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Ahlvers v. Terminal R.r. Ass'n

AUGUST 20, 1975.

RICHARD AHLVERS, PLAINTIFF,

v.

TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE. — (R.H. BOGLE COMPANY, THIRD-PARTY DEFENDANT-APPELLANT.).



APPEAL from the Circuit Court of Madison County; the Hon. A.A. MATOESIAN, Judge, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

This appeal is from a judgment entered on a jury verdict in the Circuit Court of Madison County in favor of third-party plaintiff, Terminal Railroad Association of St. Louis, against third-party defendant, R.H. Bogle Company.

The plaintiff, Richard Ahlvers, an employee of the railroad was injured in the course of his employment. He commenced an action against his employer under the Federal Employers Liability Act (45 U.S.C. § 51 et seq. (1970)), alleging that he was injured as a result of being sprayed by chemicals by the railroad's employees during weed spraying in the railroad's yards. The complaint alleged various charges of negligence including failure to furnish plaintiff a reasonable safe place in which to work.

The railroad answered, denying these allegations of negligence, and filed a third-party complaint against R.H. Bogle Company alleging a contract whereby the later undertook for a consideration to perform the weed spraying in the railroad's yards and the injury of its employee because of the negligence of the third-party defendant. The third-party complaint alleged, in two counts, an express contract of indemnity and a duty of common-law indemnity, based on the theory of active-passive wrongdoing, should judgment be recovered against the railroad in the principal action.

Prior to trial the plaintiff and railroad settled the Federal Employers Liability claim and the matter proceeded to trial on the count of the third-party complaint based on the express contract of indemnity, the count on implied indemnity having been dismissed on motion of the railroad. The railroad by leave of court amended the remaining count by removing all allegations of negligence on Bogle's part. The effect of this was to charge that the plaintiff, Ahlvers, was injured by the conduct, acts or omissions of Bogle without characterizing its conduct as negligent.

The R.H. Bogle Company, third-party defendant-appellant, raises two questions for review: whether its motions for directed verdict or, alternatively, judgment n.o.v. should have been allowed; and whether certain trial errors entitle it to a new trial.

Supreme Court Rule 342 (Ill. Rev. Stat. 1973, ch. 110A, par. 342), requires the appellant to furnish the reviewing court either excerpts or an abstract sufficient to enable the court to decide the issues presented for review. The issues presented for review here require an understanding of the testimony and evidence adduced at trial; however, the excerpts contain only the several pleadings filed in the trial court. The report of proceedings omits the testimony of the plaintiff Ahlvers, and the record on appeal is deficient in several other respects.

In Shaw v. Kronst, 9 Ill. App.3d 807, 293 N.E.2d 153 (1973), this court stated:

"In order for the court of appeal to understand the questions which are presented it is essential that the court be able to determine these questions conveniently. It is true that the record on appeal is available to the court but it must be obvious that with a multiple judge panel each one is not and cannot be simultaneously possessed of the record. While at one time it is possible that counsel could have misunderstood the necessity of putting these matters in the abstract, the present wording of the rule is too clear to admit of misunderstanding. * * *

The abstract or the excerpts constitute the pleading of the appellant in a court of review and they must contain everything necessary to decide the issues raised in the appeal. (Denenberg v. Prudence Mutual Casualty Co., 120 Ill. App.2d 68, 256 N.E.2d 71; Gribben v. Interstate Motor Freight System Co. [38 Ill. App.2d 123, 186 N.E.2d 100]) It is the duty of the appellant to present an abstract or excerpts sufficient to set forth every error relied upon for reversal. (Dempski v. Dempski, 27 Ill.2d 69, 187 N.E.2d 734.) The abstract presented in this case falls far short of the requirements of Supreme Court Rule 342 and the fundamental requirements necessary to properly present a case for review on appeal and the appeal must accordingly be dismissed." 9 Ill. App.3d 807, 810-11, 293 N.E.2d 153, 155.

• 1 However, the appellee does not challenge the sufficiency of the excerpts and we are mindful that Rule 342(g) (Ill. Rev. Stat. 1973, ch. 110A, par. 342(g)) gives the reviewing court wide discretion in imposing sanctions for failure to comply with the requirements of the rule. We will not summarily dismiss this appeal in this instance as we find no absence of a good faith effort to comply with Rule 342, and we find the shortcomings less aggravated than those in Shaw. We do not approve, however, of the failure to comply fully with the Rules.

The contract between the railroad and the third-party defendant contained the following provisions:

"10. Contractor agrees to indemnify and save Railroad harmless against all loss, damage, injury or death to the person or property, including damage to horticultural crops and ornamentals, of any person, firm or corporation (including Contractor and Railroad and their respective employees, agents and officers) which may occur as a result or in consequence of the acts, omissions or defaults of the Contractor or its employees in performing the services contemplated herein. The Contractor agrees to pay 100% of the cost of all justifiable claims resulting in damage to horticultural crops and ornamentals.

11. Contractor will indemnify and save harmless Railroad against any and all claims, demands, suits, costs, charges, recoveries and sums of money, which may arise out of, or which Railroad may be subjected to, or which may be made, alleged, brought, prosecuted or recovered from or against Railroad by any officer, agent, servant or employee of Contractor, for or on account of any personal injury or death suffered or sustained by, or resulting to, any such officer, agent, servant or employee of Contractor while in, upon or about any tracks, right of way, stations, platforms or other premises of Railroad, whether in use at the time by Contractor or by Railroad, howsoever such accident, personal injury or death may arise or may accrue and whether the same be, or may be alleged to be, the result of negligence of Railroad or any of its agents, servants or employees, in or about the operation, management, superintendence or control of any train, ...


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