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J.l. Simmons Co. v. Firestone T. & R. Co.





Appeal from the Circuit Court of Peoria County; the Hon. James M. Bumgarner, Judge, presiding.


Rehearing denied September 5, 1984.

This case was tried before a jury in the circuit court of Peoria County, Illinois. The plaintiff in this case was J.L. Simmons Co., Inc. (Simmons), by an agreement with its employee John Boone, who was injured while installing a beam at the Firestone Tire and Rubber Company (Firestone) plant in Decatur. Firestone is the only defendant. After the complaint was amended to reflect the agreement of the parties plaintiff that Simmons would bring suit in its name, Firestone filed a counterclaim against Simmons for contribution. The jury returned a verdict for $501,000 as total injuries sustained by Boone. The jury found Boone was 33 1/3% negligent and that Firestone was 66 2/3% negligent on the personal-injury claim and that Firestone was entitled to 50% contribution from Simmons.

The basic dispute between the parties is how the accident happened which caused permanent injury to John Boone's back and necessitated several back operations. John Boone was an industrial carpenter who was employed by Simmons to install a dirt collector at the Firestone plant. At Firestone, slabs of rubber used in the manufacture of tires are packed with a layer of visqueen between each slab. These slabs are fed into a machine in rapid succession by an operator who throws the plastic to the side as he feeds in the slabs 10-12 at a time. Carbon black, a powdery substance used to color the tires, and oil are also used in the manufacturing process. Plaintiff's theory is that a pigment cart used to carry the carbon black transported a piece of visqueen on one of its wheels into the area where John Boone was working. The visqueen was discolored by a combination of carbon black and oil from the floor of the plant and therefore not visible. While walking backward carrying one end of a 300-pound beam, John Boone slipped on the piece of visqueen and fell backwards. The beam then fell on top of Boone.

Firestone claims that the accident occurred because Simmons failed to supply enough manpower to safely do the job. Firestone's theory is that John Boone twisted his back trying to carry the beam and injured his back.

Firestone has raised numerous issues for our review but primarily argues that it was prejudiced by the alignment of the parties whereby Simmons was named plaintiff and thereafter acted in the dual capacity of plaintiff and counterdefendant with all of the attendant advantages of the dual role. As previously mentioned, the alignment of the parties came about as a result of a settlement agreement of Boone's workers' compensation claim against Simmons. As a result of this agreement Simmons brought suit in its name for the use of John Boone and the Hartford Insurance Group, its compensation insurer.

Clear statutory support exists which allows an employer to bring an action against a third party to recover workers' compensation paid to its employer where the employee's injuries were caused by a third party. Section 5(b) of the Workers' Compensation Act provides in pertinent part:

"(b) Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer's payment of or liability to pay compensation under this Act.

In the event the employee or his personal representative fails to institute a proceeding against such third person at any time prior to 3 months before such action would be barred, the employer may in his own name or in the name of the employee, or his personal representative, commence a proceeding against such other person for the recovery of damages on account of such injury or death to the employee, and out of any amount recovered the employer shall pay over to the injured employee or his personal representatives all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this Act, including amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act, and costs, attorney's fees and reasonable expenses as may be incurred by such employer in making such collection or in enforcing such liability." Ill. Rev. Stat. 1981, ch. 48, par. 138.5(b).

• 1 Therefore, we find that the statute allows the employer to institute an action on behalf of its employee. Firestone contends that the statute does not apply because this action was commenced before the three-month period prescribed by statute for bringing such actions. However, the only possible prejudice which could result by an untimely filing of such a claim by an employer is to the employee and not to the third-party tortfeasor, and in this case the employee has consented to have suit brought in his name. Nor do we agree with Firestone that the employer should not have a right to participate in the trial of the suit. Again the possible prejudice resulting from the participation of the employer at trial is to the injured employee, not to the defendant third-party tortfeasor. Firestone relies upon Sjoberg v. Joseph T. Ryerson & Son, Inc. (1956), 8 Ill. App.3d 414, 132 N.E.2d 56, where the appellate court held that an employer had no right to participate in a suit brought by its employee where the employer was joined because of a workers' compensation lien for the proposition that Simmons could not participate in this proceeding. In Sjoberg the appellate court stated that the possible prejudice resulting from employer's participation was to the employee. Both because the suit was brought by the employer and because no prejudice resulted to Firestone, we are not persuaded by the reasoning of Sjoberg.

• 2 Firestone has raised several allegations of trial error which it claims resulted from the improper alignment of the parties and prejudiced Firestone's defense of this claim. Firestone first alleges that plaintiff was allowed to cross-examine its own witnesses. Our review of the record indicates that the parties had a considerable discussion outside of the presence of the jury as to the order in which they should proceed in examining plaintiff's witnesses. It is apparent from their discussions that the trial judge considered the plaintiff and counterdefendant the same party with co-counsel and offered to let the plaintiff and counterdefendant examine its witnesses before Firestone cross-examined. This Firestone declined. It is clear that plaintiff Simmons had a right to examine on the counterclaim for contribution as to whether it was jointly liable for the accident. We, therefore, find that the trial court did not err in allowing two examinations. We also point out that trial judges have considerable latitude in making decisions as to the order of proceedings. 87 Ill.2d R. 233.

• 3 Firestone further argues that the trial court erroneously allowed plaintiff/counterdefendant to make two opening statements and two closing statements. It is clear from the record that the trial judge considered the personal injury claim a single cause of action. Supreme Court Rule 233 (87 Ill.2d R. 233) sets out the parties, order of proceeding. Pursuant to the rule the parties are to proceed in the order in which they appear in the pleadings unless "otherwise agreed by all parties or ordered by the court. In consolidated cases, third-party proceedings, and all other cases not otherwise provided for the court shall designate the order." (87 Ill.2d R. 233.) It is clear from the rule that the court has discretion to control the order of argument and proof and further that the judge had discretion to split opening and closing statements between co-counsel if he felt it was in the best interest of the parties. Therefore, it was not error to allow both counsel for plaintiff-counterdefendant to make opening and closing remarks to the jury nor to allow them to proceed in a different order.

• 4 Firestone also contends that the plaintiff was improperly allowed to cross-examine Mary Campbell, Firestone's witness, twice. During direct examination Mary Campbell testified that Boone had told her that Simmons sent him on a job that was too big for one man. This statement certainly tended to place fault with Simmons and gave Simmons a right to cross-examine Mary Campbell based upon the contribution claim against it. Therefore, it was not error for Simmons in its representative capacity and as counterdefendant to cross-examine Mary Campbell.

• 5 Firestone also raises several evidentiary errors which allegedly transpired during the trial. Firestone contends that Boone's statement to Mahon, a Firestone employee who rushed over to help Boone when the beam fell on him, was not an excited utterance and should not have been admitted. We disagree. Mahon's testimony was that he rushed over to help Boone immediately after he slipped. After Mahon had lifted the beam off of Boone 30 seconds to a minute and one-half after the accident, Mahon asked Boone what happened, and Boone replied, "That goddam plastic." Although there was a slight lapse of time between the accident and Boone's remark, timing is not the sole determinative factor. Other factors to be considered include the nature of the event, the condition of the declarant and the presence or absence of self-interest. (E. Cleary & M. Graham, Illinois ...

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