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Dowell v. Wm. H. & Nelson Cunliff Co.

MARCH 7, 1975.




APPEAL from the Circuit Court of St. Clair County; the Hon. CARL H. BECKER, Judge, presiding.


The plaintiff, Leroy Dowell, brought this action in the circuit court of St. Clair County for injuries and damages sustained as a result of an incident that occurred while he was employed on a construction project. The plaintiff alleged that the injuries and damages were occasioned by the negligence of the defendant, William H. and Nelson Cunliff Company, a corporation, hereafter referred to as Cunliff, the general contractor, and the defendants, East St. Louis Stone Company, the owner of the project site, and the Illinois Power Company, as owner of certain electrical transmission lines.

The suit was filed on June 21, 1972. The defendant, Cunliff, filed its answer on August 2, 1972. On August 29, 1972, depositions were taken of the plaintiff and his co-worker, Lloyd E. Meyer. Thereafter on February 3, 1973, the defendant, Cunliff, moved for summary judgment on the ground that the plaintiff was an employee of the defendant, Cunliff, at the time of the incident and was, therefore, limited in his recovery to the provisions of the Illinois Workmen's Compensation Act. This motion was granted by order entered on August 31, 1973. On October 1, 1973, the plaintiff filed a motion to vacate the order granting summary judgment. Attached thereto was the affidavit of Roy Taylor, president of Taylor Excavating Company, plaintiff's original employer, which stated in substance a series of facts upon which could be based a finding that the plaintiff remained in the employ of Taylor Excavating Company, and was not in the employ of defendant, Cunliff, at the time of the occurrence out of which this action grew. On December 28, 1973, the court below withdrew the original order granting the summary judgment and granted the plaintiff's motion to vacate. The stated reason was "that the plaintiff could still be in the employ of the Taylor Excavating Company and the facts of employment would be a question of fact for the jury to decide."

Thereafter, the defendant, Cunliff, filed a third-party complaint against the Taylor Excavating Company seeking indemnification for any judgment that may be entered against the defendant, Cunliff. The Taylor Excavating Company then filed a motion to dismiss, asserting that the plaintiff was, at all times pertinent hereto, under the exclusive direction of the defendant, Cunliff.

The defendant, Cunliff, then once again filed a motion for summary judgment. This motion reasserted the previously filed affidavits and depositions, and "* * * further would point out to the Court in support of this Motion that the third party defendant, Taylor Excavating Company, Inc., a corporation, has, in substance and in fact, confessed the motion for summary judgment, which heretofore they had resisted through the Affidavit of their President, Roy Taylor."

On April 29, 1974, the court granted the defendant's motion for summary judgment, "for the reasons set forth therein."

The plaintiff thereafter requested, pursuant to Supreme Court Rule 302(a), that the trial court make an express finding that there was no just reason for delaying enforcement of or appeal from its order. This the court did by an amended judgment order. From the order granting defendant Cunliff's second motion for summary judgment, as amended, this appeal is brought.

The facts which precipitated this action are as follows. The plaintiff, a 39-year-old male, was an oiler on a crane crew. The crew consisted of the plaintiff and Lloyd E. Meyer as the operator of the crane. The crane was owned by the Taylor Excavating Company, and the two were "employed" by Taylor in that they were orally leased by Taylor Excavating Company along with the crane to other contractors. The individuals were paid by and directed to report for work by Taylor Excavating Company.

On July 13, 1970, the plaintiff reported to Taylor Excavating Company and was directed to the site of the East St. Louis Stone Company at Dupo, Illinois. The plaintiff and Mr. Meyer took the crane on a Taylor Excavating Company truck and moved to the site. The crane had been disassembled for transporting over highways. The plaintiff and the operator were assisting an ironworkers crew at the construction site in reassembling the crane when the plaintiff was injured.

The injury to the plaintiff occurred when the "boom" of the crane came in proximity to an electrical transmission line as the "boom" was being hoisted. It is alleged that the "boom" did not touch the line, but the electrical charge "arced" and thereby injured the plaintiff. The plaintiff was knocked unconscious and was burned on the right index and middle fingers and the great toe on the right foot. The index finger and great toe were subsequently amputated. The plaintiff is seeking $200,000 in damages for those and lesser injuries.

The plaintiff alleges that at the time of the occurrence he was an employee of Taylor Excavating Company, and this assertion was denied by the defendant, Cunliff. The plaintiff testified in his deposition, among other things, that he had worked for Taylor for 12 years, that Taylor rents out the crane and the crew, that he, as operator, took signals (directions) from Cunliff ironworkers, that he had assisted the ironworkers in assembling the crane, that he had been told by one of the workers where not to park the crane for assembly, and that the ironworkers gave the signal to raise the boom when the injury was incurred.

The plaintiff stated that the ironworker's foreman was in charge of the rig and that Meyer, the operator, was his boss. He stated that in a sense he was working for Cunliff because he was "under their direction to do what they tell you to do."

Meyer, testifying by deposition, stated that he was on Taylor's payroll, that the crane and crew were leased to Cunliff, that he had worked for Taylor for 15 years, that he operated the crane at the direction of the ironworkers, that he had seen no powerlines, and that the ...

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