author: Mr. PRESIDING JUSTICE HAYES

text:
    The City of Chicago v. Frederika Blankner, Respondent-Appellant — (Alan S. Ganz, Petitioner-Appellee.)
    (No. 58474;
    First District (2nd Division)
    June 28, 1974.

      Frederika Blankner, pro se.

    Alan S. Ganz, pro se.

   Mr. PRESIDING JUSTICE HAYES

delivered the opinion of the court:

On 8 October 1964, the Department of Urban Renewal of the City of Chicago determined that a certain area adjacent to the campus of the University of Chicago was a slum and a blighted area, and should be reacquired for redevelopment. On 16 November 1964, the City Council approved the Department’s determination. Thereafter, on 1 April 1968, the City of Chicago instituted condemnation proceedings against the real estate located in the area, on the allegation that the area was blighted and a slum area. Frederika Blankner, an owner of a parcel located within the area, retained Alan S. Ganz as her counsel and contested the proceedings by filing a traverse and motion to dismiss; the traverse denied that the area was blighted and a slum area. At the hearing on the traverse and motion to dismiss, the City supported its allegation by the determination of its Department of Urban Renewal and by the City Council’s approval of that determination. Ms. Blankner then refused to support her traverse, on the ground that the City had failed to make a prima facie showing in support of its allegation so as to shift the burden of procedure to her. The trial court held that the City had made a prima facie showing and, when Ms. Blankner stood on her refusal, the court denied the traverse and motion to dismiss, and set the case for jury trial as to the amount of compensation. Following the jury trial, judgment was entered for the City of Chicago and an award based on the jury verdict was entered for Ms. Blankner.

Ms. Blankner, however, refused to accept the award and appealed the case to the Illinois Supreme Court, which affirmed the judgment of the Circuit Court of Cook County. (City of Chicago v. Walker (1971), 50 Ill.2d 69, 277 N.E.2d 129.) The United States Supreme Court then denied Ms. Blankner’s petition for certiorari. Blankner v. City of Chicago (1972), 408 U.S. 931.

Meanwhile, Ms. Blankner had instituted suit in the Federal District Court for the Northern District of Illinois seeking to have the condemnation award set aside on the ground of an alleged conspiracy to defraud the Circuit Court of Cook County in that it had been misrepresented to that court that the buildings were slums when in fact they were not. This suit was dismissed by the District Court on the basis that the issues raised in the complaint were res judicata, having already been decided by the Illinois Supreme Court. An appeal from that dismissal is now pending in the United States Court of Appeals for the Seventh District. Hence, to date Ms. Blankner has never accepted the condemnation award.

The instant action is an action by Alan S. Ganz (hereafter appellee) to secure payment out of the condemnation award of the balance of his fees for representing Ms. Blankner (hereafter appellant) in the condemnation proceedings. The terms of his employment contract were that, in exchange for his services, appellee would receive a fee, of which $600 would be paid immediately and the balance would be secured by a lien on the condemnation award should such award be made.

As indicated, on 17 August 1972, appellee filed the instant petition seeking to foreclose his contractual lien on the condemnation award which had been made to appellant; he alleged that the sum of $2,013 remains as the unpaid balance of his fee. Appellant filed an answer essentially admitting that appellee had a valid lien in the amount of $2,013 upon the award, but alleging that the award did not as yet belong to her because she had never accepted it, and alleging that any money paid out of the award would have to be returned to the City of Chicago if she were successful in her litigation in the Federal courts. She further alleged that a payment of the fee out of the award would have the prejudicial effect of terminating her pending litigation, because she would then be deemed to have accepted the award tendered by the City.

After a hearing, the trial judge on 6 September 1972 ordered the City of Chicago to pay the balance of the fee out of the award. Appellant filed a post-trial motion seeking to have the payment stayed until the termination of her Federal litigation. This motion was denied. Appellant appeals from the order of 6 September 1972 and from the order denying her post-trial motion.

OPINION

The sole issue advanced by appellant on this appeal is whether appellant will be prejudiced by the payment of the balance of appellee’s fee by the City to appellee out of appellant’s condemnation award, because appellant will thereby be deemed to have accepted the award and, as a consequence, her Federal action would become subject to dismissal.

We express no opinion as to the validity of the allegedly prejudicial consequences, but address ourselves solely to the contention that the compulsory payment of the balance of appellee’s fee out of the condemnation award, pursuant to the order of 6 September 1972 enforcing appellee’s contractual lien, would put appellant in the position of having accepted the award. Appellant’s only authority for this contention is County of Cook v. Malysa (1968), 39 Ill.2d 376, 235 N.E.2d 598.

Malysa was an appeal by the County of Cook for a trial court judgment, based on a jury verdict, as to the amount of an award in a condemnation proceeding. Prior to the filing of the notice of appeal, however, Cook County had paid the award to the owner of the property and had entered into possession of the property. Our supreme court affirmed the dismissal of the appeal by the appellate court. The supreme court said:

“* * * a party who either voluntarily satisfies a judgment under no legal compulsion or voluntarily accepts the fruits thereof has waived any error in the proceeding." (39 Ill.2d at 380-381.)

The key word, of course, is “voluntarily”. The payment of appellee’s fee by the City of Chicago out of appellant’s condemnation award pursuant to order of court would not be a voluntary payment by or on behalf of appellant.

Any restitutional problems which may be created, should appellant prevail in her Federal action, are not involved in this appeal.

For the foregoing reason, the judgment below is affirmed.

Judgment affirmed.

STAMOS and LEIGHTON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DOWNING

license: Public Domain

text:
    Ossie Grant, Plaintiff-Appellant, v. Joseph J. Duffy Company, Defendant-Appellee.
    (No. 56165;
    First District (2nd Division)
    June 25, 1974.

      Rehearing denied July 26, 1974.

      Nat P. Ozmon and Joseph F. Cerveny, both of Horwitz, Anesi, Ozmon & Associates, Ltd., of Chicago (Dario A. Garibaldi, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Leonel I. Hatch, Jr., D. Kendall Griffith, and Stanley J. Davidson, of counsel), for appellee.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Ossie Grant, plaintiff-appellant, was injured on October 22, 1962, when the scaffold upon which he was standing collapsed. At the time of the accident plaintiff was employed by Adjustable Forms, Inc. (Adjustable), which company was the subcontractor for the construction and removal of wooden forms used in laying concrete. Defendant-appellee Joseph J. Duffy Co. performed the services of general contractor for the Atomic Energy Commission (AEC) pursuant to its contract with that federal government agency to build a High Energy Physics Building (ZGS building) at Argonne National Laboratory (Argonne) near Lemont, Illinois.

Plaintiff brought suit under the Illinois Structural Work Act (111. Rev. Stat. 1963, ch. 48, pars. 60 — 69) against defendant, which company, in turn, filed a third-party complaint against Adjustable. This latter complaint was subsequently dismissed by order of the court pursuant to stipulation of the defendant and Adjustable.

The case was tried on plaintiff’s amended complaint based on the Structural Work Act which charged that as a direct and proximate result of the wilful violation of the provisions of the Act and defendant’s allowance of an unsafe, unsuitable, improper and unsecured scaffolding, plaintiff sustained certain severe and permanent injuries. Defendant’s answer admitted it was in charge of the overall erection and construction of the subject building but denied being in charge of the specific portion of the building or instrumentality alleged to be the cause of the injury, denied any wilful violations of the Act, and further denied that if the scaffold did break, fall, collapse or give way and the plaintiff thereafter fell, it was not the direct or proximate result of any violation of the Act.

Tire matter was tried before a jury and, at the close of the plaintiff’s case, his motion for a directed verdict on the issue of liability was denied. The jury returned a verdict in favor of defendant and, having denied plaintiff’s motion for a judgment notwithstanding the verdict, the trial court entered judgment on the verdict.

Plaintiff’s appeal presents the following issues:

1) whether the trial court erred in refusing to admit into evidence the testimony of two similar prior accidents;

2) whether the trial court properly denied plaintiff’s request to admit into evidence certain provisions of the contract between the defendant and the AEC;

3) whether the trial court erred in refusing to direct a verdict in favor of the plaintiff; and

4) whether the trial court erred in the giving and refusing of certain instructions to the jury.

It is our conclusion that for the reasons set out later in this opinion, the cause should be reversed and remanded for a new trial. We shall only set forth such facts as are pertinent to the reasons for our conclusions.

At the time of the accident, construction of the ZGS building had progressed to the point that the foundation had been laid, the steel framework substantially completed, and the concrete floors on each of the three stories almost finished.

Before pouring the concrete the record indicates that the usual procedure is to lay out wooden forms, pour the concrete onto these forms, and, once the concrete has set to form a solid floor, remove the forms. This last process is known as “stripping” and, in the instant case, the laborers were unable to “strip” the wooden floors without the use of scaffolds.

The evidence indicates that the scaffolds used were of a hanging variety and were assembled by first placing a 4-by-4-inch cross bar approximately 8 to 10 feet in length between two “I-beams” so that the ends of the cross bar rested on the portions of the I-beams that project to form a ledge. Two large, “S”-shaped hangers, shaped from round %-inch steel bars, are then hung at either end of the cross bar. Each end of a hanger is split, resembling a fish hook, and the hangers can be 6, 7, or 8 feet in length. Another 4-by-4-inch cross bar is then suspended across the lower portions or “hooks” of the two hangers. A short distance away an identical structure is assembled and two 2-by-12-inch boards (approximately 16 feet in length) are suspended between the lower 4-by-4-inch cross bars of each hanging structure. Finally, these 2-by-12-inch boards are covered with a piece of plywood. The laborers would then stand on this scaffold and “strip” or remove the wooden forms above them.

The plaintiff testified that at about 2:30 P.M. on October 22, 1962, he was on a scaffold stripping 4-by-4-inch boards from the ceiling above bim when “all at once, all I knew, I was lying down on the ground, on the floor.” The plaintiff did not return to work until January, 1964. On cross-examination the plaintiff stated that a piece of plywood had fallen and knocked him from a scaffold before the particular incident giving rise to this suit but, since the question initiated what the court determined was an improper attempt to impeach the witness, the question and answer were stricken. Plaintiff stated the plank on which he was standing at the time of the accident was approximately 5 feet above the floor. However, other witnesses placed the scaffold at either 6 or 7 feet above the floor.

Eligha Tanner testified that during October, 1962 he was working as a stripper for Adjustable; that at the time of the accident his scaffold was 10 to 12 feet from the plaintiff’s scaffold; that the foreman’s (Larry McCabe’s) scaffold was 4 to 5 feet from plaintiff’s but connected to it with a 4-by-8-foot piece of plywood; that it was a windy day and, as plaintiff pulled down a piece of plywood, it “sailed,” hit plaintiff’s scaffold knocking one of the hangers from beneath the 4-by-4-inch cross bar, and that plaintiff and the scaffold fell to the floor below.

Tanner further testified that this sort of swinging scaffold had been used at the job site during the 2 months prior to the accident; that defendant’s assistant superintendent Wagner had on more than one occasion come to the area where the scaffolding was being used; that the witness had seen other of defendant’s supervisory people in the scaffolding area; and that he had had difficulty with the scaffolds prior to October 22, 1962.

On or about October 10, 1962, as Tanner was working on one of three scaffolds, a piece of plywood flew in the wind and knocked the hanger from beneath the 4-by-4-inch cross bar causing the scaffold to fall from under the witness. He grabbed a steel beam and swung in the air until someone brought him a ladder. Tanner stated that, immediately after his mishap, he walked over to defendant’s assistant superintendent Wagner and asked if there was any way to make the scaffold safer since he was afraid.

Approximately 3 to 4 days prior to the October 10 incident Tanner and one other man were stripping from the same scaffold. In order to remove a particular piece of plywood both men had to stand at one end of the scaffold and, as they pulled down the wood, it swung and knocked a hanger from under the cross bar. Tanner stated that assistant superintendent Wagner was present during this incident.

Tanner, who had been working for Adjustable at the site for about 2 months prior to the October 22 incident, testified about another such mishap which occurred about 3 weeks after Tanner had begun working at Argonne. One Ledbetter was working with Tanner on the scaffold and, as they pulled a piece of plywood from above them, it knocked the hanger from under the cross bar and the scaffold fell. As the witness began to recount yet one more mishap with the scaffold the trial court sustained defense counsel’s objection to such on the ground that, since the witness stated that in this incident, as in the one preceding it, both he and Ledbetter were on the same scaffold, the situation was not physically similar to the plaintiff’s accident since in the latter plaintiff was the only person on the scaffold. For this same reason the court instructed the jury to disregard Tanner’s testimony of all but the incident occurring on or about October 10, 1962, regardless of the fact that in each situation the scaffolds were similar.

On cross-examination the witness stated that the lower 4-by-4 cross bars were usually 12 feet long and that it was customary for them to overlap the hangers for a space of 4 to 6 inches.

Other witnesses testified on behalf of the plaintiff: e.g., a supervisor of Adjustable who testified concerning the physical characteristics of the subject scaffold; one Eden, an employee of Adjustable whose duties involved assembling and dismantling the scaffolds was not permitted to testify either as to whether there were guard rails on the scaffolds or as to a prior similar occurrence involving two men; and one Ledbetter who testified about the incident causing plaintiffs injury and to an incident which occurred in the presence of defendant’s assistant superintendent Wagner about 2 weeks prior to the subject incident.

Howard L. Sather, an orthopedic surgeon, testified that, having observed plaintiff in the hospital after the accident, he diagnosed the plaintiff’s injuries as a compression fracture of the right heel bone and a strain of the lower back. The plaintiff was hospitalized for approximately 2% weeks, used crutches for 3 to 4 months, and finally underwent surgery in May, 1963, to solidify the injured joints to prevent any movement and thereby eliminate the pain. In January, 1964, approximately 15 months after the accident, the witness recommended that the plaintiff return to some type of light work.

Charles H. Mann, president of defendant corporation, was called by the plaintiff as an adverse witness under section 60 of the Civil Practice Act. In October, 1962, the witness was vice-president of the defendant company and was also its general field superintendent which required him to travel from job to job in a supervisory capacity, inspecting the various jobs as they progressed. Mann stated that the defendant had entered into a contract with AEG and thereby became the general as well as prime contractor for the construction work at Argorme.

A general contractor, Mann testified, is responsible for the work of a subcontractor “insofar as it must agree with the plans and specifications” and it is customary within the building trade for the general contractor or his agent to inspect the work of the subcontractors. With regard to the Argonne job, the witness stated that he visited the site two to three times a week; that stripping had to be performed as part of the overall work; that he had made only a casual inspection of the hanging scaffolds, observing that the lower 4 x 4" cross bars extended from 12 to 18 inches beyond the scaffold hangers; that he had received no information that anyone other than plaintiff had been injured on the scaffolds; and that news of any such injury would come from either defendant’s accounting department or a Mr. Meuller, defendant’s field superintendent.

Plaintiffs counsel attempted to question Mann regarding health and safety rules and regulations governing the construction industry, but the trial court sustained defense counsel’s objection to the question on the ground that such rules are binding only between an employer and employee.

Plaintiff also requested that two paragraphs from defendant’s contract with the AEG be admitted into evidence. One paragraph obligated the defendant to have a full-time superintendent on the work site with authority to act for defendant. This provision, plaintiff argued, would demonstrate to the jury that defendant was obligated by contract to furnish a superintendent. The other paragraph required defendant to take all reasonable precautions to protect the health and safety of employees and the public and to comply with all health, safety, and fire protection regulations and requirements of the AEG. Again plaintiff’s counsel maintained that the jury should be aware of defendant’s contractual obligations with the AEG in order to determine the extent of defendant’s responsibility, i.e., whether it was “in charge of” the job. The trial court sustained defense counsel’s objection to the admission of the contractual provisions into evidence since, the court stated, the contract between defendant and the AEG was not relevant.

The trial court later sustained an objection to plaintiff’s counsel’s question to Mann as to whether defendant’s contract with the government required defendant to follow any specific safety regulations and further prevented plaintiff from introducing into evidence industry standards as set out in various manuals since such information was not “germane” considering the number of different trades a general contractor must supervise.

Mann acknowledged that there are “certain customs and practices which are known and accepted in the construction industry relative to the method of construction and erection of scaffolds.” He further stated that in Chicago in October, 1962, it was customary on this particular type of scaffold to securely fasten the hanger to the cross bar with a clamp or “U-bolt”; that it was not the custom or practice to provide guard rails or to secure planks so as to prevent slipping; and that it was customary to bridge one scaffold from another by planking.

David J. Brumley, a civil engineer, testified he worked for the AEG until 1965. While in the Commission’s employ he had held construction management positions, the last being chief of the project management and construction branch. As such he was associated with the project at Argonne where one of his project engineers followed the work on a daily basis and would report to the witness. The witness stated that he was familiar with the contracts between the government and those erecting the ZGS building; that defendant was the general contractor and, as such, it was “in charge of the construction, erection.”

Arnold K. Schrader, a civil engineer, testified on behalf of the plaintiff as an expert witness. The trial court prohibited counsel from questioning the witness regarding industry standards in their printed form, i.e., in a manual but allowed inquiry into the custom and practice of the industry concerning the assembly and use of the type of hanging scaffold involved in the plaintiff’s accident.

Explaining the customary method of constructing such a scaffold Schrader stated that, once the plank[s] forming the floor of the scaffold have been placed upon the two lower 4x4 cross bars, it

“[I]s spiked into the 4 x 4’s, and the hangers abut the planks; and either a pin is put through the 4x4 members supporting the plank or a blocking is applied to keep the hangers from shifting out.
# # #
Along with the completion of the platform there should be toe boards to keep things from coming off the stage or as a warning to anybody working on it that this is the edge of the scaffolding.
Also, safety rail should always be put on, on all four comers around the stage.”

On cross-examination the witness stated that it is customary in the industry to provide guard rails around scaffolds that are less than 10 feet above the ground and that his knowledge of such industry customs is based upon experience from only three jobs.

On re-direct plaintiff asked Schrader if his knowledge was based on any information other than past experience. Defendant’s objection to the question was sustained and plaintiff eventually made an offer of proof of the various industry standards through Schrader who testified that the American Standard Safety Code for Building Construction, the State of Illinois Health and Safety Act, and the Manual of Accident Prevention by the Associated General Contractors Association are all recognized standards within the construction industry. This offer of proof was denied.

Mann, testifying on behalf of the defendant, stated that Richard Wagner (the man mentioned by a number of plaintiff’s witnesses) had died before the trial; that clamps or U-bolts are used on the hanging scaffold when the scaffold is used in high places; and that, while he observed the type of scaffolding used to strip, he made no actual inspection of it since he had “a superintendent and various foremen on the job whose business it is to go into the details.”

John L. Meuller testified that he had worked as defendant’s field superintendent at the construction site of the ZGS building at Argonne; that it was his duty to see that the building was built in accordance with the plans and specifications; that the AEG was the building’s owner and defendant was the general contractor. Over plaintiffs objection Mueller was permitted to testify that, on occasion, the AEG sent representatives to the construction site. Although the witness had occasion to observe the employees of Adjustable working, he stated that no one had spoken to him regarding anything of an unusual nature concerning the scaffolding.

I.

Plaintiff urges that he was materially prejudiced by the rejection of evidence of two similar prior accidents. We agree.

Once Eligha Tanner had recounted the circumstances of the accident resulting in plaintiff’s injury, plaintiffs counsel sought to elicit from the witness testimony concerning prior unusual occurrences involving the same type of scaffold at the same site. Tanner did testify about one instance where he had been standing on a scaffold alone when a piece of plywood flew in the wind and knocked a hanger from beneath the 4-by-4-inch cross bar causing the scaffold to fall from under him. The witness then described two other occasions in which he and one other man were working on the same scaffold and, as they pulled down a piece of plywood from above them, it knocked a hanger from under the cross bar and the scaffold fell.

Pursuant to defense counsel’s objection, the trial court struck the testimony of these latter two occurrences, noting that there were two men on this scaffold and therefore altogether different from plaintiffs incident which involved only the plaintiff. As the witness began to describe yet one more incident the court interrupted:

“THE COURT: Were there two men on the scaffold again on this occurrence?
THE WITNESS: Yes, sir.
THE COURT: Same objection. Sustained.”

Our reading of the record indicates that the trial court ruled that the testimony of two prior similar occurrences be withheld from the jury’s consideration primarily because, at the time of the mishaps, two men rather than one, were standing on the scaffold and also apparently because the board which dislodged the hanger came from above the men rather than being propelled by the wind.

Plaintiff solicited this testimony for the expressed purpose of demonstrating that defendant had prior notice of the scaffold’s unsafe condition. It is well-established that evidence of prior similar occurrences is relevant for purposes of showing notice that it was not a safe, suitable and proper structure for the workmen. City of Chicago v. Jarvis (1907), 226 Ill. 614, 617, 80 N.E. 1079; Matteucci v. High School District No. 208 (1972), 4 Ill.App.3d 710, 716-17, 281 N.E.2d 383; Moore v. Jewel Tea Co. (1969), 116 Ill.App.2d 109, 129, 253 N.E.2d 636; City of Kankakee v. Phipps (1907), 135 Ill.App. 585, 586.

Defendant points out that the trial court did permit testimony of at least two prior accidents on the scaffold, one involving Tanner alone and the other involving Tanner and Ledbetter. However, in consideration of the significance of the issue of notice, we cannot speculate as to the impact, if any, this additional evidence might have on a jury. And, especially is this important when we consider the totality of the trial errors.

We believe that the crucial factor to determine the relevancy and admissibility of the rejected testimony concerning prior similar occurrences is whether those are reasonably similar. The rejected mishaps occurred on the same type of scaffold as that used by the plaintiff and occurred at the same location, i.e., the ZGS building. These incidents aré certainly pertinent to the issue of defendant’s knowledge of prior occurrences. Although it is significant that more than one man may have been standing on the scaffold, or that the board which eventually dislodged the hanger came from above or from a neighboring scaffold since, notwithstanding these factors, each prior occurrence was relevant evidence directed to the issue of the same inherent weakness of the particular type of scaffold in question. Accordingly, once the witness testified that the scaffold used in the prior instances was of the same type as that involved in plaintiffs accident and that each mishap occurred in the ZGS building, plaintiff’s counsel had established that reasonable similarity exists. In our opinion the trial court’s refusal to submit this evidence for the jury’s consideration constituted prejudicial error.

II.

Plaintiff maintains that he was materially and irreparably prejudiced by numerous rulings of the trial court which prevented him from submitting to the jury what he believed to be a quantity of relevant evidence. Plaintiff complains of the trial court’s refusal to admit into evidence certain provisions of the contract between the defendant and the AEG and its refusal to permit plaintiff’s counsel to question a number of witnesses regarding various industry standards.

During the course of the trial plaintiff’s counsel offered into evidence the following provisions of the defendant’s contract with the AEG:

“11. Superintendence by Contractor
The Contractor shall give his personal superintendence to the work or have a competent full time superintendent, satisfactory to the
Contracting Officer, on the work site, with authority to act for him.
***
29. Safety, Health and Fire Protection
The Contractor shall take all reasonable precautions in the performance of the work under this contract to protect the health and safety of employees and members of the public and to minimize danger from all hazards to life and property, and shall comply with all health, safety, and fire protection regulations and requirements * * * of the Commission * * *.
***
1 — 05. Definitions:
***
g. Unless otherwise shown or specified, all work shall conform to the applicable portions of the following list of specifications.
***
American Standards Association.
***
1 — 19. Scaffolding:
a. Contractor shall provide, erect and remove all scaffolding required by all trades in the execution of the Contract.
b. Scaffolding shall comply in all respects with the best practice of the trades for the protection of existing and current construction.
# # #
1 — 46. Safety and Fire Protection: Pursuant to General Provisions, Article Safety, Health and Fire Protection, compliance with the following codes and standards shall be considered minimum requirements:
a. American Safety Standards (American Standards Association) including Safety Code for Building Construction, ASA A10.2.”

Counsel sought to introduce these various contractual provisions in order to demonstrate that defendant was in charge of the job. Nonetheless, after lengthy discussion outside the presence of the jury, the trial court denied plaintiff’s counsel’s request to read these provisions to the jury and to question Charles Mann concerning them, reasoning that:

“This Court has taken the position that the Act itself provides the standards and the requirements of liability and duty insofar as the scaffolding is concerned.
This Court takes further the position that this is a contract between the original owner and general contractor, and therefore I believe that all of these matters are not germane insofar as this proceeding is concerned, and on that ground, I am going to not permit for any admission any of this contract.”

It has long been held that the objective of the Act is to provide protection to workers engaged in extrahazardous work. As our supreme court stated in Louis v. Barenfanger (1968), 39 Ill.2d 445, 448, 236 N.E.2d 724, “* * * it is well established that a general contractor in control of premises must furnish the employees of sub-contractors a safe place to work. See: 20 ALR2d 873.” As previously noted, the pleadings placed in dispute the applicability of the Act to the defendant and also the question of whether the defendant as general contractor was in fact “in charge of that portion of the building or that instrumentality which is alleged to be the cause of plaintiff’s injury.” The cited provisions of the contract between the defendant-genéral contractor and the owner certainly have a bearing on the question of “in charge.” In our opinion the trial court, by relying upon the provisions of the Act, erred in rejecting this evidence.

The trial court’s ruling further indicated that the provisions of defendant’s contract with the AEG were not relevant in an action between defendant and its subcontractor’s employee. Quite the contrary, as argued by plaintiff’s counsel in the court below and in this appeal, these contractual provisions are material to the issues of whether the defendant was “in charge of” construction and whether defendant reasonably should have known if the scaffolding used was unsafe. As stated by this court in O'Leary v. Siegel (1970), 120 Ill.App.2d 12, 19, 256 N.E.2d 127:

“The primary issue is whether, given the legislative intent evinced by the statute, the clauses [of the contract] relate to the question of [the general contractor’s] relationship with the job, and whether [the general contractor] could be deemed to have been ‘in charge of the jobsite. The standard for measuring the admissibility of evidence * * * encompasses all rights and duties of the defendant on the job, which do not unduly prejudice his case or cloud the issues, to the end that a proper determination of the relationship may be achieved. * * * The fact that some of the clauses outline defendant’s duties to the government in no way detracts from their usefulness in determination of the issues at hand, since the duties of a general contractor to the owner can be determinative of the issue of who was in charge of the jobsite.”

In O'Leary the defendant general contractor, appealing inter alia from a judgment in favor of the plaintiff-employee of its subcontractor, alleged as error the admission into evidence of a number of clauses from the contract between itself and the building owner, the general services administration of the United States government. Thus, in the instant case, the contractual provisions were relevant to the “in charge” issue and their admission into evidence would not have either unduly prejudiced defendant’s case or beclouded the issues.

The trial court further prevented plaintiff from questioning Mann and Schrader regarding various industry standards.

Counsel sought to introduce evidence of industry standards so as to demonstrate the proper method of constructing the particular scaffold in issue. An offer of proof of these standards was made through plaintiff’s expert witness, Schrader, who testified that the American Standard Safety Code for Building Construction, the State of Illinois Health and Safety Act, and the Manual of Accident Prevention by the Associated General Contractors Association are all recognized standards within the construction industry. This offer of proof was denied.

We believe the trial court erred in rejecting the proffered evidence of industry standards. As discussed previously, what shall constitute a “safe scaffold” depends upon the particular set of circumstances. The evidence tendered by the plaintiff was certainly relevant to that determination.

In Able v. Pure Oil Co. (1972), 8 Ill.App.3d 558, 564, 290 N.E.2d 331 this court recognized that such evidence is proper but declined to pass upon whether the trial court erroneously prevented the plaintiff from eliciting testimony concerning industry standards since the plaintiff made no offer of proof regarding sections of any documents relevant to the witness’ testimony.

Although the standards and regulations suggested by plaintiff do not conclusively determine the standard of care, such information aids the jury in deciding what was feasible and what the defendant knew or should have known. Darling v. Charleston Community Memorial Hospital (1965), 33 Ill.2d 326, 332, 211 N.E.2d 253.

Arguably the testimony concerning accepted customs and practices within the industry might have served this purpose and, if such were the case, evidence of formal industry standards would have been merely cumulative. As noted above, both Mann and Schrader testified as to industry custom. Defendant, by the terms of its contract with the AEG, was bound to follow the standards as set out by the American Standards Association. Consequently evidence of industry standards was not merely cumulative and could have been helpful to the jury in determining the extent of defendant’s responsibüity.

IH.

Plaintiff next contends that the trial court improperly submitted the following instruction to the jury:

“There was in force in the State of Illinois as [sz'c] the time of the occurrence in question, a certain statute titled the Structural Work Act, providing that all scaffolds erected or constructed by any person, firm or corporation in this state for the use in the erection of any building shall be erected and constructed in a safe, suitable and proper manner, and shall be so constructed as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon.
The Structural Work Act further provides that scaffold, or staging, swung or suspended from an overhead support more than twenty (20) feet from the ground or floor shall have, where practicable, a safety rail properly bolted, secured and braced, rising at least thirty-four (34) inches above the floor or main portion of such scaffolding or staging, and extending along the entire length of the outside and ends thereof, and properly attached thereto, and such scaffolding or staging shall be so fastened as to prevent the same from swaying from the building or structure.
The Structural Work Act further provides that any person, firm or corporation having charge of the erection of any building shall comply with all the terms of the Act, and that for any injury to person occasioned by any wilful violations of the Act, a right of action shall accrue to the party injured for any direct damages sustained thereby.”

In view of the fact that there had been no testimony that the particular scaffold in question was of a height in excess of 20 feet above the ground, plaintiff’s counsel objected to this instruction on the ground that the second paragraph was not supported by any evidence in the record. Plaintiff maintained that the instruction would give rise to a negative inference that the scaffold in question did not need a guardrail. The trial court nonethless disagreed commenting that:

“Paragraph two certainly expresses the intent of the legislature, that in scaffolding over 20 feet from the ground, that these particular items should be provided for, which is the standard set by the legislature as to the safe and proper erection of such a scaffold; no question about it.”

It appears that the trial court’s statement is premised upon an interpretation of section 1 of the Structural Work Act which provides in pertinent part:

“All scaffolds * * * erected or constructed by any person, firm or corporation in this State for the use in the erection *** of any * * * building * * * 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, * * *.
Scaffoldfing] * * * swung or suspended from an overhead support more than twenty (20) feet from the ground or floor shall have, where practicable, a safety rail properly bolted, secured and braced, rising a [at] least thirty-four (34) inches above the floor or main portion of such scaffolding # # and extending along the entire length of the outside and ends thereof, and properly attached thereto, and such scaffolding or staging shall be so fastened as to prevent the same from swaying from the building or structure.”

While this last paragraph of section 1 imposes particular safety standards for construction of swinging scaffolds suspended more than 20 feet above the ground, it had no application to the instant case since here the evidence clearly established that the scaffold was between five and seven feet above the ground. The first paragraph imposes only a general standard of care and, indeed, the legislature did not attempt to define what shall constitute a “safe scaffold” since such depends upon each particular set of circumstances. Louis v. Barenfanger (1968), 39 Ill.2d 445, 449, 236 N.E.2d 724.

Instructions to the jury must be predicated upon evidence in the case and any instruction not based on the evidence should not be given (Gibson v. Healy Bros. & Co. (1969), 109 Ill.App.2d 342, 354-55, 248 N.E.2d 771; I.L.P. Trial § 233). In the instant case the inclusion of the second paragraph in the instruction could only serve to confuse the jury. By instructing the jury as to the safety requirements set out in paragraph two of section 1 the court informed the jury of a specific statutory standard of care that was not applicable to the facts appearing in the record.

Defendant urges that even if this court concludes that the objectionable paragraph should not have been included in the instruction, its inclusion does not constitute reversible error since the jury was also instructed that all scaffolds must be constructed in a safe and suitable manner and that it could find a wilful violation of the statute only if it found from all the evidence that the scaffold in question was not safe, suitable, or proper.

We disagree with the defendant’s position and find that the submission of this instruction to the jury constituted reversible error.

IV.

Plaintiff also urges that the trial court erred in refusing to direct a verdict in his favor on the issue of liability as well as the court’s denial of plaintiffs motion for judgment notwithstanding the verdict. The errors noted previously in this opinion necessitate a reversal and remand for a new trial. On a re-trial there will be additional evidence presented; therefore, it is unnecessary at this time to discuss this point.

As to other evidentiary errors noted by the plaintiff, we are confident that on a re-trial the trial court will give appropriate consideration to the views expressed herein insofar as they may apply.

For the reasons set out herein the judgment of the circuit court of Cook County is reversed and the cause remanded for a new trial consistent with the views expressed herein.

Judgment reversed and remanded.

STAMOS and LEIGHTON, JJ., concur.


author: Mr. JUSTICE BARRETT

text:
    Contracting & Material Company, Plaintiff-Appellant, v. City of Chicago, Defendant-Appellee.
    (No. 58552;
    First District (5th Division)
    June 21, 1974.

      Robert G. Lussier, of Chicago, for appellant.
    Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Richard F. Friedman, Assistant Corporation Counsel, of counsel), for appellees.
   Mr. JUSTICE BARRETT

delivered the opinion of the court:

Plaintiff appeals from a judgment in a contract action following a bench trial. The trial court found: (a) that defendant did not breach its construction contract with plaintiff; (b) that defendant was not wrongful or inequitable in any of its dealings with plaintiff; and (c) that plaintiff breached the construction contract by failing to work two 8-hour shifts each day, 5 days a week during the times in question. In conclusion, the trial court found all issues in the case in favor of defendant and denied recovery by plaintiff.

We reverse the judgment.

On appeal, the basic issue is one of determining the respective rights and obligations of the parties under the terms of the construction contract. Specifically, we are asked to determine whether the contract gave plaintiff the right to time extensions and whether the so-called “delays damages clause” of the contract bars recovery in this case.

Originally, this action was brought by plaintiff in connection with a public construction contract for the South Lake Shore Drive Interchange in Chicago. The complaint contained two counts. Count I claimed $198,-261.55, plus interest for expenses incurred as a result of accelerating work during the time defendant was considering plaintiff’s requested extensions of time, and also during the period following defendant’s refusal. Count II claimed $143,125.89 allegedly owed to plaintiff as the 2 percent retained percentage of the contract price. During the trial, defendant agreed to pay the retained percentage of $143,125.89, and Count II was dismissed. When the case was finally submitted, plaintiff claimed a total of $185,830.64 plus interest dating from June 20, 1968.

The contract at issue was awarded to plaintiff after formal advertisement by the City. Defendant prepared all of the contract documents so that plaintiff merely filled in its original contract price calculation of $7,116,220.56. After adjustments, the final contract price was calculated at $7,154,572.56.

The contract was approved on July 7, 1965, and provided that the work was to be performed and completed within 450 calendar days from the date specified for commencement of the work. On July 14, 1965, defendant notified plaintiff to begin work on July 15, 1965. Consequently, the original completion date was October 8, 1966.

Plaintiff commenced work on the project on July 15, 1965, and proceeded until December 3, 1965, when defendant issued a written suspension order which directed plaintiff to halt work. In January, 1966, defendant lifted the suspension order and directed plaintiff to resume work. The resulting delay occasioned by the suspension order was 46 days. During the suspension period, first on December 10, 1965, and again after the suspension order was lifted on February 15, 1966, plaintiff requested that the date for completion of the contract be extended to offset the loss of time caused by defendant’s suspension order. Both requests were rejected by defendant, and the original completion date for the contract remained in effect.

A further delay was encountered when a strike, called by Local 150 of the Operating Engineers Union on April 9, 1966, halted all construction. The strike continued for 51 days and ended May 29, 1968. The resulting delay was 58 days. During the period of the strike and again on May 31, 1966, plaintiff requested an extension of time in order to compensate for work days lost because of the strike delay. Further requests for extensions of time were made in June, July and August, 1966. Despite the repeated requests by plaintiff for extensions of time equivalent to the time losses due to the two delays, defendant refused to extend the completion date of the contract. By a letter dated June 21, 1966, defendant denied the requested time extensions and further pointed out the express requirement in the contract that the contractor work two 8-hour shifts, 5 days per week as a prerequisite for extension allowances. Except for 3 or 4 days, plaintiff did not work two shifts a day.

During 1986, defendant maintained that the contract did not entitle plaintiff to any extension of time, and plaintiff was held to the original October 8, 1966, completion date. In August, 1966, in an effort to meet the unextended October 8, 1966, completion date, plaintiff accelerated its work schedule and began to work overtime hours on the project. Plaintiff submitted to defendant certified copies of payroll records as well as a series of letters specifying the premium portion of the overtime hours to be charged to defendant. In each instance, defendant indicated that it had checked the payrolls and found the amounts to be substantially correct.

The subject road was opened to traffic on November 1, 1966, although plaintiff’s overtime work continued until November 27, 1966. At that time, plaintiff was still being held to tire October 8, 1966, completion date. On January 21, 1967, defendant issued a contract modification which extended contract performance time 46 days to cover defendant’s suspension order. On July 12, 1967, defendant granted an extension of 58 days because of the strike delay. The completion date was ultimately extended to April 23, 1967. Although the work was not fully performed until July 24, 1967, defendant accepted this as the final completion date without any penalty to plaintiff.

In December, 1966, plaintiff submitted itemized invoices to defendant for expenses incurred due to overtime work. The amount submitted was $198,261.55. After the invoices were received by defendant, plaintiff was notified that the amount of its claim had been revised downward to $146,410.10, and that the City purchasing agent was being requested to issue a contract modification in the amount of $146,410.10 to cover the “contractors cost in the accelerated program.” Defendant’s reduction schedule attached to the invoice for plaintiff’s premium overtime eliminated certain supervisory personnel as not being participants in the accelerated effort and deleted overtime for November, 1966. Defendant claimed that the accelerated work period terminated on October 31, 1966.

On June 20, 1968, defendant further notified plaintiff that invoices had been submitted to the State of Illinois and the Bureau of Public Roads and that they had been returned marked, “non-participating” by the Federal government. Non-participation of the Federal government indicates that Federal funds are not available. After defendant learned of the non-availability of Federal funds, it refused to pay plaintiff for acceleration overtime expenses.

Plaintiff subsequently commenced the instant action to recover its claim for overtime expenses. The essence of plaintiff’s case is that defendant wrongfully and inequitably refused to extend the contract performance date to reflect delays caused by the 46-day suspension order and the 51-day strike. Plaintiff also contends that because it was held to the original completion date, it was forced into an abbreviated performance schedule which resulted in the overtime expenses claimed.

Defendant denies that it is liable to plaintiff for overtime expenses and it contends that the original performance date could have been extended only in the instance of City-ordered delay and' that in any event, working two shifts per day was a condition precedent to receiving an extension.

OPINION

On appeal, the first issue raised is whether plaintiff was entitled to an extension of performance time as a result of delays occasioned by the City-ordered suspension of work and the Operating Engineers’ strike.

In a contract construction case such as this, the contract must be considered in its total form. It is well established that:

“[A]n interpretation which gives a reasonable meaning to all parts of an instrument will be preferred to one which leaves a portion of it useless, inexplicable, inoperative, void, insignificant, meaningless or superfluous; nor should any provision be construed as being in conflict with another unless no other reasonable interpretation is possible.” Hol-Gar Manufacturing Corp. v. United States, 351 F.2d 972, at 979 (Ct.Cl. 1965). See also Puszczewicz v. American Oil Co., 6 Ill.App.3d 1053, 286 N.E.2d 529; Wheaton v. Bartlett, 105 Ill.App. 326; Egyptian Seed Growers Exchange v. Hollinger, 238 Ill.App. 178.

Under the terms of the contract (section 2), plaintiff was granted 450 days within which to complete the contract project. Plaintiff argues the 450-day performance period was subject to extensions because of two sections of the contract that appear in the Illinois Standard Specifications. Article 8.5A of the contract states that extensions of time- may be granted, inter alia, for strikes. Article 8.8 of the Illinois Standard Specifications permits the suspension of work upon order of the City. Based on articles 8.5A and 8.8, plaintiff contends that it was entitled to extensions of the original completion date to restore work days lost during the strike and the suspension order.

Although defendant does not deny that the contract is susceptible to extensions, it alleges that the extensions sought by plaintiff during the contract period were properly refused. The provisions of the contract that defendant relies on appear in section 120 of the City of Chicago Provisions and permit an extension of time for delays caused by the City, but permits no extension for other causes. It further provides that no damages shall be allowed for delays caused by the City. Section 2 of the City of Chicago Provisions states that those extensions of time permitted by section 120 wiU be disallowed if the contractor fails to work two 8-hour shifts daily.

Defendant argues: (1) that section 120 was intended to supersede all other sections of the contract governing causes for which extensions of time wiH be granted; (2) that section 120 allows for extensions for no other cause except City-ordered delay; and (3) that working two shifts is a condition precedent to receiving an extension of time. Defendant contends that because plaintiff failed to work two shifts per day, it was not entitled to extensions as requested. Thus, there is a contradiction between the Illinois Standard Specifications of the contract (which plaintiff claims permit an extension of time and recovery of expenses), and sections of the City of Chicago Provisions (which defendant claims absolutely deny liability except for City-caused delay and only then if the contractor works two shifts).

In the case of ambiguous or conflicting contract provisions an attempt must be made to construe the provisions of the contract so as to avoid finding any part of the contract a nullity. (Puszczewicz v. American Oil Co., 6 Ill.App.3d 1053, 286 N.E.2d 529.) Under the law, articles 8.8 and 8.5A must, if at all reasonably possible, be reconciled with section 120 and since articles 8.8 and 8.5A are viable provisions of the contract, due consideration must be given to the two articles in determining the circumstances under which plaintiff was entitled to time extensions. To do otherwise would give defendant potentially unlimited power to suspend work without a reciprocal obligation to grant appropriate extensions. Such a power could easily lead to absurd and unconscionable results. Under such an interpretation the City could reduce performance time at will by virtue of its own suspension order. It seems unreasonable that any contractor would begin performance of a contract job with the knowledge that the performance period could be substantially reduced because of fortuitous or unavoidable circumstances. The courts will “construe a contract as most equitable to the parties and will not give one of them an unfair advantage over the other. A construction that would lead to absurd results should be avoided.” Llewellyn v. Board of Education, 324 Ill. 254, 288, 154 N.E. 889.

Articles 8.8 and 8.5A must therefore be reconciled with section 120 so that each of the clauses can be given effect. Article 8.5A grants the contractor the right to a time extension for unforeseen causes or those beyond the control of or without the fault or negligence of the contractor. Under the provisions of article 8.5A, plaintiff had a right to time extensions for the general strike which stopped work in April, 1966. The strike was beyond the control of plaintiff and was not caused by any fault or negligence of plaintiff. Furthermore, strikes are included in the “unforeseen causes” provision of article 8.5A. Article 8.5A is a viable basis for granting extensions due to strike delays and since section 120 deals with city-caused delays and has meaning apart from article 8.5A it cannot supersede or negate the meaning of article 8.5A.

Likewise, article 8.8 entitled “Suspension of Work” has a meaning apart from section 120. Article 8.8 deals with suspensions, whereas section 120 deals with delay. Article 8.8 grants defendant the right to suspend work and hold the work in abeyance for the convenience of the City. Section 120 bars delay damages for the causes set forth therein. Article 8.8 expressly provides for recovery of costs incurred as a result of direct orders of suspension. It is quite possible that delays caused by City order under section 120 might occur under circumstances where reasonable men might disagree as to who should shoulder the cost burden of the delay. In this situation, the City is exculpated by section 120. However, in a situation where the City directly orders work stoppage, there is no doubt that the delay caused by this type of order should be the responsibility of the City. Clearly, article 8.8 indicates a credible distinction between the City-caused delays enumerated in section 120, and the suspension orders of article 8.8. Reasonably interpreted, section 120 is inapplicable to direct suspension orders. An 8.8 suspension order falls into the categoiy of a governmental act as provided for in article 8.5A. Under articles 8.8 and 8.5A, plaintiff had a right to a performance date extension because of the December, 1965 suspension order. Section 120 does not apply to the suspension order in the instant case.

By virtue of articles 8.5A and 8.8, plaintiff was entitled to time extensions for the strike and the City suspension order. This entitlement was not dependent upon or related to the provisions of section 120. Since plaintiff’s right to extensions of time for performance does not arise from section 120, the double shift requirement of that section does not affect its right to the requested time extensions.

Even if plaintiff were bound by the provisions of section 120, there are numerous factors which weaken the allegedly mandatory nature of the double-shift requirement. The contractor testified that night work was unsafe and led to low-quality construction. The working area was located on an elevated structure over Lake Shore Drive. Arguably, a man working on a narrow beam at night runs a great risk of falling or dropping something into the stream of traffic moving below. Furthermore, there was testimony by the contractor that there was no manpower available after the Operating Engineers’ strike. During the strike, there was such extensive unemployment that many individuals left the area. After the strike was over, there was a pronounced manpower shortage. When the contractor attempted to gather work forces, he was able to get only six people who would work on a night shift. In light of plaintiff’s good faith efforts to meet the double-shift requirement as well as the hazardous nature of the work involved, we reverse the finding of the trial court that plaintiff breached the contract by failing to work double shifts. In working overtime, plaintiff used the only means available to him for making up time lost during the strike and the suspension order.

Having held that plaintiff was entitled to the extensions it requested, we must now consider the effect of defendant’s refusal to grant the extensions until after the original completion date had passed. Plaintiff contends that because the delays were excusable in the eyes of the law and under the express terms of the contract, it was entitled to time extensions restoring the full amount of working time lost. However, on August 8, 1966, plaintiff received a letter from defendant which not only denied the requested extensions but also ordered contract completion according to the original schedule. Plaintiff contends that since it was entitled to more performance time, defendant’s action denying the extensions and holding plaintiff to the original contract completion date was tantamount to “acceleration.”

We agree.

The concept of contract acceleration is one that has not been directly dealt with in Illinois law. Although on opposite sides of the same coin, acceleration and delay are frequently and inappropriately interchanged. Generally speaking, the concept of “acceleration” is ignored and cases are decided in terms of “delay.” In this instant case, for example, plaintiff’s claim is characterized as “acceleration costs” by plaintiff, “delay damages” by defendant, and “acceleration damages” by the trial court.

Acceleration is the process by which the natural or ordinary progress of events is quickened. In the case of a contract, acceleration occurs when the contractor speeds up his work so that he is performing the job at a faster rate than prescribed in the original contract. Commonly, acceleration is achieved by working overtime or worldng double shifts. Acceleration costs, as claimed by plaintiff, are costs incurred by virtue of the acceleration.

Delay, on the other hand, occurs when there is a slowdown in work. Delays may be caused by either party to the contract. In the instant case, delays were caused by the strike and by the City’s suspension order. There is no issue as to fault or justifiability of the delays. The issue is whether plaintiff’s claim is based on costs of accelerating the performance to make up for the delays or on damages incurred because of the delays.

In order to justify a finding that work has been accelerated,

“There must be an express order or some action equivalent to an order to comply with the original completion date without regard to excusable delays.” Peter Kiewit and Sons Co., ASBCA, Nos. 9921 and 10440, 1969 BCA If 7510, p. 34811 (Jan. 30, 1969).

It is clear from the record that plaintiff was excusably delayed and was nonetheless directed by defendant to maintain the original progress schedule and completion dates. Evidence shows that by letter dated August 22, 1966, defendant told the contractor that it was essential for him to exert “whatever efforts are required” to meet the “established completion date of October 8, 1966.” When there is a refusal to recognize that an excusable delay has occurred and a refusal to grant a legitimate time extension and an insistence that the contractor is obligated to complete the work on the original completion date, the work has been constructively accelerated.

“The directions to the contractor to complete the work on time without regard to the excusable delays were the equivalent of an order to perform work at a rate faster than required by the contract.” Mechanical Utilities Inc., ASBCA, No. 7466, 1962 BCA f 3556, p. 18,030 (Oct. 31, 1962).

The instant case is clearly a direct example of acceleration and plaintiff’s claims in this suit are for increased costs due to the acceleration of the contract performance time.

“In seeking additional compensation for an acceleration of performance, the contractor has the burden of showing that it has encountered specific, excusable delays for which it is entitled to time extensions; that it has specificaUy requested and documented such extensions from the contracting officer; that the contracting officer failed or refused to grant the extensions; that the government caused the plaintiff to complete the work within the original contract period; and that the plaintiff actually accelerated its performance.” Nolan Brothers Inc., ENGBCA, No. 2796, 1970 BCA If 8, p. 38, 419 (April 28,1970).

After defendant told plaintiff to make whatever efforts were necessary to meet the October 8, 1966, deadline, plaintiff advised defendant that he would use premium overtime and expected to be reimbursed for this expense. Plaintiff then went ahead with the acceleration and submitted certified copies of payroll records each week to the City engineer. In every instance, defendant advised plaintiff that it had checked the payroH records and found the amounts to be substantially correct.

In a letter dated February 27, 1968, defendant stated that it had audited and corrected the bills for acceleration of the work and had made “determinations.” “We will, therefore, request the Purchasing Agent to issue a contract modification in the amount of a hundred forty six thousand four hundred ten dollars and ten cents to cover your cost in this accelerated program.” On the basis of this letter, defendant recognized plaintiff’s claim to costs of acceleration. Conspicuously absent in the letter is any characterization of the claim as delay damages.

When a contractor is delayed, he incurs additional costs. Some costs are directly related to stopping and starting up again, such as, protective maintenance of vital equipment. Other costs are so-called “stand-by” costs, such as, maintaining a field office, holding equipment on the site, and keeping salaried supervisors on the payroll. There are also costs which result purely from the passage of time, such as, increases in wages and prices. Mr. Cagney, vice president of plaintiff, testified specificaUy as to the additional costs of delay. He estimated that costs would run about $18,000 to $20,000 per month of delay. He also stated that such expenses or losses were not included in plaintiff’s claim against the City. The evidence which stands unrebutted in the record shows that no delay damages or losses were included in plaintiff’s claim.

In its decision, the lower court cited four cases as being controlling in this matter, and conclusive against plaintiff. The cases cited were Underground Construction Co. v. Sanitary District, 367 Ill. 360, 11 N.E. 2d 361; Herlihy Mid-Continent Co. v. Sanitary District, 390 Ill. 160, 60 N.E.2d 882; Ryan Co. v. Sanitary District, 390 Ill. 173, 60 N.E.2d 899; Unicon Management Corp. v. City of Chicago, 404 F.2d 627 ( 7th Cir. 1968). The aforementioned cases all deal with delay damages. None of the cases involves acceleration or a claim for costs of acceleration; therefore, none of the cases utilized by the trial court is precisely in point with the instant case.

In regard to the amount of plaintiff’s recovery, defendant has already admitted (in its letter of February 27, 1968) that a contract modification of $146,410.10 was appropriate to cover plaintiff’s costs in the “accelerated program.” By defendant’s own admission, therefore, the minimum recovery of plaintiff is $146,410.10. Further evidence must be adduced to determine whether or not plaintiff should be reimbursed for additional claims due to November overtime, 15 percent overhead and additional work materials.

Since payment of plaintiff’s claim was withheld because of a genuine and reasonable dispute, we hold that plaintiff is not entitled to recover interest. Watson Lumber Co. v. Guennewig, 79 Ill.App.2d 377, 226 N.E. 2d 270.

For the reasons stated above, we find that plaintiff has established its claim of acceleration and is entitled to recover costs incurred because of the acceleration effort. Accordingly, the judgment of the trial court is reversed and the cause is remanded with directions to vacate the judgment in favor of defendant and enter judgment in favor of plaintiff and to grant plaintiff a new trial on the issue of costs of acceleration only.

Judgment reversed and cause remanded with directions.

SULLIVAN, P. J., and DRUCKER, J., concur.

       Normally a federal contractor must take his claims to the United States Court of Claims. This can be a lengthy and costly process. An alternate procedural course has been established through a system of tribunals such as the Armed Services Board of Contract Appeals (ASBCA). The ASBCA has Jurisdiction to conduct judicial-type hearings to resolve claims arising under contract provisions.

       ENGBCA is the Engineers’ Board of Contracting Appeals.


author: Mr. JUSTICE DIXON

text:
    Ramona Caruso et al., Plaintiffs-Appellants, v. James Kazense, d/b/a Jim’s Place, et al., Defendants-Appellees.
    (No. 73-184;
    Third District
    June 28, 1974.

      Edward C. Moehle, of Moehle, Reardon, Smith and Associates, of Pekin, for appellants.
    Robert E. Manning, of Peoria, for appellees.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This action was brought to recover damages under the Dram Shop Act (Ill. Rev. Stat. 1971, ch. 43, par. 135). A jury gave a verdict for defendants upon which the Circuit Court of Tazewell County entered the judgment from which this appeal is taken.

The plaintiff, Ramona Caruso, is the wife of Ronald Caruso; Chad Caruso and Rhonda Caruso are the minor children of Ramona and Ronald. James Kazense is the owner-operator of Jim’s Place, a tavern in Creve Coeur, Illinois. Merle Smith is the owner of the premises occupied by the tavern.

On October 22, 1971, Ronald Caruso went to the Riverside Inn, in Creve Coeur at about 8 o’clock in the morning and stayed there until about 6 o’clock in the evening. He drank from 20 to 40 12-ounce bottles of beer and when he left the Riverview Inn he was admittedly intoxicated. He went directly from the Riverview Inn to Jim’s Place, arriving there sometime after 6 o’clock P.M. He was intoxicated when he arrived.

There was considerable testimony that he had something to drink while at Jim’s Place. Robert Neavill said he saw Ronald at the bar drinking a beer; Jerry Fehr said that Ronald first ordered a 7 and 7, and also had a 6-ounce glass of mixed peppermint schnapps, bourbon and rum, and he also saw Ronald drink 4 or 5 bourbon and rum drinks. Jack Vanderheydt, the bartender at Jim’s Place, stated that shortly after Ronald came in he ordered a beer and was told to help himself from a setup at the end of the bar, as it was free. He denied serving any mixed drinks to Ronald.

Donald Aeschilman said Ronald was drinking a beer. James Kazense, said he did not see Ronald have a drink, but there was beer all over the bar, he imagined that a beer in front of Ronald was Ronald’s. There were 50 to 80 people there for a surprise party for Jim. Ronald testified that he had beer and mixed drinks and peppermint schnapps at Jim’s Place. Nancy Britton testified that she saw Ronald drinking beer and she saw him leave with a couple of six-packs in a sack,

Ronald left Jim’s Place at about 9 P.M. He was intoxicated when he left. Almost immediately after leaving he became involved in an accident. The police found a six-pack of beer in his track after the accident.

Ronald Caruso had been steadily employed and had supported his wife and children. He suffered serious, permanent injuries as a result of the accident.

The plaintiffs contend:

1. That the trial court should have directed a verdict for plaintiffs and against defendants on the issue of liability.

2. That the verdict was against the weight of the evidence.

3. That the closing argument of defense counsel in referring to the absence of Melvin Russell (the operator of the Riverview Inn) as a defendant and arguing that it was Melvin Russell who was responsible, was improper.

Effective August 1, 1971, the Dram Shop Act was amended so that the provisions pertinent to issue now before us reads as follows:

“Every person who is injured in person or property by an intoxicated person, has a right of action in his own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication of such person. * * * An action shall lie for injuries to means of support * * * in consequence of the intoxication, habitual or otherwise, of any person resulting as aforesaid.” Ill. Rev. Stat. 1971, ch. 43, par. 135.

This amendment removed the words, “in whole or in part” so that thereafter liability is to be imposed only upon the person who caused the intoxication rather than on any person who contributed to such condition. Edenburn v. Riggins, 13 Ill.App.3d 830.

It is apparent that this most recent legislative change in the Act has limited the application of the Act which now only applies to those dram shops which “cause” the intoxication that results in injury. The phrase, “causes the intoxication” is not a technical legal term requiring definition. We note that IPI 150 et seq. (2d ed.) does not define the term. In the case at bar we believe that the question of whether the intoxication was the result of the serving of liquor by defendants was a question of fact for the jury.

Further, in an “in consequence” case such as we have here the intoxication must be a direct and proximate cause of the loss. (Danhof v. Osborne, 11 Ill.2d 77.) The question as to whether the injury proximately resulted from the intoxication is usually one for the jury. (Casey v. Burns, 7 Ill.App.2d 316.) If the injury is caused by some means attributable directly to the intoxication and to no other cause, then only can the court say as a matter of law that the intoxication caused the injury to means of support. The usual case presents a question of fact for the jury. (Lester v. Bugni, 316 Ill.App. 19; Jones v. Keilbach, 309 Ill.App. 233; Taylor v. Hughes, 17 Ill.App.2d 138.) In the instant case the only evidence as to the accident was testimony of Roy Wooding that he was driving in the right hand lane of a two-lane road, he saw a car stopped in the left-hand lane and he saw headlights (of Caruso) coming behind in the left-hand lane. As Caruso approached from behind he struck the auto stopped on the highway, cut across in front of Wooding, became airborne, and landed on top of some automobiles in a used-car lot. We believe the question of proximate cause herein to be a question of fact to be determined by the jury from consideration of all the evidence and that there was no error by the trial court in failing to direct a verdict for plaintiffs on the issue of liability.

We are not inclined to hold that the verdict herein was against the manifest weight of the evidence since without doubt Tony Caruso was intoxicated when he left the Riverside Inn and intoxicated when he arrived at defendant’s tavern. It was for the jury to say whether the intoxication was caused by liquor served by defendants. The issue could have been decided either way by the jury. Theesfeld v. Eilers, 122 Ill. App.2d 97.

In tire final argument of defense counsel the following statements were made: “It is applicable [Dram Shop Act] in this case to somebody but he is not here. # # * the wrong man is sitting at this table. There is an empty chair back there that should be filled by a man of the name of Russell who runs the Riverview Inn, because he is the man, and Iris employees and agents. They are the people who caused the intoxication of Mr. Caruso.”

The evidence at the trial, initiated by plaintiff, indicated that Caruso became intoxicated at the Riverview Inn. Defendants’ theory of defense was to show that the responsibility for causing the intoxication rested elsewhere. The remarks made in Hopwood v. Thomas Hoist Co., 71 Ill.App.2d 434, are in point. There the court said (pp. 443-4):

“Admittedly facts were included in this argument which tended to place the blame for the accident on Sumner Sollit. But the closing argument was merely one based upon evidence in the record. These facts were presented to the jury during the trial, and consequently a repetition of these was not so improper as to deprive plaintiffs of a fair trial. The jury was entitled to draw inferences from these facts to the effect that Thomas Hoist was not negligent, and if anyone was negligent, it was Sumner SoIIitt. * * * The purpose of a closing argument is to assist the jury in arriving at a verdict, with all facts presented fairly. Consideraable latitude of expression on anything that is in evidence must be allowed counsel. It is within the function of an advocate to argue that the client is not liable, which was the real purport of the allegedly improper argument in the instant case. * * * When arguing within the limits of admitted or uncontroverted facts, counsel should enjoy the greatest latitude consistent with decorum.”

We conclude that the comments in question were not improper in this case. See Dembinski v. F. & T. Corp., 124 Ill.App.2d 112.

For reasons stated the judgment of the Circuit Court of Tazewell County is affirmed.

Affirmed.

SCOTT, P. J., and ALLOY, J., concur.


text:
    Luke O. Edwards, Plaintiff-Appellee, v. Morton D. Willcutts, Jr., Defendant-Appellant.
    (No. 74-27;
    Third District
    June 28, 1974.

      Carl E. Hawkinson, of Barash and Stoerzbach, of Galesburg, for appellant.
    Robert McLaughlin, of McLaughlin & Hattery, of Galesburg, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Knox County, Illinois, denying a motion to open a judgment by confession.

The complaint of the plaintiff, Luke O. Edwards, alleged that he was the owner of a note dated June 1, 1971, executed and delivered by the defendant, Morton D. Willcutts, Jr., in the amount of $12,100, and that the following amounts remained due: $10,000 principal, $200 interest, and $910 attorney’s fees. The complaint was dated March 30, 1973, and was filed April 25, 1973, and judgment for $11,110 was entered May 2, 1973.

The note attached to the plaintiff’s complaint provided for payment of the sum of $12,100 in 12 monthly installments with interest at the rate of 2 percent per annum after maturity, authorized entry of judgment by confession, and permitted the addition of reasonable attorney fees and collection expenses.

The defendant thereafter filed a motion to open the judgment by confession, supported by his affidavit and accompanied by the verified answer he proposed to file. Attached to the affidavit was a copy of a note which was substantially the same as the note attached to the plaintiff’s complaint, but which was dated June 1, 1970.

The defendant, in his affidavit and in his answer, alleged that the 1970 note for $12,100 was given to secure a loan of $11,000 plus $1,100 prepaid interest for 1 year; that the 1971 note for $12,100 was given to secure the balance then remaining due, $11,091.63, plus $1,008.37 prepaid interest for 1 more year; that nothing else was given the defendant for his 1971 note; and that the rate of interest on each of the notes was therefore usurious. He also alleged, in his affidavit, that he and the plaintiff were not “in any of the relationships described” in subparagraphs (a) through (h) of section 4 of the statute on interest (Ill. Rev. Stat. 1973, ch. 74, sec. 4), and in his complaint he alleged that he and the plaintiff were “not included in- the exemptions stated” in Section 4 of that statute.

The plaintiff filed a motion to strike the defendant’s motion and supporting documents, on the grounds that the affidavit and the answer did not contain sufficient allegations of fact to establish the defense of usury and that they set forth conclusions rather than allegations of fact. The trial court allowed the motion of the plaintiff on November 7, 1973, for the reasons the plaintiff advanced, and confirmed its earlier judgment by confession, and this appeal by the defendant followed.

Supreme Court Rule 276 requires that a motion to open a judgment by confession be supported by affidavit in the manner provided by Rule 191, that the motion be accompanied by a verified answer which the defendant proposes to file, and that the motion and affidavit “disclose a prima facie defense on the merits * * (Ill. Rev. Stat. 1973, ch. 110A, sec. 276.) Supreme Court Rule 191 provides that affidavits “shall not consist of conclusions but of facts admissible in evidence.” (Ill. Rev. Stat. 1973, ch. 110A, sec. 191.) It appears to us that the affidavit of the defendant in this case adequately alleges facts showing the charging of interest in excess of the general interest rate (Ill. Rev. Stat. 1973, ch. 74, sec.4), the difference between $11,000 and the amount to be repaid being a charge beyond that permitted (see Winter & Hirsch, Inc. v. Passarelli, 122 Ill.App.2d 372, 378), and being properly characterized as usurious, unless the transaction happened to be within one of the exceptions set forth in the statute. The plaintiff maintains, regarding the exceptions, that the allegation that the defendant and he were not “in any of the relationships” described in the statute is a conclusion and not a statement of fact. This raises the question whether, in order to “disclose a prima facie defense on the merits,” it was necessary for the defendant to negate the various exceptions enumerated in the interest statute.

Although the principle does not appear to have been applied to this particular statute in the reported cases, it has often been stated that a party relying on a statute need not negative an exception or a proviso unless it is contained in the enacting clause rather than a subsequent clause. (See, e.g., People ex rel. Illinois Armory Board v. Kelly, 369 Ill. 280, 283-84; People ex rel. McCoy v. Douglas, 281 Ill. 478, 479-80; 2 Nichols, Illinois Civil Practice § 978 (1961 rev. ed.); Annot., 130 A.L.R. 440.) We find, accordingly, that a party relying on the interest statute need not negative the various exceptions provided therein after the establishment of the general interest rate (see 3 Callaghan’s Illinois Civil Practice Forms § 61.151), and hold that the defendant in this case had no obligation to do so.

We add that in our opinion the defendant sufficiently negatived the statute’s exceptions anyway, having stated, though somewhat cryptically, what would have been no more informative if spelled out in detail.

It is our opinion that the defendant’s motion, affidavit, and complaint contained sufficient allegations for their purpose. Any surplus language which might be conclusions can be ignored. (Atlanta National Bank v. Johnson Tractor Sales, 130 Ill.App.2d 793, 795.) If there are controverted issues of fact, they should be resolved in a trial on the merits. Standard Bank & Trust Co. v. Cooper, 100 Ill.App.2d 42.

For the reasons stated the judgment of the Circuit Court of Knox County is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

ALLOY and STOUDER, JJ., concur.


author: Mr. JUSTICE CREBS

text:
    Maurice Campbell et al., d/b/a Campbell Grain & Seed Company, Plaintiffs-Appellants, v. Frank Yokel et al., Defendants-Appellees.
    (No. 73-415;
    Fifth District
    June 28, 1974.

      Philip C. Quindry, of Albion, for appellants.
    Joseph T. Scott, of Grayville, for appellees.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Edwards County granting defendants’ motion for a summary judgment and dismissing plaintiffs’ complaint.

Plaintiffs, owners and operators of the Campbell Grain and Seed Company, alleged in the complaint that they had reached an oral agreement on February 7, 1973, with the defendant farmers. It was alleged that the defendants agreed to sell and the plaintiffs agreed to purchase 6,800 to 7,200 bushels of yellow soybeans at a price of $5.30 per bushel. Defendants admit that such an agreement was reached but maintain that the agreement was tentative and was not intended to be binding unless a written contract was signed. After the conversation between plaintiffs and defendants on February 7, 1973, the plaintiffs signed and mailed to the defendants a written confirmation of the oral agreement. Defendants received the written confirmation but did not sign it or give any notice of objection to its contents to the plaintiffs.

On March 9, 1973, the defendants signed a written request with the Agricultural Stabilization and Conservation Service seeking permission to sell 6,900 bushels of soybeans. The Agricultural Stabilization and Conservation Service possessed a lien on the soybeans, and its permission was needed before the defendants could sell. The request form signed by the defendants did not mention the plaintiffs, but, for an unknown reason, the Agricultural Stabilization and Conservation Service mailed a copy of the form to the plaintiffs.

Defendants refused to deliver any soybeans to the plaintiffs and on April 30, 1973, informed the plaintiffs that, since the defendants did not sign the written confirmation, they did not feel bound by any agreement.

Plaintiffs’ complaint requested damages or, in the alternative, specific performance of the alleged contract. Defendants’ motion for summary judgment was based upon the pleadings and asserted the statute of frauds as a defense. The circuit court granted the summary judgment motion holding that, because the statute of frauds was a defense to the complaint, there was no genuine issue as to any material fact and that the defendants were not “merchants” within the meaning of section 2 — 201(2) the Uniform Commercial Code (Ill. Rev. Stat. ch. 26, sec. 2 — 201(2)).

Section 2 — 201 of the Code (Ill. Rev. Stat. ch. 26, sec. 2 — 201) provides:

“(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within 10 days after it is received.”

Plaintiffs contend that the court erred in finding that the defendant farmers were not “merchants” and that section 2 — 201(2) was not applicable. We agree.

Very few reviewing courts have attempted to resolve the question of whether a farmer is a “merchant” within the meaning of the various provisions of the Uniform Commercial Code. In Cook Grains, Inc. v. Fallis, 239 Ark. 962, 395 S.W.2d 555, a case factually similar to the instant case, the Arkansas Supreme Court held that a farmer is not a “merchant” when he is acting in the capacity of a farmer and that he is acting in such a capacity when he is attempting to sell the commodities that he has raised. In Oloffson v. Coomer, 11 Ill.App.3d 918, 296 N.E.2d 871, the appellate court stated, by dictum, that a farmer in the business of growing grain is not a “merchant” with respect to the merchandising of that grain.

We disagree with the decisions in Cook Grains and Oloffson and feel that the reviewing courts in those cases failed to properly interpret the Uniform Commercial Code definition of “merchant.” Section 2 — 104(1) of the Code (Ill. Rev. Stat. ch. 26, sec. 2 — 104(1)) states:

“(1) ‘Merchant’ means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.”

Growing crops are “goods” within the meaning of article 2 of the Commercial Code (Ill. Rev. Stat., ch. 26, sec. 2 — 105(1)). The above definition of “merchant” leads us to the conclusion that a farmer may be considered a merchant in some instances and that one of those instances exists when the farmer is a person “who deals in goods of the kind * * * involved in the transaction.”

The defendants in the instant case have admitted in discovery depositions that they have grown and sold soybeans and other grains for several years. They have sold to the plaintiffs and to other grain companies in the past. We believe that a farmer who regularly sells his crops is a person “who deals in goods of that kind.”

The authors of the comments to the Uniform Commercial Code state that the term “merchant” applies to a “professional in business” rather than to a “casual or inexperienced seller or buyer.” (S.H.A., ch. 26, sec. 2 — 104, Uniform Commercial Code, Comments 1 and 2.) The defendants admittedly were not “casual or inexperienced” sellers. We believe that farmers who regularly market their crops are “professionals” in that business and are “merchants” when they are selling those crops.

Our decision does not place a great burden on farmers. As the comments to section 2 — 104 point out, the provisions in article 2 of the Commercial Code dealing with “merchants” involve “normal business practices which are or ought to be typical of and familiar to any person in business.” The practices involved are “non-specialized business practices such as answering mail.” (S.H.A., ch. 26, sec. 2 — 104, Uniform Commercial Code, Comment 2.) Placing this small burden upon farmers in certain instances lessens the possibility that the statute of frauds would be used as an instrument of fraud. For example, assuming that an oral agreement had been reached in the instant case, that the farmers had received the written confirmation signed by the plaintiffs and that the farmers were not “merchants,” the farmers would be in a position to speculate on a contract to which the grain company was bound. If the market price fell after the agreement had been reached, the farmers could produc the written confirmation and enforce the contract. If the market price rose, the farmers could claim the protection of the statute of frauds and sell his crop on the open market. Our holding reduces the possibility of this type of practice in cases in which the farmer is a person who regularly sells crops of the kind involved in the transaction at hand.

In Ohio Grain Co. v. Swisshelm, (Ohio App.2d) (N.E.2d) (Court of Appeals of Greene County, rendered Dec. 5, 1973), the court held that a farmer was a “merchant” when he sold his soybean crop to a grain company.

In Fear Ranches, Inc. v. Berry, 470 F.2d 905 (10th Cir. 1972), the plaintiff, purchased cattle from defendant Perschbacker who had purchased the cattle from defendant Berry. When tire plaintiff discovered that the cattle were diseased, he brought suit against the defendants alleging a breach of an implied warranty of fitness. One of the issues raised was whether the defendants were merchants under the Uniform Commercial Code. Perschbacker was active as a buyer and seller of cattle and was found to be a merchant. Berry was a rancher who had been in the business of selling his cattle to meat packers. His sale to Perschbacker was his first sale to a non-packer. The Court of Appeals found that Berry was not a merchant with respect to his sale to Perschbacker because the sale of cattle for resale was the sale of a different type of goods and was a different type of business than was the sale of beef for slaughter. The court’s opinion suggests, although it does not specifically state, that Berry would have been a merchant with respect to the sale to Perschbacker if he had been in the business of raising cattle and selling them for resale. The analogy to the instant case is obvious. The defendants were in tire business of growing soybeans and other grains and selling their crops to grain companies. They should be considered merchants, therefore, with respect to such sales.

For the foregoing reasons, we hold that the court erred when it determined that the defendants were not merchants. Our decision is not tantamount to a finding that a contract did exist between the plaintiffs and defendants. We hold merely that, since the defendants were merchants, section 2 — 201(2) operates to bar the defendants from asserting the defense of the statutes of frauds. The burden of pursuading the trier of fact that an oral contract was in fact made prior to the written confirmation is unaffected. (See S.H.A. ch. 26, sec. 2 — 201, Uniform Commercial, Code, Comment 3; Illinois Code Comment, subsection 2.) The cause, therefore, is remanded with directions that the Circuit Court of Edwards County proceed in accordance with the views herein expressed.

Reversed and remanded with directions.

G. MORAN, P. J., and CARTER, J., concur.