schmidt, Co. v. Ill. and within its reference to 396,) “serious issues” we defendant includes the presume ques tions of control of privity, premises public policy which, briefed and although fully argued Appellate Court, not resolved or touched in its upon opinion. However, under the accorded defendant to sustain privilege judgment Appellate Court any jus upon ground record, tified Elm (Mueller Co., by v. Park Hotel Ill. Becker 391, 398-399; Ill. Billings, 190, 205) has briefed and fully issues argued those here and we have issues, therefore, decided them. As those there is no need or Plaintiffs, for remandment. purpose pointing manner has defendant here presented some of the issues not passed upon by Court Appellate while others, omitting contend the latter have been waived defendant with charge some of “preserving” the errors passed Court an effort to Appellate eventuality remandment basis maintain is not this contention think the court. We of reversal by However, feature of merit. putting devoid entirely case, believe our juris we circumstances of with other considering are best exercised by and discretion diction and finally disposing defendant trial errors urged true, they questions is this since case. Particularly present of fact which would rather than determinations of law and Paint Varnish Armstrong us remand. See: to require 111; Co., 102, v. Logan Continental Can Ill. v. Works 301 York, Ill. Mutual Co. New 510, Ins. 514-515. Life of clear this court It is that abundantly possesses issues. and to determine jurisdiction remaining power Practice Act judg of the Civil provides Section 75 final, when a are except ments of the Court Appellate leave that court or certificate of is granted by importance court, “In this and then continues: to is appeal granted made final in the case as is hereinbefore Appellate such any to leave it for the Court grant Court is Supreme competent with the same for its review and determination to appeal case, as in the and with like effect, and authority power if Court.” Supreme (Ill. been carried by appeal had 110, ; Rev. Stat. 1961, 75(2) ours.) chap, par. emphasis act, in section entitled “Powers of review Again courts,” it In all the review ing provided: “(1) appeals discretion, in on such terms as it court may, ing ** * deems and- make just, any Give (e) judgment * * * made, order which to have been any ought given 110, that the case Rev. may (Ill. require.” Stat. chap, ; Further it has par. 92(1) (e) emphasis ours.) frequently been indicated where this court acquires jurisdiction reason, has all any jurisdiction pass upon ques tions, evidence, those a of except weighing requiring in the case. passed upon proper disposed Ill. Bowman v. Illinois (Goodrich Sprague, 376 Co., Central Railroad 11 Ill. 2d Aside from 186.) consid-. appeals, to the avoidance multiplicity erations going which, here circumstances in our unique there are opinion us use our of discretion and justice, impel a matter finally dispose on review to utmost powers the case. trial after indicates that jury record filed weeks, entered

some pro judgments have on December ceeding processes Appellate 1959. of four during thus consumed a excess years, period at the matter was issue greater which part Appel late not a the exercise Court. conclusive basis Although of our the desirable jurisdiction, of bringing pro purpose end and the injustices longed litigation hardship further work on both sides to the litigation would delay are in our matters How of consideration. worthy opinion ever, there is more reason impels compelling exercise of our jurisdiction found the circumstance that one of the three before the matter judges whom was heard Court himself and Appellate “took no disqualified in the decision of part” the case. Ill. at (39 App.2d 135.) Section Act Courts two Appellate provides shall judges constitute a and that concurrence quorum of two “shall be to decision. Rev. necessary” every (Ill. Stat. 1961, Remandment to the two- chap. 37, par. 31.) court judge would thus be with the impregnated possibility that the concurrence necessary could not be reached upon occur, remaining issues. Should that final disposition, other, one or the way would be greatly. delayed morass of difficulties that would in procedural follow and all would probability become the eventually task of this court. we act, Since have the and jurisdiction discretion to so, we believe that justice and us to do public policy require than rather to expose further parties and the delay uncertainties created by the withdrawal of one Appellate Court judge. city Jacksonville,

Prior to occurrence here the Florida, ordinance reference an which passed adopted by Code,” a code known as the “National building Building and the “American also ordinance reference by adopting Elevators, for Safety Standard Code Dumbwaiters Associa the American Standards by Escalators” compiled These tion. ordinances were introduced evidence for the co-defendants counsel plaintiffs, plaintiffs read por and Archer Iron were permitted Union Wire de tions thereof over jury, objections repeated Mutual, first, fendant that neither code applied American hoists, ordinances were to construction and second that the a State statute and did come effect because invalid not into had the field of elevator ruling pre-empted regulation. of, the on this evidence defendant raising is complained however, was same The first contentions appeal. point, trial new so raised defendant’s written motion not be as to it for and will considered. review preserve trial, for a new files a motion Where a writing party motion, therein the or reasons such grounds specifying restricted, review, he will in a grounds be court (cid:127) be in such written motion and will or reasons specified for a have all or reasons deemed to waived other grounds Batch Trustees v. trial. Board School (County new elder, Ill. Lukich Angeli, App. Ill. 2d 178, 183-184; us, As matter 2d comes ruling 28.) construc trial that the ordinances had court application tion cannot be hoists questioned. merit the contention

We also find to without effect because the ordinances were invalid without regu- field of elevator Florida statute had pre-empted as the lation, construction hoists” (or “operation for a new Section trial.) is stated the motion point de- of the Florida Elevator Law upon 399.01(2) relies, ex- fendant sec. 399.01(2),) expressly (F.S.A., This hoists from its being construction application. empts ordinances, so, found by cannot be said that

115 hoists, were construction trial court have application with the State law. void as conflict being immaterial were objection they Over defendant’s irrelevant, into evidence the trial court admitted copies at vari- defendant advertisements twenty-nine by placed Collectively, times in or trade ous national publications. “Mr. are in the record as the Friendly” referred to they one, and, noted, each in vary- advertisements as previously that defendant’s safety ing language, proclaimed engineers into with “build safety worked hand-in-hand insureds to job,” while that its every represented safety one engineers In analysis.” made and hazard “thorough light inspection of defendant’s answer denied that had undertaken to make or surveys and its inspections, repeated allegations that the “visits” and were for its own inspections solely risk, informed and purposes advised on such keeping evidence was admissible. statement, a not,

As rule general any written made or -in his behalf which party is inconsistent with his present position may be introduced evidence him. Evidence, Modern Trial (Conrad, vol. sec. 454; Cleary, Evidence, Handbook Illinois sec. Brown v. Calu 13.10; met River Co., Railway Ill. 600.) Where question 125 arisen, has advertisements, are in authorities accord brochures, items, and the newspaper like are catalogs, ad missible and relevant subject matter suit where contain they statements inconsistent with party a claim or a asserted such position action. party (Henkle Smith, Evidence, v. 20 21 Ill. Am. 237; Supp. Jur. 1960 A.L.R. p. 152; 1031; 2d Steam Boiler Inspec 44 Hartford tion & Insurance Co. Pabst Co. Brewing (7th cir.) F. v. New York 617, 629; Fryer Co. Brokerage Iowa N.W. Mahlstedt v. Ideal Co. Lighting cf. In Ill. case the 154.) present scope purposes visits defendant’s engineers alleged answer inconsistent complaint completely with the rule the advertisements. Under representations above, relevant and mate- stated the advertisements became rial and evidence. were admitted into properly that the cause defendant

Although adopts position must be remanded to the Court to upon Appellate pass here, advertisements, has, it in its brief admissibility that some of the adver inconsistently argument presented tisements were inadmissible because were they published occurrence, v. to the and has cited subsequent Ulwelling Crown Coach as authority Cal. Corp. Reptr. 631, 23 its claim that its advertisements were immaterial and irrele vant. Neither is well taken. Our examination of point record that but one shows of the advertisements was pub occurrence, lished to the and that no subsequent objection was made to on such at the trial. Defendant’s ground therefore, objection comes too late for the first time on Com., Cicero v. Industrial Ill. (Town appeal. 487, 404 of ; Lines, Ltd., v. Ill. Goldberg Capitol Freight 283.) 495 Nor is the case for the Ulwelling authority inadmissibility of the advertisements for the for which they purpose received this advertising case.' Its was that holding only representation would not of theory implied support contract here never Plaintiffs have founded inspect. contract, their suits on even an al express implied, ternative theory recovery.

Defendant aas defense that “without pleaded plaintiffs the exercise due care for their own safety, voluntarily assumed the risk” of the hoist riding they knew alleging it was unsafe for the because transportation passengers handrails, barriers, of the “total absence” of and other gates nature, because of the and construction safeguards, design hoist, of said materials and because of its location on the exterior of the and it within a was enclosed building claimed the trial court shaft. Error is now because struck motion, at the defense on made close of plaintiffs’ plain- evidence, because it denied defendant’s motion, tiffs’ evidence, its order. to vacate of all the close at made believe, assertion that attaches, to plaintiffs’ we merit Some the doctrines commingles erroneously defendant’s pleading risk. and assumption contributory negligence Gunn, 81 So.2d 723, (Fla. 1955) v. Byers (See: Davis, Fla. So. Gravel Co. v. Florida However, that the defense was enough Bay it is 663.) to the Florida controlling we look stricken when properly Baker, So.2d (Fla. 1954) In decisions. Bartholf rock bed said: “Voluntary exposure 480, 483, of assumed risk rests. the doctrine Apprecia- is an essential to the defense of assumption tion of danger * * * risk, as is condition knowledge creates the risk.” also: Williston v. (See City which Fer- Cribbs, 150; 82 Wilson-Toomer 1955) So.2d (Fla. 106 So. Gal- 462, 465-466; tilizer Co. v. Lee Fla. 632, 90 Here, Thornton, Fla. So. 714, 717.) v. lespie 117 95 nor had there neither plaintiffs pleading proof sheaves or of the unsafe cable and of the inade- knowledge the risk. devices which created Without knowl- quate defects, a of mental of such and condition edge willingness them, the hoist cannot be to ride said despite plaintiffs (D.C. have assumed risk. v. Inc. Kelly, legally Smith Beck Co. F.2d v. Ga. 169; Youngblood App. cir.) 93 275 S.E.2d 796. 91 instructions Defendant also both complains given and contends that the trial court unfairly and refused instructions tendered. be-We only gave 39 a lieve it would be purposeless prolong opinion each detailed discussion of instruction. The record separate a discloses conference on instruc- lengthy painstaking tions, and' our examination of the instructions here specific of reveals no reversible error. This is complained particu- alh of the true when instructions are read and larly given considered as series. Nor do find unfairness we to de- in the matter of fendant instructions. of exces- giving sive instructions has been condemned as repeatedly tending to reduce the Langsdale, effectiveness of the jury, (Borst v. 8 Ill. 2d App. May Ill. Marty, App. 656,) we note here that defendant has but sought justify of its instructions that were refused.

The ultimate here is not whether question the trial was error, scrupulously free from but whether error oc- any curred which to the operated the defendant prejudice or unduly affected the outcome below. Considering evidence verdict, as supports jury’s well law to the applicable here, trial errors alleged raised our conclusion that there is no error which would justify reversal this case.

For the reasons stated the judgment the Appellate Court is affirmed insofar as it relates to defendants Union Wire and Archer Iron Rope Corporation Works. As Mutual, however, defendant American is re- judgment versed and the judgments court in superior favor of are plaintiffs affirmed. Court

Appellate and re- part affirmed versed in superior part;- court affirmed. Mr. Schaefer and dissent- concurring part Justice ing part:

I concur in the of the court with opinion respect its. of the actions disposition Union Wire Cor- Rope Works, and Archer Iron but I from poration dissent its dis- of the action American position Mutual Liability Insurance Company.

As out, the of the opinion court appellate pointed (39 Ill. 2d at N.E.2d at the evidence in this App. 449) case did not establish that either the contractor or'the plain tiffs relied made The defendaht. upon inspections by of this court eliminates this obstacle to opinion by recovery reliance, element of with necessity any dispensing that the recover that without holding plaintiffs may proof The the hoist. relied defendant to anyone inspect upon is that an insurer who makes inspec- result supplemental tions, minimize losses diminishing by designed potential of the likelihood of injury, penalized by imposition have been revealed full for all losses might responsbility con- the most even no one by complete inspection, though cerned relied the insurance upon company complete inspection.

The “all or thus announces a kind of opinion apparently rule of law that will frustrate the nothing” possibility if limited services by any inspection requiring inspec- undertaken, made. are must be tions inspections complete reliance, or be the In the absence of of what may proof contractor same that the defendant caused the thing, proof I to refrain from would performing duty inspect, in- hold that because the insurance made company partial of the hoist it is liable for to discover spection failing re- should have disclose that which a complete inspection vealed. in the

The three cases so relied heavily opinion cases,” court, Smith, Pabst and did “the Van Winkle not, them, rule as I read such a of law. They appear impose of the duty imposed rather to have measured scope assumed, or thought reasonably undertaking scope been assumed. others to have opinion repeatedly them, American from the earliest of Van Winkle quotes Alt. Co. (1890), Steam-Boiler Ins. 52 N.J.L. arose “as soon as it (the'defendant) the duty

expression machine.” of this took management part, practically, The conduct that was This needs quotation amplification. in the management referred to practically, “as taking part, boiler machine,” of the involved inspections of the as- “for the engineer guidance furnishing sured,” the load that could put defining certificates this: It co- did was this defendant valve. “What instrument in a dangerous the owner with operated use, its safe and it in that to particular indispensable thereby itself the or the substitute of such constituted degree agent “sub- at There was owner.” Atl. no (19 474.) comparable in the case. stitution” present

In Boiler & Co. v. Pabst Steam Ins. Inspection Hartford Co., Fed. the cir- Brewing (C.C.A. 7, 1912) 628-9 the cuit court of stated: “The law casts owner appeals upon use, of the boilers when as instrumentalities of danger, the care for their duty safety, to inspect protection and, course, the of the owner the of may delegate public; care or other agency to inspection competent employees for their answerable per- (or remaining negligent both) liability, of formance. As foundation for the charge present however, was as- that the of inspection is contended duty outside as an undertaking sumed the Insurance Company, relieve the Brew- its the insurance contract and purposes, and all thereof, inspections ing Company performance of the in use boiler were made and relied upon 'So of arises: Thus the the time the explosion. question up of insurance side of the at the be so predicated, Can consideration, for contract, negli- alleged other and without * * * that these-facts are of opinion ? We gent inspection the Insurance of Company conduct on of part continuous relied and their purpose in reference to inspections —if understood by and so Company Brewing upon force of probative as alleged Insurance Company, —are of and relation of duty the undertaking show both for negligence performance the action which parties upon In supplied.) (Emphasis may predicated.” thereof reliance, indi- any nor was there no there was us case before the insurance company activities that the cation duty inspect. its the contractor relieve New. Court Supreme two decision The three to Co., Insurance American Employers in Smith Hampshire closer to present comes A. 2d 564, 102 N.H. 530, 163 n dismiss, a motion to arose that case But case. complaint, “essential allegations” plaintiff's set are not forth referred on rehearing, are opinion court, clarity the New with Hampshire opinions case insofar as the researches of in the record of the disclosed, it is difficult to us have appraise before parties actual significance. can not therefore be of this court said decision I think as a matter of policy

be dictated by precedent, reliance, or there has been when When is unsound. another, duties of taken over the the insurer has inspection cir- in the absence those should But liability. there im- cumstances, reason unable see sound any I am liability. posing in this dissent.

Mr. joins Underwood Justice dissenting: Mr. also House Justice of Mr. Schaefer. minority I concur in the opinion Justice rule no insurer by majority adopted Under stringent in- hereafter offer to limited dare perform, perform, will for fear of liability. Undoubtedly services incurring spection limited, services, have contributed the safety such though loss. economic Sound would of workers and prevented policy in- service that the kind of rendered seem to dictate than rather discouraged. should be encouraged surer (No. 37987 . County al., et vs. Schreiber Board Appellants,

Fred J. al., County, et School Trustees Peoria Illinois Appellees.

Opinion May filed 1964.

Case Details

Case Name: Nelson v. Union Wire Rope Corp.

Court Name: Illinois Supreme Court

Date Published: Mar 18, 1964

Citation: 199 N.E.2d 769

Docket Number: 37795

Court Abbreviation: Ill.