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Smith v. Realcoa Construction Co.

JULY 10, 1973.

DONALD SMITH ET AL., PLAINTIFFS-APPELLANTS,

v.

REALCOA CONSTRUCTION CO., INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. REGINALD J. HOLZER, Judge, presiding.

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

Plaintiffs, Donald Smith and Harold Gluff, filed an action at law against defendant Realcoa Construction Co. for compensation for services rendered. After a bench trial judgment was entered in favor of plaintiffs in the amount of $230. Plaintiffs appeal from this judgment, and raise these issues for our review:

1. Whether the trial court improperly refused plaintiffs' request for a jury after defendant waived its demand;

2. Whether the trial court improperly permitted the testimony of a defense witness whose name was omitted from defendant's answers to interrogatories; and

3. Whether the decision of the trial court is against the manifest weight of the evidence.

The record indicates that plaintiff Donald Smith was a self-employed excavator. In May, 1964 he was recommended by his brother, Harold Smith, for a job on defendant's Shires subdivision in Des Plaines. Harold Smith was at that time defendant's construction superintendent on the Shires project. On May 7, 1964 plaintiff Smith entered into an oral contract with Earl Rosin, defendant's agent in charge of the Shires subdivision. Plaintiff was hired to excavate and grade, and was to receive an agreed-upon hourly rate for the grading work. In July and August of 1964 plaintiffs were paid a total of $1801 and at trial it was shown that an additional $91 had been paid. Therefore, the sum in controversy at trial was $6349.25. Defendant based its defense on (1) improper work by plaintiffs requiring grading to be redone by third parties hired by defendant and (2) improper billing for time during which plaintiffs' equipment was inoperative. Defendant admitted owing plaintiffs $230 for excavating and back-filling work.

At trial, both plaintiffs testified that their tractor and dump truck had not been idle and that they had received no complaints regarding their grading work while they were on the job. Harold Gluff testified that he was hired by Donald Smith in mid-July, and remained on the job until August 18, that his equipment consisted of a tractor for grading and a dump truck, and that he could not read grading plans very well. Donald Smith testified that he visited the work site approximately 3-4 hours per week, and each of his machine operators kept his own time record. He therefore was not able to testify from his personal knowledge regarding the idle time of his employees or of their equipment. He also testified that he had no recollection of seeing defendant's grading plan at the site, and that he could not recall the substance of any of his conversations with Ted Paige who replaced Harold Smith as superintendent in mid-July, 1964. Harold Smith testified that the grading plan, "Defendant's Exhibit #1," may have been at the site, that his job as superintendent included signing work authorizations before payment could be made for properly done work, and that on one occasion he had signed an authorization for an improperly done grading job which Donald Smith was obliged to regrade.

Earl Rosin, the president of defendant corporation, testified that he visited the job site, and in June of 1964 he advised Harold Smith that the grading was improper. In late July or August, he discussed the problem with Donald Smith who assured him that the work would be done properly. Three former employees of defendant testified that they observed improper grading on the site, and that plaintiffs' equipment was inoperative. Paige, the superintendent at the site from the first week in July until early 1965 testified that he went over the grading plan with Donald Smith, but subsequently he had to summon another contractor to regrade a portion of the land; Harold Gluff could not redo the grading because his tractor was inoperative. Paige declined to sign work authorizations for improperly graded work and also for time when the machines were inoperative. He also testified that Gluff devoted too much time to moving dirt with his dump truck. Phillip Sacks, an assistant superintendent, testified that the tractor and dump truck were idle through July and August. The final witness to testify regarding the improper grading was Michael Rothbard who observed the work at the site and handled defendant's billing. He also stated that from July 14 to August 19, the tractor was idle, but that on two occasions the dump truck was used and those bills were paid.

The trial court made a finding that the grading was not done in a workmanlike manner. The court found that plaintiffs endeavored to do the work, but could not adequately perform, and therefore plaintiffs were properly refused payment. The court entered a judgment for plaintiffs in the amount of $230 based on the admission of defendant of that amount owed plaintiffs.

OPINION

Plaintiffs first contend that they should have been allowed to demand a jury trial after defendant waived its jury demand immediately prior to the commencement of the trial. The trial court denied their request on the grounds that they had not complied with section 64 of the Civil Practice Act, and since the parties were ready for trial, there was no reason for further delay. Plaintiffs maintain that they did not request a jury at the time of filing their complaint because of the additional two year delay before the case would be set for a jury trial. Therefore, they argue that because they had waited through the delay, they should have been entitled to a jury trial. Defendant contends that the clear and unambiguous provisions of section 64 were not complied with, and plaintiffs have shown no injury.

Section 64 of the Civil Practice Act *fn1 provides in part:

"(1) A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his answer. Otherwise, the party waives a jury * * *."

• 1, 2 A trial judge exercises discretion in extending or refusing to extend time for filing a jury demand, and each case must be judged on its own facts. (Dawson v. Maxwell, 13 Ill. App.2d 228, 141 N.E.2d 642.) The right to a trial by jury may be reasonably regulated, but restrictions should be liberally construed in favor of the right, and the inclination of the court should be to ...


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