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Dinschel v. United States Gypsum Co.

MAY 15, 1967.

EARL DINSCHEL, PLAINTIFF-APPELLEE,

v.

UNITED STATES GYPSUM COMPANY, A CORPORATION, AND SHAW, METZ & ASSOCIATES, A COPARTNERSHIP, DEFENDANTS, AND RAGNAR BENSON, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. DONALD S. McKINLAY, Judge, presiding. Judgment affirmed.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

Rehearing denied June 12, 1967.

This is an action brought by plaintiff, Earl Dinschel, under the Scaffold Act, Ill Rev Stats 1965, c 48, §§ 60-69, to recover for personal injuries resulting when the scaffold on which he was working fell. Defendant, Ragnar Benson, Inc., was the sole defendant at the conclusion of the trial, all other defendants having been previously dismissed on motion of the plaintiff. Judgment was entered upon the verdict of the jury in favor of plaintiff in the sum of $60,000 and defendant appeals.

It is contended by the defendant that (1) plaintiff failed to prove an essential element of his case in that it was charged that defendant constructed the scaffold in question and no evidence supported such allegation; (2) the defendant was not in charge of the scaffolding in question or the work in connection with which it was used; (3) that the defendant, as general contractor was required by the prime contract to employ S.J. Reynolds Co., Inc., by reason whereof defendant was relieved of liability for any misconduct of the subcontractor; (4) that the defendant did not construct the scaffold and therefore is not chargeable with "knowingly" or "willfully" violating the Act where the subcontractor furnished a defective scaffold, the defect of which would not be apparent upon a customary inspection; (5) the trial court erred (a) in permitting plaintiff's counsel to read an excerpt from a prime contract and in refusing to permit the jury, on motion of the defendant, to hear explanatory provisions of the same, and (b) in refusing to admit in evidence the subcontract between defendant and S.J. Reynolds Co., Inc.; and (6) the defendant was entitled to a directed verdict or to a judgment notwithstanding the verdict of the jury.

On October 1, 1959, the defendant, Ragnar Benson, Inc., (contractor) entered into a prime contract with the United States Gypsum Company (owner) for the construction of the latter's Research Laboratory in Des Plaines, Illinois. S.J. Reynolds Co., Inc., was the plumbing subcontractor and employed the plaintiff, Earl Dinschel, as a journeyman plumber. A pipe scaffold was delivered to the construction site by Reynolds and had been used for about two weeks prior to the date of the accident. On June 1, 1960, the plaintiff and Edward Lenea were working at the construction site on the scaffold at a height of approximately 20 feet when the scaffold started to move and sway and suddenly fell to the ground. Lenea escaped injury by being thrown onto a girder but the plaintiff fell to the concrete floor and suffered severe injuries.

The defendant insists that he did not have the "right to control" the work of Reynolds, the subcontractor, as that authority was "circumscribed and limited by the prime contract." He argues that under the prime contract the authority and true control of the doing of the work, even to the selection of the subcontractors to be used, was and remained in the architect, who therefore, having in all respects the power of direction, was in complete charge of doing the work. He states that in this important particular the case at bar is clearly distinguished from Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 211 N.E.2d 247.

We are therefore required to consider the terms of the prime contract between the defendant and the owner to determine whether the architect and not the general contractor was in charge of the construction. The contract, issued by the American Institute of Architects, is headed as "the standard form of agreement between contractor and owner for construction of buildings" and was executed by Ragnar Benson, Inc., contractor, and the United States Gypsum Co., owner, on October 1, 1959. The parts of the agreement relevant to the issues are briefly these. Under Article I Ragnar Benson agreed to perform all the work as shown by the drawings and described in the specifications prepared by the architects. A lump sum was to be paid the contractor in the amount of $1,621,831 including the plumbing work in the amount of $104,275. Under Article 7, Section "B" it is stated, "Plumbing Work covered by Section 3 of Specification SMD #5906, Volume 2. Plumbing contractor to be S.J. Reynolds Co., Inc."

The prime contract also incorporated another agreement executed by the same parties which is headed as "the general conditions of the contract for the construction of buildings." Article I (c) of that contract states "the term Subcontractor, as employed herein, includes only those having a direct contract with the Contractor. . . ." Under Article 9 it provides that the contractor shall pay for all materials, labor, etc. Article 12 headed "Protection of Work and Property" provides in part that:

The Contractor shall take all necessary precautions for the safety of employees on the work, and shall comply with all applicable provisions of Federal, State and Municipal Safety laws and building codes to prevent accidents or injury to persons on, about or adjacent to the premises where the work is being performed. He shall erect and properly maintain at all times, as required by the conditions and progress of the work, all necessary safeguards for the protection of workmen. . . .

Article 36 headed "Subcontracts" provides:

As soon as practicable and before awarding any subcontracts, the Contractor shall notify the Architect in writing of the names of the subcontractors proposed for the principal parts of the work, and for such other parts as the Architect may direct, and shall not employ any to whom the Architect may have a reasonable objection.

If before or after the execution of the Contract, the Contractor has submitted a list of subcontractors which has been approved by the Architect, and the change of any subcontractor on such list is required by the Owner after such approval, the contract price shall be increased or decreased by the difference in cost occasioned by such change.

The Contractor shall not be required to employ any subcontractor against whom he has a reasonable objection.

The Architect shall, on request, furnish to any subcontractor, wherever practicable, evidence of the ...


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