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Richard v. Ill. Bell Telephone Co.

OPINION FILED NOVEMBER 3, 1978.

ROBERT RICHARD, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,

v.

ILLINOIS BELL TELEPHONE COMPANY ET AL., DEFENDANTS-APPELLANTS — (RICHARD A. PENA ET AL., DEFENDANTS-CROSS-APPELLEES). — (ILLINOIS BELL TELEPHONE COMPANY, THIRD-PARTY PLAINTIFF-APPELLANT,

v.

ROBERT R. ANDERSON CO., THIRD-PARTY DEFENDANT-APPELLEE.) — JOHN M. COAN, INC., PLAINTIFF-APPELLANT,

v.

ROBERT R. ANDERSON CO., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT E. CHERRY and the Hon. PAUL F. ELWARD, Judges, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 26, 1978.

Two appeals are involved in this consolidated matter. In 76-777, Illinois Bell Telephone Company (Bell) and John M. Coan, Inc. (Coan) appeal from a verdict and judgment thereon against them in an action by plaintiff for personal injury. Plaintiff cross-appeals from the judgment on the verdict in favor of defendants Richard A. Pena (Pena) and L.W. Schiefelbein Cartage, Inc. (Schiefelbein), and Bell also appeals from a directed verdict in its third-party action for indemnity against Robert R. Anderson Co. (Anderson). In 77-931, Coan appeals from the granting of a motion to dismiss its separate action for indemnity against Anderson.

In 76-777, both Bell and Coan raised questions as to the applicability of "An Act to protect workmen and the general public * * * during construction or repair of bridges and highways * * *" (Ill. Rev. Stat. 1977, ch. 121, par. 314.1 et seq.) (hereinafter referred to as the Roads and Bridges Act). Bell separately contends that the alleged negligent acts of its employee, Raymond Boldt, were not within the scope of his employment. Coan also asserts that the jury was improperly instructed that its employee, William Lord (Lord), was its agent at the time of the occurrence and also that the court erred in failing to give separate verdict forms on each count of the complaint as to each defendant. In its separate appeal, Bell also contends that a verdict was erroneously directed against it on its third-party action for indemnity against Anderson because its negligence, if any, was passive whereas that of Anderson was active or primary. In a cross-appeal, plaintiff contends that if a new trial is granted as to either Bell or Coan a new trial should also be granted plaintiff as to Pena and Schiefelbein.

In 77-931, the issues are presented as follows: (1) if plaintiff's judgment against Coan is reversed in appeal 76-777, should there also be a reversal of the dismissal of its indemnity action against Anderson; and (2) if plaintiff's judgment against Coan is affirmed, were facts determined which were "fatal to recovery" in Coan's action against Anderson.

Anderson was the general contractor of a road construction project and, because it did not own enough dump trucks to handle all of the asphalt required, it hired Coan to provide additional trucks. Coan, in turn, hired trucks from other companies, including Schiefelbein and Sinclair Cartage Company (Sinclair), to fulfill its commitment to Anderson. After being loaded with asphalt at another location, the trucks were driven by employees of the respective owners to the construction site, where they remained in line until signaled by an Anderson employee to dump their contents in front of a CMI machine which flattened and graded the asphalt. After the trucks were unloaded, each driver was supposed to lower his truck bed and proceed on an unpaved portion of the road under construction to the main highway. However, on the day of the occurrence in question, a Schiefelbein driver after dumping his load drove away with the truck bed still in a raised condition, and it struck a permanent telephone cable which extended from poles on the east and west sides of the road under construction. The impact disengaged the cable from the east pole and, although still attached on the west side, it fell across the moving lanes of the main highway traffic.

Ruben Thorp (Thorp), an Anderson construction foreman, telephoned to Bell and reported the downed cable. Raymond Boldt, a Bell employee, was dispatched and arrived at the scene about 10:30 a.m. He had a conversation with Thorp concerning which the testimony is conflicting, but it does appear that Thorp initially wanted to cut the cable to clear it from the road and that Boldt would not authorize this to be done, stating that if the cable was cut Anderson must bear the responsibility for the damage resulting.

Someone then decided to position dump trucks on either side of the road with their dump beds raised so that the cable could be draped over the trucks to allow traffic to pass under it. Thorp testified that an employee of Bell made the decision to raise the cable but on cross-examination stated that he did not know whether that person was an employee of Bell or Commonwealth Edison Company. It was the testimony of Boldt that he was the only Bell employee then present and that he took no part in the decision to drape the cable over the trucks, having left the area to telephone his company as to the nature of the problem presented. In any event, Coan's driver (Lord) took no part in the decision, and the draping was accomplished by a Sinclair driver and Lord placing their trucks, one on each side of the road with their beds raised, and the cable was stretched over the beds. Both drivers testified that they placed their trucks in this position at the request of Thorp and that traffic then passed under the cable. Later, a truck driven by Pena came in contact with the raised cable causing it to dislodge and strike plaintiff, an employee of Anderson, who was severely injured.

Another Bell employee, Alfred Seager, appeared on the scene before the accident involving plaintiff in response to a telephone call made by Boldt. Seager testified that he was the Bell "officer of the day" and, as such, was responsible for repairs and installations; that Boldt's telephone call informed him that a cable was down and lying across the road; that he did not send a construction crew at that time but, instead, went to the scene himself to determine the extent of the trouble; that when he arrived, he observed the cable strung over the beds of two trucks — one on each side of the road; that he made a close visual inspection of the cable; that the accident involving the plaintiff occurred 15 or 20 minutes after his arrival; that it was not until after the plaintiff's accident that he called for a repair crew, which arrived at about 2:30 p.m.; and that using a snorkel truck with a boomer basket, the crew lifted the cable and made a temporary connection to the poles.

In one count of plaintiff's complaint, Bell, Coan, Pena and Schiefelbein were charged with being negligent, and in another count it was alleged that all except Pena violated the Road and Bridges Act. Both counts were submitted to the jury, but the court refused to give the jury separate verdict forms requested by Coan as to each count and as to each defendant. The jury found in favor of plaintiff against Bell and Coan but against plaintiff and in favor of Schiefelbein and Pena. The jury also answered affirmatively to a special interrogatory submitted by Coan as to whether Coan's conduct constituted negligence which proximately caused the injury and damage complained of. No issue is raised as to the amount of damages awarded ($350,000).

OPINION

COAN'S CONTENTIONS IN 76-777

I.

Coan first contends the trial court erred in submitting plaintiff's Instruction No. 9 because it told the jury that Coan was liable for any acts of Lord, the driver of its truck. It argues that this instruction removed from the jury the question of whether Lord was acting outside the scope of his employment with Coan and the question of whether Lord was loaned to Anderson on the day of the accident. Instruction No. 9 stated:

"The [defendant] John M. Coan, Inc.'s truck drivers were agents of [Coan] at and before the time of this occurrence. Therefore any act or omission of the agent at this time was in law the act or omission of the [defendant] John M. Coan, Inc."

• 1, 2 Initially, we note that at the jury instruction conference, the only objection made by Coan was that the instruction took the loaned servant question from the jury. Coan specifically stated it was making no objection on the basis that Lord was not acting within the scope of his employment. It is clear that the grounds for an objection to a jury instruction must be specifically stated at trial (Supreme Court Rule 239(b), Ill. Rev. Stat. 1977, ch. 110A, par. 239(b)); otherwise, that objection cannot be raised on appeal. (Johnston v. Basic (1973), 16 Ill. App.3d 453, 306 N.E.2d 610; Baker v. Norfolk & Western Ry. Co. (1970), 120 Ill. App.2d 296, 256 N.E.2d 887; Henry v. Robert Kettell Construction Corp. (1967), 82 Ill. App.2d 420, 226 N.E.2d 89.) If a party makes an objection for one reason at trial, he cannot raise different reasons for his objection on appeal. (Northern Trust Co. v. Winston (1975), 32 Ill. App.3d 199, 336 N.E.2d 543.) Coan based its objection to Instruction No. 9 solely on the ground that Lord was the loaned servant of Anderson. The trial court was informed by Coan that the latter was making no scope of employment objection. Accordingly, we shall not consider this objection to plaintiff's Instruction No. 9.

• 3-5 With regard to the loaned servant question, it is clear that an employee in the general employment of one master may, with his consent, be loaned to another and become the employee of the master to whom he is loaned. In such a case, the second employer, not the first, would be liable for the employee's negligence. (Ellis v. Dannen Grain & Milling Co. (7th Cir. 1960), 275 F.2d 352; Merlo v. Public Service Co. (1942), 381 Ill. 300, 45 N.E.2d 665; 53 Am. Jr. 2d Master and Servant § 415 (1970).) Whether an employee sent by his general employer to another for the performance of special work becomes a loaned servant is usually a question of fact. (Gundich v. Emerson-Comstock Co. (1960), 21 Ill.2d 117, 171 N.E.2d 60; Merlo v. Public Service Co.) However, it is clear that an employee in the special service of a second employer cannot be considered a loaned servant unless he is wholly free from the control of the first employer and wholly subject to the control of the second employer. (Merlo v. Public Service Co.; Yankey v. Oscar Bohlin & Son, Inc. (1962), 37 Ill. App.2d 457, 186 N.E.2d 57; Murphy v. Lindahl (1960), 24 Ill. App.2d 461, 165 N.E.2d 340.) Further, it has been held that a person cannot become an employee of the second employer unless the second employer has the power to discharge or fire the employee. (Connolly v. People's Gas Light & Coke Co. (1913), 260 Ill. 162, 102 N.E. 1057; Pioneer Fireproof Construction Co. v. Hansen (1898), 176 Ill. 100, 52 N.E. 17; Robinson v. McDougal-Hartmann Co. (1971), 133 Ill. App.2d 739, 272 N.E.2d 513; Emma v. Norris (1970), 130 Ill. App.2d 653, 264 N.E.2d 573.) And the fact that the employee obeys directions or signals given by the second employer in performing his special service does not make the employee a loaned servant. Standard Oil Co. v. Anderson (1909), 212 U.S. 215, 53 L.Ed. 480, 29 S.Ct. 252; Gundich v. Emerson-Comstock Co.; Yankey v. Oscar Bohlin & Son, Inc.

The facts in Gundich v. Emerson-Comstock Co. were similar to those in the instant case. There, a general contractor had hired Emerson-Comstock Co. to provide a crane and crane operator who was hired and paid by Emerson. On the construction site, the operator followed hand signals given by an employee of the general contractor. The plaintiff was injured by the crane and brought suit against Emerson. Emerson contended that the crane operator was loaned to the general contractor at the time of the accident and that therefore the general contractor, not Emerson, was liable for the crane operator's negligence. The court held that the operator was not a loaned servant and explained that neither the fact that the operator obeyed signals given by employees of the general contractor nor the fact that the general contractor reimbursed Emerson for the operator's wages was sufficient to qualify the operator as a loaned servant. 21 Ill.2d 117, 127, 171 N.E.2d 60, 65.

Similarly, in Robinson v. McDougal-Hartmann Co., a general contractor rented at an hourly rate from McDougal-Hartmann Co. a motor grader to be operated by a McDougal employee who moved the machine in accordance with hand signals given by an employee of the general contractor. During the operation of the machine, the plaintiff was run over. The court held that the operator was not a loaned servant and that he remained an employee of McDougal, explaining:

"`[A] continuation of the general employment is indicated by the fact that the general employer can properly substitute another servant at any time, that the time of the new employment is short, and that the loaned servant has the skill of a specialist.

A continuance of the general employment is also indicated in the operation of a machine where the general employer rents the machine and a servant to operate it, particularly if the instrumentality is of considerable value.'" 133 Ill. App.2d 739, 742-43, 272 N.E.2d 513, 516, quoting Restatement (Second) of Agency § 227, comment c.

• 6 In the instant case, we believe the evidence shows that Lord could not have been a loaned servant under the reasoning of the cases cited above. It appears from the record that Coan owns approximately 35 trucks and employs about the same number of drivers. The drivers are paid by Coan and it alone has the authority to hire or discharge them. Coan drivers report to its office and receive their work assignments for each day. On the day of the accident, Lord was assigned to haul asphalt for Anderson who paid a fixed rate per hour for Coan's truck and driver. While Anderson had the power to tell Coan employees where to unload and when to leave the construction site, it did not have the right to hire or discharge any of them, as that authority remained in Coan. The fact that Lord obeyed Anderson employees' signals as to when and where the asphalt should be dumped and when to leave for another load, did not create a loaned servant situation. As stated in Gundich v. Emerson-Comstock Co.:

"`[W]hen one large general work is undertaken by different persons, doing distinct parts of the same undertaking, there must be co-operation and co-ordination, or there will be chaos. The giving of * * * signals * * * [is] not the giving of orders, but of information; and the obedience to those signals showed co-operation rather than subordination, and is not enough to show that there has been a change of masters.'" (21 Ill.2d 117, 125, 171 N.E.2d 60, 64.)

See also Foster v. Englewood Hospital Association (1974), 19 Ill. App.3d 1055, 1060, 313 N.E.2d 255, 259, where it was stated:

"The relationship of employer-employee is not an ephemeral one to be imposed or removed lightly. There are certain rights which accrue to the employee and liabilities which attach to the employer. For these reasons the law requires that before a person may be considered a borrowed servant his services must be loaned with his acquiescence or consent [citation]; and he must become wholly subject to the control and direction of the second employer, and free during the temporary period from the control of the original employer. [Citation.] In order to create the relation, therefore, the original employer must resign full control of the employee for the time being, it not being sufficient that the employee is partially under the control of a third person. (I.L.P. Employment § 2, page 368.)"

Thus, we believe that under the facts of this case, Lord could not have been a loaned servant of Anderson so as to absolve Coan of liability.

It might perhaps have been argued that, while Lord was not a loaned servant with respect to the general activities on the construction site that day, he was a loaned servant as to the particular act of placing his truck with its bed raised to support the cable. We feel, however, that such an argument would have no merit. We note that even during this particular episode, Anderson was exercising no more control over Lord than it had while he was hauling asphalt. Lord voluntarily complied with a request as to the placing of his truck and the raising of its bed. We see no significant difference between that compliance and his obedience to signals which, as discussed above, does not cause one to become a loaned servant.

Additionally, we think that the fact Coan neither consented to nor had knowledge of Lord's participation in suspending the cable is significant. In cases where an employee is held to be "loaned" (see, e.g., Ellis v. Dannen Grain and Milling Co.) or in cases in which a loaned servant question is presented (see, e.g., Gundich v. Emerson-Comstock Co.; Merlo v. Public Service Co.; Foster v. Englewood Hospital Association; Robinson v. McDougal-Hartmann Co.; Yankey v. Oscar Bohlin & Son, Inc.; Murphy v. Lindahl), the first employer has always had knowledge of the tasks which his employee was to perform for the second employer. Indeed, it is only logical that an employee can become a loaned servant only when the first employer knows that he is loaning his employee and knows the purpose for which the employee is loaned.

In the instant case, we do not see how Coan could have loaned its employee Lord for the purpose of raising a telephone cable when it was unaware of the incident. Accordingly, we find that Lord was not loaned with respect to this particular incident.

• 7 As any question concerning whether Lord was acting within the scope of his employment was waived and because he was not a loaned servant at the construction site on the day in question and could not be considered to have been loaned at the time of the suspension of the cable, we hold that the trial judge properly submitted plaintiff's Instruction No. 9 to the jury.

II.

Coan also contends that the giving of Instructions 1 through 8 was reversible error, for two reasons: (1) "They were Structural Work Act [(Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.)] instructions incorrectly reworded for the Roads and Bridges Act" and (2) "There was no evidence that John M. Coan, Inc. was in charge of the work."

• 8 We reject the first of those reasons, because Coan has not specified the manner in which any of the eight instructions were "incorrectly reworded." It does, however, separately argue that No. 8 was "incomplete and inaccurate." This instruction was a modification of Illinois Pattern Jury Instructions, Civil, No. 180.18 (2d ed. 1971) (hereinafter cited as IPI). The instruction is intended for cases brought under the Structural Work Act and reads as follows:

"180.18 Intervention of Outside Agency

If you decide that the plaintiff has proved all the propositions of his case, it is not a defense that something other than a violation of the Structural Work Act by the defendant may also have been a cause of the injury. [However, if the sole proximate cause of injury to the plaintiff was something other than a violation of the Structural Work Act by the defendant, then your verdict should be for the defendant.]"

The bracketed last sentence of IPI No. 180.18 was not included in No. 8 given in the instant case and, as a result, Coan argues that "a theory of defense [sole proximate cause] was taken from the jury." We do not feel, however, that this omission constituted reversible error as in other instructions the jury was informed as to the concept of proximate and intervening causes. (See Herington v. Illinois Power Co. (1967), 79 Ill. App.2d 431, 223 N.E.2d 729; 35 Ill. L. & Prac. Trial § 258 (1958).) Furthermore, Coan does not contend that it offered and was denied a separate instruction on the question of sole proximate cause.

• 9 Coan's other reason that the giving of Instructions 1 through 8 was reversible error is entirely contained in the following statement:

"[T]here was absolutely no evidence that Coan was in charge of the overall work, Anderson having acknowledged that responsibility, or of the phase causing injury as all witnesses testifying on the subject attributed the decision and operation of raising the cable to Anderson or Illinois Bell or both."

We also reject this reason, as there is no requirement under the Structural Work Act that to be liable a defendant must be in charge of the "overall work." A person in charge of a phase of the work may also be liable. (See Miller v. DeWitt (1967), 37 Ill.2d 273, 291, 226 N.E.2d 630, 639.) Because Coan was involved in the plan to suspend the cable to the extent that it placed its truck in position to support the cable which was eventually again knocked down, we believe that a question of fact arose as to whether Coan was in charge of a phase ...


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