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Marcus v. Green

AUGUST 13, 1973.

MARION MARCUS, PLAINTIFF-APPELLEE,

v.

JAMES C. GREEN ET AL., DEFENDANTS — (JAMES C. GREEN, APPELLANT) — (HERMAN SCHROEDER, THIRD-PARTY PLAINTIFF-APPELLEE,

v.

JAMES C. GREEN, D/B/A JIM GREEN CONSTRUCTION COMPANY, THIRD-PARTY DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Madison County; the Hon. HAROLD R. CLARK, Judge, presiding.

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

This is an appeal from judgments entered on verdicts in the Circuit Court of Madison County, by James C. Green as defendant and as third party defendant.

While Marcus, the plaintiff appellee, was employed as a carpenter by James C. Green, d/b/a Jim Green Construction Company, the sole owner of which business was James C. Green, scaffolding on which Marcus was standing collapsed causing him to fall to the ground and suffer serious injuries. At the time of his injury James C. Green and Herman Schroeder and their wives were the owners of the real estate on which there was being constructed an apartment building, and in the course of that construction the scaffold upon which Marcus was standing collapsed. The parties stipulated that Marcus' injury occurred while he was in the course and scope of his employment. Marcus' application for adjustment of claim against Jim Green Construction Company was filed with the Illinois Industrial Commission and the insurance carrier for and on behalf of James C. Green, d/b/a Jim Green Construction Company paid Marcus certain temporary total compensation, and hospital and doctor bills.

Marcus brought this action against Green and Schroeder, individually and/or as partners or joint venturers alleging that those defendants were owners of the land on which the construction was taking place, that they were in charge of the construction or had the right to exercise control over it and that they were in violation of the Structural Work Act (Ill. Rev. Stat., ch. 48, sec. 60), commonly referred to as the Scaffold Act. Answering, Schroeder admitted that as a partner of Green he had an interest in the title to the ground and denied that either as a partner or individually, he was in any way in charge of the construction or that he had a right to control over the construction. He further averred that the partnership of Green and Schroeder had contacted with Jim Green, d/b/a Jim Green Construction Company to build the building referred to in the complaint, and that the sole responsibility for construction was in Green. Green in his answer neither admitted or denied that he and Schroeder, individually and/or as partners or joint venturers, owned the land, or that the defendants were in charge of the construction or had the right to exercise control over it, and demanded strict proof of those allegations. In their separate answers both Schroeder and Green denied the allegations of the occurrence, their duty to comply with and their alleged violation of the Scaffolding Act, and the proximate cause and injuries alleged. Green attached and made a part of his answer, the application of Marcus for adjustment of claim against Jim Green Construction Company, filed with the Industrial Commission.

Green also filed an affirmative defense alleging that at the time of the alleged injury Marcus was an employee of Green who was the sole owner and proprietor of the business known as Jim Green Construction, and that Green on behalf of his construction business had elected to and was operating his business under the provisions of the Workmen's Compensation Act (Ill. Rev. Stat. 1965, ch. 48, sec. 138 et seq.); that plaintiff had made application for adjustment of claim under that Act, and contended that plaintiff's only remedy against defendant Green was under that Act. Green prayed for judgment dismissing the complaint at plaintiff's cost. Plaintiff moved to strike the affirmative defense alleging that Green was attempting to set up the defense of Workmen's Compensation before the jury. The court denied the plaintiff's motion to strike and ordered that the affirmative defense should not be presented to the jury. Plaintiff then replied denying each and every allegation of the affirmative defense.

Schroeder filed a complaint as third party plaintiff against James C. Green, d/b/a Jim Green Construction Company as the third party defendant, seeking indemnification in the event Marcus recovered against him, Schroeder, based upon an alleged secondary or passive violation as compared to the primary or active alleged violation of James Green, d/b/a Jim Green Construction Company, and alleged the construction was under the exclusive control of the third party defendant. James C. Green, d/b/a Jim Green Construction Company answered the third party complaint, denying that the work was under the exclusive control of James C. Green d/b/a Jim Green Construction Company, denying that the third party defendant was the active and primary wrongdoer; denying that Schroeder was only secondarily or passively negligent, and denying that Schroeder was entitled to any rights of indemnity.

Upon trial, the jury found in favor of plaintiff Marcus against both Green and Schroeder and awarded him damages of $10,000. In addition, the jury found in favor of Schroeder on his party complaint against James C. Green, d/b/a Jim Green Construction Company. Upon judgment for plaintiff being entered against Green and Schroeder, and judgment for third party plaintiff Schroeder being entered against James C. Green, d/b/a Jim Green Construction Company, a post trial motion was filed by defendant Green, and a separate post trial motion was filed by third party defendant Green. Both were denied. Defendant Schroeder filed no post trial motion.

Defendant Green has appealed from the judgment in favor of plaintiff Marcus, against him. Third party defendant James C. Green, d/b/a Jim Green Construction Company has appealed from the judgment in favor of third party plaintiff Schroeder against third party defendant. Defendant Schroeder has not appealed from the judgment in favor of plaintiff Marcus, and has received permission in this Court to adopt the brief of plaintiff Marcus as his brief. No brief has been filed by or on behalf of Schroeder in his capacity as third party plaintiff appellee in opposition to the position taken by James C. Green, d/b/a Jim Green Construction Company, that Schroeder, partner, has no action over against his partner, James C. Green.

Appellant (a single brief is filed as being that of appellant and third party defendant appellant James C. Green) states the issues to be:

1. Where there is the relationship of employer and employee between two parties and the employee admittedly has a cause of action against his employer, a sole proprietorship, under the Workmen's Compensation Act, does the employee have a separate cause of action under the Structural Work Act against his employer who is the part owner of property where the work is being done and where the employee is injured?

2. Does a workman have a cause of action under the Structural Work Act against a person who is a part owner of the property where the work is being done and where the workman is injured when that person is held not to be in charge of the work being done, but that person is also held to be a partner in the construction of the building with the employer of the workman?

3. Does one partner have a cause of action over against the other partner for the amount of a judgment rendered against him together with attorney's fees and costs where the judgment was rendered by virtue of the partnership relationship between the parties? Those issues were raised by appellant several times on the pleadings resulting in amended pleadings. The same issues were then raised in his motions for directed verdicts and post trial motions. Appellant states in his brief, "In neither appeal is a new trial sought nor is any question being raised as to the size of the verdict, the rulings of the trial court on objections to evidence nor the propriety of instructions given or refused."

Upon the request of Green, and over the objections of both plaintiff Marcus and Schroeder, the trial court submitted two special interrogatories to the jury. These interrogatories and the jury's answers thereto were:

"Were the defendants, James C. Green and Herman Schroeder, partners in the construction of the building located at August Street and Washington Avenue in Granite City, Illinois, at the time of the plaintiff's alleged injury? Yes."

"Was the defendant, Herman Schroeder, at the time and place of the occurrence in question in charge of the work being done on the apartment building? No."

• 1, 2 The objections were preserved by neither plaintiff nor Schroeder. From a factual point of view the answers to them stand unchallenged by any party. As a result the question of whether Green and Schroeder, who admittedly were owners, were partners in the construction of the building is resolved. While the question of whether Schroeder individually was in charge of the work was resolved in the negative, no specific finding was made as to whether Green, as a partner, was in charge of the work. Appellant contends in his brief that he was completely in charge of the work by virtue of his construction business, however in the answer to the third party action he denied that the work was under the exclusive control of James C. Green, d/b/a Jim Green Construction Company. Since the jury determined in response to appellant's submitted interrogatory that Schroeder individually was not in charge of the work, the only other party, ...


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