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Prater v. Luhr Brothers

OPINION FILED JULY 18, 1977.

JERRY L. PRATER, PLAINTIFF-APPELLEE,

v.

LUHR BROTHERS, INC., ET AL., DEFENDANTS-APPELLANTS. — (EUGENE LUHR & COMPANY, THIRD-PARTY PLAINTIFF-APPELLEE,

v.

ROBERT W. BRITZ PAINTING COMPANY, THIRD-PARTY DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of St. Clair County; the Hon. JOSEPH F. CUNNINGHAM, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

The plaintiff, Jerry L. Prater, hereinafter called the plaintiff, brought this action in the circuit court of St. Clair County to recover damages for bodily injuries he sustained on account of an alleged violation of the Illinois Structural Work Act (Ill. Rev. Stat. 1969, ch. 48, par. 60 et seq.), by defendants, Eugene Luhr & Company, and Luhr Brothers, Inc. A third-party complaint for indemnity was filed by Eugene Luhr & Company against Robert W. Britz Painting Company, a subcontractor and plaintiff's employer, alleging an implied indemnity count and an express contract count.

The jury returned a verdict in the sum of $410,000 against only the defendant Eugene Luhr & Company, hereinafter called Luhr, and the trial court directed a verdict in favor of Luhr against the third-party defendant, Robert W. Britz Painting Company, on the implied indemnification claim. The directed verdict against third-party defendant Robert W. Britz Painting Company, hereinafter called Britz, on implied indemnity was entered prior to jury deliberations, and the jury was informed of that determination. The trial court also found in favor of the defendant Luhr and against Britz on the express contract claim for indemnity.

The ad damnum in the complaint at the time of trial was $300,000. After the verdict of $410,000 was rendered, plaintiff was given leave to amend his complaint's ad damnum clause by interlineation to $562,000 and did so.

The plaintiff's feet were injured when he fell approximately 25 feet while painting a highway bridge's underside. In order to paint the underside of the bridge, plaintiff and his co-employees of Britz had strung cables parallel with the girders that support the deck of the bridge. Then aluminum boards, called "pics" about 30 to 32 feet long and about 24 to 28 inches wide were placed on the cables to provide a place for painters to stand. These movable aluminum pics were not equipped with toe holds or hand rails nor were safety nets placed beneath them. Although safety belts were available they were not used at the job site.

At the time of his fall, plaintiff had just stepped off of a pic and onto a beam to reach a missed spot. He fell from the beam and back onto the pic and then to the ground landing feet first.

Plaintiff's injuries to his feet required surgery, and the use of casts for two months followed by the use of crutches for an additional three to four months after the accident. He is now able to walk normally. He has, however, lost some motion in his feet, and has persistent swelling and pain when he is on his feet for long periods of time. There is a possibility in the future of arthritis.

Both Luhr and Britz bring this appeal. On appeal, Luhr contends that the amount of the jury's verdict was excessive; that it was denied a fair trial due to the misconduct at trial of both plaintiff's counsel and that of Britz; and that certain evidence was improperly admitted. Britz contends that certain errors were committed at trial and that Luhr was not entitled to indemnity from it.

In regard to Luhr's contentions the decisive issue before this court is whether the conduct of the trial as a whole was so prejudicial to Luhr that the judgment should be reversed, and a new trial be had upon the issues. In Department of Public Works & Buildings v. Mitchell (5th Dist. 1974), 19 Ill. App.3d 1083, 1085, 312 N.E.2d 691, an eminent domain case, this court stated that those cases which were reversed for denial of a fair trial to defendants involved the following types of behavior:

"* * * numerous prejudicial remarks of counsel during the trial, many instances of prejudicial remarks in the closing argument, the general misconduct of the counsel which prevented the litigant from receiving a fair trial, and attempts to introduce improper evidence."

In the case before us, there is exhibited numerous examples of just this kind of behavior. The briefs of all parties, more than adequately supported by the record indicate an acrimonious trial. At one point early in the trial, after one of the numerous exchanges by counsel, the trial court warned: "There have been comments by both sides throughout the trial, and remarks, and I mean it should stop." The record indicates that such conduct did not stop and that much later in the trial the court stated, "Gentlemen, no more, no more."

Counsel for plaintiff on several occasions asked which had no proper bearing on the present lawsuit, and further which appear to have been designed to raise an improper inference in the minds of the jury. An example of such is the following:

"Now have there been occasions in the past when other men have fallen from this equipment and been killed or badly injured?"

• 1 An objection was promptly made and sustained. However, the sustained objection may not relieve the prejudicial aspects of such a question particularly when viewed in its cumulative effect.

Plaintiff's counsel when questioning the superintendent for defendant Eugene Luhr & Company asked questions about the superintendent's legal interpretation of the contract between Luhr and Britz which was improper. The superintendent was also interrogated about his personal concern for the safety of the employees, counsel concluding that the absence of safety nets, which were used on other unrelated jobs, indicated that he was not concerned about the safety of the workmen on this job site.

Then there is also a continuing series of questions concerning whether the superintendent was concerned about the possibility of falling. Objections at the time were made and sustained on the ground that the ...


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