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Assise v. Dawe's Laboratories

OCTOBER 4, 1972.

ROCCO ASSISE, PLAINTIFF-APPELLANT,

v.

DAWE'S LABORATORIES, INC. ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. DAVID CANEL, Judge, presiding.

MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of the Circuit Court of Cook County entered after a jury verdict for the defendants.

The issues on appeal are whether the jury was correctly instructed as to the meaning of the term "wilful violation" of the Structural Work Act, whether the trial judge ruled correctly on the admission and exclusion of evidence, and whether the trial judge conducted a fair trial. We need only consider the first contention.

The plaintiff, Rocco Assise, was an electrician employed by St. Arnaud Electric Company, an electric sub-contractor, in the construction of a new building for Dawe's Laboratories in Chicago Heights. On February 4, 1964, he climbed to the platform of a scaffold about ten feet off the ground. He testified the board on the platform was loose and unsecured and fell through the scaffold, causing him to fall and injure himself. The defendants are Dawe's Laboratories, Inc., as owner of the building, Presbitero & Sons, Inc., as the prime contractor, and A. Epstein & Sons, Inc., as the architects.

The complaint was brought under the Structural Work Act (Ill. Rev. Stat. 1963, Ch. 48, sec. 69), which provides in part:

"For any injury to person or property, occasioned by any wilful violations of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured."

The plaintiff argues the court erred by refusing to submit his instruction No. 5 to the jury, defining "wilful violation" under the Structural Work Act, and by permitting defendant's counsel to argue to the jury that the meaning of "wilful" was plain on its face. Instruction No. 5 is as follows:

"When the statute uses the word `wilful' it means that the owner, contractor, subcontractor or foreman knew, or should have known, by the exercise of reasonable care, that a certain condition existed."

In Schultz v. The Henry Ericsson Co. (1914), 264 Ill. 156, the court construed the meaning of "wilful violation" of the Structural Work Act:

"The word `wilfully' is synonymous with `knowingly', and to constitute a wilful violation of the statute it is not necessary that there should have been `a reckless disregard' of its provisions. The employer is liable not only when the dangerous conditions are known to him, but also, when by the exercise of reasonable care, the existence of such dangerous conditions could have been discovered and become known to him."

Since then the cases have consistently been in agreement. Kennerly v. Shell Oil Co. (1958), 13 Ill.2d 431; Gundich v. Emerson-Comstock Co. (1960), 21 Ill.2d 117; Miller v. DeWitt (1967), 37 Ill.2d 273.

Instruction No. 5 was not given because it was based on the decisions of prior cases, and the court believed that to do so could be prejudicial error. The court relied on Spiezio v. Commonwealth Edison Co. (1968), 91 Ill. App.2d 392, in which an instruction was given explaining the term "having charge of." The court quoted from Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, which holds that words used in their conventional sense need not be defined or explained in giving instructions to the jury, and an attempt at definition can only lead to confusion and error.

• 1, 2 In the instant case the term "wilful violation" is not used in its ordinary sense, and the lower court's reliance on Spiezio was erroneous. Under the Act, "wilful" refers to a situation where the defendant actually had knowledge or should have had knowledge. See cases cited supra.

• 3, 4 The defendants suggest that Noncek v. Ram Tool Corp. (1970), 129 Ill. App.2d 320, prohibits an instruction from being based on the language of a prior decision if the general principle embodied in the instruction requires elaboration, refinement or modification. Instruction No. 5 clearly states the law and requires no such elaboration or modification. There was no possibility of prejudice if the instruction had been given. The ...


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