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Bryntesen v. Carroll Const. Co.

JANUARY 30, 1962.

ANNA L. BRYNTESEN, PLAINTIFF-APPELLEE,

v.

CARROLL CONSTRUCTION COMPANY, AN ILLINOIS CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. EDWARD B. CASEY, Judge, presiding. Judgment affirmed. MR. PRESIDING JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT:

MR. JUSTICE BURKE delivered the opinion of the court:

John Bryntesen, a welder's helper, was killed when he fell from a scaffold while working on the construction of a high school building in Libertyville, Illinois. His widow brought suit in the Circuit Court of Cook County against Carroll Construction Company, the general contractor, under section 9 of the Structural Work Act, also referred to as the Scaffold Act (Ill Rev Stats 1961, c 48, §§ 60-69). Judgment was entered on a verdict of $12,500 in favor of plaintiff, but was reversed on the ground that the action was barred by a former adjudication (26 Ill. App.2d 307, 167 N.E.2d 581 (1960)). In granting leave to appeal, the Supreme Court held (22 Ill.2d 63, 67, 174 N.E.2d 172 (1961)) that the right of the present plaintiff to recover was not adjudicated in the first case

"despite the persistent, but misguided, efforts of the plaintiff's counsel to have that right adjudicated. So far as the Structural Work Act aspects of the first case are concerned, the final judgment was that the action was not brought by the proper party, and that is not a judgment on the merits. (People ex rel. Porter v. Minnie Creek Drainage Dist. 311 Ill. 228.). . . ."

The case was therefore remanded to this court with directions to pass upon the other questions raised upon the appeal.

Since our former opinion was predicated solely on our holding that plaintiff's suit in the Circuit Court of Cook County had already been prosecuted unsuccessfully to judgment in the Circuit Court of Lake County and appealed unsuccessfully to the Illinois Appellate Court, Second District, it will be necessary, in order to pass upon the other questions raised, to set forth additional facts relating to the merits of the controversy.

At the time of the accident, John Bryntesen was employed by the Cragin Construction Company. The defendant, Carroll Construction Company, was the general contractor, and employed a superintendent who exercised supervision over Cragin and thirty-five other contractors working on various parts of the job. Bryntesen was working on what is commonly called a float scaffold — a platform four by eight feet, made of one-inch thick plywood; along both ends of the floating platform two-by-fours were fastened which protruded at the four corners from which one-inch ropes were attached and looped over a steel truss or beam of the building under construction. After Bryntesen brought over some bolts for a welding job, he stepped backward on the scaffold and fell to the ground, and shortly thereafter died as a result of the injuries sustained. The float scaffold was approximately thirty feet above ground and was pulled up to within two feet of the beam itself to enable the welder to weld the beams to each other. As he would complete his work on one location, the scaffold would be moved to other places on the structure; it would also be swung around to different positions underneath the beams, as the welder required. At the time of the accident, the float had been in one position for several days. There was no handrail attached to the float. The float was constructed by Cragin and erected by Bryntesen himself.

Plaintiff in the present case is suing for compensation under the Scaffold Act for loss of support. Prior to instituting this action, plaintiff had recovered from Cragin $8000 in workmen's compensation payments for exactly the same loss, i.e., loss of support; see Workmen's Compensation Act (Ill Rev Stats 1961, c 48, § 138.7 (a)). In order to prevent a double recovery by plaintiff, defendant offered to produce in evidence the workmen's compensation payments received by plaintiff. This offer was denied by the trial judge, despite the fact that the resulting award of $12,500 by the jury to the plaintiff enabled her to recover $8000 more than her adjudicated loss. Defendant contends that the allowance of a double recovery for one injury violates a basic principle of law and constitutes reversible error.

The injustice of allowing double recovery in a situation such as the one before us is aggravated because plaintiff's entire theory of liability against the defendant, Carroll Construction Company, depends upon her contention that Bryntesen's employer, Cragin Construction Company, wilfully and actively violated the Scaffold Act. Cragin, being a tort-feasor, could not recover from its employee payments made under the Workmen's Compensation Act. Manion v. Chicago, R.I. & P.R., 2 Ill. App.2d 191, 119 N.E.2d 498 (1954). Unlike the innocent employer whose payments are in the nature of insurance with the concomitant right of subrogation, Cragin's payments to plaintiff partake of partial satisfaction of a tort liability; see Ill Rev Stats 1961, c 48, § 138.5. Payments in lieu of tort liability are generally admissible in evidence to reduce the damages of a second tort-feasor, since to force the defendant to pay the entire bill for plaintiff's loss after plaintiff had already partially collected from one against whom tort liability could lie would operate as an injustice. Hyde v. Montgomery Ward & Co., 343 Ill. App. 388, 99 N.E.2d 382 (1951). Other states have drawn this analogy in barring a double recovery to plaintiff. In Brewer v. Appalachian Constructors, 135 W. Va. 739, 65 S.E.2d 87, 93 (1951), the court pertinently observed:

"A familiar principle of law requiring no citation of authorities, is that a plaintiff can have only one recovery for an injury. We see no reason why the rule should not apply where recovery or partial recovery is by way of an award from the workmen's compensation fund. It is also well settled that `Partial satisfaction of the injured person by one joint tort-feasor is a satisfaction, pro tanto, as to all.' Point 5, syllabus, New River & Pocahontas Consolidated Coal Co. v. Eary, 115 W. Va. 46, 174 S.E. 573. This rule should also apply where partial payment for the injury has been made from the workmen's compensation fund on account of one of the joint tort feasors being a subscriber thereto."

In accord: Baugh v. Rogers, 24 Cal.2d 200, 148 P.2d 633, 642 (1944); Maio v. Fahs, 339 Pa 180, 14 A.2d 105, 110 (1940); Houston Gas & Fuel Co. v. Perry, 127 Tex 102, 91 S.W.2d 1052 (1936).

To justify this double recovery, plaintiff relies primarily on Hulke v. International Mfg. Co., 14 Ill. App.2d 5, 142 N.E.2d 717 (1957), and Rylander v. Chicago Short Line Ry. Co., 17 Ill.2d 618, 161 N.E.2d 812 (1959). These cases denied defendant the right to inquire into the compensation recoveries for two reasons: (1) the defendant third-party would not have been able to introduce in evidence workmen's compensation recovery as long as the issue of employer's subrogation rights were still in doubt — otherwise plaintiff might have to pay back and thus receive nothing or less than the adjudicated value of his injuries; (2) a third-party should not be allowed to force plaintiff to litigate the additional issue of the innocence or guilt of the employer. In the instant case plaintiff, far from being forced to litigate the guilt of Bryntesen's employer, Cragin, has predicated her entire case on the guilt of Cragin. She admits that Cragin, an independent contractor, constructed and erected the scaffold in question; if the scaffold thus constructed by Cragin was not in violation of the Scaffold Act, the action should be dismissed. To put it another way, plaintiff is attempting to prove Cragin guilty as a prerequisite to establishing the liability of Carroll, at the same time leaving open the question of Cragin's innocence or guilt for the purpose of preventing the introduction of workmen's compensation to her. Having voluntarily proved one set of facts, plaintiff cannot in the same lawsuit take a completely inconsistent factual position. Paoli v. Zipout, Inc., 21 Ill. App.2d 53, 57-60, 157 N.E.2d 273 (1959).

Of the cases called to our attention, Kennerly v. Shell Oil Co., 13 Ill.2d 431, 150 N.E.2d 134 (1958), is closest on the facts. The Kennerly case was also an action under the Scaffold Act; there, as here, the liability of defendant was dependent upon the violation of that statute by the employer. However, the trial court in that case allowed in evidence the plaintiff's recovery under the Workmen's Compensation statute. On appeal defendant nevertheless claimed that plaintiff had received a double recovery. Plaintiff contended that the jury had taken the workmen's compensation award into account before rendering a verdict. The Supreme Court, although passing the question whether plaintiff had made a double recovery, stated (p 440) that "the ultimate rights of the plaintiff, the defendant and the employer were not before the court for determination in this proceeding." We take this to mean that the question of preventing double recovery must be litigated by a further proceeding between the parties. In the instant case, however, no further proceeding is necessary because there is no question (1) that the plaintiff has made a double recovery, and (2) that the employer cannot reach any of the recovery of the plaintiff. A further reason why Cragin has been precluded from subrogating itself to plaintiff's rights is that Cragin cannot recover its payments to plaintiff because plaintiff, being the decedent's widow, suing for support, is not Cragin's employee or its personal representative; it was so held in Dillon v. Nathan, 10 Ill. App.2d 289, 135 N.E.2d 136 (1956).

Lastly it is urged by plaintiff that Cragin may have a common-law right of subrogation. This question was also decided in the Dillon case (pp 308-309), wherein the court refused to allow common-law subrogation, distinguishing the same cases relied on here by plaintiff: Grasse v. Dealer's Transport Co., 412 Ill. 179, 106 N.E.2d 124 (1952); Geneva Const. Co. v. Martin Trans. Co., 4 Ill.2d 273, 122 N.E.2d 540 (1954).

We reach the conclusion that the workmen's compensation payments to plaintiff should have been submitted to the jury for consideration in arriving at the amount of the verdict.

As another ground for reversal, it is urged that during the voir dire examination of the jury plaintiff's counsel repeatedly sought to extract promises from the jurors that they would follow his theory of the law. Plaintiff seeks to justify this conduct of counsel by contending that defendant waived the right to question it on appeal by failing to object in apt time. The record discloses that when plaintiff's counsel, in interrogating the first panelist, began going into his legal theory of the case, counsel for defendant stated: "I will object to that." Plaintiff's counsel then started to qualify his statements, but later, with the same panelist, reverted to his practice of instructing the jurors on his theory of the law, and finally stated: "Mr. Kordik [the juror being examined], it is only necessary that you be satisfied that the Carroll Construction Company failed to comply with this statute. Will you just direct your attention, as you hear the evidence, to that fact?" Defendant's counsel then said: "I think that is something the Judge will instruct the jury on when the time comes," to which the trial judge responded: "I suppose when you are asking the jury, you have a right to go into this phase of the law. We only do it once." Interrogation of other jurors followed the same pattern, without specific objections being made to the interrogations of the several jurors. It is clear, however, that defense counsel, having objected to the interrogation of the jurors as to the law and the court having disagreed with his objection, defendant was not required to keep objecting every time the issue arose. This point is squarely decided by Chicago Union Traction Co. v. Lauth, 216 Ill. 176, 180, 74 N.E.2d 738 (1905). It appears that in the last attempt to correct the situation, defense counsel moved for a mistrial immediately at the end of the voir dire. The court overruled the motion and reiterated its position. Apparently, neither the trial judge nor counsel were cognizant of rule 24-1 of the Illinois Supreme Court which had been adopted only a short time before the trial of this case (Ill Rev Stats 1961, c 110, § 101.24-1). That rule provides that the judge shall initiate the voir-dire examination of jurors by identifying the parties and their respective counsel, and shall briefly outline the nature of the case. The judge in addition is required to put to the jurors any questions which he thinks necessary touching their qualifications to serve as jurors in the cause. The rule then provides that the parties or their attorneys shall be allowed a reasonable opportunity to supplement such examination, "but shall not directly or indirectly examine jurors concerning matters of law or instructions." Neither party requested the judge to initiate the voir-dire examination of the jurors, as provided in rule 24-1. Plaintiff's counsel now contends that since this rule was not invoked, it was proper for him to pursue the course employed. In the early case of Ventriss v. Pana Coal Co., 155 Ill. App. 152 (1910), the court held that the voir-dire examination there conducted constituted reversible error, and said (p 154):

"It is urged by appellant that in permitting the jurors on their voir dire to answer these questions [whether upon certain stated facts they would find for the plaintiff] virtually committed the jurors, if certain facts were shown on behalf of the plaintiff, to agree to render a verdict in his behalf and this, without regard to what might be disclosed upon the part of the defense or without relation to what the instructions of the court to the jury might be, regarding such conditions of affairs.

"The court permitted too great a latitude in the examination of these jurors and should not have allowed the examination to extend to the point of asking the jurors whether upon certain stated facts they would find for the ...


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