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Mcinerney v. Hasbrook Construction Co.





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. Thomas R. McMillen, Judge, presiding.


Plaintiff, Thomas McInerney, filed a multicount complaint in the circuit court of Cook County against Hasbrook Construction Company (Hasbrook) based on defendant's alleged negligence and also on alleged violations of the Structural Work Act (Ill. Rev. Stat. 1963, ch. 48, par. 60 et seq.). Hasbrook filed a third-party indemnity action against plaintiff's employer, Universal Painting Contractors, Inc. (Universal), predicated first on express contractual indemnity and also on an implied right of recovery due to Universal's more active culpability for the injury. The trial court directed a verdict against plaintiff on the negligence count and against Hasbrook on its claim for express contractual indemnity. The jury returned a verdict for $80,000 in favor of plaintiff based upon the Structural Work Act liability of Hasbrook. A verdict in a like amount was rendered on behalf of Hasbrook and against Universal in the third-party action based on the claim of implied indemnity. The trial court, notwithstanding the verdict, entered judgment in favor of Hasbrook on the Structural Work Act liability and against plaintiff. Judgment notwithstanding the verdict was also entered in the third-party indemnification action on behalf of Universal. Conditionally, the court found the verdicts were not sustained by a greater weight of the evidence and therefore granted Hasbrook and Universal new trials. Further the court held that Universal was entitled to a new trial on the third-party complaint even if Hasbrook was not.

The appellate court reversed the judgment n.o.v. entered on behalf of Hasbrook and the trial court's order granting Hasbrook a new trial. The appellate court held that the evidence was sufficient to support the jury's determination that Hasbrook had "charge of" the work at the time of plaintiff's injury and was liable under the Structural Work Act for failing to provide plaintiff with proper working conditions or proper equipment. The appellate court rejected Hasbrook's assertion that its contract with Universal was applicable to sustain a claim for express indemnity. Finally, the majority of the appellate court found that the misconduct of Hasbrook was qualitatively similar to that of Universal, thereby precluding Hasbrook's implied indemnity action on a theory of active-passive misconduct. It therefore affirmed the judgment n.o.v. entered for Universal on the third-party action, thereby rendering unnecessary the consideration of the trial court's order granting a new trial to Universal. (McInerney v. Hasbrook Construction Co., 16 Ill. App.3d 464.) We granted Hasbrook's petition for leave to appeal.

The incident in question occurred at a subdivision developed by Hasbrook, as general contractor, which consisted of 200 single-family residences. It is to be gathered from the record that Hasbrook did not have any skilled tradesmen in its own employ. Rather, Hasbrook would have the actual construction work performed by seven or eight subcontractors engaged in various building trades. When a house was sold, the purchaser and a representative of Hasbrook would inspect the quality of construction. Any defects or additional work that needed to be done would be noted on a checklist that would be subsequently given to the appropriate subcontractor for completion.

On January 2, 1964, plaintiff was employed as a house painter for Universal, the painting subcontractor. He was working on a newly constructed home owned and recently occupied by Herman Youker. It was described as a "3600 model" home. After obtaining all necessary supplies from Universal, which included an extension ladder, he went to the Youker home to begin "touch-up painting" on the structure's wooden trim that had been noted on a checklist made December 13, 1963. He worked on various parts of the home during the morning. About noontime he positioned the ladder on the Youker driveway with its base about 2 1/2 feet from the wall and with the top of the ladder touching the house so as to enable him to paint an area near the peak of the roof. Plaintiff testified that the driveway was covered with dirt and construction debris that included shingles, paper, wood and bricks, although Herman Youker's testimony refuted this observation. Plaintiff inspected the ladder and determined that it was secure. He then climbed the ladder and began to paint above the second floor of the structure before he took his lunch break. After lunch he did not move the ladder. He climbed the ladder and prepared to continue painting when the ladder moved causing it to fall and break a second-floor window before it came down. As a result of the accident, plaintiff suffered a severe injury to his left foot and ankle. The extent of the injury or the amount of damages sustained therefrom are not disputed.

Lester Stone, Universal's foreman, saw plaintiff fall and drove plaintiff to the hospital. Stone testified that Hasbrook employed a construction superintendent at the subdivision. He said that Hasbrook would determine a painting schedule and its superintendent would give Universal the checklist. The superintendent was to assure that the painting was completed on schedule; however, he apparently did not do so. If any difficulties developed, the superintendent was not to speak to the painters but to this witness. Stone also testified that he would see the superintendent at the jobsite on several occasions each day although the only occasion he discussed the work was when the superintendent brought a checklist to be completed.

In regard to the construction, Albert Riley, Hasbrook's president, testified that a color scheme for the house would be selected that would be forwarded to Universal. Hasbrook was concerned only that the work was timely completed and in a proper manner. Riley stated that Hasbrook would merely tell Universal the house to be painted and when it was to be done. If the work was not approved by the purchaser, it was Universal's decision as to the corrective method to be used; and, if Hasbrook's superintendent discovered improper workmanship during construction, the subcontractor would be told to make corrections. Riley insisted that Hasbrook only supervised the subcontractors and not the latter's workmen.

Hasbrook and Universal had entered into a contract in June, 1961, whereby the latter was to paint homes in the subdivision. In pertinent part the contract provided that Universal was to perform in a workmanlike manner in accord with "plans and specifications prepared by Lawrence T. Smith" (architect). Work was to be performed pursuant to Hasbrook's work assignments and was not to be deemed as completed until accepted by it. Universal was to furnish all materials for completion of its work and to maintain supervisory personnel at the jobsite. Payment was to be made in accordance with a schedule listing four specific home models designated as 2500, 2600, 2800 and 2900. The contract also contained handwritten price modifications on work done on certain parts of the specified models. The contract did not set a limitation on the number of units to be painted.

Under the "General Provisions" portion of the contract Hasbrook was to designate its field supervisory personnel in writing. The subcontractor would follow the job assignment schedule given by Hasbrook unless otherwise authorized. The subcontractor was also responsible for removal of construction debris and was to conform to all safety requirements. Hasbrook reserved the right of unqualified access to the project to inspect the work and to increase, decrease or alter the work by written order. If modification in the work was necessary, the change in the contract price resulting therefrom would be agreed upon before the work began. The contract further recited that the subcontractor was to maintain various insurance coverages including provision for bodily injury. The agreement concluded:

"Without limiting the generality of the foregoing, the [sub] Contractor shall at all times, protect, indemnify and save harmless Hasbrook, its officers, agents and employees from and against any and all claims and actions, together with all expenses (including attorney's fees) incurred in connection therewith under an act of the Legislature of the State of Illinois, approved June 3, 1907, and entitled, `An Act Providing for the protection and safety of Persons on and about the Construction, repairing, alteration, or removal of Buildings, Bridges, Viaducts and other Structures.' (commonly referred to as `The Scaffold Act.')"

Riley testified that as the construction of the subdivision progressed models other than those specified in the contract were designed and were painted by Universal. The record establishes that the "3600 model" was designed by an architect other than the one specified in the contract and introduced in the subdivision about a year after construction initially commenced. Riley explained that as new models were added or labor prices increased an adjustment in prices was made with Universal. Although no new written agreements were made as to new models, Universal would invoice Hasbrook for payment of the completed work on new models. Julius Swederlow, Universal's president, testified that prices on the new models would be determined by submitting a proposal or by telephone communication.

Hasbrook attempted to introduce evidence that the first invoice pertaining to a "3600 model" home was submitted by Universal in October 1963. Records further showed Universal performed work on other model homes not specifically designated in the contract. It appears that Hasbrook sought to establish that these exhibits were relevant to show the intent of Hasbrook and Universal to extend the written contract provisions to a "3600 model" home.

The trial court denied admission of the contract into evidence when it determined that the contract did not pertain to a "3600 model" home, thereby rendering Hasbrook's claim for express indemnity improper. The invoice and other records were also denied admission for this same reason. The trial court then directed a verdict in favor of Universal on that portion of the third-party action predicated on express contractual indemnification.

Hasbrook initially argues that the evidence fails to establish that it was in "charge of" the work within the meaning of the Structural Work Act and that the judgment n.o.v. entered by the trial court discharging it from liability was therefore proper. Hasbrook asserts that it merely delivered a work order to Universal; that it did not supervise, direct or observe the work; and that it did not provide any equipment for the performance thereof. Hasbrook concludes that the evidence failed to establish its direct connection with an ongoing activity protected by the Structural Work Act. In support of its position Hasbrook has cited numerous ...

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