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Gerlach v. Pepper Const. Co.

OCTOBER 22, 1971.

MARGARET L. GERLACH, AS ADMR. ET AL., PLAINTIFFS,

v.

PEPPER CONSTRUCTION COMPANY ET AL., DEFENDANTS, — (PEPPER CONSTRUCTION COMPANY, THIRD-PARTY PLAINTIFF-APPELLANT,

v.

CONTINENTAL ELECTRIC COMPANY, THIRD-PARTY DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. JAMES A. GEROULIS, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 22, 1971.

Albert J. Gerlach (hereafter "Gerlach"), an electrician, working for Continental Electric Company (hereafter "Continental"), sustained fatal injuries while working on a job wherein Pepper Construction Company (hereafter "Pepper") was the general contractor. Gerlach's widow and children sued Pepper under the Structural Work Act. (Ill. Rev. Stat. 1961, ch. 48, par. 60-69.) Pepper answered Gerlach's complaint and brought a third-party action against Gerlach's employer, Continental. In its third-party complaint Pepper alleged that if the Gerlachs received a verdict it would be the obligation of Continental to satisfy any judgment since (1) Continental was guilty of active negligence and Pepper was guilty only of passive negligence and (2) Gerlach's accidental death resulted from Continental's breach of promise to do the electrical work in compliance with its purchase order and the plans and specifications. Subsequently, by agreement of the parties to the original complaint, a judgment was entered against Pepper and in favor of Margaret Gerlach and her children in the sum of $112,000, which judgment was satisfied in open court.

The third-party action then proceeded to trial on Pepper's third-party complaint. At the close of Pepper's evidence Continental moved for a directed verdict which was denied. At the close of all evidence both Pepper and Continental moved for directed verdicts in their favor. The trial court denied their motions. The case went to the jury which found in favor of Continental. Pepper's post-trial motion was denied.

On appeal Pepper contends: (1) that the trial court erred by denying its motion for a directed verdict; and (2) that the trial court erred by denying its post-trial motion for a new trial.

The evidence disclosed that on April 11, 1962, Gerlach, a journeyman electrician, was working for Continental on remodeling a building at 522 North Michigan Avenue, Chicago. Pepper was the general contractor on the job. At about 1:30 P.M. Gerlach climbed a ladder to a place where his feet were about six to eight feet above the ground. Gerlach cut a tie wire attached to a structural ceiling which was holding one side of a four by ten foot piece of plaster weighing several hundred pounds. The piece of plaster swung away from Gerlach after he cut the wire, then swung back toward him, broke away from the ceiling and hit the lower part of the ladder causing Gerlach to fall and suffer injuries from which he died.

Testimony of Cameron Sipple, called by Pepper under Section 60:

He is an electrical estimator for Continental. Exhibit 3 for identification was probably a copy of the purchase order. (More details of his testimony regarding this exhibit appear hereafter.)

Testimony of Walter Popowski, called by Pepper under Section 60:

He is a journeyman electrician and foreman for Continental. At about 10:00 A.M. on April 11, 1962, he assigned Gerlach and Bennett, two Continental employees, to the first floor of the 522 North Michigan Avenue Building where remodeling work was being performed. Before 10:00 A.M. Gerlach and Bennett had been engaged elsewhere in the building working for Continental. He told Gerlach and Bennett to run a two inch feeder line across the ceiling from a panel box down to a column. The line was to run across the ceiling from the northwest corner of the area to the column. The distance was about thirty feet.

With regard to the instructions that he gave, the witness said, "Usually a journeyman, you don't tell how to do every little specific thing. A journeyman knows his job and he does it. You tell them to run from this point to this point." A journeyman's job includes electrical wrecking.

He did not remember if he looked at the ceiling to see if it was clear before Gerlach and Bennett started to work. He might have seen the soffit (the underside part of the ceiling) before the accident but he did not discuss it with Gerlach. He did not talk to Gerlach about the piece of plaster in the ceiling.

He must have seen the plaster when he told Gerlach to take his pipe from one side to the other but he did nothing about it. It is actually the job of the general contractor to do all wrecking not pertaining to electricity. His journeymen electricians take their orders from him. He made no request of Pepper to remove the plaster.

Testimony of William Bennett, called by Pepper under section 60:

In 1962 he was an apprentice electrician employed by Continental. On April 11, 1962, he was working in a building at 522 North Michigan with Gerlach. Walter Popowski gave them their assignments. While Gerlach and he were working, Gerlach cut a wire causing a piece of plaster to fall. Gerlach was standing on a ladder for thirty seconds before he cut the wire which held the plaster. Gerlach had to look at the wire before he could cut it. Gerlach intended to cut the wire. The plaster swung away, broke loose and hit the ladder knocking Gerlach to the floor. The accident occurred around 1:30 P.M. When Gerlach cut the wire Frank Romanelli was present.

Testimony of Frank Romanelli, called by Pepper:

In April 1962 he was a carpenter foreman for Pepper. He did not talk to any of Continental's men on April 11, 1962, before Gerlach's accident. He never told Continental's men what to do or when to do it. He demolished everything that was supposed to come down according to the plans and specifications.

The four by ten foot piece of plaster was no longer hidden once he removed the ceiling. This piece of plaster was exposed for ten days to two weeks once the ceiling covering it came down. However, he did not consider this plaster dangerous or he would have cut it down.

Continental started its electrical demolition at practically the same time Pepper began its work. Continental's job was to deaden wires and remove conduit (pipe).

The piece of plaster which fell was suspended by laths and hangers. He was fifteen or twenty feet away from Gerlach when the accident occurred.

Testimony of William Bennett, called by Continental:

After being assigned the task of running pipeline by Popowski, Gerlach and he located the necessary materials and proceeded to mount the lighting panel on the wall. Once the panel was mounted it had to be fed a two-inch pipe by hanging the pipe to the ceiling. They finished with a portion of the pipe when they reached the plaster piece in the ceiling. Gerlach asked Romanelli if this section of the ceiling was coming down and Romanelli ...


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