Appeal from the Circuit Court of Cook County; the Hon. GEORGE
L. QUILICI, Judge, presiding. Reversed and remanded.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT AS MODIFIED ON DENIAL OF PETITION FOR REHEARING.
Rehearing denied and opinion modified November 13, 1970.
Third party plaintiff (Trapani) has appealed from a judgment entered by the trial court at the close of all the evidence, upon the motion of third party defendant (Hillesheim) for a directed verdict. This action was initiated by plaintiff, who is not a party to this appeal, on January 4, 1963. Plaintiff was employed by Hillesheim, who was a painting subcontractor of Trapani, the general contractor in charge of construction of a house. Plaintiff's original complaint alleged that the negligence of Trapani was the proximate cause of the injuries he sustained while on the job. An amended complaint in two counts was then filed by plaintiff adding as an additional party defendant Leo Townsend, a carpenter employed by Trapani, who, it was alleged, lowered the upper sash of a window, causing plaintiff to fall from a ladder on the outside of the house. The second count alleged that Trapani wilfully violated the Structural Work Act. Ill Rev Stats 1961, c 48, §§ 60, 69.
On May 31, 1966, pursuant to leave of court, Trapani filed a third party complaint against Hillesheim, alleging (1) that Trapani's own actions were merely passive, and if he was liable to plaintiff under the Structural Work Act, it was the result of the active conduct of Hillesheim, and (2) that Hillesheim breached its implied contractual obligation to perform the work with reasonable care and in a workmanlike manner. On July 28, 1966, the court dismissed Townsend as a party defendant, and granted leave to plaintiff to file an amended complaint. Filed that day, the second amended complaint contained no negligence count, but did reallege liability of Trapani based on the statute. On July 29, 1966, Trapani entered into a settlement with plaintiff for $45,000, and, on the same day, filed an amended third party complaint against Hillesheim. The terms of this settlement were included in a second amended third party complaint filed on November 20, 1967, and later amended again. Plaintiff's action against Trapani was dismissed on May 10, 1968, pursuant to stipulation.
With regard to the facts of the occurrence, Trapani was retained as general contractor to construct a two-story family dwelling in Mount Prospect. He then entered into a subcontract with Hillesheim to do the painting.
Plaintiff (an employee of Hillesheim) testified that he had placed a ladder against the house and, while standing on it, was sanding and puttying the sill and the sash of a second-floor window. The ladder was adjusted to a 15-foot length and was placed with its base about seven feet from the wall of the house. To the best of his judgment, the bottom of the window was 15 feet above ground level. He stated that while he was working on the outside of the window, Townsend (an employee of Trapani) was working on the inside of the window. During the three or four minutes he was positioned on the ladder prior to the fall, he was applying putty to the upper right-hand corner of the window by using his right hand. He was using his left hand to hold himself in a straight position, by resting it on the top center of the upper sash. He testified that he wasn't sure what rung he was standing on, but his knees were a little lower than the top rung of the ladder. In order to putty the top part of the window, he stepped up one rung, the sash came down about four inches, and he fell backwards off the ladder. He was not in a position to grab hold of any part of the ladder to save himself from falling.
Townsend testified that he was working on the inside of the same window, installing handles on the sash. He had been working there for twenty minutes, during which time he had had a conversation with Wrobel. The sashes on the windows were moved several times during this period. When he had finished work on the lower sash, he pushed it downward. This enabled him to mark the bottom rail of the upper sash to establish a position to insert screws. Then, in order more easily to affix a hardware piece on the bottom rail of the upper sash, he reversed the position of the sashes by raising the lower sash and pushing down on the upper sash so that it came to rest less than half an inch above the window sill, "as far as it would go." He took out his hammer and awl to drive two holes straight down into the rail of the upper sash. He then started to insert the screw "and by pushing down the window went down a half inch."
Right after that, he noticed Wrobel outside with his arms in the air trying to reach for something. It appeared that, just before that, he was reaching with a putty knife in his right hand for the upper right-hand corner of the window. Townsend didn't know where Wrobel's left hand was and, prior to the accident, he didn't see his left hand on the sash at any time. He had been standing at about the same height as Townsend on the inside, with their eyes at the same level. After the fall, Townsend rushed downstairs where Wrobel was lying on the ground, Townsend said he was sorry about it, and Wrobel said not to worry because "it isn't your fault."
Townsend noticed that the ladder, which was standing against the house, was not directly underneath the window but was placed with its right rail even with the left side of the window. The top of the ladder reached only to the bottom edge of the window. He testified that the customary place to position the top of a ladder is near the top of the window. Also, it is usual, when working on the right side of a window, to place the ladder on that side. Further, the customary stance for a worker would be one in which his shoulders would be approximately even with the top rung, with the body between the two rails of the ladder.
Trapani, a carpenter of 20 years' experience, and Donald Stewart, a safety engineer, testified that safety standards in connection with the use of ladders indicate that the highest rung on which a person should stand is the fifth from the top. The position of the body should be between the rails. Trapani testified that the bottom of the window was 12' 6" above the ground; and that a ladder fifteen feet long, positioned with its top 12 feet above the ground, would extend 9' 3" from the base of the wall. The expert witness testified that this position would not meet acceptable safety standards.
Trapani seeks to have the judgment of the trial court vacated and judgment entered in his favor based upon two theories of recovery. He contends that, as a matter of law, he is entitled to indemnification from Hillesheim either on the theory of active-passive indemnity or implied contractual indemnity. He also contends, in the alternative, that the judgment should be set aside and the cause remanded for a new trial, because the evidence raised questions of fact under both theories which the jury should have been permitted to decide.
Before addressing ourselves to these contentions, however, we believe it necessary to consider the element of "good faith" with regard to the settlement entered into by plaintiff and Trapani. Hillesheim does not question the amount of the settlement, but argues that it was not made in good faith, since a condition of that agreement required plaintiff to file a second amended complaint omitting reference to any allegations of negligence against Trapani. In explanation, Trapani points out that a settlement where negligence is alleged in the complaint, might be construed or inferentially argued (as it could have been in this case if it had gone to the jury) as a tacit admission of negligence on the part of Trapani. See Sleck v. Butler Brothers, 53 Ill. App.2d 7, 202 N.E.2d 64. This, he was attempting to avoid, as he was making settlement payment only on the charge of violating the statute and not on the charge of negligence. We find nothing impermissible in such a transaction, as Trapani had the right to have the pleading on which payment was to be made, reflect only the allegation which was the basis for the settlement agreement. See Krambeer v. Canning, 36 Ill. App.2d 428, 433, 184 N.E.2d 747. We consider the case of Grummons v. Zollinger, 240 F. Supp. 63 (cited by Hillesheim), distinguishable on the facts, which in that case strongly indicated bad faith on the part of the defendant in relation not only to the alleged indemnitor but also in relation to the trial court.
Trapani raises the related issue that Wrobel's superseded complaint and amended complaint were improperly admitted into evidence over objection. We agree that this constituted serious error in the light of our conclusion above on the issue of good faith. The earlier pleadings themselves are unrelated to the basic issue of indemnification. Their admission into evidence would have been highly prejudicial if the case had gone to the jury.
Trapani has also contended in this court that he was erroneously denied the opportunity to cross-examine or impeach his own witness (Wrobel) when part of his testimony came as a surprise to Trapani's counsel. See Supreme Court Rule 238, Ill Rev Stats 1967, c 110A, § 238. We need not pass on this point, however, because ...