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Zuelsdorf v. Montgomery Ward & Co.





APPEAL from the Circuit Court of Cook County; the Hon. JAMES FELT, Judge, presiding. MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

The plaintiff, Richard D. Zuelsdorf, brought this action against Montgomery Ward & Company, Inc., seeking damages for injuries he received as a result of an alleged violation of the Structural Work Act. (Ill. Rev. Stat. 1969, ch. 48, pars. 60-69.) Wards in turn filed a third-party complaint against Continental Electric Company (hereinafter "C.E.C."), plaintiff's employer. Count I of the third-party complaint alleged that any negligence on the part of Wards was passive and that C.E.C. was guilty of active negligence. In Count II, Wards sought contractual indemnification from C.E.C. for all reasonable expenses incurred by Wards. The trial court dismissed count II prior to trial.

The actions were tried simultaneously. A jury returned a verdict in favor of Wards. As a result, no verdict was necessary with respect to Wards' third-party complaint. The trial court denied plaintiff's post-trial motions and entered judgment for Wards on the verdict. Plaintiff appeals. Wards has appealed from the order dismissing count II of its third-party complaint which sought indemnification against C.E.C. for expenses incurred in defending plaintiff's suit.

Plaintiff contends on appeal that the verdict was contrary to the manifest weight of the evidence; that the jury wrongfully considered plaintiff's and C.E.C.'s alleged acts of negligence when it returned a verdict for Wards, that the trial court erred in submitting a certain instruction to the jury; that the trial court erroneously excluded certain evidence; and that certain remarks of Wards' counsel during closing argument prejudiced plaintiff's right to a fair trial.

Plaintiff, an electrician, was injured in a fall from a ladder while working at a Wards' warehouse. Plaintiff's employer, C.E.C., was doing the electrical work for the installation of a closed circuit security system at the warehouse.

Henry Anderson, a field engineer for Wards, and Patrick O'Day, an estimator engineer for C.E.C., negotiated the contract under which C.E.C. was to do the work. Anderson had died prior to trial. Anderson gave O'Day a plan layout of the warehouse, but did not provide any plans or specification for the location of the lighting fixtures or conduits. O'Day prepared the electrical layout which was used by the C.E.C. electricians.

The contract executed by Wards and C.E.C. consisted of a Wards' standard form prepared by O'Day. The contract provided that C.E.C. was to furnish labor, material, and equipment to perform the electrical work. The contract was issued on a time and materials basis plus a percentage override on all labor and materials.

The contract in question contained the provisions that C.E.C. was to furnish labor, material and equipment required to perform the electrical work as directed by Anderson. Billings were to be submitted on a monthly basis in triplicate to Anderson. One copy of the contract was for Anderson's use; it contained a section in which he could record payouts. One copy containing billing instructions was kept by C.E.C. Wards' accounting and engineering departments also retained copies of the contract.

C.E.C. appointed Alex Tumbarello as job foreman. His responsibilities included the performance, supervision, and control of the electrical work. Tumbarello determined and arranged the work to be performed each day. He selected the work area and was responsible for obtaining the necessary equipment. He submitted daily time records to C.E.C. Anderson reviewed C.E.C.'s time records.

Prior to commencing the job, Tumbarello met O'Day at the warehouse and received instructions concerning the job. O'Day told him where the lights were to be installed and instructed him to run conduit wiring. Tumbarello told O'Day that the high ceilings would require the use of extension ladders. Tumbarello also recalled discussing the job with Anderson on the same day.

Tumbarello testified that during the course of the job he would discuss the work with Anderson sometimes once or twice a week and at times, not at all. Plaintiff knew Anderson as Wards' construction manager; he saw Anderson in the area once or twice a day, perhaps two or three times a week. Tumbarello testified that he once had a discussion with Anderson regarding a change in the location of a monitoring center. Tumbarello suggested the change to O'Day, who contacted Anderson. Tumbarello testified that Anderson's approval of such a change was necessary. He also testified that Anderson never complained about C.E.C. work. Anderson did not have the authority to discharge C.E.C. employees. Anderson was Tumbarello's sole contact with Wards, and no Wards' employee had anything to do with C.E.C.'s work. Anderson had no office at the warehouse. During the job, Tumbarello sometimes obtained material from Wards through one of Wards' maintenance men. Tumbarello repaid Wards for the materials obtained.

Wards gave security badges to the C.E.C. employees and the latter were informed that a Mr. Nelson was in charge of security. Nelson was often in the area of the C.E.C. jobsite.

Plaintiff, an electrician for 15 years, was assigned to work on the job with Tumbarello. A day or two before plaintiff's accident, Tumbarello took two aluminum extension ladders, belonging to Wards, from a section of the warehouse known as the "old claim area." That area contained damaged and unclaimed material. No Wards' employees told Tumbarello to use the ladders. Plaintiff had asked Tumbarello for a scaffold, but none was provided.

On the day of the accident, Tumbarello assigned plaintiff and another C.E.C. electrician, Bruner, to work together pulling wire. To perform the work, plaintiff and Bruner separated one of the two available aluminum ladders into two sections. Plaintiff worked from the upper section which had no rubber skids on the bottom. The rubber skids kept the ladder from slipping. Plaintiff knew that the ladder without rubber skids was likely to skid. Plaintiff placed the ladder on a beam which ran parallel to the inside wall. When plaintiff reached the top of the ladder, he went to place a can of lubricant on the beam. At this point, the bottom of the ladder slipped away from the wall, and plaintiff fell 16 feet to the ground. He sustained severe injuries, and did not return to work for approximately six months.

Marshall Peterson testified for plaintiff as an expert witness regarding ladders. He testified that use of the bottom section of the extension ladder alone or the use of the two sections as a unit would conform to the American National Safety Standard Institute's standards and to the Illinois Standards for Safety. The use of the upper section of the ...

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