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Fandrich v. Allstate Ins. Co.

DECEMBER 19, 1974.

EDWARD FANDRICH, PLAINTIFF-APPELLANT,

v.

ALLSTATE INSURANCE COMPANY, INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM V. DALY, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 16, 1975.

This is an appeal from an action brought under the Structural Work Act (Ill. Rev. Stat. 1965, ch. 48, pars. 60-69) and common law negligence. The plaintiff, Edward Fandrich, was injured when the boom and jib of a construction crane fell on him, but a jury found for the defendant, Allstate Insurance Company, Inc. Judgment for defendant was entered upon the verdict by the circuit court of Cook County. Plaintiff appeals from the adverse judgment, raising three issues for our consideration: (1) whether a venireman insured by the named defendant is qualified to act as a juror; (2) whether the plaintiff was prejudiced by the court's admission of certain evidence and exclusion of other evidence; and (3) whether the verdict was contrary to the manifest weight of the evidence.

We affirm.

The evidence at trial revealed that on February 23, 1966, plaintiff was employed as a journeyman carpenter by W.E. O'Neil & Co., a general contractor engaged by the Allstate Insurance Company to construct Allstate's new home office complex in Northbrook, Illinois, a northern suburb of Chicago. During the course of his work at the Allstate site, Mr. Fandrich sustained severe injuries when he was struck by the 110-foot-long boom and attached jib of a 50-ton truck crane which toppled over. Immediately preceding the incident, the wheeled crane was being operated on a dirt road on the construction site, and was in the process of attempting to traverse a slight incline which was slippery and mushy due to a thawing of the frozen February soil. The crane driver encountered a lack of traction, so he backed the crane up and then proceeded forward. The wheels still slipped and spinned in the soil, so he repeated the process with little success. During the third backing up maneuver, the crane capsized.

Eyewitnesses testified that the boom was at an angle of between 50° and 70° and that an empty bucket used to transport concrete, weighing between 700 and 800 pounds, was suspended from the crane and was swinging back and forth like a pendulum. Testimony was given that there was not a signalman on the ground to direct the crane driver. Other testimony was elicited by plaintiff that timber mats were not used to improve the crane's traction on the slippery ground. Plaintiff's theory of the case was that the crane's boom elevation combined with the undulating bucket to cause the crane to become topheavy, and that the failure to use timber mats and a signalman constituted negligence and a violation of the Structural Work Act.

Defendant's theory was that the evidence did not show that anyone was negligent or that anyone's negligence had anything to do with the accident. Testimony was given that the crane was being used in its customary manner and in its customary place, and that the angle of the boom was usual, so as to keep the weight of the boom centered over the crane. After plaintiff's witness testified concerning the nonuse of timber mats, defendant's cross-examination established that mats were normally used under a stationary crane to keep it from sinking in a swamp, but not under a moving crane such as was in this case. Neither the foreman nor the crane driver knew why the crane tipped over.

A key issue in the case was whether or not the defendant was in charge of the work being done so as to fall within the purview of the Act. Briefly summarized, the evidence supporting the jury's verdict showed that the contractor, O'Neil, ran the entire job of hiring the workmen, issuing all orders to the tradesmen, and directly supervising the O'Neil employees who were involved in moving the crane. The undisputed testimony of the workmen, including the plaintiff, was that the only persons who ever issued orders concerning the manner and method of performing the work were the O'Neil foremen.

Plaintiff's first contention on appeal pertains to the fact that the jury which returned a verdict for defendant Allstate Insurance Company was composed in part of five jurors who were insured by the defendant at the time of trial. It is alleged that the trial court erred in refusing to excuse the Allstate-insured jurors for cause, that these jurors were unqualified, and that plaintiff was deprived of a fair trial. Although plaintiff has raised the point, we will not consider the merits of the problem because plaintiff failed to properly raise the question in the trial court. Plaintiff's opposition to the Allstate-insured jurors was confined to informal, off-the-record questions to the trial court of whether the court would excuse those jurors for cause. The court replied in the negative. A formal objection or a motion to dismiss a juror for cause was never presented to the trial court.

• 1, 2 In People v. Adams (1954), 4 Ill.2d 453, 458, the Illinois Supreme Court held that a party with an objection to the competency of a juror "should explicitly make known to the court the nature of his objection, and move the court for the particular relief desired." The informal, off-the-record inquiry in that case was insufficient to preserve the defendant's objection, if any, to the competency of jurors. In the instant case, we hold that the plaintiff's failure to formally object to the veniremen insured by the named defendant insurance company and move for dismissal of the veniremen for cause constituted a waiver of plaintiff's objections, if in fact plaintiff had a bona fide objection to the veniremen.

Plaintiff's next contention on appeal related to the trial court's ruling on two items tendered into evidence; defendant's group exhibit no. 1 and plaintiff's exhibit no. 81. It is argued that the trial court's rulings were prejudicial to the plaintiff's right to a fair trial. Defendant's group exhibit no. 1 is a letter from the general contractor, W.E. O'Neil & Co., to Allstate, soliciting the contract from Allstate. The letter tells how experienced and competent O'Neil is, and lists the important buildings and bridges it has constructed. The only foundation laid for the letter was the testimony of an Allstate employee that the letter was received by Allstate in the regular course of business. Plaintiff objected to the letter's admission into evidence on the grounds of relevancy, but the trial court overruled the objection and admitted the letter into evidence. The defendant contends that the letter was relevant because it showed the care Allstate used in letting the contract, which bears upon the issue of whether there was a wilful violation of the Structural Work Act. Plaintiff argues on appeal that Allstate's method for selecting a general contractor was irrelevant to any of the issues of the case, and particularly irrelevant to the wilful-violation issue, arguing that a contractor's expert status does not exculpate an owner in charge of the work from liability under the Act.

• 3, 4 One of the elements to be decided in a Structural Work Act case is whether or not there was a wilful violation of the Act. In Tenebaum v. City of Chicago (1973), 11 Ill. App.3d 987, 1000, the court discussed the element of willfulness and concluded that the "essence of the Structural Work Act is not limited to the concept of knowing or intentional misconduct or even to reckless disregard. Liability is imposed where the existence of dangerous conditions could have been discovered by reasonable care." The question in the instant case, therefore, is whether or not Allstate's care in selecting a contractor may have been probative of Allstate's use of reasonable care in discovering a dangerous condition on the job site.

• 5 An owner in charge of the work who hires a contractor he knows to be inexperienced may have to supervise the job site more carefully than an owner who hires an expert in order to exercise reasonable care. Although Allstate's care in the selection of a contractor is not conclusive of its exercise of reasonable care in discovering dangerous conditions on the job site, or exculpatory under the Act, we feel the letter was properly admitted within the sound discretion of the trial court as being relevant.

• 6 Plaintiff's other objections to the admission into evidence of defendant's group exhibit no. 1 were raised in the trial court for the first time in plaintiff's post trial motion. Although plaintiff contends on appeal that the inherent defects of hearsay, improper foundation, self-serving statement, and the mention of Workmen's Compensation insurance were not waived, citing Johnson v. Jackson (1963), 43 Ill. App.2d 251, we disagree. In that case, the court held that a general objection is sufficient to preserve unstated grounds of objection which are obvious and incurable. The question in the instant case is ...


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