author: Mr. JUSTICE DOWNING

text:
    Rex Mundt, Plaintiff-Appellant, v. Ragnar Benson, Inc., et al., Defendants-Appellees.
    (No. 56324;
    First District (2nd Division)
    March 5, 1974.

      Rehearing denied May 1, 1974.

      Horwitz, Anesi, Ozmon & Associates, Ltd., of Chicago (Nat P. Ozmon, Joseph Cerveny, and Dario A. Garibaldi, of counsel), for appellant
    Kirkland & Ellis, of Chicago (William D. Maddux and Gary M. Elden, of counsel), for appellee Ragnar Benson, Inc.
    John W. Purney, of Chicago, for appellee Western Electric Company, Inc.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Rex Mundt, plaintiff-appellant (hereinafter plaintiff), was injured on December 20, 1965, when he fell during the construction of a four-story building owned by defendant-appellee Western Electric Company, Inc. (hereinafter Western Electric). At the time of his fall, plaintiff was in the employ of the Corbetta Construction Company, which company was a subcontractor for the concrete work on the project. Defendant-appellee Ragnar Benson, Inc. (hereinafter Ragnar Benson) acted as “management contractor” for the construction of the building.

In 1966, plaintiff brought suit, based on a common law negligence theory, against: Western Electric, as owner of the building; Ragnar Benson, as “management contractor” for the construction; the architectural firm of Holabird and Root, which was party to a contract with Western Electric under which it had responsibility for all design drawings and documents related to the cons traction; and Bell Telephone Laboratories, as an additional “owner, operator, or possessor” of the building.

The record presented here is unclear as to the disposition of the case with respect to Holabird and Root, the architects. It was explained by counsel during argument before this court, however, that the firm was directed out of the case at some point during the course of the proceedings in the court below.

Prior to trial in the court below, summary judgment was entered with respect to Bell Telephone Laboratories, the court finding that no triable issue of fact existed relative to Bell; Bell is not a party to this appeal.

On two occasions in the trial court (after the jury had been sworn, but before the trial commenced; and after the close of plaintiff’s case), plaintiff requested leave of court to file an amended complaint. Pleading the same allegations of fact as had been made in the original complaint, it would have added a second count alleging a cause of action based upon the Illinois Structural Work Act (Ill. Rev. Stat. 1971, ch. 48, par. 60 et seq.). The trial court refused to permit plaintiff leave to file the proposed amendment.

At the close of plaintiff’s case, the trial court directed verdicts in favor of Western Electric and Ragnar Benson with respect to the common law negligence count. Plaintiff appeals from the entry of the order denying him leave to file the amended complaint, as well as from the order directing verdicts in favor of defendants.

The seminal issues presented to this court on review are: (1) whether the court below properly refused to permit plaintiff leave to file an amended complaint, count two of which was based upon the Illinois Structural Work Act; and (2) whether the court below erred in directing verdicts for Western Electric and Ragnar Benson in the action for common law negligence.

It would be helpful at the outset to summarize the common law negligence complaint filed in 1966 by plaintiff against defendants Western Electric and Ragnar Benson. The complaint alleged, inter alia, that on December 20, 1965, plaintiff was engaged in construction work, in the employ of Corbetta Construction Company, at the premises of Western Electric located at Wheaton and Warrenville Roads in Du Page County, Illinois; that Ragnar Benson was the general contractor in charge and control of the construction being performed on said premises; that Holabird and Root were the architects in charge and control of said construction; that Western Electric was the owner of the premises; that all the named defendants were in charge and control of said construction; that plaintiff was in the exercise of due care and caution for his own safety; that the defendants, on the day in question, had the duty to maintain, operate, and control the construction work in a safe, suitable, and proper manner so that plaintiff, while at work, would not be injured; that, notwithstanding the aforesaid duties, defendants were guilty of one or more of the following acts or omissions constituting negligence: (a) allowed work areas to be poorly lighted for night work; (b) failed to use due care in inspecting the condition of their premises; (c) failed to provide warnings or barricades around openings for workers on the premises; (d) failed to provide adequate lighting for night work; (e) failed to warn plaintiff of an existing unsafe condition; (f) failed to retain sufficient and proper control over the construction work; (g) failed to illuminate the work areas and openings in the floor at the construction site at night; and, finally, that as a direct result of defendants’ negligence, plaintiff was caused severe injury when he fell through an opening from the fourth floor to the third floor at the building site. Plaintiff prayed for judgment in the amount of $150,000 against each of the named defendants, including Western Electric and Ragnar Benson.

Plaintiff’s employer Corbetta Construction Company, as a subcontractor for Ragnar Benson, was under contract to build the concrete floors under construction at the time of plaintiff’s accident. Using 4' x 8' pieces of plywood, Corbetta employees would build temporary wooded floors, “decking,” and then proceed to cover those floors with concrete. When the concrete had hardened, they would remove the temporary flooring from below. Whenever it was necessary to leave a hole in the concrete floor for the future installation of an elevator or an air duct, Corbetta employees were supposed to nail four boards into a square and then nail the square to the temporary wooden floor before the concrete was poured. Consequently, the concrete would harden around the square and leave a hole in the final concrete floor. When the temporary flooring was removed, leaving a hole in the floor, it was customary procedure for a Corbette workman to cover or barricade the hole. Larger holes, those for elevator shafts and the like, were barricaded; smaller holes, those for air ducts, were generally supposed to be covered by hatch covers or by sheets of plywood, which were to be nailed from their upper surfaces to the wooden baffle square which was still in place, or themselves “cleated” by pieces of wood nailed to their undersurfaces so that when they were placed over the openings in the concrete floor, the “cleats” would prevent them from slipping or sliding off the opening.

SUMMARIES OF THE TESTIMONY AT TRIAL:

Plaintiff testified, in pertinent part, that on December 20, 1965, he was employed on the night crew by Corbetta Construction Company, for whom he had worked since August, 1965. He had started out with Corbetta as a general laborer and would occasionally help with the wrecking crew. He had worked as a laborer for 20 years. At the time of the accident, his duties were to take care of recently poured concrete on Western Electric’s building, mating sure that it was completely covered and that heaters and thermometers were properly positioned in the bottom of the concrete forms and on top of the concrete slabs after they had been covered. The covering procedure was this: the concrete floors were covered with graphite paper; blankets were then placed on top of the paper; and, finally, any available material nearby was laid on top of the blankets to make certain the blankets did not blow away. The concrete could be covered approximately IV2 to 2 hours after it had been poured.

Plaintiff’s accident occurred at approximately 8:30 P.M. on December 20, 1965, at which time plaintiff and a helper, Edward Malcom, another Corbetta employee, were engaged in covering concrete in an area which had been poured that day, an area to which we will refer as the south bay. (The bays upon which plaintiff worked were approximately 30 feet wide and anywhere from 80 to 100 feet long.) The materials used by plaintiff to cover the recently poured concrete (the graphite paper, and so forth) were usually left by the day crew in the bay adjacent to that which had most recently been poured; in other words, on the evening in question, as plaintiff was working in the south bay, the materials he would use would usually be set up by Corbetta employees in the next adjacent bay, in this case what we will refer to as the north bay. The materials were set up in the north bay that night.

Immediately prior to his accident, plaintiff and Malcom ran out of graphite paper with which to cover the south bay. Plaintiff estimated, variously, in this testimony that he and Malcom needed 5 or 10 or 20 feet more of the paper with which to complete the job. Plaintiff informed Malcom that he (plaintiff) would go over to the north bay to get the balance of the graphite paper necessary. The south bay was illuminated by a portable floodlight of approximately 175 to 200 watts, which plaintiff would carry around with him while doing his work. In addition to the floodlight, plaintiff used a flashlight while he covered the cement.

At the moment the pair ran out of paper, plaintiff was in the southwest comer of the south bay. He proceeded along the west wall of the south bay into the north bay. Light conditions varied from bay to bay, and, in the north bay, there was no light at all. When plaintiff went for the paper, he carried his flashlight with him; it was lit. He did not take the floodlight.

There was “material” lying all over the north bay: plywood, two-by-fours, and four-by-fours. Plaintiff proceeded to the north end of the north bay, all the while flashing his light around. At approximately the middle of the north end of the north bay, plaintiff saw a four-feet-by-eight-feet piece of plywood, which was lying flat against the graphite paper on the floor. He shined his light down on the plywood. He placed his flashlight in his hip pocket and reached over to pick up the plywood by its width, the four-feet side, in order to get at the graphite paper he sought. He used both hands to lift the plywood, which was “heavy,” and as he hoisted it up almost as high as his head, plaintiff stepped forward and into a hole covered with graphite paper. He fell from the fourth floor to the third floor.

Plaintiff also testified that he had previously seen the hole into which he fell before it had been covered with graphite paper; further, he testified he may have covered the hole through which he fell.

At the time of plaintiff s accident, Earl Hauge was plaintiffs immediate supervisor, as labor foreman for Corbetta. He testified that Corbetta was the subcontractor working on the subject construction for Ragnar Benson, the management contractor. Herbert Johnson, the general superintendent for Ragnar Benson, was on the job site and worked in conjunction with Hauge’s superintendent, Larry Forst. Ragnar Benson also had other people at the construction site.

Western Electric had Robert Morton from its plant design and construction department and two or three other inspectors at the site all the time. Ragnar Benson and Western Electric shared a temporary office at the site, and Western Electric’s “inspectors in the field” checked the progress of the construction. Morton checked the “whole job.” In the chain of command for the construction work, first would come Morton, then Johnson.

Hauge in this testimony described the construction of the floors at the building site. In erecting a floor or bay, shoring and stringers were used. Above the shoring, which ran from the floor below to the ceiling above, there would be a deck made of four-feet-by-eight-feet pieces of plywood. Generally, the procedure to be followed with respect to openings in the floors left for duct work and pipes was to cover them over with plywood. Corbetta employees bore the responsibility of so covering the holes.

On the day of plaintiffs accident, it began to get dark at approximately 5 or 5:30 P.M. Strings of lights were attached underneath the boards on the floors where Hauge’s men worked so that the men could see properly in maintaining the heaters, which were there to facilitate the drying of the recently poured cement; there were also strings of lights put up for the cement finishers to enable them to finish the pour; and Hauge could, if he felt tire need, get electricians to string lights. There would be very little lighting in an area where either pouring or finishing was not in progress and merely a bulb or two in areas where Hauge’s men were not working during the dark hours. Electricians were responsible for stringing lights in the areas where work was not in progress.

Hauge further testified that on occasion his men would run short of graphite paper used in their covering operations; it was nothing unusual. When the squares were taken away during the “stripping” operation, a piece of plywood was usually put over any holes remaining in the floors, but the men did not immediately run up to the floor above and cover the hole with plywood; that was customarily done after they left the job. Covering holes was the best practice. The graphite paper and blankets were removed before the plywood and forms so that, if the stripping were removed from a portion of the deck, usually Hauge would expect that the paper and blankets had been removed earlier.

Herbert Johnson, the general superintendent of the subject construction for Ragnar Benson, testified, as an adverse witness under section 60 of Illinois’ Civil Practice Act, that his duties included coordinating the activities of the subcontractors as to tire plans and specifications of the building, coordinating his own staff, and carrying the responsibility, when work fell behind schedule, of seeing to it that the work got caught up. On occasion, he and three or four of his men would go to the Western Electric building site where Ragnar Benson maintained a field office to check the work progress. Johnson further testified that Western Electric had approximately six men on the job site, in addition to one Mr. West, who acted as project manager for Western Electric; that once a week general construction meetings were held at which Western Electric was in charge; that matters of job safety were brought up at those meetings; that, in walking around the job site, he observed conditions which he felt would be hazardous to tire men working on the job; that, having made tírese observations, he would leave it to Corbetta Construction to take care of any hazards to protect the men on the job; that usually he and his staff would undertake daily inspections of the construction area; that he had been up to inspect the lighting which had been strung out in the building as it was being erected; that, as a general practice, lights were kept burning night and day on a construction job even in areas where work was not proceeding; that Ragnar Benson’s subcontractor (the electrical contracting firm of Fischbach, Moore & Morrisson) had the responsibility to see that the temporary lights were on in the building at all times; that he and his men checked to see that the lights were on; that “We [Johnson and his staff] don’t let anyone work on the job without any lights”; and that, as a matter of practice, the general contractor made sure that the subcontractor does the work in accordance with what the subcontractor was supposed to do.

The following colloquy, with respect to the hole through which plaintiff fell, took place later in Johnson’s testimony:

“A. * •* * I saw the plywood from underneath. When I stood down below there when I came up on the fourth floor I saw it laying on the floor or over this opening, and the next day when I got to the pour I was wondering how a man could fall through it when there was a piece of plywood on it.
Q. Did you notice anything in addition to the plywood being on the covering that you observed the day before? Was it secured to the wood in any way?
A. It was secured to the bulkhead that was left in the concrete slab.
Q. How was it secured to it?
A. With nails.
Q. Now, by that you mean the plywood was nailed to the wood that was used for the forming of the hole?
A. Yes.”

Robert Morton testified that at the time of plaintiíFs accident he was in the employ of Western Electric as one of the engineers on the construction job at Bell Laboratories; that his primary function was that of civil engineer in the structural design of concrete and structural steel; that, in addition to himself, Western Electric had five other representatives at the construction site; that he represented Western Electric to see that the building was built in accordance with plans and specifications; that all aspects of the job were let on a contract basis; that Ragnar Benson was management contractor for the job; that Western Electric employed a department chief who was directly in charge of the job, who reported to one Fred Best, who in turn reported to Western Electric; and that, in addition to Ragnar Benson dealing with subcontractors, it was his (Morton’s) responsibility to deal with subcontractors directly.

Morton further testified that it was his responsibility to go to the job to make sure that holes left in the concrete were in the proper position and that he would look at the holes; that, as a representative of Western Electric, he was always concerned with safety and that, in fact, Western Electric would always bring up safety matters at their general meetings; that at one meeting it was discussed that manholes and other openings should be covered with plywood and pits should be barricaded; that at another meeting, it was discussed that better job safety precautions were to be observed; that it was further suggested that cleats should be provided on bottom surfaces of plywood being utilized to cover openings in the floor slabs; that if he observed an unsafe condition, he would report it directly to his department chief or to the assistant manager, and then would also report the unsafe condition to Ragnar Benson personnel; that one George Dvorak of Western Electric was responsible for dealing with electrical contractors on the construction job; and that if any complaints came to him (Morton) with respect to electricity on the job site, he would in turn report it to Dvorak.

William DeLisle testified that at the time of plaintiff”s accident he was employed by Walter H. Flood Company of Chicago, which firm operated as consulting engineers on the materials used in connection with the subject construction—concrete, asphalt, and metal products; that he worked at the construction site at the time of the accident; that his employer had been hired by Western Electric; that his duties were to maintain quality control of the concrete mix used in the slabs; that he reported to Robert Morton of Western Electric on the job site; that he had complained about the lighting on the site to Robert Morton; that these complaints were made on more than one occasion, and that they had been made at least three times during an approximated three-week period beginning November 13, 1965; that, to his knowledge, the lighting conditions had never been corrected up until and including the day on which plaintiff was injured; that, concerning the openings in the concrete, the larger shafts were barricaded with two-by-four barricades, but the smaHer holes in many instances were not covered; that plywood covered underneath the holes; and that after the plywood was stripped away, the hole from the fourth floor to the third floor would be open.

Jacque Albrecht testified that at the time of plaintiff’s accident he was deputy sheriff for the DuPage County Sheriff’s Office, and that on December 20, 1965, he was called to tire BeU Laboratories construction site to investigate plaintiff’s accident; that, as he stood near plaintiff on the third floor, he looked up to the hole through which plaintiff had faUen and could see no light shining through the hole; that he went up to the fourth floor and proceeded to where he thought the hole might be; that it was fairly dark and he had to use his flashlight to get to the vicinity of the hole; that there was light on the third floor, as he recalled, but he saw no light on the fourth floor; that, when he looked around the hole while on the fourth floor, he saw tar paper and another substance which he called cellophane; that there were strings of lights up around the fourth floor, of approximately 150 to 200 watts, but when he went to the vicinity of the hole, there were no lights around that area; and that there was a piece of plywood lying next to the hole.

Edward Malcom, plaintiff’s helper on the evening of the fall, corroborated plaintiff’s version of the covering procedures which he and plaintiff had been engaged in prior to plaintiff’s accident. He further testified that, on the evening in question, at least six pieces of plywood had been dumped in the north bay; that the plywood pieces were utilized on top of the blankets to hold them down, in addition to being used for decking, and that occasionally the plywood sheets were used to cover openings or holes in the concrete; that in the area where the plaintiff had fallen, there was no light; that he did not know that the opening through which plaintiff had fallen was there; that he and plaintiff had not covered the area where plaintiff had his accident, and that neither he nor plaintiff had put the piece of plywood over the hole; that the hole was not barricaded; that plywood should have been placed over holes before graphite paper was laid to make things safer; and that there was plywood laying around the north bay.

Other persons testified in the court below, but their testimony need not concern us. The above summaries are sufficient for the purpose of resolving the issues presented here.

I.

The first issue presented for resolution is whether the court below properly refused to permit plaintiff leave to file an amended complaint incorporating a count based upon the Illinois Structural Work Act. The record before us discloses that the lawsuit predicated upon a common law negligence theory was filed in September of 1966 and that the case was set for trial on June 7, 1971. The judge presiding in the court below, Hon. Walter J. Kowalski, made this statement for the record on June 9, 1971, with respect to plaintiff’s counsel’s conduct relative to amending the complaint:

“No, I will reserve my ruling on leave to grant the amended complaint. I want the record to show this case as called up for trial on June 7th came up before me approximately at 2:30 in the afternoon. There appears to be unprepared negligence on the part of the plaintiff to proceed with the case at this time. The case came before me on the morning of the 8th. The counsel who came in on the case assumed that there was a Structural Work Act count, and it was first—after brought to his attention there was no such count that [sic] the question of probably no complaint or amended complaint had been filed.
I indicated at this time that I probably would not allow under those circumstances an amended complaint to be filed. We then proceded [sic] to select a jury, after I informed the prospective jurors that this case was predicated strictly on a negligence count. However, I did advise counsel for the plaintiff that I would reconsider his amended complaint if and when he came and brought it to my attention.
At this time I heard arguments. I will reserve a ruling.”

In other words, prior to the swearing of the jury, plaintiff’s counsel realized that the complaint on file did not contain a Structural Work Act count. However, counsel did not move the court for leave to amend the complaint until after the jury had been selected and sworn, that is, on the day of trial, though the original complaint had been filed nearly five years earlier. After hearing argument on plaintiff’s motion to amend on the day of trial, the court below reserved ruling on the matter. At the close of plaintiff’s case, the motion for leave to amend was renewed, argument was had as to whether plaintiff had made out a Structural Work Act case, and plaintiffs motion for leave to amend was denied.

Section 46 of Illinois’ Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 46) provides a liberal procedure for amendments to the pleadings at any time prior to final judgment so that claims or defenses may be changed or causes of action or cross-demands added,

Trial courts across the State look to section 46 for direction in considering amendments to pleadings in all manner of cases brought before them, and, as we said at page 276 in Wiegel v. One La Salle Co. (1st Dist. 1966), 75 Ill.App.2d 272, 221 N.E.2d 117, “* * * the discretion of the trial court in considering whether to allow an amendment is broad and will not be upset absent some clear showing of abuse.” This principle has been stated again and again. Klinke v. Great Northern Life Insurance Co. (4th Dist. 1943), 318 Ill.App. 43, 54-55, 47 N.E.2d 506; Nitrin, Inc. v. American Motorists Insurance Co. (3rd Dist. 1968), 94 Ill.App.2d 197, 205, 236 N.E.2d 737; Ennis v. Illinois State Bank of Quincy (4th Dist. 1969), 111 Ill.App.2d 71, 75-76, 248 N.E.2d 534; Brockob Construction Co. v. Trust Co. of Chicago (1st Dist. 1955), 6 Ill.App.2d 565, 570, 128 N.E.2d 620; and Nurnberger v. Warren & Van Praag, Inc. (5th Dist. 1971), 133 Ill.App.2d 843, 851, 272 N.E.2d 234.

The issue of whether trial courts have exercised this broad discretion properly in refusing to permit parties leave to amend on the day a case was ready for trial, as in the case at bar, has also received consideration by the court. In Friestedt v. Chicago Transit Authority (1st Dist. 1970), 129 Ill.App.2d 153, 262 N.E.2d 771, plaintiff made a motion on the day of trial to be permitted to amend his complaint by adding a fact of which he had been aware for five years. The trial court concluded that the defendant in Friestedt had the right to rely upon the allegations pleaded and that the plaintiff had slept upon his rights. We affirmed the trial court’s conclusion.

Ennis v. Illinois State Bank of Quincy, supra, concerned a motion to amend a complaint in equity to set aside a will and codicil, which motion was not made until the day of trial. The trial court denied the motion, and we affirmed that decision, stating at pages 75-76:

“[P] arries do not have an absolute right to amend their pleadings. Amendments are only permitted at the trial court’s discretion. This point has particular significance in deciding the appeal of the case under consideration because our courts have had two divergent policies— a policy favoring liberal amendments of pleadings and a policy against unduly restricting a trial judge in matters falling generally within his discretion. The determining factor for overruling a judge’s disallowance of a motion to amend must be found in a ‘clear abuse of his discretion,’ considering the peculiar facts and circumstances of the case and the impact upon all the parties in permitting or not permitting the motion.”

The Ennis court then went on to find that the record before it disclosed no valid reason why the subject matter of the amendment had not been included in the original pleading, or the amendment offered sooner than the day of the trial.

In the case at bar, the tendered amended complaint presented a wholly new statutory cause of action to the court and the, defendants; the amendment was offered more than 5 years after the accident in which plaintiff was involved and nearly 5 years after the original complaint had been filed. The pleadings in the case had apparently been settled for months, and the facts constituting the alleged new cause of action were well known to the plaintiff since the day of his accident. Under such circumstances, an application for leave to amend a complaint is addressed to the sound discretion of the trial court, and there being no reasonable explanation in the record as to why this count based upon Illinois’ Structural Work Act had not been presented in a complaint long before the calling of the case for trial, the court below properly refused to permit the same.

Plaintiff relies heavily upon Halberstadt v. Harris Trust & Savings Bank (1st Dist 1972), 7 Ill.App.3d 991, 289 N.E.2d 90, and O’Leary v. Siegel (1st Dist. 1970), 120 Ill.App.2d 12, 256 N.E.2d 127. The reliance is misplaced in each instance. In both Halberstadt and O’Leary, this court affirmed the allowance of amendments made in the trial courts, and, in so doing, reaffirmed again the principle stated above that such rulings will not ordinarily be disturbed unless a clear abuse of the court’s discretion can be shown.

Turning now to the trial court’s refusal to permit plaintiff to amend his complaint after he had presented his case, the court, it is evident from the record, found that plaintiff’s proof had been insufficient to make out a case under Illinois’ Structural Work Act. Accordingly, the court below denied plaintiff’s motion for leave to amend at the close of plaintiff’s case. Plaintiff, on appeal, challenges the propriety of that denial, claiming that he had demonstrated every element of his cause of action under the Structural Work Act by overwhelming and abundant evidence and that the trial court’s conclusion of law that the Act did not apply to the circumstances of the case at bar is contrary to interpretations of the Act, and its elements, by the courts of this State.

Sections 60 and 69 of Illinois’ Structural Work Act (Ill. Rev. Stat. 1969, ch. 48, par. 60 et seq.) provide, in pertinent part:

Section 60:
“[A] 11 scaffolds * * stays * * ” supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection * * * of any * * * building * * * or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon * *
Section 69:
“Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction * * * of any building * * * or other structure within the provisions of this act, shall comply with all the terms thereof * * *.
For any injury to person or property, occasioned by any wilful violations of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby * *

Plaintiff, in his brief before this court, delineates the following elements of a cause of action based upon the Structural Work Act, urging all the while that the evidence in the court below, as well as the interpretations of the Act made by this State’s courts of review, compel the reversal of the trial court’s decision to refuse to allow plaintiff’s amendment:

1) That defendants Western Electric and Ragnar Renson, as an owner and a general contractor, respectively, had charge of the erection and construction of the subject building under the provisions of the Act;
2) That the “scaffolds, hoists * * * stays * * * supports, or other mechanical contrivances, erected or constructed” by defendants for the use in the erection of the subject building were not “erected and constructed, in a safe, suitable and proper manner” or were not “so erected and constructed, placed and operated as to give proper and adequate protection to the fife and limb” of plaintiff, who was “employed or engaged thereon”;
3) That defendants’ failure to comply with the Structural Work Act was a “wilful violation" and a “wilful failure to comply with its provisions” within the meaning of the Act;
4) That plaintiff was employed or engaged on a permanent part of the building under construction which was being used temporarily as a scaffold, support, or stay within the meaning of the Act; and
5) That the proximate cause of the plaintiff’s injuries was the failure of the defendants to comply with the provisions of the Structural Work Act.

At the outset, based on our resolution of this point, we shall note that: (i) in our opinion, defendants did have “charge of” the subject construction within the Act’s provisions (see Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, 211 N.E.2d 247); and (ii) the structure upon which plaintiff was working is included within the term “scaffold” under the Act, as interpreted in this jurisdiction (see Louis v. Barenfanger (1968), 39 Ill.2d 445, 236 N.E.2d 724); and that the evidence established that the scaffolding was not erected and constructed in a “safe, suitable and proper manner” and was not “erected and constructed, placed and operated as to give proper and adequate protection to the life and limb” of plaintiff who was “employed or engaged thereon.”

The third essential element plaintiff sought to prove, so as to enable him to amend his complaint to include the Scaffolding Act count, is, we feel, the heart of the matter. Was plaintiff’s injury occasioned by any wilful violation or wilful failure to comply, by the defendants, with any of the provisions of the Structural Work Act?

Initially, it can be said that there can be no liability under the Illinois Structural Work Act without evidence that the Act was violated and that such violation was “wilful.”

In Kennedy v. Shell Oil Co. (1958), 13 Ill.2d 431, 439, 150 N.E.2d 134, our supreme court, in referring to the term “wilful violation” of the Scaffold Act, reaffirmed its previous interpretation that the word “willfully” is synonymous with “knowingly.” (See also Lavery v. Ridgeway House, Inc. (1st Dist. 1969), 117 Ill.App.2d 176, 186, 254 N.E.2d 117; Gundich v. Emerson-Comstock Co. (1960), 21 Ill.2d 117, 128, 171 N.E.2d 60.) As we said at page 897 in Isabelli v. Cowles Chemical Co. (1st Dist. 1972), 7 Ill.App.3d 888, 289 N.E.2d 12:

“Our courts have consistently held that the word “wilful’ as used in [the Structural Work Act] is quite different from the familiar phrase wilful and wanton. The essence of the Structural Work Act is not to be found within the concept of knowing or intentional misconduct or even that of reckless disregard. Liability exists where the existence of dangerous conditions could have been ascertained by the exercise of reasonable care. See Jones o, S.S. & Corp., 112 Ill.App.2d 79, 94, 250 N.E.2d 829; also Pantaleo v. Gamm, 106 Ill.App.2d 116, 125, 245 N.E.2d 618.”

Further, in interpreting the meaning of “wilful violations” or a “wilful failure to comply” with any of the provisions of the Act, we stated at page 476 in our opinion in Dinschel v. United States Gypsum Co. (1st Dist. 1967), 83 Ill.App.2d 466, 228 N.E.2d 106:

“All persons in ‘charge’ of the work are liable not only when the dangerous conditions are known to them, but also when by the exercise of reasonable care the existence of such dangerous conditions could have been discovered and become known to them. Kennedy v. Shell Oil Co., 13 Ill.2d 431, 150 N.E.2d 134.”

We find, after reviewing the evidence and the pertinent analyses of the Structural Work Act by courts of review in this jurisdiction, that plaintiff failed to sustain his burden of proof on the question of whether these defendants wilfully violated or wilfully failed to comply with the requirements set forth in the Act. It is manifest from a reading of the record that these defendants certainly did not know of the dangerous condition which occasioned plaintifFs misfortune; moreover, in our opinion, these defendants, in the exercise of reasonable care, could not have discovered or ascertained the existence of the dangerous condition.

The evidence below showed that Corbetta Construction Company, plaintiff’s employer, bore the responsibility for covering over holes left for duct work and the like in the cement bays under construction; that Corbetta was responsible for the “shoring,” “decking,” and “stripping” operations on the construction site; that Corbetta employees, working directly under Ear1 Hauge, plaintiff’s labor foreman, were responsible for covering over holes Left in tire concrete when the “decking” underneath was to be removed, and that covering the holes was the best practice; that Larry Forst, Corbetta’s “job superintendent,” coordinated the various trades on the job; that Earl Hauge could, if he felt the need, get electricians to string up lights; and that Hauge had the responsibility to see that there was an adequate supply of graphite paper to cover over the recently poured concrete.

There was also testimony in the court below that Western Electric provided the power for the electricity on the job, but that Western Electric did not supply the lighting; that each of the individual subcontractors were to provide their own lighting on the job, the electrical work to be undertaken by the firm of Fischbach, Moore & Morrisson, which was the electrical contractor for the construction project; and that Fischbach, Moore & Morrisson was under instructions to install the necessary temporary lighting for the job site.

In light of all of the evidence presented before the trial court, ip addition to that which was just recounted, we hold that the court below did not abuse its broad discretion in refusing to permit plaintiff the opportunity to amend his complaint to include a Structural Work Act count at the close of plaintiff's case, and, absent some clear showing of abuse, we should not upset that determination (Wiegel v. One LaSalle Co. (1st Dist. 1966), 75 Ill.App.2d 272, 276, 221 N.E.2d 117). By virtue of our ruHng on this issue, that defendants were not guilty of a “wilful violation” or a “wilful failure to comply” with the Act’s provisions, we find it unnecessary to analyze the remaining elements plaintiff sought to prove in the court below, for there can be no liability under the Act without proof that the statute was violated wüfully. Lavery and Gundich, supra.

In arguing that the trial court’s decision to disallow the amendment at the close of his case should be overturned, plaintiff relies upon Blackwell v. Village of Stone Park (1st Dist. 1972), 4 Ill.App.3d 708, 281 N.E.2d 432, and Williams v. Stewart (4th Dist. 1971), 2 Ill.App.3d 528, 275 N.E.2d 659. Again, we feel the reliance is misplaced.

The Williams case involved an effort to amend a complaint to make its allegations conform to the proof presented at trial in a situation where the evidence very clearly indicated that both parties proceeded in the trial with their sights firmly fixed upon the issue which was formaHy raised by the amendment. Thus, this court, in reversing the trial court’s refusal to allow the amendment, maintained its liberal policy of allowing amendments in circumstances where to do otherwise would be to disregard the ends of justice. In the case at bar, on the other hand, the amendment sought arose in an entirely different and more complex set of circumstances; circumstances in which the trial court, in its sound discretion, could avafi itself of the power to refuse the motion to amend upon the grounds that the proof presented in plaintiff’s case-in-chief did not establish a case pursuant to the requirements of the Structural Work Act count sought to be incorporated by the plaintiff.

Blackwell involved the denial by the trial court of a proposed amendment with respect to a single allegation, one which had earlier in the proceedings been admitted by the defendant therein. The amendment plaintiff in the instant case proposed was certainly of far greater sweep and import than that for which leave to amend was sought in Blackwell.

II.

. The second issue presented for resolution is whether the court below erred in directing verdicts for Western Electric and Ragnar Benson at the close of plaintiff's evidence. Extensive argument was had before Judge Kowalski concerning not only whether plaintiff had presented sufficient evidence to carry the case to the jury on his common law negfigence theory, but also regarding whether plaintiff’s proof had been sufficient to make out a case under Illinois’ Structural Work Act.

In argument before the trial court on the motion for directed verdicts, counsel for defendants maintained that plaintiff’s actions on the evening of the accident constituted contributory negligence as a matter of law, arguing that plaintiff needlessly shut off his only source of light, needlessly pulled up the plywood which had covered the hole, and needlessly stepped into the hole itself. Defendants also maintained in argument that plaintiff had not shown that a common law duty to provide a safe place to work extended to them as owner of the premises and management contractor for the construction, respectively.

Counsel for plaintiff, in contradistinction, argued that plaintiff had not been guilty of contributory negligence and that, in any event, any question concerning same, under the facts of the ease, was one for the jury to decide.

The prescribed standard to be followed by the courts in directing verdicts was enunciated by our supreme court in the oft-quoted case of Pedrick v. Peoria and Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504. Pedrick announced that verdicts should be directed “* * * only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick, at page 510.

In Reid v. Employers Mutual Liability. Insurance Co. (1st Dist. 1973), 14 Ill.App.3d 174, 302 N.E.2d 108, a workman sought to recover damages for injury sustained by him in the operation of a printing press, which injury was alleged to have occurred because of his employer’s negligent safety inspections of the press. The workman’s injury occurred when his hand was caught between two brass rollers of a printing press he was cleaning while the press was in operation. The jury returned a verdict for plaintiff, defendant’s post-trial motions were denied, and an appeal was taken. The defendant in Reid argued on appeal, among other matters, that, at the time of the occurrence, plaintiff had not been in the exercise of due care for his own safety as a matter of law, and this court, in reversing the judgment below and remanding the cause for entry of a judgment for defendant notwithstanding the verdict of the jury, through Justice English stated at pages 177-178 of the opinion:

“Usually, the question of whether plaintiff was in the exercise of due care for his own safety or was guilty of contributory negligence, is for the jury to determine, based on the facts, but when those facts Test solely upon his own testimony, and the attendant circumstances that are not in dispute, the Court then has the duty of determining, as a matter of law, whether he [plaintiff], in fact, used ordinary caution for his own safety.’ (Day v. Barber-Colman Co., 10 Ill.App.2d 494, 511, 135 N.E.2d 231, 239.) In the present case, plaintiff was alone at the time of the accident and by his own testimony was in complete control of the cleaning process. He was told which machines to clean but was to determine himself what methods to use. The facts and circumstances concerning the accident itself * ° * were derived from his testimony only, since no one was present other than plaintiff to tell about what happened. We may therefore determine, as a matter of law, whether plaintiff used ordinary care for his own safety, and we conclude that the manifest weight of the evidence establishes overwhelmingly that he did not. Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513."

After viewing and analyzing further evidence presented in Reid, the court went on to say at page 179:

“Contributory negligence is defined as a lack of due care for one’s own safety as measured by an objective reasonable man standard. (Williams v. Brown Manufacturing Co., 45 Ill.2d 418, 261 N.E.2d 305.) When plaintiff had safer choices available to him, and when he elected a more dangerous way of doing his job, he became contributorily negligent as a matter of law. This is true even though an employee might be acting under general directions from his employer and thought he would lose his job if the work was not performed in the recommended fashion (Fore, v. Vermeer Manufacturing Co., 7 Ill.App.3d 346, 287 N.E. 2d 526), and even though plaintiff had been cleaning the presses without incident for 17 years. This latter fact merely accentuates .plaintiff’s knowledge of the operation of the press and its inherent dangers. The test of negligence is not the frequency with which the act has been safely completed by plaintiff (or others), but whether plaintiff, at the time of the occurrence, used that degree of care which an ordinarily careful person would have used for his own safety under like circumstances. (Francis v. Francis, 9 Ill.App.3d 90, 291 N.E.2d 857; Wills v. Paul, 24 Ill.App. 2d 417, 164 N.E.2d 631.) We believe he did not.”

In Day v. Barber-Colman Co., cited above by the Reid court, a workman was found to have been contributorily negligent as a matter of law, where he was assisting in the installation of an unassembled overhead vertical door which fell upon him. In so holding, the Day court stated at 10 Ill.App.2d 511:

“Where a plaintiff is thoroughly familiar with a possible hazard involved in the performance of his job and with the means to avoid such, the fact that at a particular time he may have been momentarily unmindful thereof, forgetful thereof, or have overlooked the samé does not absolve him from the duty of observing due care for his own safety: [citation].”

Plaintiff, in the instant case, was the sole source of information with respect to whether he was in the exercise of due care for his own safety at the time of his accident or whether he was contributorily negligent at that time. Moreover, the circumstances attendant to those facts surrounding his accident are not in dispute. Therefore, because these facts and circumstances of the accident emanated from his testimony alone, and because “no one was present other than plaintiff to tell about what happened” (Reid v. Employers Mutual Liability Insurance Co., supra, at page 178), we may determine whether plaintiff was guilty of contributory negligence as a matter of law. We find that plaintiff herein failed to use ordinary care for his own safety and that the manifest weight of the evidence presented on review abundantly establishes that he did not. Reid, supra.

Plaintiff had worked as a laborer for some 20 years prior to the occurrence herein involved, and had worked for Corbetta for some months, performing the same task in which he was engaged on the evening he fell. He was cognizant of the dangerous conditions with which the Bell Laboratories project was fraught, those which all large construction projects spawn by the nature of the work involved. He was aware that there were holes in the newly-poured concrete floor; he had previously seen the hole through which he fell; and, in fact, he may have covered it himself with the graphite paper he used in his job. He ventured into a totally dark area with merely the illumination afforded by his flashlight. He testified that when he was without the light from his flashlight, he could not see his hand in front of his face for the darkness. Yet he proceeded along, without light, and, in fact, without the help of his assistant who was within earshot and could have been summoned for assistance, to lift a large piece of plywood which, his experience should have told him, may have been covering an opening in the floor.

Under these circumstances, we find that plaintiff was not in the exercise of due care for his own safety and that the directed verdicts entered in the court below in favor of defendants were not entered in error.

For these reasons, we accordingly affirm the judgments of the circuit court of Cook County.

Judgments affirmed.

HAYES, P. J., and STAMOS, J., concur.

       The trial court did not actually state a specific reason for his ruling. A reading of the arguments of counsel and colloquy before the court prompts us to draw the above-stated conclusion.


source: Caselaw Access Project

author: Mr. JUSTICE BURKE

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Image Theatre, Inc., Defendant-Appellant.
    (No. 58661;
    First District (1st Division)
    March 18, 1974.
    Patrick A. Tuite, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr. and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for file People.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

On September 13, 1972, defendant Image Theatre, Inc. was charged by a criminal complaint with the offense of obscenity in violation of section 11—20a(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 11—20a(3)). On September 13, 1972 a subpoena duces tecum was issued directing defendant to bring a film to the Circuit Court of Cook County for an adversary hearing in order to determine whether the film was obscene. The subpoena described the film as an “untitled motion picture” which was exhibited at the Image Theatre between 4:20 P.M. to 4:39 P.M. on September 13, 1972. The subpoena was served on the C. T. Corporation System, the registered agent of defendant, on September 14, 1972. On November 20, 1972, the trial court entered a rule to show cause why defendant should not be held in contempt for its failure to comply with the subpoena. Thereafter, on November 29, 1972, the court found defendant in contempt and assessed a fine of $1,000. Defendant appeals.

Defendant filed an answer to the rule to show cause on November 27, 1972, which was stricken by the trial court. The defendant filed another answer on November 29, 1972, which stated, inter alia, that the president of the Image Theatre, Inc., Thomas Shaughnessy, had searched for the films and was unable to locate the same and that the secretary of the corporation, Jill Pritchard, had not resided in the Chicago area for the past 6 months and therefore did not have control over the property of the corporation on the date the subpoena was served. The defendant also filed the sworn affidavit of Mr. Ronald H. Thoresen, who stated that he went to the Image Theatre on September 13, 1972, and removed certain motion picture films, being unaware at that time that any films were under subpoena to the court. The affidavit further stated that affiant removed the films because he learned that the assistant manager of the Image Theatre had been arrested and he did not want other persons to be arrested. Mr. Thoresen stated that he returned the films to the distributor “some time later”.

After reviewing the answer of the defendant and Mr. Thoresens affidavit, the trial judge stated that he assumed Mr. Thoresen was an agent of Image Theatre and therefore Image Theatre had removed the films which were under subpoena. The assumption of the trial court was strenuously objected to by defense counsel who requested a hearing on the rule to show cause. The trial judge expressed the opinion that the alleged conduct of the defendant corporation constituted a direct contempt of court and therefore a hearing on the rule was not necessary. The court entered an order reciting that the answer and affidavit of the Image Theatre “did not contain adequate explanation or justification for the refusal” to produce the film and a finding of contempt assessing a fine of $1,000 against defendant.

Recently, the Illinois Supreme Court in People v. Javaras, 51 Ill.2d 296, 299-300, 281 N.E.2d 670, 671-72, enunciated a definitive restatement of the law as it pertains to criminal contempt proceedings in Illinois. In Javaras, the court stated:

“Criminal contempt of court has been generally defined as conduct which is calculated to embarrass, hinder or obstruct a court in its administration of justice or derogate from its authority or dignity, thereby bringing the administration of law into disrepute. (In re Estate of Melody (1969), 42 Ill.2d 451; People v. Gholson (1952), 412 Ill. 294; People v. Hagopian (1951), 408 Ill. 618; In re Estate of Kelly (1936), 365 Ill. 174.) All courts are vested with an inherent power to punish for contempt as an essential incident to the maintenance of their authority and the proper administration and execution of their judicial powers. (People v. Loughran (1954), 2 Ill.2d 258; People v. Siegal (1948), 400 Ill. 208.) The case before us raises the question of the procedural requisites for such punishment.
The procedural requirements for judicial punishment for criminal contempt of court depend upon whether the contempt is ‘direct’ or ‘indirect.’ Previous decisions of this court have recognized two types of direct criminal contempts—those which are personally observed by the judge and those which are not personally seen by the judge but take place in an integral or constituent part of the court and are thereby deemed to have occurred in the constructive ‘presence of the court.’ (People v. Shar (1964), 30 Ill.2d 491; In re Estate of Kelly (1936), 365 Ill. 174; People v. Andalman (1931), 346 Ill. 149; People v. Cochrane (1923), 307 Ill. 126.) As a general rule, a direct criminal contempt (involving punishment of less than six months imprisonment) which is personally seen by the judge may be summarily punished without the necessity of a hearing or other procedural formalities. A direct criminal contempt which occurs in the constructive presence of the court’ may call for the hearing of extrinsic evidence (People v. Howarth (1953), 415 Ill. 499; People v. Harrison (1949), 403 Ill. 320; People v. Andalman (1931), 346 Ill. 149), although, again, the proceeding may be essential summary in nature. If, however, such evidence is necessary to establish the contempt, notice and hearing are required. Skar, p. 494; In re Oliver (1948), 333 U.S. 257, 92 L.Ed. 682, 68 S.Ct. 499.
Indirect criminal contempts are those in which the whole or an essential part of the contemptuous acts occur out of the presence of the court; i.e., they are not personally observed by the judge or do not occur in an integral or constituent part of the court. In a proceeding to punish for indirect contempt, the alleged contemner must be informed of the charges against him by information, notice, citation, or rule to show cause, and he must be given an opportunity to file an answer thereto and receive a full hearing thereon (People v. Pomeroy (1950), 405 Ill. 175; People v. Whitlow (1934), 357 Ill. 34; People v. McDonald (1924), 314 Ill. 548), together with a jury trial, when demanded, in cases involving serious contempts. Bloom v. Illinois (1968), 391 U.S. 194, 20 L.Ed.2d 522, 88 S.Ct. 1477; In re Estate of Melody (1961), 42 Ill.2d 451.”

Defendant contends that the contempt, if any, was an indirect contempt which entitled the defendant to a written rule to show cause, an opportunity to be heard, and the right of confrontation of witnesses. The People initially in their reply brief filed in this court maintained that the defendant’s conduct constituted a direct contempt of court which permitted summary punishment of the contemnor.

During oral argument before this court and in their memorandum of supplemental authority filed subsequent to the oral argument, the People have modified their position as to the nature of the alleged contempt. They now maintain that the ‘lines between direct and indirect contempt are indistinct and often imperceptible” and that the conduct of the defendant corporation in the present cause is “not exactly a direct contempt « * * because everything did not happen before the trial

court which was the basis of the contempt.” The People, however, maintain that after the trial judge entered the order for a rule to show cause, two separate hearings were conducted and therefore defendant was afforded an adequate opportunity to present evidence.

We are of the opinion that an essential part of the defendant’s alleged actions did not take place “in the presence of the court”, and therefore direct criminal contempt proceedings were improper. The principal act for which the defendant was punished was the removal of the film from the Image Theatre while the film was under subpoena. The trial court assumed from the affidavit of Ronald Thoresen that, at the time he removed the film, Mr. Thoresen was acting as an agent for Image Theatre, Inc. This assumption is unwarranted because the affidavit is devoid of any information concerning the capacity in which Ronald Thoresen acted. Moreover, the defendant requested an opportunity to bring Mr. Thoresen into court to testify as to the capacity in which he acted. The court erred in denying this request. Defendant was not afforded an adequate opportunity to present evidence in its defense.

We do not determine whether the defendant’s conduct in this cause was contemptuous. We hold that the Corporation’s conduct, if contemptuous, constituted indirect contempt of court. The procedural requirements for indirect criminal contempt were not complied with by the trial court. The judgment is reversed and the cause remanded with directions to proceed in a manner not inconsistent with the views expressed.

Judgment reversed and cause remanded with directions.

EGAN, P. J., and HALLETT, J., concur.


author: Mr. JUSTICE GOLDBERG

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eddie Cannon, Defendant-Appellant.
    (No. 58819;
    First District (1st Division)
    March 18, 1974.

      James J. Doherty, Public Defender, of Chicago (Marilyn Dershem Israel, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Eddie Cannon (defendant) was tried by the court without a jury for unlawful use of weapons (Ill. Rev. Stat. 1971, ch. 38, par. 24—1(a) (4)); defacing the identification marks upon a firearm (Ill. Rev. Stat. 1971, ch. 38, par. 24—5), and unlawful possession of a firearm without having in his possession an owner’s identification card issued to him by the Illinois Department of Public Safety (Ill. Rev. Stat. 1971, ch. 38, par. 83—2(a)). Defendant was found guilty and sentenced to concurrent terms of 5 months upon each charge.

Upon his appeal, defendant first raises a constitutional question regarding an allegedly illegal search of the automobile in which he was a passenger. Defendant also urges that the proof fails to show that he knowingly concealed a weapon and that he ever owned or possessed a weapon. In this connection, he contends that the State failed to prove beyond a reasonable doubt that the weapon in question was so close to him as to be readily accessible. Defendant also contends that the complaint charging unlawful use of weapons was void and that he was denied a fair and impartial trial.

In response, the People urge that defendant had no standing to object to the allegedly unlawful search and seizure; and, in addition, that his fourth amendment rights were not violated. The People also contend that the evidence was sufficient to prove each of the charges beyond reasonable doubt; the complaint charging unlawful use of weapons was not void and defendant received a fair and impartial trial. We will consider each of the contentions but not in the order stated.

Defendant first urges that the complaint charging unlawful use of weapons was void. Defendant was charged with knowingly carrying “concealed a firearm (in a vehicle) or (on or about his person).” This issue was never raised in the trial court by defendant, by preliminary motion or in any other manner. Therefore, he may raise the point for the first time in this court only if the complaint fails completely to charge commission of an offense so that it is void. (People v. Bradley, 12 Ill.App.3d 783, 786, 299 N.E.2d 99, and cases therein cited.) The Code of Criminal Procedure of Illinois sets out various formal defects in indictments, informations or complaints which may be the subject of amendment on motion of the State’s Attorney. Among such defects are “[t]he use of alternative or disjunctive allegations as to the acts, means, intents or results charged.” Ill. Rev. Stat. 1971, ch. 38, par. 111—5(f).

The only case cited by defendant to this point is People v. Heard, 47 Ill.2d 501, 266 N.E.2d 340. The complaint in Heard was patently uncertain. The entire complaint consisted of a number of alternatives which necessarily made it completely uncertain and therefore void. (See 47 Ill.2d at 504.) In Heard, the supreme court pointed out that a charge which follows the language of the statute defining the crime and uses the disjunctive, will be sufficient under some circumstances but not where the statute names “disparate and alternative acts, any one of which will constitute the offense.” (47 Ill.2d at 504.) As an example of a sufficient charge, the supreme court cited People v. Rosenfeld, 25 Ill.2d 473, 185 N.E.2d 236, where the indictment charged that the defendants unlawfully “possessed or had under their control” a narcotic drug. In our opinion, the complaint in the case at bar is much closer to Rosenfeld than it is to Heard. In the case before us, the defendant was fully informed of tire nature of the charge. His counsel seemed to have no problem in presenting a spirited defense. The complaint was in the language of the statute and we think that it certainly apprised defendant with more than reasonable certainty of the precise offense with which he was charged. See People v. Harvey, 53 Ill.2d 585, 588, 294 N.E.2d 269.

As regards the motion to suppress physical evidence made by defendant’s counsel and heard before trial, a police officer testified that he stopped an automobile for failure to have brake lights. (See Illinois Vehicle Code, Ill. Rev. Stat. 1971, ch. 95½, par. 12—208(a).) The car was occupied by the driver and two passengers, one in the right front seat and one in the rear seat. The police officer learned that the driver did not have a drivers license in his possession and he had no traffic ticket which might have acted as a temporary replacement. (See Illinois Vehicle Code, Ill. Rev. Stat. 1971, ch. 95½, par. 6—601.) The officer asked the driver to get out of the car. He then reached under the front seat on the driver’s side where he found a loaded .32-caliber pistol. He then ordered the passenger in the front seat to leave the automobile. He reached under the front seat on the right side where he found a loaded .38-caliber pistol. The police officer then placed "everyone” under arrest. The officer testified that the defendant was the passenger on the right side in the front seat. Defendant testified, to the contrary, that he was seated in the rear on the passenger’s side of the car. Upon hearing this evidence, the trial court denied the motion to suppress.

Counsel for both sides have extensively argued the merits of the motion to suppress. We need not review the various cases thus cited. In our opinion, this situation is governed by two recent decisions of the United States Supreme Court: U.S. v. Robinson, 38 L.Ed.2d 427, 94 S.Ct. 467, and Gustafson v. Florida, 38 L.Ed.2d 456, 94 S.Ct. 488. In Robinson, the Supreme Court held that where a police officer had probable cause for custodial arrest of a defendant for operating a motor vehicle after revocation of his driver’s license, a complete search of the defendant’s person was legal and permissible. In Gustafson, the court held that, where defendant had been arrested for driving without a valid driver’s license in his possession, a complete search of his person was valid and legal.

On oral argument, counsel for defendant sought to dissuade us from following Robinson and Gustafson. In situations concerning application of a more restrictive view of the constitutional rights of an individual than previously enjoyed, the reviewing courts of Illinois have traditionally followed the Supreme Court of the United States. As an example, note the Illinois Supreme Court decision in People v. Lewis, 34 Ill.2d 211, 215 N.E.2d 283, following the United States Supreme Court in Preston v. United States, 376 U.S. 364, 11 L.Ed.2d 777, 84 S.Ct. 881. And, note also the later action by the Supreme Court of Illinois overruling Lewis as set forth in People v. Brown, 38 Ill.2d 353, 231 N.E.2d 577, and People v. Jones, 38 Ill.2d 427, 231 N.E.2d 580. This step was taken by the Supreme Court of Illinois to accomplish conformity with the decision of the United States Supreme Court in Cooper v. California, 386 U.S. 58, 17 L.Ed.2d 730, 87 S.Ct. 788, which had theretofore modified the decision in Preston. It is both logical and necessary that this court follow the precepts announced by the United States Supreme Court which is the final arbiter of Federal constitutional construction.

Applying the principles of Robinson and Gustafson to the case before us, the officer had the right and the duty to stop the automobile which was without brake lights. In such case, the driver was committing a misdemeanor. Upon ascertaining that the driver had no valid license in his possession, it then became the right and duty of the officer to make a custodial arrest for this additional misdemeanor and consequently he had the legal right to effect a complete search of the driver’s person. (See also People v. Gilyard, 124 Ill.App.2d 95, 102, 260 N.E.2d 364.) Continuing further, it then became the right and duty of the officer to make at least a cursory search of the immediate vicinity of the driver’s seat. In our opinion, this type of search was not only authorized by law but it was essential to insure the safety of the arresting officer. By analogy, the Supreme Court of IHinois has foHowed the principle that, where a defendant has been legally arrested in his home, police may search the immediate area from which he could have obtained a weapon or even something that could have been used as evidence against him. (See People v. Perry, 47 Ill.2d 402, 407, 408, 266 N.E.2d 330, citing and commenting upon Chimel v. California, 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034.) Recovery of the loaded pistol from the area within immediate control of the driver in turn rendered imperative the similar restricted search of the adjacent area beneath the other front seat.

We accordingly conclude that tire trial court acted properly in denying the motion of defendant to suppress physical evidence. We need not consider other contentions bearing upon this point such as whether defendant had standing to raise the constitutional issue.

We will next consider the sufficiency of the evidence to prove guilt as to aU three of the charges. After disposition of the motion to suppress, the police officer also testified that he had placed his initials upon the .38-caHber pistol and that the serial numbers had been obliterated from the weapon so that they could not be read. The officer then advised defendant as to his constitutional rights. Upon questioning, defendant told the officer that he did not have a firearm owner’s identification card issued by the State of IHinois in his possession. The officer also testified that defendant was seated in the right front seat of the automobile. Defendant testified that he was seated in the rear seat of the automobüe and that the passenger in the right front seat, a man named Taylor, left the car before he did. There was testimony by the officer and the defendant regarding the personal appearance and the clothing worn by Taylor and by defendant. Defendant was asked suggestively by his counsel if he “put a gun in that car” or had “a gun in your hand at any time?” He responded categorically to each question, “No, I didn’t.”

The primary issue here is whether defendant had actual or constructive possession of the .38-caliber revolver beneath the right front seat. This fact would be essential to each of the three convictions. Necessarily implicit in the result reached by the trial court would be a determination that defendant was seated in the right front seat of the automobile beneath which the loaded .38-caliber pistol was found. A determination of truth of this fact presented the trial court with an issue of credibility. A mere conflict in the evidence does not justify us in reaching a different result than did the trial court on this factual issue. (See People v. Reese, 54 Ill.2d 51, 58, 294 N.E.2d 288.) We will, however, examine the issue as to whether or not defendant had actual or constructive possession of the weapon beneath the front seat.

It is first important to note the precise language of the pertinent statute. The proscribed conduct consists in carrying the firearm “concealed in any vehicle * * * or on or about his person.” (Ill. Rev. Stat. 1971, ch. 38, par. 24—1(a)(4).) Therefore, cases relied upon and cited by defendant such as People v. Liss, 406 Ill. 419, 94 N.E.2d 320, and People v. Niemoth, 322 Ill. 51, 152 N.E. 537, are inapposite here. These cases were decided under a former law which did not contain the decisive language “concealed in any vehicle.” Note the explanation of this in People v. McKnight, 39 Ill.2d 577, 580, 237 N.E.2d 488.

It is correct as argued by defendant that it was incumbent upon the People to prove possession of the weapon by the defendant, actual or constructive, and to prove scienter or knowledge that the gun was in the car. But, both of these essentials may be proved by circumstantial evidence. (See People v. McKnight, 39 Ill.2d 577, 581, 237 N.E.2d 488.) In this regard, the basic applicable theory is that “* * * there is no legal distinction between direct and circumstantial evidence as to the weight and effect thereof.” (People v. Robinson, 14 Ill.2d 325, 331, 153 N.E.2d 65, and cases therein cited.) Any fact provable by direct evidence may also be proved by circumstantial evidence. In addition, upon another theory, circumstantial evidence may prove the existence of a common design to do an unlawful act and to show that the defendant assented to the commission of a crime and therefore aided and abetted. See People v. Williams, 132 Ill.App.2d 806, 809, 270 N.E.2d 144.

It is our considered opinion that the circumstantial evidence in this case is proof beyond a reasonable doubt of the guilt of defendant of unlawful use of weapons so that the finding of the trial court in this regard may not be set aside by this cgyrt. We base this conclusion upon the following authorities:

In People v. McKnight, 39 Ill.2d 577, 237 N.E.2d 488, the facts wére basically similar and the same result was reached. We note, however, that in McKnight another passenger in the automobile had a gun upon his person and the defendant “made motions with his right hand and a dipping motion of the shoulder prior to being stopped; * * *.” (39 Ill.2d at 581.) The gun in question was found under the driver’s seat occupied by the defendant.

In People v. Williams, 132 Ill.App.2d 806, 270 N.E.2d 144, pohce stopped an automobile because of a noisy exhaust. They saw the butt of a .32-caliber pistol under the driver’s seat. Defendant was on the passenger’s side of the front seat and search disclosed a second revolver under his seat. The driver and defendant both denied knowledge of the guns. Three .32-caliber cartridges were found between the passenger’s seat and the floor and five cartridges of .38 caliber were found on the driver’s person. The court cited McKnight and affirmed the conviction. The same points raised by defendant in the case before us were advanced in Williams. The court there held that scienter was susceptible of proof by circumstantial evidence. Also, the court pointed out that even if defendant would have had to change his position to take the gun from under the driver’s seat, that would not preclude a finding of guilty and defendant was found guilty as regards both weapons. The court also used the theory of accountability. (Ill. Rev. Stat. 1971, ch. 38, par. 5—1 and following.) The court stressed the fact that there was a gun under each of the front seats and that the two men were riding together in the automobile precisely as in the case at bar. These facts were held to create an “inference of the existence of a common scheme with defendant’s approval and assent.” 132 Ill.App.2d at 809.

In chronological order, the next decision is People v. Zazzetti, 6 Ill.App.3d 858, 286 N.E.2d 745. There, an automobile was halted for excessive speed. A police officer looked in at the driver’s window and saw a portion of a revolver butt protruding from beneath the front seat on the passenger’s side. That was the place occupied by defendant. Upon search, this revolver was found loaded and a fuHy loaded and cocked .32-caliber pistol was found beneath the driver’s portion of the front seat. This court affirmed conviction for violation of the same statute involved in the case before us. This court also supported the result reached on the theory of accountability. (See 6 Ill.App.3d at 863, citing Ill. Rev. Stat. 1971, ch. 38, par. 5—2.) The court specifically held the proof of knowledge adequate beyond reasonable doubt despite a denial by defendant. The court added the following language to this determination, 6 Ill.App.3d 858, 863:

“However, knowledge, scienter, may be proven by circumstantial evidence. In the present case the States evidence, if believed, established that defendant and Reynolds were traveling together in an automobile and that beneath the seating area occupied by each was a loaded weapon. We find this evidence standing alone to constitute a sufficient basis upon which to infer that each had knowledge of the presence of both weapons.”

The decisive theory upon which Zazzetti is based was not that the officer noticed that defendant “bent over from the waist” (6 Ill.App.3d at 861) as he left the automobüe, but the decision rested primarily on the remaining facts above quoted.

The next case is People v. Bell, 7 Ill.App.3d 625, 288 N.E.2d 253. It should be noted that Bell cites McKnight and Williams. Apparently the decision in Bell was reached by the Appellate Court for the Third District of Illinois without the citation of Zazzetti. In Bell, an automobile was stopped because its description was close to that of one involved in a shooting. The two defendants were in this automobüe driven by a friend of theirs. Williams was on the passengers side in front and Bell was behind him in the back on the right side. Search disclosed a loaded sawed-off shotgun and a .38-caliber pistol beneath the front seat on the passengers side. The barrel of the shotgun was visible from the rear. There was an odor of gunpowder on the shotgun. The two defendants and the driver all denied that they had ever seen the guns before. The car was owned by defendant’s mother. The court held that the evidence was ample to support a verdict of guilty and then made the foUowing statement, 7 Ill.App.3d at 627:

“We believe the evidence was adequate to support the verdict. The guns were sufficiently accessible, being within easy reach of both defendants, to be considered in the possession of both of them, and there was ample circumstantial evidence to prove that they had knowledge of the presence of the guns. People v. McKnight, 39 Ill.2d 577; People v. Williams, 132 Ill.App.2d 806, 270 N.E.2d 144.”

Defendant cites and relies upon four cases. A study of these authorities convinces us that they are inappficable.

In People v. Jackson, 23 Ill.2d 360, 178 N.E.2d 320, the police executed a search warrant. They met defendant at the door. She was carrying a large handbag. When she saw the officers she turned, ran into the bathroom and locked the door. When she opened the door later, the purse was found lying open on the floor. Narcotics were found at the bottom of an air weH beneath the bathroom window. The court held that where actual or constructive possession was shown, an inference of guilty knowledge could be drawn from the surrounding facts and circumstances. However, the court also held that the burden rested upon the State to prove that the defendant had “exercised some actual or potential dominion over the narcotics.” (See 23 Ill.2d at 365.) In the case before us, the proof of potential dominion over the gun beneath defendant’s seat was manifest and certain.

In People v. Millis, 16 Ill.App.2d 283, 252 N.E.2d 395, defendant was seated in the middle of tire front seat of an automobile between the driver and another passenger, Two other persons were in the rear seat. The automobile was stopped and all persons were removed. An officer found two open cans of beer on the front floor of tire car. He issued arrest tickets to the two men who had occupied the front seat but not to defendant. Defendant testified in some detail regarding the presence of the beer but stated that it had never been in her possession, that she had been offered some and she refused. Citing Jackson and other authorities, the court held that the fact of possession must be proved beyond a reasonable doubt and that proof of constructive possession required “a showing that the defendant had the immediate and exclusive control of the area where the items allegedly possessed were situated.” (See 116 Ill.App.2d at 287.) The court pointed out that the beer cans could have been in the possession of any one of the three persons and that pleas of guilty to the charge of illegal possession of liquor by the two remaining persons who were in the front seat tended to negative possession by defendant. On the contrary, in the case before us, defendant had immediate and exclusive control of the area where the gun was located. The only other occupant of the vehicle had the same type of control over the area where there was another weapon.

In People v. Crowder, 4 Ill.App.3d 1079, 283 N.E.2d 342, the owner of an automobile was driving. Defendant Crowder was seated beside him in the front seat. Crowder was crippled and confined to a wheelchair due to an earlier injury. The occupants of the rear seat were Tramell, behind the driver, and Smith and Hoover in that order to the right. The automobile was stopped by the police because of a faulty headlight. Search disclosed a shotgun beneath the back seat to the rear of the driver, occupied by Tramell. A pistol was found beneath the driver’s seat. All three of the defendants “denied knowing that the weapons were present in the automobile.” (4 Ill.App.3d at 1082.) This contrasts with the case before us where no such denial was made by defendant. And, as this court specifically pointed out in Crowder, the concealed weapons there were not found under the seats of any of the defendants. 4 IIl.App. 3d at 1081.

In People v. Cogwell, 8 Ill.App.3d 15, 288 N.E.2d 729, defendant was found guilty of possession of shotgun shells. He was seated in the middle of the rear seat between two other men. The shells were found on the left rear floor of the vehicle slightly to the left of the defendant and to the right of the man seated at his left. The court pointed out that the shells were as close to defendant as they were to fire man immediately to his left. Only two of the shells were open to his view and the only evidence of possession, beyond the basic fact that defendant was a passenger, was the fact that the shells were near his feet. This court held that there was not sufficient evidence óf constructive possession. By way of contrast, the case at bar does show constructive possession of the gun by defendant.

It should also be noted that the defendant here gave no real or adequate explanation of the presence of the gun beneath his seat; he did not give affirmative testimony regarding his unawareness of its presence and he did not even deny that he had knowledge thereof. His categorical denials in response to two leading questions have little or no significance. The finding of the trial court that defendant had possession of the weapon with scienter is amply supported by the evidence beyond reasonable doubt. We will not disturb it. People v. Catlett, 48 Ill.2d 56, 64, 268 N.E.2d 378.

It follows necessarily that the evidence is sufficient to prove the charge of defacing the identification marks from the firearm. The statute provides that possession of a firearm where the marks of identification have been obliterated shall be prima facie evidence that the possessor has obliterated the same. (Ill. Rev. Stat. 1971, ch. 38, par. 24—5.) The evidence is uncontradicted that the serial number had been obliterated from the .38-caliber pistol found beneath defendant’s seat.

As regards the charge of possession of a firearm without having a firearm owner’s identification card issued by the State of Illinois, the evidence also shows that after proper warnings, defendant stated to the police officer that he had never obtained such an identification card. The evidence is thus sufficient beyond a reasonable doubt to convict defendant upon all three charges.

Defendant finally urges that he was denied a fair and impartial trial. This claim is based upon three portions of the record. In the first, counsel for defendant objected to evidence concerning the .32-caliber revolver found beneath the driver’s seat. The court pointed out that defendant had been charged in another complaint with possession of that gun. The court added, “Although probably he will not be found guilty on the other that was under the driver’s side * * Counsel for defendant then apologized to the court for her lack of knowledge of the other complaint. Defense attorneys in this court urge that the statement by the judge that defendant probably would not be found guilty regarding the gun under the other seat showed that the judge had already determined that defendant would be found guilty regarding the gun under his seat. Far from finding this conclusion to be a “natural inference” from the judge’s statement, as contended by counsel, we find it to be a complete and unsupportable non sequitur.

After the State rested, the trial court said: “All right, there will be a finding of guilty * * * wait a minute. Didn’t you proceed?” The last question was directed to counsel for defendant who responded: “No, I think Mr. Cannon should testify in his own behalf.” We find absolutely no prejudice of any kind resulting to defendant from this. The trial court immediately corrected, actually interrupted, his own statement regarding a finding and then gave counsel for defendant a full, fair and complete opportunity to present evidence.

In the third incident, after all parties had rested, apparently the State’s Attorney remained mute. The trial court thereupon commenced to announce his finding. As soon as he used the word “finding” defense counsel interrupted and requested the right to argue. The court immediately granted this and counsel for both sides proceeded with oral argument.

We find no prejudice or detriment resulting to defendant from this incident. Apparently counsel for defendant waited for the State’s Attorney to argue first. However, the State apparently did not wish to make an opening argument, as the first opening statement was made by defense counsel. This was a simple misunderstanding which caused no conceivable harm or detriment to the rights of defendant. Argument by counsel in a bench trial of a criminal case is not a matter of right but is “largely a matter of sound discretion of the trial judge.” People v. Manske, 399 Ill. 176, 188, 77 N.E.2d 164. See also People v. Sparks, 9 Ill.App.3d 470, 473, 292 N.E.2d 447.

In this regard, the record presented here does not show that the trial court proceeded arbitrarily or with a closed mind. These are the charges made in the only cases cited by defendant to this point; namely, People v. Johnson, 4 Ill.App.3d 539, 281 N.E.2d 451, and People v. Diaz, 1 Ill.App.3d 988, 992, 275 N.E.2d 210. Both of these cases are factually in-apposite. In Johnson, the dispatch of the trial was “precipitous.” Also, there was no basis for reasonable belief by the trial judge that all of the evidence had been produced when he made his finding. (4 Ill.App.3d at 541.) In Diaz, the court specifically found that defendants “were denied a fair and impartial trial”. 1 Ill.App.3d at 993.

The applicable legal principle which disposes of this contention by defendant is that to justify reversal by this court the record must reflect some statement or conduct by the trial judge which demonstrates a prejudiced attitude. See People v. Harris, 132 Ill.App.2d 801, 803, 270 N.E.2d 232, cited and followed in People v. Sparks, 9 Ill.App.3d 470, 292 N.E.2d 447.

Defendant here had every possible opportunity to present his entire case and his attorney was given full right of comment and argument. Study of the entire record convinces us that the defendant had a completely fair trial before a careful, able and impartial judge. The judgment is affirmed.

Judgment affirmed.

EGAN, P. J., and BURKE, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Daniel Wilhite (Impleaded), Defendant-Appellant.
    (No. 59251;
    First District (1st Division)
    March 18, 1974.
    BURKE, J., took no part.
   PER CURIAM.

James J. Doherty, Public Defender, of Chicago (Saul H. Brauner, Assistant Public Defender, of counsel), for appellant.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.