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Able v. Pure Oil Company

NOVEMBER 29, 1972.

DAVID A. ABLE, PLAINTIFF-APPELLANT,

v.

PURE OIL COMPANY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Peoria County; the Hon. J.E. RICHARDS, Judge, presiding.

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

This is an action brought under the Structural Work Act (Ill. Rev. Stat. 1969, ch. 48, par. 60 et seq.), by Donald Able, Plaintiff-Appellant, in the Circuit Court of Peoria County to recover damages for personal injury. The Defendant-Appellees, Pure Oil Company and D & H Electric & Heating Company, are respectively the owner of the premises and a sub-contractor. Judgment was entered on the verdict of the jury finding the issues in favor of each of the defendants from which judgment the plaintiff appeals.

In the fall of 1968 defendant, Pure Oil Co., contracted with Winfred Glover to construct a filling station on the defendant's premises in Normal, Illinois. Glover did part of the work himself and sub-contracted other portions of the work including construction and wiring of light poles to D & H Electric & Heating the other defendant in this action. Included in the work to be done by D & H Electric were the construction and wiring of three light poles which were vertical poles approximately twenty feet in height containing a horizontal cross arm near the top. The construction and wiring of the poles was completed by D & H about the first week of April, 1969.

Donald Able, plaintiff, a union painter, received a call from the painter's union business agent on the morning of April 15, 1969, indicating that Glover needed a painter for some work on the station. Able was told to take his ladders and own equipment in the event that they might not be available. He took his ladders and equipment in his pickup truck and reported to Glover on the job. He discussed the work to be done with Glover which included painting of the three poles and some other work on the station. He was also shown the paint which was located in a bay of the station as was a roll-away scaffold. Gardner, an employee of D & H Electric, was on the premises when Able reported for work doing some wiring on the pumps.

The testimony of Able, Glover, his employer, and Gardner regarding the conversation which took place is disputed. According to Able nothing was said to him by either Glover or Gardner concerning the use of the roll-away scaffold. According to Glover and Gardner, Able was told to use the scaffold.

In any event Able did not use the scaffold but proceeded to use the ladders from his truck which he had brought with him. Able was aware that a week or so earlier Jones, a fellow union painter, had fallen while in the course of painting one of the light poles and was at the time still in the hospital. Able placed his ladder against the horizontal arm of the light pole, tested it by bouncing the ladder against the arm and after he had painted a portion of the vertical pole near the ground he climbed the ladder as it leaned against the horizontal arm. Shortly after he reached the area near the arm it swung causing the ladder to fall and resulting in injury to plaintiff.

In seeking to reverse the judgment of the court entered on the verdict of the jury in favor of the defendants the plaintiff argues the court erred in denying him leave to amend his complaint, the court erred in rejection of certain evidence, erred in refusing to give instructions tendered by plaintiff and that the verdict of the jury was against the manifest weight of the evidence.

At a recess following plaintiff's presentation of his evidence regarding liability plaintiff moved for leave to amend complaint in three respects. The proposed amendments included an allegation that the defendants had failed to provide or supply an adequate scaffold, that the defendants had violated Sec. 63 (Ill. Rev. Stat. 1969, ch. 48, par. 63), requiring scaffold to support four times intended weight of user and violated Sec. 68 (Ill. Rev. Stat. 1969, ch. 48, par. 68), regarding plans and specifications. The court denied leave to plaintiff to amend his complaint.

• 1-5 There is no argument but that the trial court possesses discretion to permit amendment of the pleadings before or during the trial. (Ill. Rev. Stat. 1969, ch. 110, sec. 46, subsection (3).) In the recent case of Friestedt v. Chicago Transit Authority, 129 Ill. App.2d 153, 262 N.E.2d 771, the court, in affirming the action of the trial court denying plaintiff's motion to amend the complaint, discusses factors which ought to affect the discretion of the court in considering proposed amendments. Denying a proposed amendment is reversible error only if such denial is an abuse of the court's discretion. Generally speaking, amendments ought to be allowed when not to do so will prejudice the plaintiff and when to do so will not prejudice the defendant. Although the timeliness of the proposed amendment or the diligence of the party proposing the amendment may well affect the issue of prejudice the discretion of the trial court is primarily concerned with what issues may be properly raised at the stage of the proceedings where the amendment is proposed. New theories may not be interjected during the course of presenting evidence when not fairly related to the issues previously considered by the parties to be the essence of the dispute. There can hardly be an abuse of discretion by the trial judge prejudicial to the plaintiff when the proposed amendments are substantially included within the issues already framed by the pleadings.

• 6 In the instant case it appears to us that the issues of whether defendant provided an adequate scaffold or a safe scaffold are adequately included in the issues described in the complaint and even the plaintiff in his argument before the trial court indicated as a reason for the proposed amendments "Why shouldn't it be dressed up and made to appear more workmanlike". It appears to us that the complaint adequately presented the issues regarding the plaintiff's theories supported by his evidence and that further specification or refinement was unnecessary. Offering further support to this conclusion is the fact that an issues instruction tendered by plaintiff including issues sought to be added by amendment resulted in an issues instruction four pages in length.

• 7 With respect to the proposed amendment regarding a violation of sec. 68 (Ill. Rev. Stat. 1969, ch. 48, par. 68), it is our conclusion that there is no evidence supporting any violation of this section of the statute. The section pertains to the requirement that architects or draftsmen provide plans and specification "* * * for all the permanent structural features or requirements specified in this Act, * * *." We fail to see how the evidence presented by any of the parties raises any issue regarding this duty even though there were plans and specifications prepared by or on behalf of Pure Oil Company.

• 8 Plaintiff's next assignment of error relates to his contention that the court erred in refusing to permit testimony regarding the Manual of Accident Prevention in Construction, published by the Associated General Contractors of America; the Health and Safety Act Rules of the State of Illinois; and general customs and practices regarding behavior of workmen on the job. Because of previous testimony regarding the availability of the roll-away scaffold and its use by plaintiff an effort was made by plaintiff through the testimony of Lowder, an employee of the Illinois Department of Labor, to indicate that the scaffold was not easily movable by one person and hence plaintiff should not have been expected to use it. Plaintiff's counsel made some effort to refer to the contractor's standards, health rules and customs of the trade in his examination of Lowder but the relevance to any of the issues in the case can not be determined since plaintiff made no offer of proof regarding sections of any documents relevant to the witness's testimony. The inquiries of the witness concerning customs involving as they did the habits of employees generally was irrelevant to any of the issues. We have no quarrel with the general rule laid down in Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253 and Avery v. Moews Seed Corn. Co., 131 Ill. App.2d 842, 268 N.E.2d 561, but neither in the trial court nor in this court has plaintiff offered any basis for justifying a conclusion that relevant evidence or testimony was excluded.

• 9 Plaintiff argues the court erred in refusing to give tendered instructions. The first instruction referred to is plaintiff's No. 12 purporting to be IPI 12.04 (revised) as modified. The instruction provides:

"The Court instructs the Jury that the defendants in charge of a phase of the construction of the building had a non-delegable duty to comply with all the provisions of the Structural Work Statute which duty of compliance could not be evaded by contract nor by other means, and no such Defendants in charge that failed to comply with the Structural Work Statute proximately contributing to cause Plaintiff's injury, if any, may escape liability for the mere reason that a ...


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