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Clements v. Schless Const. Co.

DECEMBER 28, 1967.

FREDERICK CLEMENTS, PLAINTIFF-APPELLANT,

v.

THE SCHLESS CONSTRUCTION COMPANY, INC., A CORPORATION, DEFENDANT-APPELLEE, THIRD-PARTY PLAINTIFF,

v.

JOHN F. HIRSCH, D/B/A JOHN H. MOSACK COMPANY, THIRD-PARTY DEFENDANT.



Appeal from the Circuit Court of DuPage County, Eighteenth Judicial Circuit; the Hon. WILLIAM J. BAUER, Judge, presiding. Reversed and remanded for new trial with directions.

MR. JUSTICE SEIDEL DELIVERED THE OPINION OF THE COURT.

Rehearing denied and supplemental opinion March 12, 1968.

The plaintiff, Frederick Clements, brought this action under the Structural Work Act (Ill Rev Stats 1959, c 48, § 60 et seq.) against The Schless Construction Company, Inc., a corporation, herein referred to as defendant, to recover damages for personal injuries suffered from a fall while painting the exterior window sashes of a school building in Westmont. There was a trial before a jury in the matter of the claim of the plaintiff against the defendant, and the jury returned a verdict in favor of the defendant. The court subsequently overruled the plaintiff's post-trial motions and the plaintiff prosecuted an appeal to this court.

The defendant, a general contractor, had an agreement with the School District, whereby it was to provide material and perform services for the work in making certain alterations and repairs to the school building. John F. Hirsch, the third-party defendant, herein referred to as Hirsch, was a subcontractor of Schless doing the painting work. The plaintiff was in the employ of Hirsch as a painter. On the afternoon in question the plaintiff was seen working while standing on a plank scaffold supported by two (2) ladders behind the outside of the school where he was painting. The two (2) ladders had been placed against the building resting at an angle. Each of the two (2) ladders had attached to it a ladder jack. The plank scaffold was supported by the two (2) ladder jacks. Immediately after the occurrence the ladder jack which had been attached to the ladder to the north, as well as the plank, was found on the asphalt surface below and adjacent to the school building. The plaintiff was also found on the asphalt pavement. The ladder jack was immediately below the north ladder. The plaintiff suffered severe personal injuries.

In his complaint the plaintiff charged the defendant, as the general contractor on the job, with violating the Structural Work Act, supra, and not providing ample and safe equipment upon which to work. It was charged that the acts of the defendant were in violation of Safety Rules promulgated with the Illinois Industrial Commission pursuant to the Health and Safety Act (Ill Rev Stats 1959, c 48, § 137.1 et seq.)

Thereafter the defendant filed a third-party complaint against Hirsch and then made a motion for a separate trial. This motion was denied by the trial court. When the case was called for trial thereafter, the defendant and Hirsch joined in a motion for severance and presented to the plaintiff a certain stipulation. The plaintiff did not enter into this stipulation. Under the terms of the stipulation it was provided that there would be a severance, and

a. The court would instruct the jury concerning the names of the parties and the names of their attorneys, as well as the fact that Hirsch had an interest adverse to the plaintiff;

b. The jury would be selected as in the case of litigation involving multiple defendants;

c. All parties would be permitted to examine the witnesses and Hirsch, if he desired, could supplement evidence offered in defense of the principal action;

d. The jury would be instructed as to the issues in the original case and Hirsch could offer supplemental instructions on behalf of the defendant;

e. The jury would retire and return a verdict upon the principal case only.

The trial court accepted the stipulation and informed the jury that in the course of the evidence reference would be made to Hirsch, and that under the law, Hirsch had a legal interest in the law adverse to the interest of the plaintiff and that he was entitled to be represented at the trial, and that he was represented by an attorney at the trial.

The record shows that counsel for Hirsch participated in the selection of the jury, the examination of witnesses, objected to evidence offered by the plaintiff, participated in conferences on instructions, as well as objected to plaintiff's argument.

Below, and in this court, the plaintiff contends that the trial court did not have jurisdiction to enter an order pursuant to the stipulation and did not have the right to allow counsel for Hirsch to participate ...


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