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Mcinerney v. Hasbrook Construction Co.

NOVEMBER 14, 1973.

THOMAS MCINERNEY, PLAINTIFF-APPELLANT,

v.

HASBROOK CONSTRUCTION COMPANY, DEFENDANT-APPELLEE AND SEPARATE APPELLANT — (UNIVERSAL PAINTING CONTRACTORS, INC., THIRD-PARTY DEFENDANT AND SEPARATE APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS R. McMILLAN, Judge, presiding.

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

Rehearing denied January 23, 1974.

The plaintiff, Thomas McInerney, is a painter. He brought this action against the Hasbrook Construction Company (Hasbrook), a general contractor, on the grounds of a wilful violation of the Structural Work Act (Ill. Rev. Stat. 1969, ch. 48, par. 60 et seq.) and negligence to recover damages for injuries sustained when the ladder upon which he was working fell. Hasbrook filed a third-party action against Universal Painting Contractors, Inc. (Universal), the painting subcontractor and plaintiff's employer, on the grounds of a contract of indemnity and the active conduct of Universal as opposed to the passive conduct of Hasbrook.

The trial court directed a verdict in favor of Hasbrook on the negligence count (Count II) of the plaintiff's complaint and a verdict in favor of Universal on the contractual indemnification count of the third-party complaint.

The jury returned a verdict for the plaintiff on the Structural Work Act count and assessed his damages at $80,000. It also returned a verdict in favor of Hasbrook and against Universal on the active-passive count of the third-party complaint.

Initially, the trial court entered judgment on both verdicts. However, after hearing argument on the post-trial motions of Hasbrook and Universal it entered judgments notwithstanding the verdict in favor of Hasbrook on the Structural Work Act count of the complaint and in favor of Universal on the active-passive count of the third-party complaint. As an alternative to its order granting the judgments n.o.v. it entered an order granting both Hasbrook and Universal new trials and further ordered that Universal was entitled to a new trial even if Hasbrook were not.

The plaintiff appeals from the order granting judgment n.o.v. in favor of Hasbrook and from the alternative order granting Hasbrook a new trial. Hasbrook appeals from the judgment n.o.v. in favor of Universal, from the alternative order granting Universal a new trial, from the order declaring that Universal is entitled to a new trial even if Hasbrook is not, and from an order denying Hasbrook's motion for a new trial on the contractual indemnity count of the third-party complaint.

The facts may be summarized as follows: Hasbrook is in the business of building single family residences. In 1961 it was engaged in the development and promotion of a residential subdivision known as Plum Grove Countryside in Rolling Meadows, Illinois. Its sales method was first to construct model homes and then to induce a prospective purchaser to contract for the construction of a home substantially similar to one of the models. It employed no skilled tradesmen or laborers of its own and made it a practice to subcontract the actual construction. Universal was the painting subcontractor for all of the homes that were built in connection with this development.

The plaintiff was employed by Universal as a painter. On January 2, 1964, he was engaged in touching up the paint on a newly completed home. He set up his extension ladder on a driveway which was covered with mud, dirt and construction debris, ascended to the top and began to paint. As he did so, the ladder fell on to the driveway and he was severely injured.

The plaintiff states the issues raised by his appeal as whether the trial court properly entered judgment n.o.v. in favor of Hasbrook and whether the trial court properly granted Hasbrook's motion for a new trial. We direct our attention first to whether the court acted properly in granting the motion for a new trial.

• 1 In its order granting Hasbrook's motion for a new trial, the court concluded that the jury's verdict was against the manifest weight of the evidence. It is now well established that for a verdict to be against the manifest weight of the evidence the contents of the record must be such that an opposite conclusion is clearly evident. (See Bunton v. Illinois Central R.R. (1957), 15 Ill. App.2d 311, 146 N.E.2d 205, and cases cited therein.) Therefore, the question presented to this court is whether the evidence adduced by the plaintiff is such that a finding in favor of Hasbrook is clearly evident. In considering this question it must be borne in mind that the facts are to be construed in the light most favorable to the verdict. Klatt v. Commonwealth Edison Co. (1965), 33 Ill.2d 481, 211 N.E.2d 720.

In the present case the plaintiff's action was brought under the provisions of the Structural Work Act (Ill. Rev. Stat. 1969, ch. 48, par. 60 et seq.). Therefore it was incumbent upon him to prove that Hasbrook had "charge of" the painting, that the ladder upon which he was working was not erected in a safe, suitable and proper manner or not placed so as to give adequate protection to his life and limb, that Hasbrook's failure to comply with the provisions of the Act was wilful and that the improper erection or placement of the ladder caused his injuries. (Ill. Rev. Stat. 1969, ch. 48, pars. 60, 69.)

The record contains a considerable amount of evidence relating to whether Hasbrook had "charge of" the painting. The agreement between Hasbrook and Universal provided in part that the painting work would be performed in a good and workmanlike manner in accordance with specifications furnished by Hasbrook, that work would be done according to assignments issued by Hasbrook's production manager and that the work on each residence would be commenced according to a schedule issued by Hasbrook. Included among the general conditions were that Universal would follow the production sequence set forth by Hasbrook, that all materials used were first to be approved by Hasbrook, that Hasbrook was to be allowed access to the job site for the purpose of inspection and that Hasbrook had the right from time to time to alter, increase or diminish the work to be done.

Albert Riley, Hasbrook's president testified that when a home was completed the owner and Hasbrook's superintendent would make an inspection using a checklist developed by Hasbrook in order to identify work that was deficient. On the basis of the completed checklist Hasbrook's foreman would instruct the various building trades as to what would have to be done in order to render the building complete and ready for occupancy. ...


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