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Sleck v. Butler Bros.

OCTOBER 27, 1964.

JOHN SLECK, PLAINTIFF,

v.

BUTLER BROTHERS, CANAL-RANDOLPH CORPORATION, AND GALLAHER & SPECK, INC., DEFENDANTS THIRD-PARTY PLAINTIFFS APPELLANTS,

v.

PENNOYER MERCHANTS TRANSFER COMPANY, THIRD-PARTY DEFENDANT APPELLEE.



Appeal from the Superior Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding. Judgment reversed and cause remanded with directions.

MR. JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 19, 1964.

Plaintiff John Sleck, an employee of Pennoyer Merchants Transfer Company, was injured on March 21, 1956 while in the process of delivering air-conditioning equipment to the eighteenth floor of the Canal-Randolph Building. At the time of the occurrence Sleck was standing on a wire grating which formed the top of the elevator that was being used to hoist the equipment. As the elevator reached the first floor the roof of the elevator gave way, causing Sleck to fall to the elevator floor. Prior to the occurrence a co-employee of Sleck had removed some of the bolts which connected the wire grating to the elevator frame. Upon inspection after the occurrence it was discovered that some bolts had been sheared and some were missing but that none had been pulled through the frame. The elevator and elevator shaft involved in the injury had been turned over to Pennoyer for its use in hoisting the equipment. Defendants third-party plaintiffs in this action, Butler Brothers, Canal-Randolph Corporation, and Gallaher and Speck, did not participate in the hoisting operation nor use the elevator during the hoisting operation.

The amended complaint filed April 2, 1957 was a common law negligence action. The answers of defendants filed June 4, 1957 and June 11, 1957 denied common law negligence. Third-party complaints filed September 28, 1960 and August 14, 1962 by defendants against Pennoyer were based essentially on the passive nature of defendants' and the active nature of Pennoyer's common law negligence. In addition, various cross-complaints and answers were filed.

On January 10, 1963 Sleck filed an additional count against the original defendants, alleging a violation of the Structural Work Act (Ill. Rev Stats 1963, c 48, §§ 60-69). In addition, on the motion of Sleck, his case was severed from the various counterclaims and third-party actions for purposes of trial. After giving notice to Pennoyer, defendants settled with Sleck for $15,000, and on January 14, 1963 a consent order was entered by Judge Drymalski recording that settlement. The order provided:

"This cause coming on for trial, all parties being represented by counsel, in Court, and the Court being advised in the premises, having participated in settlement negotiations of the original cause of action by John Sleck against the defendants, Butler Brothers, Inc., Canal-Randolph Corporation, and Gallaher and Speck, Inc.;

"It further appearing to the Court that the said parties have agreed upon the evaluation of the claim for settlement purposes and have stipulated to the entry of a consent judgment decree, and the Court determining that said agreement to settle the cause and have a consent judgment entered thereon being fair and proper under the circumstances;

"The Court having heard the statement of counsel for the said parties as to the injuries, disability and loss of income resulting from the said accident.

"It is hereby ordered that judgment be entered upon the stipulated settlement in the amount of Fifteen Thousand Dollars in favor of the plaintiff against the defendants, Butler Brothers, Inc., Canal-Randolph Corporation and Gallaher & Speck, Inc."

The third-party complaints were then assigned to Judge Canel for trial. All the parties to the third-party action stipulated as follows:

"It is stipulated by the attorneys for Butler Brothers, Canal-Randolph Corporation, and Gallagher [sic] & Speck, and Pennoyer Merchants Transfer Company that based on the amended Complaint a judgment was entered in favor of John Sleck and against Butler Brothers, Canal-Randolph Corporation and Gallagher [sic] & Speck, Inc., for $15,000.00 by stipulation between John Sleck and Butler Brothers, Canal-Randolph Corporation and Gallagher [sic] & Speck, Inc."

At the close of the third-party plaintiffs' case, the third-party defendant Pennoyer moved for a directed verdict on the basis that the consent judgment was a judicial admission of negligence on the part of the third-party plaintiffs. During a recess in the argument on the motion for directed verdict, the consent judgment of January 14, 1963 was vacated pursuant to a stipulation between Sleck and the third-party plaintiffs, and another consent judgment was entered. This consent order entered on January 15, 1963 provided as follows:

"It is hereby stipulated by and between the parties hereto, by their respective attorneys that the consent judgment entered in this ...


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