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Hernandez v. Power Construction Co.

OPINION FILED OCTOBER 6, 1978.

LEOPOLDO HERNANDEZ, APPELLEE,

v.

POWER CONSTRUCTION COMPANY, APPELLANT.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

Plaintiff, Leopoldo Hernandez, filed an action in the circuit court of Cook County for personal injuries against defendant, Power Construction Company, under the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, pars. 60 to 69). The injuries were allegedly sustained when plaintiff fell from a scaffold being used in the construction of a building under the supervision of defendant. Plaintiff alleges that defendant violated the Act by failing to provide a safe and properly constructed scaffold upon which to work.

At the time of filing its answer, defendant demanded a jury trial. Four years later and immediately before trial, defendant withdrew the demand. Prospective jurors had already entered the courtroom and were then ushered out. Plaintiff objected to the withdrawal and requested leave to file his own jury demand under sections 59 and 64 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, pars. 59, 64) and Supreme Court Rule 183 (58 Ill.2d R. 183). Plaintiff was taken by surprise by defendant's withdrawal of his jury demand and did not then articulate the grounds upon which he sought leave to file his own jury demand. The court denied the request and proceeded to hear the case as the finder of fact.

Plaintiff sought, as part of his case, to introduce into evidence the opinion of an expert witness as to whether plaintiff's fall could have been prevented if the scaffold had included certain safety features, namely a guardrail and a toeboard. Defense counsel objected and the trial judge excluded the evidence, stating that such matters were to be decided by the trier of fact. No offer of proof was made.

At the close of plaintiff's evidence the court granted defendant's motion for judgment. The appellate court reversed and remanded the cause to the circuit court, ordered a new trial before a jury, and held that the trial court erred in excluding the opinion of plaintiff's expert. (43 Ill. App.3d 860.) We granted defendant's petition for leave to appeal under Rule 315 (65 Ill.2d R. 315).

On appeal, defendant argues that plaintiff waived his right to a jury trial by not filing a demand therefor at the time that the action was commenced, and that there is no need for the expert opinion sought to be elicited because the subject in question is within the common knowledge of the layman. Plaintiff asserts that the trial court erred in denying plaintiff's motion for leave to file a jury demand and in excluding the opinion of plaintiff's expert witness. Plaintiff also argues that the trial court's grant of defendant's motion for judgment was contrary to the manifest weight of the evidence. We will first address the issue of whether the denial of plaintiff's motion for leave to file a jury demand was error.

The right to jury trial is a constitutional right guaranteed by article I, section 13, of the Illinois Constitution of 1970. Section 64 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 64) specifies the time at which a demand for jury trial must be made, providing:

"A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his answer. Otherwise, the party waives a jury."

However, section 59 (Ill. Rev. Stat. 1977, ch. 110, par. 59) provides:

"On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment."

Similarly, Supreme Court Rule 183 (58 Ill.2d R. 183) provides:

"The court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time."

As is evident from a reading of the above-quoted provisions, good cause must be established in order to obtain an extension of time in which to file a late jury demand. (Village of Park Forest v. Walker (1976), 64 Ill.2d 286, 300.) In addition to the requirement of good cause, the court will consider inconvenience to the parties and the court, and any possible prejudice to the rights of the opposing party. (Stephens v. Kasten (1943), 383 Ill. 127, 135.) The decision is made in the discretion of the trial court, and its decision will not be reversed unless there is an abuse of discretion. The standard of review on appeal is not whether the appellate court would have allowed the motion, but whether the action was a reasonable exercise of sound discretion. Johnson v. Sabben (1972), 7 Ill. App.3d 238, 241.

Because the right to jury trial is of constitutional dimension, courts> will liberally construe statutes which regulate exercise of the right. "[T]he inclination of the court should be to protect and enforce the right." Morrison Hotel & Restaurant Co. v. Kirsner (1910), 245 Ill. 431, 433. See also Hudson v. ...


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