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Clements v. Schless Const. Co.

SEPTEMBER 25, 1972.




APPEAL from the Circuit Court of Du Page County; the Hon. BERTRAM E. RATHJE, Judge, presiding.


Rehearing denied December 19, 1972.

This action is brought under the Structural Work Act (Ill. Rev. Stat. 1959, ch. 48, sec. 60, et seq.), by Frederick Clements, Plaintiff, against The Schless Construction Company, Inc., a corporation, Defendant, to recover damages for personal injuries suffered from a fall which occurred while he was painting the exterior window sashes of a school building in Westmont, Illinois.

A Jury returned a verdict in favor of the Defendant. After denial of post-trial motions, Plaintiff appealed and this Court reversed the judgment and remanded the case for a new trial. Thereafter, this Court filed a Supplemental Opinion upon its denial of Defendant-Appellee's Petition for re-hearing. (Clements v. Schless Construction Co. (1967), 91 Ill. App.2d 19; 234 N.E.2d 578.) The second trial again resulted in a Jury verdict in favor of the Defendant, and the Plaintiff now prosecutes this second appeal.

The Defendant, as general contractor, had an agreement with School District No. 57, DuPage County, to make certain alterations to a school building in Westmont, Illinois. Defendant was to do all carpentry and brick-laying work and, to that end, had scaffolding and equipment at the job-site. However, all of Defendant's equipment had been removed prior to the date of Plaintiff's injuries.

Plaintiff was an employee of John F. Hirsch, d/b/a John H. Mosack Company, hereinafter referred to as Hirsch, a painting sub-contractor on the job. Hirsch provided all of the equipment for his employees.

On the day of the occurrence, Plaintiff and another Hirsch employee, Lawrence A. Voight, were the only workers on the job-site. The equipment present and used by these men belonged to Hirsch. Before lunch, both parties tested the equipment by jerking on the stringer (plank) after it had been placed on the ladder jacks. They found it to be "all right". The equipment was erected for the purpose of painting the sash on a bank of windows.

Plaintiff went onto the scaffold while Voight went to another part of the building. Plaintiff was seen standing on the platform and, moments later, was found lying on the ground. The stringer was found right-side up on the ground at the foot of the ladders — a couple of feet away and to the North end of the ladders. One ladder jack was found on the ground, below the North ladder, and the other was on the South ladder, out of place. Plaintiff suffered head and body injuries.

Defendant's superintendent, Arthur Prokaski, who coordinated all of the work, including that of the subcontractors, was on the job four days per week. There was no written contract between Defendant and Hirsch. At one point, Defendant sent Hirsch a change order, which Hirsch complied with.

Plaintiff first contends that the Trial Court erred by not following the directions of this Court, set forth in the Supplemental Opinion on the first appeal. (Clements, supra). Both parties agree that the adjudications on that appeal are the controlling law of this case. Specifically, Plaintiff complains that the Court improperly refused, at the close of all the evidence, to instruct the Jury to find for the Plaintiff and to submit only the question of damages to the Jury. In support of his position, Plaintiff argues that our prior decision in this case required a finding that, as a matter of law, the Defendant was one of the persons having charge of the work in question within the meaning of the Structural Work Act, and, further, that, as a matter of law, the Defendant was guilty of a violation of that Act.

On the first trial of this case, the Jury received an instruction tendered by Defendant, which required the Plaintiff to prove, among other things, "that the Defendant was in charge of the work being performed by John F. Hirsch, d/b/a John H. Mosack Company." This instruction was held to be improper in that it did not permit a finding by the Jury that both Hirsch and the Defendant may have been "in charge of the work". This Court did not hold that such a finding should, as a matter of law, be made on the facts presented, but merely declared it to be error to preclude such a finding by the Jury. In compliance with this directive of this Court, this instruction was not given at the re-trial of the cause.

Notwithstanding the foregoing, Plaintiff argues that this question should not have been submitted to the Jury. In essence, Plaintiff contends that the Defendant was a person "having charge of the work" because its superintendent, Prokaski, received instructions from the architect and then gave directions to all sub-contractors, including Plaintiff's employer, Hirsch; further, that the Defendant manifested actual control of Hirsch by issuing a change order to Hirsch, who complied. In support of his position, Plaintiff cites three cases, namely, Larson v. Commonwealth Edison Co., 33 Ill.2d 316; Miller v. DeWitt, 37 Ill.2d 273; and Pantaleo v. Gamm, 106 Ill. App.2d 116.

The Larson case was an action for injuries sustained in a scaffold fall brought by an employee of Paschen Construction Company against Commonwealth Edison Company, which was both owner and general contractor. Briefly, the facts showed that the Plaintiff sustained injuries when a scaffold upon which he was working broke and fell. The owner, Commonwealth Edison Company, had entered into 70 or 80 contracts with numerous sub-contractors, each of whom was to perform specific work on the over-all project. Plaintiff's employer, Paschen, had one such contract, which provided that the work be done under Edison's general supervision and to its satisfaction, and that Paschen was obligated to perform additional work as directed by Edison.

Edison had six employees on the job-site at all times to check compliance with the terms and specifications of the contract. Representatives of Edison's Safety Department also visited the site periodically, to make suggestions to contractors and their employees. Edison presided over weekly or biweekly meetings, to coordinate the sequence of work. These ...

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