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Yankey v. Oscar Bohlin & Son

OCTOBER 29, 1962.




Appeal from the Circuit Court of Cook County; the Hon. EDWARD B. CASEY, Judge, presiding. Affirmed in part, reversed in part and remanded with directions.


This is an action brought by plaintiff, Louis Yankey, to recover for personal injuries sustained in a construction accident. Defendants are Northwestern Excavators, a division of Northwestern Heating and Plumbing Company, the owner of the tractor involved in the accident, and Oscar Bohlin & Son, the general contractor at the construction site. Bohlin subsequently filed a counterclaim, in the nature of an action over, against Northwestern. The jury returned a verdict in the sum of $75,000 against Bohlin alone, Northwestern being found not guilty. The counterclaim was excluded from consideration by the jury after all the evidence had been presented. Bohlin appeals, seeking reversal of both the judgment for Yankey and the exclusion of the counterclaim. Yankey cross-appeals the denial of a judgment notwithstanding the verdict against Northwestern or, in the alternative, requests a new trial as to Northwestern only.

While the record is voluminous, the operating facts are simple. The defendant, Bohlin, was the general contractor for the construction of an addition to a schoolhouse in Niles, Illinois. Yankey, who was employed by H.B. Olney, Inc., was the driver of a semi-tractor trailer and on March 17, 1953, delivered a load of joists to the premises in question and was injured when the boom of a hoist fell across the length of the semitrailer upon which he was standing. Yankey's injuries are not controverted on this appeal.

After Bohlin had been awarded the prime contract for construction of the school addition, the excavating work was subcontracted to Northwestern by written contract. This work was accomplished by an excavator (a crane with shovel attached) owned by Northwestern and sent to the job site by Northwestern. The machine was operated by Northwestern's employee, Leo Smith, an experienced operator-engineer. Northwestern did this work for the contract price of $1,800. Upon completion of the excavating work, Northwestern and Bohlin entered into an oral agreement whereby Northwestern agreed to do hoisting work at the construction site. For this work Bohlin was invoiced on an hourly rate for use of the machine and services of Smith, its operator. In order to do the hoisting work it was necessary to convert the excavator into a hoist. This was accomplished by detaching a dirt-removing attachment called a hoe and attaching a boom in its place. Smith, with the assistance of several Bohlin employees, effected the conversion at the construction site. Upon the completion of the conversion, the equipment consisted of a tractor to which was attached a boom about 35 feet long and a hoist about 15 feet long, the total weight of the boom and joist being about 700 pounds.

On the day in question, Yankey had delivered prefab concrete joists to the job site and was standing on the trailer while the joists were being removed. As the joists were being lifted from the trailer, the boom of the hoist became disengaged and fell, striking Yankey. We see no reason to detail here the method used to secure the boom and cables for the lifting purposes, inasmuch as Smith, the operator of the crane, testified that the boom fell because the cable controlling the height of the boom disengaged itself from the wedge of the socket on top the cab, and Smith admitted that if the cable had been secured properly, the boom would not have fallen.

Yankey's complaint charged the defendants with both common law negligence and violation of the Structural Work Act, commonly referred to as the Scaffold Act. Ill Rev Stats, c 48, §§ 60-69.

[1-3] We shall first consider Yankey's cross-appeal against Northwestern. It is the law in this state that in ruling on a motion for a directed verdict or for judgment notwithstanding the verdict, the evidence must be considered, together with any reasonable inferences to be drawn therefrom, in its aspect most favorable to the party adverse to the motion, Paul Harris Furniture Co. v. Morse, 10 Ill.2d 28, 139 N.E.2d 275, and that the reviewing court will not substitute its judgment for that of the jury in passing on the weight and credence of the various witnesses. City of Monticello v. LeCrone, 414 Ill. 550, 111 N.E.2d 338. The jury verdict should not be set aside unless manifestly against and contrary to the weight of the evidence or, as sometimes stated, an opposite conclusion is clearly indicated. Cardona v. Toczydlowski, 35 Ill. App.2d 11, 180 N.E.2d 709.

The Supreme Court's most recent review of the Scaffold Act is Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill.2d 305, 175 N.E.2d 785. There, the question before the court was whether the Scaffold Act imposed strict liability on those persons enumerated in section 9 of the act. The court held the statute did not intend liability when there was no control, stating:

The act specifies, "Any owner, contractor, subcontractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of the act, shall comply with all the terms thereof, . . . ." It is inescapable from these words that the legislature intended to hold liable those named persons who are in charge of the work, and the words "or other person" were included to cover the situation where someone other than the named persons was in charge of the work, in order to prevent such person from escaping liability. 22 Ill.2d at 319.

The court recognized that there may be more than one party in charge. In such situations, the injured party is not limited to an action against only one party, for the court stated, on page 322, in "operations of several contractors or subcontractors who are each in charge of a phase of the work, . . . the injured person has a right of action against any one of them, other than his employer, who may wilfully violate or fail to comply with the act."

Northwestern does not contend that Smith, its operator, was not negligent, but insists that Smith was a "loaned servant" under the exclusive control of Bohlin, thereby freeing Northwestern of liability. Northwestern submitted an instruction, given over objections, which presented to the jury the question of whether Smith was a "loaned servant" at the time of the accident. A person in the general employment of one person may, with his consent, be transferred to another for some particular work in such a way as to become the servant, for the time being, of the other in doing that work. Martin v. 1600 Hinman Ave. Corp., 339 Ill. App. 126, 88 N.E.2d 892. The test whether an employee becomes a "loaned servant" depends upon whether the employee becomes wholly subject to the second employer's control and freed during such time from the directions and control of his master. Gundich v. Emerson-Comstock Co., 21 Ill.2d 117, 123, 171 N.E.2d 60.

Northwestern points out evidence presented at the trial which it claims supports the "loaned servant" theory and supports the jury verdict. The principal factors relied on include that Orland Hill, Bohlin's job superintendent "ran the job" in order to expedite and correlate the work so "it dovetailed with other contractors" and told Smith "what was to be done and where the various joists and equipment were to be set into place." In addition, Smith received hand signals from Cecil Freeman, Bohlin's employee, directing him how and where he was to lift the heavy materials and where he was to place them.

Northwestern relies on Gundich v. Emerson-Comstock Co., 21 Ill.2d 117, 171 N.E.2d 60, where the Supreme Court held that whether or not an employee has become a "loaned servant" was a question of fact and the Appellate Court cannot, as a matter of law, reverse the jury finding. An examination of the Gundich case does not support the argument that the facts here support a finding that Smith was a "loaned servant." In Gundich the action by the injured person alleged that the party causing the accident was the employee of one or both of the defendants and it was held that under such circumstances, neither defendant would be entitled to a directed verdict unless it appeared that the employee charged with negligence was, in fact, the employee of only one of the defendants.

In the case at bar, the undisputed evidence shows that Northwestern knew that their equipment was to be converted and used for a hoisting job, a dangerous operation. Northwestern authorized no other person but Smith, their employee who had fifteen years of experience as a crane operator, to convert and operate the lifting apparatus. Under the facts and circumstances in the record, Northwestern continued as a sub-contractor on the job, but instead of excavating, did hoisting work. Northwestern knew, or should have known, that it was its responsibility to attach the boom in a safe manner so as to avoid ...

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