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Gundich v. Emerson-comstock Co.

OPINION FILED DECEMBER 1, 1960.

WILLIAM GUNDICH, APPELLANT,

v.

EMERSON-COMSTOCK CO., APPELLEE.



APPEAL from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. LESLIE E. SALTER, Judge, presiding.

MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 18, 1961.

The circuit court of Cook County entered judgment on a jury verdict awarding plaintiff, William Gundich, damages of $60,000 for personal injuries sustained as a result of an alleged violation of the Scaffold Act by defendant, Emerson-Comstock Co. On defendant's appeal the Appellate Court entered judgment for defendant notwithstanding the verdict, (24 Ill. App.2d 138,) and we have granted plaintiff leave to appeal.

This cause presents essentially the issues of whether there was any evidence tending to show that the operator of the crane involved here was defendant's employee, and whether his conduct constituted a violation of certain provisions of the Scaffold Act for which defendant could be held liable.

From the testimony it appears that on June 13, 1956, plaintiff, William Gundich, was employed by Gust Newberg Co., a general contractor, as a member of a five-man crew of ironworkers engaged in the construction of the Ford Stamping Plant in Chicago Heights, Illinois. The crew had detached seven steel beams from the structure and arranged them in a frame for removal by the crane to another part of the structure. The frame consisted of 3 fifteen-foot beams, known as intermediates, which extended from east to west, and 4 thirty-foot beams, known as stringers, which were placed on top of these intermediates and extended from north to south. The two inner stringers were bolted to the underlying intermediates and the outer stringers were loose.

At approximately 11:45 A.M., William Brown, the operator of the crane, was signaled by employees of the Newberg company to lower the small hook of the crane and move this steel to the west part of the structure. A choker, or cable with an eye loop, was attached by the ironworkers to the center of the southernmost intermediate; another choker was attached to the center of the northernmost intermediate; and the opposite ends of both chokers were attached to the small hook lowered by the crane.

According to the testimony of Brown and members of the crew of ironworkers, the load was lifted and lowered either three or four times, in response to signals given by Edwin Sak, one of the ironworkers employed by Gust Newberg Co., because the load was off balance. After each attempt, the ironworkers apparently adjusted the chokers and the beams. On apparently the fourth lift, when the load was upward between one and two feet, a member of the crew saw that the load was still not centered, and the witness Sak again signaled that the load be lowered. The operator of the crane, however, continued to lift it and veered the load to the west. There was testimony that it was jerked, causing the frame to shift, and the beam on the east end to roll off. This resulted in the load tipping to the west, so that the loose beam on the west end fell and knocked plaintiff, who apparently was standing close by on one of the girders, into the hole. Plaintiff sustained serious injuries which are not controverted on this appeal.

The evidence indicates further that the crane was owned by the Ford Motor Company and operated by William Brown, who had been on the payroll of defendant Emerson-Comstock Co. since March 25, 1956, according to the testimony of defendant's accountant. Brown, who testified for defendant, stated that he was hired and employed by the defendant company as an electrician, and that in connection with the construction of the Ford Stamping Plant, he operated a crane most of the time. He testified to his years of experience in operating cranes, described generally how the crane operates, and stated that he alone had control of the crane and operated it in response to arm and hand signals given by employees of Gust Newberg Co. In this connection there were variations in the testimony of Brown and the ironworkers as to just what the signals were for the movements of "up," "easy up," and "down," although the witness Sak stated that they had a system of signals that both he and the crane operator understood, and that everything would be fine if the crane operated according to his signal.

Brown also testified that his "immediate supervisor," who kept a record of his time on the project, was a little French fellow whom he presumed also worked for the defendant company. It later appeared from the testimony of this "immediate supervisor" that he was employed by J. Livingston & Co., another electric company also engaged on the construction project.

The record further shows that defendant made certain offers of proof relating to Brown's employment status, which the trial court held incompetent and barred from the jury. That evidence included a written joint-venture agreement between some four electrical contractors, including defendant Emerson-Comstock Co., pertaining to the work on this construction project. Under its terms, each of the electrical contractors was responsible for hiring and paying its employees, and the "joint venture" reimbursed defendant for Brown's wages as a crane operator. The general contractor, Gust Newberg Co., was not a party to that agreement. Defendant also offered proof that the "joint venture" billed Gust Newberg Co. for the crane operations, and proof relating to the union rule that crane operators had to be hired by the electrical contractors or hoisting engineers, and that these groups had to divide or alternate the work.

Plaintiff originally brought suit against the Emerson-Comstock Co., J. Livingston & Co., and Ford Motor Co. The trial court directed a verdict in favor of J. Livingston & Co. at the close of plaintiff's case, and the jury returned a not guilty verdict for the Ford Motor Co., but awarded plaintiff damages of $60,000 against defendant Emerson-Comstock Co. Defendant made no motion for a new trial, but submitted only a motion for judgment notwithstanding the verdict, which the trial court denied. The Appellate Court, however, entered judgment for defendant notwithstanding the verdict on the ground that Brown, the crane operator, was, as a matter of law, a loaned servant of the Newberg company, plaintiff's employer, rather than an employee of defendant, and, therefore, there was no basis for imposing liability upon defendant under the Scaffold Act.

Plaintiff asserts that the evidence establishes that defendant Emerson-Comstock Co., through the crane operations of its servant Brown, violated sections 60 and 67 of the Structural Work Act, commonly referred to as the Scaffold Act (Ill. Rev. Stat. 1955, chap. 48, pars. 60, 67). Defendant, however, insists that Brown, at the time of the occurrence, was an employee of plaintiff's employer, Gust Newberg Co., under the loaned servant doctrine, and that there is no evidence that defendant or Brown wilfully violated any of the terms of the act.

We are of the opinion that the Appellate Court was in error in holding that as a matter of law the plaintiff was not an employee of Emerson-Comstock Co. at the time of his alleged injury. In determining first whether there is any evidence that Brown, the operator of the crane, was defendant's servant, we recognize that the criteria reiterated in the Illinois case law for the existence of the master-servant relationship is the right to control, which includes the power of discharge. (Harding v. St. Louis Nat. Stock Yards, 242 Ill. 444; Densby v. Bartlett, 318 Ill. 616; Connolly v. People's Gas Light and Coke Co. 260 Ill. 162; Forest Preserve Dist. v. Industrial Com. 357 Ill. 389.) We also recognize that where an employee is sent by his general employer to another for the performance of special work, the test whether he becomes the employee of the person to whom he is sent depends upon whether he becomes wholly subject to that person's control and freed during such time from the direction and control of his master. (Merlo v. Public Service Co. of Northern ...


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