{ "id": 3649651, "name": "MARVIN MUELLER et al., Plaintiffs-Appellees, v. EDWARD SOFFER et al., Defendants-Appellants", "name_abbreviation": "Mueller v. Soffer", "decision_date": "1987-09-23", "docket_number": "No. 5\u201486\u20140185", "first_page": "699", "last_page": "707", "citations": [ { "type": "official", "cite": "160 Ill. App. 3d 699" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "419 N.E.2d 578", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "595" } ], "opinion_index": 0 }, { "cite": "94 Ill. App. 3d 915", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3123286 ], "pin_cites": [ { "page": "936" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0915-01" ] }, { "cite": "97 N.E.2d 264", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "266" } ], "opinion_index": 0 }, { "cite": "408 Ill. 336", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2643522 ], "pin_cites": [ { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/ill/408/0336-01" ] }, { "cite": "443 N.E.2d 36", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "42" } ], "opinion_index": 0 }, { "cite": "110 Ill. App. 3d 800", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2995781 ], "pin_cites": [ { "page": "808" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0800-01" ] }, { "cite": "363 N.E.2d 170", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "173-74" } ], "opinion_index": 0 }, { "cite": "48 Ill. App. 3d 937", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3372377 ], "pin_cites": [ { "page": "942" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/48/0937-01" ] }, { "cite": "472 N.E.2d 593", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "595" }, { "page": "596" }, { "page": "596" } ], "opinion_index": 0 }, { "cite": "129 Ill. App. 3d 422", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3489901 ], "weight": 3, "pin_cites": [ { "page": "425" }, { "page": "426" }, { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/129/0422-01" ] }, { "cite": "229 N.E.2d 676", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "678" } ], "opinion_index": 0 }, { "cite": "37 Ill. 2d 583", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866352 ], "pin_cites": [ { "page": "586" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0583-01" ] }, { "cite": "493 N.E.2d 1154", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1155" } ], "opinion_index": 0 }, { "cite": "144 Ill. App. 3d 118", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3499716 ], "pin_cites": [ { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/0118-01" ] }, { "cite": "273 N.E.2d 674", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "676" } ], "opinion_index": 0 }, { "cite": "1 Ill. App. 3d 181", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5315072 ], "weight": 2, "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/1/0181-01" ] } ], "analysis": { "cardinality": 880, "char_count": 19936, "ocr_confidence": 0.778, "pagerank": { "raw": 1.2932547713298757e-07, "percentile": 0.6204068268072772 }, "sha256": "bd349dee0a28bb2c35d0cadfdb9217b8aa3a034e8147c2b276d893002bddc75a", "simhash": "1:f936bcda37838365", "word_count": 3270 }, "last_updated": "2023-07-14T16:53:05.010141+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARVIN MUELLER et al., Plaintiffs-Appellees, v. EDWARD SOFFER et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE KASSERMAN\ndelivered the opinion of the court:\nDefendants, Edward Soffer and Larry Soffer, have perfected this appeal from an order of the circuit court of St. Clair County which entered judgment after a bench trial in favor of plaintiffs, Marvin Mueller and Vin-Mar Supply, Inc., and against defendants in the amount of $10,760 plus costs.\nOn April 11, 1985, plaintiffs filed a one-count complaint against defendants, alleging as follows: paragraph 1 alleged that prior to August 31, 1984, plaintiff delivered 1,034 railroad carts to defendants\u2019 warehouse for storage and safekeeping; paragraph 2 alleged that defendants had a duty to exercise ordinary care in regard to the storage and safekeeping of plaintiffs\u2019 property; paragraph 3 alleged that on August 31, 1984, a fire destroyed defendants\u2019 warehouse, including all of plaintiffs\u2019 carts, and that after the fire plaintiffs\u2019 carts had a salvage value of $9,409; and paragraph 4 alleged that on September 7, 1984, defendants carelessly and negligently instructed and allowed L.T.D. Contractors to remove plaintiffs\u2019 carts from defendants\u2019 property to plaintiffs\u2019 damage in the amount of $9,409. Before trial plaintiffs amended the prayer for relief to request $10,000 in damages.\nIn their answer, defendants admitted the allegations of the first and second paragraphs of the complaint but denied generally the allegations of the third and fourth paragraphs.\nAfter a bench trial on November 26, 1985, the circuit court entered judgment in favor of plaintiffs in the amount of $10,760, plus costs. The court found that plaintiffs established a prima facie case of bailment and that defendants offered no evidence of their freedom from negligence. The parties have not raised any issue regarding the specific identities of either the plaintiffs or the defendants; therefore, we will refer to plaintiffs and defendants in the plural.\nOn appeal defendants contend: (1) that the plaintiffs failed to meet their burden of proving that defendants were negligent in failing to return the carts; (2) that the circuit court erred in finding that defendants offered no evidence of their freedom from negligence; (3) that the circuit court erred in failing to find that plaintiffs were contributorily negligent; and (4) that plaintiffs failed to prove damages to a reasonable degree of certainty.\nThe relevant facts are as follows: Marvin Mueller, president of Vin-Mar Supply, Inc., testified that in May 1984 he purchased 1,126 luggage carts, plus approximately two dozen broken carts, from Missouri Pacific Railroad for $7,500. Plaintiffs\u2019 exhibit No. 1 was an advertising flyer which Mueller prepared for use in marketing the carts. The flyer included a drawing of a cart, which appears to be similar to those typically used to move baggage, and stated it was a \u201cheavy duty industrial cart,\u201d capacity 4,000 pounds, and was constructed of a steel frame and a solid oak bed. The carts were offered for sale for \u201c$45.00 to $125.00 [each] depending on quantity and condition.\u201d Mueller testified that a cart weighed on the average 400 to 500 pounds. Mueller stated that he contacted Larry Soffer and made verbal arrangements to store the carts, for a fee, in defendants\u2019 warehouse, the old Dixie Mills Feed complex in East St. Louis. Mueller testified that he subsequently sold 50 of the carts, leaving \u201capproximately a thousand.\u201d\nOn or about August 31, 1984, a fire destroyed defendants\u2019 warehouse. No evidence was presented as to the fire\u2019s nature, origin or cause. The entire building, part of which was six stories high, had collapsed into the basement. Edward Soffer, the owner of the warehouse, testifying as an adverse witness for plaintiff, stated that he saw the warehouse the day after the fire and it was \u201ca gnarled up mess.\u201d The carts had been stored on the first floor, stacked on top of one another, three or four deep. Edward Soffer testified that he \u201cdidn\u2019t see anything that was recognizable.\u201d Due to pressure from the East St. Louis building commissioner, who insisted that the building debris be cleaned up immediately, Soffer promptly hired Charles Powell of L.T.D. Contractors (LTD), who began salvage work the second day after the fire. Soffer testified that he did not know anything about salvage value and that he did not give specific instructions to LTD concerning the cleanup. However, Soffer did identify a document which he signed at LTD\u2019s request, addressed \u201cTo Whom It May Concern,\u201d and which purported to give Edward Soffer\u2019s permission for LTD to remove salvage from the Old Dixie Feed Mill.\nMueller testified that he visited the scene one or two days after the fire, on a Saturday morning. He stated that the carts were \u201cstrewn around.\u201d Mueller took photos of the site, and the metal frame of one of the carts is clearly identifiable. Mueller further testified that he subsequently sent a letter to the Soffers and called Larry Soffer on the phone demanding return of the carts but that the carts were not returned and he was not paid for them. On cross-examination, Mueller testified that he met Charles Powell at the site that Saturday morning and that Powell and four or five men were salvaging bricks from the rubble. Mueller admitted that he did not instruct Powell not to touch any railroad carts. Mueller also testified further concerning his Saturday evening telephone call to Larry Soffer, stating that he confirmed that there had been a fire and that Soffer had said he was sorry. There was no other \u201cmajor conversation.\u201d Mueller identified the letter sent to Larry Soffer, a \u201cnight letter\u201d sent via Western Union. The telegram is dated September 14, 1984, demands return of all carts \u201cin a salvage condition\u201d and warns not to remove the carts from the property. Mueller estimated that it would have cost him $10,000 to remove his salvageable property from the rubble.\nJoseph Bozada, of D & J Equipment Company, testified that he is in the business of heavy hauling, plant dismantling and buying and selling scrap materials. In spring 1984 Bozada hauled 1,126 freight carts, including good and bad carts, to defendants\u2019 warehouse, for which he was paid $6,250. He testified that he was at the scene of the fire when the fire was still smoldering. Bozada stated that the remains of the carts would be considered scrap materials. Bozada also testified that the market price for such scrap varied from $80 to $100 per ton and that \u201cat the time like I told Mr. Yin-Mar you\u2019d probably get a hundred dollars a ton.\u201d On cross-examination Bozada testified that he couldn\u2019t tell how many carts were in the rubble. He also testified that the carts were made of cast iron, wood and rubber and, while steel will melt and twist, cast iron would not melt in a fire.\nDefendants presented the testimony of two witnesses. Edward Soffer testified that there was a large amount of metal in the warehouse, e.g., the warehouse itself was constructed of iron beams and steel reinforced floors, and it contained a steel truck scale and steel storage bins. Soffer testified that after the fire the warehouse was \u201call mangled up together\u201d and he \u201ccouldn\u2019t discern anything.\u201d Charles Powell charged $3,000 to clean up the debris and Soffer didn\u2019t receive any money for any of the debris removed from the site.\nSoffer also testified that Mueller called him the day after the fire but did not mention the carts. Soffer identified the telegram sent by Mueller but stated that he received it September 18 with the regular mail. However, there is no stamp or postmark on the envelope. There is some writing on the envelope: \u201cReceived 9/18/84.\u201d However, it appears that the date as originally written was 9/13/84. Soffer explained that his secretary noted the date received on his mail in the regular course of business. He testified that he was amazed when he received the letter because \u201c[w]e talked a couple times after the fire, and he never mentioned anything about returning any type of equipment or any salvage operation whatsoever.\u201d\nOn cross-examination, Soffer testified he didn\u2019t know how many carts were salvageable, he thought everything had been destroyed, and he made no effort to find out if any of the carts were salvageable.\nCharles Powell\u2019s agreement to clean up, remove debris and fill in the hole was with Frontier Insurance Company. He testified that part of the warehouse was constructed of steel and tin, and everything was \u201cmangled together.\u201d Powell also testified that he saw what was left of the carts that was not deteriorated and mangled and he stated that \u201cthere was nothing left of value.\u201d The crew used bulldozers to clean up the debris and some steel pieces had to be cut with torches in order to handle them. Fifteen or sixteen brick cleaners cleaned the bricks, knocked the mortar off of them, and stacked them. Powell testified that he saw Mueller on the site on several occasions after the fire. He knew that Mueller had property in the warehouse but Mueller never mentioned the carts to Powell. Although the cleanup operation lasted four or five weeks, Powell was never told by Soffer to \u201cwatch out for\u201d plaintiffs\u2019 property.\nPowell testified that he took the scrap steel to Lifton Iron and Metal and was paid \u201c$3,800 and some odd dollars\u201d for all the salvageable materials, apparently including bricks. Powell stated that he could not distinguish the carts from the structural debris.\nJoseph Bozada testified in rebuttal that while he \u201cwould take for granted that everything [all the carts] was still there,\u201d he could not give an estimate of how many or what percentage of carts were still salvageable after the fire.\nFinally, the parties stipulated that the comptroller of Lifton Iron and Metal Company would testify that he received scrap metal from Charles Powell on five occasions, September 12, 13, 14, 20 and 21, 1984, totalling 130,800 pounds, and for which Powell was paid $2,743.67.\nThe circuit court found that plaintiffs had established a prima facie case of bailment; that defendants failed to return the property upon demand; that the defendants offered no evidence of their freedom from negligence; and that the holding of Cook Electric Co. v. Kolodny (1971), 1 Ill. App. 3d 181, 273 N.E.2d 674, was applicable. The court accordingly entered judgment in favor of plaintiffs in the amount of $10,760. Although the court did not explain its computation of damages, it apparently adopted the argument in plaintiffs\u2019 supplemental trial memorandum: the weight of the carts (444,000 pounds or 222 tons) multiplied by scrap value of $80 per ton (totalling $17,760) less the cost of salvage ($6,000 to $7,000).\nOn appeal defendants contend that plaintiffs failed to meet their burden of proving that defendants were negligent in failing to return the carts. Defendants assert that plaintiffs do not claim defendants\u2019 negligence caused the fire, that plaintiffs cannot therefore claim recovery for loss of the carts at their prefire value, and that the only issue is their alleged negligence in failing to return the carts in their post-fire condition. We disagree.\nIn order properly to plead the existence of and the right to recovery under a bailment theory, the following elements must be alleged: an agreement, express or implied, to create a bailment; delivery of the property in good condition; acceptance of the items bailed by the bailee; and nonreturn or redelivery of the property in a damaged condition. (Robinson v. St. Clair County (1986), 144 Ill. App. 3d 118, 120, 493 N.E.2d 1154, 1155.) We conclude that the complaint herein, although inartfully drafted, satisfies these requirements. Defendants have admitted in their answer their duty as bailee to exercise ordinary care in regard to the storage and safekeeping of the carts, as alleged in the complaint. Furthermore, since proof of delivery and nonreturn of bailed goods gives rise to a presumption of negligence on the part of the bailees (Clark v. Fields (1967), 37 Ill. 2d 583, 586, 229 N.E.2d 676, 678), we conclude that the complaint raises both the issue of defendants\u2019 negligence in allowing the fire to damage plaintiffs\u2019 carts and the issue of defendants\u2019 negligence in allowing the damaged carts to be removed from the premises without plaintiffs\u2019 authority.\nWe note that defendants cannot claim surprise as to the former issue, inasmuch as plaintiffs\u2019 counsel, in his opening statement to the court before trial, explained plaintiffs\u2019 theory of the case as follows: \u201c[t]his case is about whether or not the defendants *** owe the plaintiff anything because they failed to return the carts which my client had given them custody of and had paid them money to store in that building.\u201d In addition, after the plaintiffs rested their case and defendants moved for a directed verdict, plaintiffs\u2019 counsel argued explicitly that delivery, demand and nonreturn raises a presumption of negligence, citing Clark v. Fields. Defendants did not move for a continuance, nor did they object or respond to the plaintiffs\u2019 argument.\nAt trial, plaintiffs established an agreement between plaintiffs and defendants, the delivery of the carts to defendants\u2019 warehouse, and the nonreturn of the carts. Therefore, plaintiffs established a prima facie case and raised a presumption of defendants\u2019 negligence. Wright v. Autohaus Fortense, Inc. (1984), 129 Ill. App. 3d 422, 425, 472 N.E.2d 593, 595.\nDefendants also contend that the trial court erred in finding that defendants offered no evidence of their freedom from negligence. There is no evidence in the record on appeal concerning the nature, origin or cause of the fire. Instead, defendants contend that \u201c[i]n light of the destruction and the need to act quickly\u201d and \u201cthe absence of any mention of carts by Mueller until September 18 \u2014 these facts sustain the proposition that defendants offered at least some evidence of their freedom of negligence.\u201d\nWe conclude that this evidence does not rebut the presumption of negligence. Defendants, as bailees, were under a duty to exercise reasonable care under the circumstances. (Wright v. Autohaus Fortense, Inc. (1984), 129 Ill. App. 3d 422, 426, 472 N.E.2d 593, 596.) In the case at bar, Edward Soffer testified that no effort was made to determine whether plaintiffs\u2019 property was salvageable, yet he authorized Powell and LTD to remove all the debris without seeking plaintiffs\u2019 authority or permission and without accounting to plaintiffs for the scrap value of the carts. We note that Powell received cash for some of the scrap from the site on September 20 and 21, 1984, i.e., after Soffer received Mueller\u2019s demand letter. A bailee is not excused from failing to exercise ordinary care because the bailee would have been equally careless with his own property. (129 Ill. App. 3d 422, 426, 472 N.E.2d 593, 596.) Furthermore, in the face of the evidence presented by plaintiffs, defendants failed to present any evidence to rebut the presumption that the fire which resulted in the destruction of plaintiffs\u2019 property was a result of defendants\u2019 negligence. See Cook Electric Co. v. Kolodny (1971), 1 Ill. App. 3d 181, 184, 273 N.E.2d 674, 676.\nDefendants\u2019 next contention is that the trial court erred in failing to find that plaintiffs were contributorily negligent. Plaintiffs respond that their own negligence was not at issue because defendants failed to raise the defense of comparative negligence in their answer. However, even if defendants had not properly raised the issue of comparative negligence in their answer (see Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 613(d), as amended by Pub. Act 84 \u2014 624, eff. Sept. 20, 1985), plaintiffs did not object to the introduction of evidence on such issue; and where a party fails to object to evidence offered by an adverse party, an objection that a certain matter is not in issue under the pleadings is waived. (Beck v. Capitol Life Insurance Co. (1977), 48 Ill. App. 3d 937, 942, 363 N.E.2d 170, 173-74.) Plaintiffs\u2019 motion after trial to have evidence of alleged comparative negligence stricken did not preserve the objection.\nNevertheless, we have found no Illinois case which applies comparative negligence principles to a bailment situation. In any event, we conclude that the evidence at trial does not support a finding of negligence on plaintiffs\u2019 part. Defendants contend that Mueller was contributorily negligent because he visited the site soon after the fire and observed the clean-up operation in progress yet made no mention of salvaging plaintiffs\u2019 carts until the night letter was sent more than two weeks after the fire. However, plaintiffs\u2019 property had been totally destroyed. Further, defendants have cited no authority to suggest that plaintiffs had any duty to mention salvaging the carts. Instead, it appears that it was entirely reasonable for Mueller to expect that Powell would take as much care to salvage the carts as he did to salvage the bricks.\nDefendants\u2019 final contention is that plaintiffs failed to prove damages to a reasonable degree of certainty. The circuit court awarded plaintiffs $10,760, apparently adopting an argument made by plaintiffs in their supplemental trial brief: the weight of the carts (444,000 pounds or 222 tons) multiplied by a scrap value of $80 per ton (totalling $17,600) less the cost of salvage ($6,000 to $7,000). However, there is no evidence of how much the carts weighed after the fire. The carts had been constructed of a frame of steel or cast iron but also included a solid oak bed and rubber wheels. We note further that the only evidence of the cost of salvage for plaintiffs was Mueller\u2019s testimony that it would have cost plaintiffs $10,000 if Mueller salvaged the carts himself. It was plaintiffs\u2019 burden to establish a reasonable basis for computation of damages and damages cannot be awarded on the basis of conjecture or speculation. (Schoeneweis v. Herrin (1982), 110 Ill. App. 3d 800, 808, 443 N.E.2d 36, 42.) We conclude there was insufficient evidence to support an award of damages based on the post-fire scrap value of the carts. Plaintiffs conceded at oral argument that their damages cannot exceed $7,500, the purchase price of the carts. We therefore vacate the circuit court\u2019s award of damages.\nSince the carts were effectively destroyed, plaintiffs\u2019 damages may be measured by the value of the carts at the time of their destruction. (New York, Chicago & St. Louis R.R. Co. v. American Transit Lines, Inc. (1951), 408 Ill. 336, 339, 97 N.E.2d 264, 266.) The purchase price of the carts may be considered as a basis for valuation. (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 936, 419 N.E.2d 578, 595.) However, there is conflicting evidence on this issue. The complaint alleged that plaintiffs delivered 1,034 carts to defendants, and the defendants\u2019 answer admitted that allegation. Yet, at trial, Mueller testified that he paid $7,500 for \u201call of the carts,\u201d being 1,126 plus about 24 broken ones, and he also testified that he had sold 50 of the carts, leaving \u201capproximately a thousand.\u201d Joe Bozada testified that he hauled 1,126 carts total to defendants\u2019 warehouse. Since there is conflicting evidence as to the number of carts lost, we remand for a hearing limited to the issue of plaintiffs\u2019 damages.\nFor the foregoing reasons, the judgment of the circuit court of St. Clair County as to liability is affirmed, the award of damages is vacated, and this cause is remanded for a hearing on the issue of damages.\nAffirmed in part, vacated in part and remanded.\nEARNS, P.J., and LEWIS, J., concur.\nJustice Lewis replaces Justice Jones, who retired after the cause was taken under advisement.", "type": "majority", "author": "JUSTICE KASSERMAN" } ], "attorneys": [ "Rice Law Offices, of Belleville (Philip R. Rice, of counsel), for appellants.", "Eric M. Rhein, of Kuehn & Rhein, of Belleville, for appellees." ], "corrections": "", "head_matter": "MARVIN MUELLER et al., Plaintiffs-Appellees, v. EDWARD SOFFER et al., Defendants-Appellants.\nFifth District\nNo. 5\u201486\u20140185\nOpinion filed September 23, 1987.\nRice Law Offices, of Belleville (Philip R. Rice, of counsel), for appellants.\nEric M. Rhein, of Kuehn & Rhein, of Belleville, for appellees." }, "file_name": "0699-01", "first_page_order": 721, "last_page_order": 729 }