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Murphy v. Lindahl

FEBRUARY 16, 1960.

EDMOND MURPHY, APPELLEE AND SEPARATE APPELLEE,

v.

CLARENCE H. LINDAHL, ET AL, ETC. DEFENDANTS BELOW, APPELLANTS. BERNARD COFFMAN, DEFENDANT BELOW, SEPARATE APPELLANT.



Appeal from the Circuit Court of Cook county; the Hon. JACOB M. BRAUDE, Judge, presiding. Affirmed.

PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied March 29, 1960.

Plaintiff, an employee of the City of Chicago, sued the Lindahls and Bernard Coffman in a third party common law action, to recover for personal injuries suffered by him as a result of being struck by the bucket of a "Backhoe," a heavy-duty trench-digging machine, owned by the Lindahls, rented to the City, and operated by Coffman.

The jury returned a $250,000 verdict against the Lindahls and a not guilty verdict as to Coffman. Judgments were entered on both verdicts. On plaintiff's post-trial motion, the court entered judgment notwithstanding the verdict against Coffman, in favor of plaintiff, for the sum of $250,000. Post-trial motions of the Lindahls were denied. The defendants filed separate appeals.

The Lindahls, a father and son partnership, owned the "backhoe," which they rented to the City. The leasing agreement read: "Rental of . . . Backhoe . . . including hoisting engineer. . . ." On August 13, 1956, the "backhoe," operated by Coffman, was employed in digging a north and south sewer trench along Nashville Avenue in Chicago. Plaintiff was working in the trench. During an operation of the "backhoe," the bucket at the end of the hoisting boom fell into the trench onto plaintiff, and he was badly injured.

Defendants contend Coffman, as operator of the "backhoe," was a servant of the City of Chicago under the "loaned servant doctrine," and was a fellow employee of plaintiff, and therefore, plaintiff had no common law remedy against any of the defendants.

On August 7, 1956, Lindahl, Sr., called the union hiring hall of Local 150, to hire an engineer to operate the "backhoe." Coffman, who has been an operating engineer since 1937, and a member of Local 150, was sent by the Union directly to the job, reported to the foreman and commenced work on August 8, 1956. He did not see the Lindahls until after the occurrence. From the time Coffman started to work and until plaintiff was injured, there were only six men working on the job — five City employees, plaintiff Murphy, McDonough, Dates, Volchko and Tunno, the foreman, and defendant Coffman.

Coffman received orders and directions from either Tunno, the foreman, or from Ralph McNamara, a superintendent in the Chicago Bureau of Sewers, who was on the job intermittently. The first day Coffman worked, Tunno complained to McNamara about the manner in which Coffman operated the machine in digging the trench. McNamara called Clarence Lindahl, Sr., and requested Coffman be replaced because he "was not suitable for the job." Later the same day, McNamara again telephoned Lindahl, Sr., and said "leave Mr. Coffman right on the job. He's real fine." After the occurrence on the 13th, Lindahl replaced Coffman at McNamara's request.

The machine was controlled entirely by Coffman, with the City employees telling him, by hand signals, where to dig the trench, how wide and how deep, and where to place the dirt. No person on the job, other than Coffman, had anything to do with the operation of the machine or its performance, which was not so in Allen-Garcia Co. v. Industrial Commission, 334 Ill. 390, on which defendants rely heavily. Even though the City had the right to demand that he be replaced or to stop the machine, it had no right to discharge him or to substitute an operator in his stead, and this was never attempted. No City employee had any control or direction of Coffman in the actual operation of the "backhoe" or the manner of accomplishing the end result, digging of a trench.

We believe the facts in this case are very similar to those in Merlo v. Public Service Co. of Northern Illinois, 313 Ill. App. 57 (1942), where a steam crane was used in the construction of a sewer, and two men were electrocuted on the job. We do not believe that the proof here conclusively shows that Coffman surrendered the manner in which the machine should be operated or that he was for the time wholly subject to the control and direction of the City, to whom he was lent for the special service being performed, and freed during such time from the direction of his master. (Allen-Garcia Co. v. Industrial Commission, 334 Ill. 390, 394.) We think the question of whether Coffman was a loaned servant was for the jury. (Densby v. Bartlett, 318 Ill. 616; Standard Oil Co. v. Anderson, 212 U.S. 215; Louis v. Youngren, 12 Ill. App.2d 198.) We need not discuss cases cited from other jurisdictions, since the Illinois law has settled the point raised.

The contention of defendants Lindahl that the judgment entered on the not guilty verdict in favor of Coffman was res adjudicata and bars recovery by plaintiff against the Lindahls for the same cause of action (Hayes v. Chicago Telephone Co., 218 Ill. 414, 417, (1905); Rogina v. Midwest Flying Service, Inc., 325 Ill. App. 588, 593 (1945)) has no merit if the trial court properly granted plaintiff's post-trial motion for judgment against Coffman notwithstanding the verdict.

The post-trial motion was filed in apt time and states that Coffman was in default for want of an appearance and answer. If the situation presented to the court properly called for a judgment notwithstanding the verdict, it was the court's duty to grant the motion and enter a proper judgment. (Section 68.1(2), Civil Practice Act.) [Ill. Rev Stats 1959, c 110, § 68.1(2).] Where the decision of the lower court is correct, the reasons acted upon by it are immaterial. Brown v. Atwood, 224 Ill. App. 77, 83; Robinson v. Workman, 9 Ill.2d 420, 425 (1956).

Coffman was not represented by counsel, filed no answer and did not participate in the trial as a party litigant. He was in default, but no default order was entered. Plaintiff called him as a witness under Section 60, and he also testified on behalf of the defendants as one of the defendants in the case. His testimony shows that in responding to a signal by someone to move the "backhoe," he moved the machine so that the bucket came off the spoil bank, and while the bucket was in the air, the "backhoe" started to travel and the cab started to swing around. There were five or six men standing around, "which the bucket would hit, if it kept swinging, and evidently the brakes didn't lock, and the bucket fell. . . . Whether I didn't stomp them (brakes) hard enough, I don't know, and I don't think anyone else does." He denied telling anyone that his foot slipped off the brake but admitted he "thought he had locked the brake," and when he took his foot off the brake to put it on "another pedal," the boom and bucket came down.

The "backhoe" is a heavy-duty digging machine, with a rotating cab mounted on caterpillar tracks. It has a boom, a bucket arm and a bucket, which turn with the cab. There are two cables, which wind around two diesel-powered drums, controlled by clutches. There are four brakes — two controlling the drums (boom brake and bucket brake), a third controlling the rotating movements of the cab (cab brake), and the fourth controlling the forward and backward movement of the "backhoe" (track brake). Each drum brake has a locking device to hold the drum stationary. The locking device functions by means of a spring clip on the side of the brake pedal, so as to keep the brake ...


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