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O'boyle v. Greco Excavating Co.

DECEMBER 7, 1972.

MICHAEL JAMES O'BOYLE, PLAINTIFF-APPELLEE,

v.

GRECO EXCAVATING COMPANY, DEFENDANT-APPELLANT — (GRECO EXCAVATING COMPANY, THIRD-PARTY PLAINTIFF-APPELLANT,

v.

SPENCER, WHITE AND PRENTIS, INCORPORATED, THIRD-PARTY DEFENDANT-APPELLEE.)



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

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 1, 1973.

Plaintiff brought this action against defendant, Greco Excavating Company, hereinafter referred to as Greco, to recover damages for personal injuries sustained in a construction accident. The basis of plaintiff's suit was Greco's alleged violation of the Structural Work Act. (Ill. Rev. Stat. 1967, ch. 48, par. 60, 69.) Greco in turn filed a third-party complaint against plaintiff's employer, Spencer, White and Prentis, hereinafter referred to as Spencer, seeking indemnity should Greco be held liable. Both causes were tried simultaneously. The jury returned a verdict for plaintiff and against Greco for $115,000 in the principal action, and for Spencer and against Greco in the third-party action. The trial court entered judgments on the verdict, and from these judgments Greco appeals.

On appeal Greco contends that: (1) the trial court committed reversible error by its exclusion of certain evidence offered by Greco; (2) the trial court erred in the giving of a certain instruction to the jury; (3) the trial court improperly refused to permit Greco to impeach a certain witness; (4) certain remarks of plaintiff's counsel during closing argument improperly prejudiced Greco; and, (5) the verdict of the jury for plaintiff was based upon the admission of improper evidence and was excessive.

Plaintiff, in his complaint, alleged in substance that on September 16, 1963, Greco, an excavating firm, along with other contractors, was engaged in construction of the Civic Center in the City of Chicago; that at the time Greco was using a crane to hoist objects; that Greco violated certain provisions of the Structural Work Act; and that as a result, plaintiff was injured. Greco in its answer admitted that it was in the excavating and construction business. It also admitted that its crane was being used at the time and place alleged, but denied all the other matters contained in Paragraph 2 of the complaint, and denied that it violated the Structural Work Act. In its third-party complaint against Spencer, Greco alleged that plaintiff was employed by Spencer; that just prior to the accident Spencer had requested the use of Greco's crane; that Greco allowed Spencer to use its crane and crane operator; that plaintiff was injured while the crane was under the direction and control of Spencer; that if plaintiff recovered from Greco it would be through the misconduct of Spencer, and Greco thereby sought indemnity from Spencer.

On the day of the occurrence, plaintiff was employed as a carpenter by Spencer, the pile driver subcontractor on the construction of the Civic Center. A crane owned by Greco and operated by one of its employees was used to move a pile of lumber which was located atop some steel I-beams which Spencer wished to use. When the crane started to move the lumber, the I-beam on which plaintiff was walking tilted, plaintiff fell off and the beam was pulled on to his leg. Plaintiff sustained a severe compound fracture of the tibia and a fracture of the fibula, both of the left leg. At trial the following evidence pertinent to the occurrence was introduced before the jury.

Vernon Thomas, the crane operator employed by Greco, testified for the plaintiff that on the day in question he had been operating the crane with a clam bucket attached as a piece of excavating equipment under the direction of the general contractor. Someone approached Thomas and requested the use of the crane to remove lumber. The clam bucket was removed from the crane and a cable was attached to the lumber. Thomas testified further that the lumber was about twenty feet beyond the end of the boom of the crane and that the lifting operation would necessitate dragging the lumber to a point under the boom before the lift could be made. Thomas stated that it would have been a safer practice to position the crane so that the boom extended over the lumber, but that this was impossible. Thomas also testified that he started to make the lift but stopped when he saw someone frantically signaling him to stop. He then saw plaintiff pinned against a welding machine. The plaintiff had not been visible to Thomas during the crane operation.

Plaintiff testified that as a carpenter for Spencer it was his job to make wooden frames into which the piles would be driven. On the day in question, he had hooked up the pile of lumber to the crane and was walking away when the beam on which he was walking moved and he fell.

Eugene Wright, also an employee of Spencer's, who had testified for plaintiff as to the injuries incurred, was called by Greco to testify as to the occurrence. Wright testified that he had not seen his foreman at the time of the accident and that he did not see his foreman give a signal to the crane operator.

Patrick Concannon, another carpenter employed by Spencer, testified for Greco that he was present at the time of the occurrence. On direct examination, Concannon testified that he saw his foreman giving signals to the crane operator. On cross-examination, he was not sure that his foreman had in fact given signals, but rather that his foreman usually would act as signal-man.

Mario Greco testified that he was employed as an oiler by Greco at the jobsite on the day in question. Thomas and he were the only Greco employees on the job. His duties were to keep the crane cleaned and lubricated and to perform any other duties assigned to him by Vernon Thomas, the crane operator. Mario Greco also testified that someone asked the crane operator to lift the lumber, and that the same person acted as signal-man during the operation.

Greco initially contends on appeal that certain evidentiary rulings made by the trial judge prevented it from presenting a defense or proof in support of its third-party complaint. At trial, Greco attempted to show that it was not "in charge" of the crane and crane operator at the time of the accident. In support of that contention, Greco tried to present two theories: (1) the crane and crane operator were leased to another contractor on an hourly basis during the construction of the Civic Center; (2) that, in the alternative, the crane and crane operator were under the control of Spencer at the time of the accident so that Greco would be entitled to indemnity for its purely passive negligence. Greco relies on Lane v. Warren, 41 Ill. App.2d 377, 190 N.E.2d 595, to support its presentation of a defense and proof in the third-party action. In that case, the court held that the "loaned servant" doctrine did not have to be alleged as an affirmative defense in order to introduce evidence that the owner of the crane was not "in charge" of the operation and that, in fact, the crane was leased to plaintiff's employer on an hourly basis. Greco cites this case as precedent for its position that the trial court erred in refusing to permit certain evidence before the jury.

• 1 In order to support its theory that the crane and operator had been leased to another contractor for the Civic Center job, Greco offered into evidence, in the principal case, invoices kept in the ordinary course of business which showed that the crane and operator had been leased to George Krug. The trial court, in refusing to admit the invoices into evidence, ruled that evidence that Greco was not in charge of the crane was irrelevant since Greco, in its answer, had admitted that it was in charge of the operation. Greco, however, had not admitted that it was in charge of the operation. It had admitted only that it owned the crane that was being used at the time of plaintiff's injury, and denied any violation of the Structural Work Act. Since there was no admission by Greco that it was in charge of the crane and its work at the time of the occurrence, the court erred in not permitting Greco to show the hiring out of its crane and operator to another contractor.

Greco next maintains that the trial court improperly refused to admit into evidence certain testimony that Spencer requested the use of Greco's crane and that Greco's operator objected to such use. Greco offered the testimony in support of its theory that control of the operation had passed to ...


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