APPEAL from the Circuit Court of Cook County; the Hon. IRVING
R. NORMAN, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 4, 1979.
Plaintiffs, Florence Mosley on behalf of herself and her minor son, brought an action under the Structural Work Act to recover for fatal injuries to William Mosley (hereinafter Mosley) after he fell from a catwalk at a construction site at a steel mill owned by defendant, Northwestern Steel and Wire Company (hereinafter Northwestern). Northwestern filed a third-party complaint for indemnification against Mosley's employer, subcontractor George Reitzel, a/k/a Reitzel Electrical Contractor (hereinafter Reitzel). A jury rendered a verdict in favor of plaintiffs on the principal action and in favor of Reitzel on an implied indemnity count of the third-party action. The court found in favor of Reitzel on a contractual indemnity count and entered a judgment against Northwestern on both the principal and the third-party actions. Northwestern's post-trial motions were denied, and Northwestern appeals, presenting the following issues for review: (1) whether the crane operator, whose actions allegedly caused the fatal accident, was an employee of Reitzel or was a loaned employee of Northwestern at the time of the accident; (2) whether Northwestern is entitled to indemnification from Reitzel; and (3) whether the trial court erred in refusing to vacate the judgment in the principal action and to dismiss the principal action pursuant to a stipulation between Northwestern and plaintiffs.
In 1973 Northwestern was constructing an addition to its steel mill in Sterling, Illinois, and pursuant thereto, in September 1973 Northwestern entered into a contract with Reitzel for the performance by Reitzel of electrical work. The purchase order provided that Reitzel would:
"Furnish and pay for all supervision, labor, equipment, small tools, supplies, services, utilities (except power) and facilities that are necessary and proper to perform all electrical work in connection with our 14" mill in accordance with all conditions of this order and as directed by our Engineering Department."
The purchase order also contained the following indemnity provision:
"SAFETY Seller agrees to comply with the provisions of the Occupational Safety and Health Act of 1970 and the standards and regulations issued thereunder and certifies that all items furnished under this Order will conform to and comply with said standards and regulations. Seller further agrees to indemnify and hold harmless Purchaser for all damages assessed against Purchaser as a result of Seller's failure to comply with the Act and the standards issued thereunder and for the failure of the items furnished under this Order to so comply."
Northwestern also contracted with other trades including Holman Steel Erectors, pipefitters and concreters, and Northwestern coordinated all of the workers.
Reitzel began working pursuant to its contract and was involved in assembling parts to two overhead cranes, an AC crane and a DC crane. The AC crane had a catwalk which ran the length of the building and which was used by the workers of all trades to traverse the building and to do certain work that needed to be done "up in the air." The AC crane was completed in March 1974, and Lawrence Weinreich, an employee of Reitzel, became the operator of the crane. The crane was operated from a cab that is suspended underneath the crane. To gain access to the cab the operator would climb a ladder at one end of the building up to the catwalk, walk along the catwalk to a hatch door, go through the hatch door and then climb down a ladder to the cab.
On September 18, 1974, at approximately 2 p.m., Weinreich was told by a Reitzel foreman to bring the crane to a certain position and wait for a ladder to be transferred from the ground to two persons on the catwalk. George Boyden and William Mosley, both employees of Reitzel, were on the catwalk. When Weinreich observed Boyden and Mosley having a difficult time getting the ladder over the guard rail on the catwalk he climbed up the ladder from the cab of the crane, went through the hatch door, left the hatch door open and walked on the catwalk in a northerly direction to help the two men get the ladder on to the catwalk. The ladder was made of iron, was 10 feet long and weighed 100 pounds. After the ladder was on the catwalk, the three men put the ladder on their shoulders and started walking south on the catwalk toward the hatch door. Their intention was to bring the ladder on the south side of the building and install a section of the DC rail. Boyden was first, then Weinreich and Mosley. When Boyden reached the hatch door, he stepped over it, as did Weinreich. Mosley fell through the door to the ground and received fatal injuries.
On November 21, 1974, plaintiffs (Mosley's widow and minor son) filed an action under the Structural Work Act against Northwestern to recover for the injuries sustained by Mosley. *fn1 On February 19, 1975, Northwestern filed a third-party complaint against Reitzel. *fn2 Count I of the third-party complaint was based on the theory of implied indemnity, and it alleged that Reitzel violated the Structural Work Act through its employees, that the injuries to Mosley were proximately caused by the wilful acts or omissions of Reitzel and its employees, and that Northwestern was not actively negligent. Count II was based on the indemnity provision in the written purchase order.
The principal action and Northwestern's third-party complaint were tried together in a jury trial, although it was agreed among the parties that the issue regarding the contractual claim for indemnity would not be submitted to the jury. The following evidence, pertinent to this appeal, was adduced at trial:
Lawrence J. Weinreich testified that he was employed as a journeyman wireman electrician by Reitzel in November 1973. Weinreich had been hired by Reitzel through the union hall; he worked exclusively on the Northwestern job and was laid off when the work was completed in the summer of 1975. Weinreich began working at the Northwestern site in February 1975, at which time he was involved in assembling parts to the DC overhead crane. In March 1974 he became the sole operator of the AC crane. Weinreich operated the crane for all the trades involved in the construction and he would receive directions from the foremen of all the trades and from Northwestern personnel. Weinreich saw Northwestern personnel on a daily basis, and Northwestern employee, Milt Ward, worked directly with Weinreich's foreman, Robert McCoy. Also, Northwestern had a man on the job at all times to supervise the electrical work. Milt Ward and Robert McCoy held meetings on a weekly basis to discuss safety. At the time of the accident, Weinreich was being paid by Reitzel, and his instructions on that particular day came from Reitzel. A Reitzel foreman told Weinreich where to position the crane just ...