author: Mr. JUSTICE DRUCKER

text:
    Margaret L. Gerlach, as Admr. et al., Plaintiffs, v. Pepper Construction Company et al., Defendants,—(Pepper Construction Company, Third-Party Plaintiff-Appellant, v. Continental Electric Company, Third-Party Defendant-Appellee.)
    (No. 54460;
    First District
    — October 22, 1971.
    Rehearing denied November 22, 1971.

      Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago, (William H. Symmes and John M. O’Connor, Jr., of counsel,) for third-party plaintiff-appellant.
    Jerome M. Brooks and Gilbert Gordon, of Chicago, for third-party defendant-appellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Albert J. Gerlach (hereafter “Gerlach”), an electrician, working for Continental Electric Company (hereafter “Continental”), sustained fatal injuries while working on a job wherein Pepper Construction Company (hereafter “Pepper”) was the general contractor. Gerlach’s widow and children sued Pepper under the Structural Work Act. (Ill. Rev. Stat. 1961, ch. 48, par. 60-69.) Pepper answered Gerlach’s complaint and brought a third-party action against Gerlach’s employer, Continental. In its third-party complaint Pepper alleged that if the Gerlachs received a verdict it would be the obligation of Continental to satisfy any judgment since (1) Continental was guilty of active negligence and Pepper was guilty only of passive negligence and (2) Gerlach’s accidental death resulted from Continental’s breach of promise to do the electrical work in compliance with its purchase order and the plans and specifications. Subsequently, by agreement of the parties to the original complaint, a judgment was entered against Pepper and in favor of Margaret Gerlach and her children in the sum of $112,000, which judgment was satisfied in open court.

The third-party action then proceeded to trial on Pepper’s third-party complaint. At the close of Pepper’s evidence Continental moved for a directed verdict which was denied. At the close of all evidence both Pepper and Continental moved for directed verdicts in their favor. The trial court denied their motions. The case went to the jury which found in favor of Continental. Peppers post-trial motion was denied.

On appeal Pepper contends: (1) that the trial court erred by denying its motion for a directed verdict; and (2) that the trial court erred by denying its post-trial motion for a new trial.

The evidence disclosed that on April 11, 1962, Gerlach, a journeyman electrician, was working for Continental on remodeling a building at 522 North Michigan Avenue, Chicago. Pepper was the general contractor on the job. At about 1:30 P.M. Gerlach climbed a ladder to a place where his feet were about six to eight feet above the ground. Gerlach cut a tie wire attached to a structural ceiling which was holding one side of a four by ten foot piece of plaster weighing several hundred pounds. The piece of plaster swung away from Gerlach after he cut the wire, then swung back toward him, broke away from the ceiling and hit the lower part of the ladder causing Gerlach to fall and suffer injuries from which he died.

Testimony of Cameron Sipple, called by Pepper under Section 60:

He is an electrical estimator for Continental. Exhibit 3 for identification was probably a copy of the purchase order. (More details of his testimony regarding this exhibit appear hereafter.)

Testimony of Walter Popowski, called by Pepper under Section 60:

He is a journeyman electrician and foreman for Continental. At about 10:00 A.M. on April 11, 1962, he assigned Gerlach and Bennett, two Continental employees, to the first floor of the 522 North Michigan Avenue Building where remodeling work was being performed. Before 10:00 A.M. Gerlach and Bennett had been engaged elsewhere in the building working for Continental. He told Gerlach and Bennett to run a two inch feeder line across the ceiling from a panel box down to a column. The line was to run across the ceiling from the northwest corner of the area to the column. The distance was about thirty feet.

With regard to the instructions that he gave, the witness said, “Usually a journeyman, you don’t tell how to do every little specific thing. A journeyman knows his job and he does it. You tell them to run from this point to this point.” A journeyman’s job includes electrical wrecking.

He did not remember if he looked at the ceiling to see if it was clear before Gerlach and Bennett started to work. He might have seen the soffit (the underside part of the ceiling) before the accident but he did not discuss it with Gerlach. He did not talk to Gerlach about the piece of plaster in the ceiling.

He must have seen the plaster when he told Gerlach to take his pipe from one side to the other but he did nothing about it. It is actually the job of the general contractor to do all wrecking not pertaining to electricity. His journeymen electricians take their orders from him. He made no request of Pepper to remove the plaster.

Testimony of William Bennett, called by Pepper under section 60:

In 1962 he was an apprentice electrician employed by Continental. On April 11, 1962, he was working in a building at 522 North Michigan with Gerlach. Walter Popowski gave them their assignments. While Gerlach and he were working, Gerlach cut a wire causing a piece of plaster to fall. Gerlach was standing on a ladder for thirty seconds before he cut the wire which held the plaster. Gerlach had to look at the wire before he could cut it. Gerlach intended to cut the wire. The plaster swung away, broke loose and hit the ladder knocking Gerlach to the floor. The accident occurred around 1:30 P.M. When Gerlach cut the wire Frank Romanelli was present.

Testimony of Frank Romanelli, called by Pepper:

In April 1962 he was a carpenter foreman for Pepper. He did not talk to any of Continental’s men on April 11, 1962, before Gerlach’s accident. He never told Continental’s men what to do or when to do it. He demolished everything that was supposed to come down according to the plans and specifications.

The four by ten foot piece of plaster was no longer hidden once he removed the ceiling. This piece of plaster was exposed for ten days to two weeks once the ceiling covering it came down. However, he' did not consider this plaster dangerous or he would have cut it down.

Continental started its electrical demolition at practically the same time Pepper began its work. Continental’s job was to deaden wires and remove conduit (pipe).

The piece of plaster which fell was suspended by laths and hangers. He was fifteen or twenty feet away from Gerlach when the accident occurred.

Testimony of William Bennett, called by Continental:

After being assigned the task of running pipeline by Popowski, Gerlach and he located the necessary materials and proceeded to mount the lighting panel on the wall. Once the panel was mounted it had to be fed a two-inch pipe by hanging the pipe to the ceiling. They finished with a portion of the pipe when they reached the plaster piece in the ceiling. Gerlach asked Romanelli if this section of the ceiling was coming down and Romanelli said yes, it was, so Gerlach in turn asked, “Can we take it down?” Romanelli answered, “Go ahead, cut it down.”

He considered the placement of the A-frame ladder Gerlach used to be safe. April 11th was Gerlach’s and his first day on the job at the 522 North Michigan Avenue Building. He noticed the plaster before the accident occurred.

Popowski told them what work was to be done. Even though the witness was aware of the plaster he never asked anybody from Pepper to remove it. If Gerlach moved the ladder before he climbed up to cut the wire it was only a matter of inches. The removal of plaster is not an electrician’s job.

Looking back today, he would say that the placement of the ladder by Gerlach was not safe. The piece of plaster which fell from the ceiling severed the back legs of the ladder. The plaster fell because Gerlach intentionally cut the tie wire.

Testimony of Walter Popowski, called by Continental:

In April 1962 he was Continental’s foreman on the job at 522 North Michigan Avenue. Pepper’s general foreman, Romanelli, coordinated the work of the trades. Romanelli gave the orders and told the witness when his men could work. April 11th was Bennett’s and Gerlach’s first day of work at this building. He never instructed Gerlach or Bennett to do anything about the four by ten foot piece of plaster. He might have mentioned the ceiling to Gerlach but it was nothing specific. A journeyman with a good apprentice knows what to do. “You tell them what to do and that’s it. They know what to do.”

He felt the section Gerlach and Bennett were working on before the accident occurred to be safe. Continental’s men received their orders from him. Romanelli is a carpenter and the witness’ men are electricians and therefore Romanelli is not going to tell electricians how to do their work. Between the various trades no one tells another trade how and when to do his work.

Testimony of Frank Romanelli, called by Continental under Section 60:

He did not consider the four by ten foot section of plaster dangerous or he would have done something about it. He did not know whether he saw Gerlach fall.

On November 13, 1968, at approximately 12:15 P.M., the jury commenced its deliberations upon receipt of the instructions from the trial court. At approximately 5:35 P.M. the jury sent a written communication to the trial judge reading: “We cannot reach a decision according to law. Does plaintiff have to prove defendant 100% at fault to make him liable?” The trial court advised the jury that it could not answer the question since the jury had been instructed as to the law. Shortly thereafter the jury returned a verdict in favor of third-party defendant.

Opinion

Pepper first contends that the trial court erred in denying its motion for a directed verdict. Pepper argues that under the theory of “active-passive indemnity” set out in Count I there was no issue of fact for the jury to decide and therefore the trial court should have granted its motion for a directed verdict. However, we conclude that the conflicting evidence concerning the circumstances surrounding the cutting of the wire raised issues of fact.

In Wrobel v. Trapani, 129 Ill.App.2d 306, at page 316, the question presented for review was whether the evidence supported Trapani’s active-passive theory of the case, and this court concluded:

In our opinion, this conflict in the evidence presented a question of credibility — and, thus, an issue of fact — which could properly have been resolved only by the jury. It relates materially to the factual determination necessary to a correct application of the active-passive rule as a basis for indemnity.

In Miller v. DeWitt, 37 Ill.2d 273, 291, the court, in reversing a dismissal of a third-party complaint based on a violation of the Scaffold Act, discussed the basic principles of accountability under that Act. It quoted from Rovekamp v. Central Const. Co., 45 Ill.App.2d 441, 449, where the court stated that:

“[although the liability imposed by the [Structural Work] Act does not rest upon negligence, there can be degrees of fault among those who, under the Act, are accountable to an injured plaintiff. Who is the more culpable, a party who supervises and coordinates the overall project, or a party who is responsible for the scaffolding and the particular work which produced the injury? Both are in charge of the work, to be sure, but of different phases of the work. Neither can escape liability to the [injured] plaintiff — thus the purpose of the Act is accomplished — but the lesser delinquent, if held accountable by the plaintiff, can transfer its statutory liability to the active delinquent, whose dereliction from duty brought about plaintiff’s injury.
We accordingly conclude that this is a proper case for a third-party complaint and that the trial court erred in dismissing the architect’s third-party complaint on motion without presenting the issue to the jury.” (Emphasis supplied.) Citing cases.

See also Lambert v. Velo & Co., 268 N.E.2d 170.

In the instant case we believe that Pepper’s theory of “active-passive indemnity” was a question of fact to be decided by the jury under proper instructions. Therefore, we find that the trial court properly denied Pepper’s motion for a directed verdict on Count I.

Pepper also contends that it was entitled to a directed verdict on Count II because of Continental’s breach of the following obligations under its contract:

“To perform all necessary wrecking in the electrical work;
To comply with all laws governing the electrical work;
To follow the work of others and to accept the work of the contractors it followed;
To furnish all labor, materials, and equipment to complete the electrical installation.”

The cardinal question in the instant case is whether Pepper or Continental was the more culpable party in regard to the matter of the cutting of the wire under the then existing circumstances. We again hold that this presented an issue of fact under the conflicting evidence and therefore find no error in the denial of Peppers motion for a directed verdict as to Count II.

In Skezas v. Safway Steel Products, Inc., 85 Ill.App.2d, 295, the court held that in order to recover for a breach of contract the third-party plaintiff must do more than set forth the contractual language and the occurrence of an incident. It also held that “[t]he injury must be tied to specific acts or omissions in contravention of the contract provision for this action [breach of contract] to Me.”

Pepper next contends that the trial court should have granted a new trial because the court erred in substituting Exhibit 3A for identification (an order form for the work in question which contained no stamped indemnification provision) for Exhibit 3 (an order form which did have stamped thereon a contractual indemnification clause) and further erred in striking Count III of its amended third-party complaint which was grounded on the contractual indemnification stamped on Exhibit 3. Continental, however, argues (1) that the trial court properly substituted Exhibit 3A for identification for Exhibit 3 since the witness’ identification of Exhibit 3 was tenuous and uncertain, the document was iHegible and the document was not a valid contract obligating Continental to its terms; and (2) that the trial court properly struck Count III of Pepper’s amended third-party complaint since Pepper’s amended third-party complaint failed to attach the alleged written agreement citing Ill. Rev. Stat. 1967, ch. 110, par. 36, Exhibits.

John Sipple, an electrical estimator for Continental, testified concerning Pepper’s Exhibit 3 marked for identification which was a typed purchase order from Pepper to Continental stating the date, March 30, 1962; job No. 3795; amount $7,700; description, “Do Electrical work as per plans and specifications Plus extra work for changes; CONFIRMATION”; and at the bottom reading “No 9935 rev.” The purchase order also had stamped on it three paragraphs, the first of which dealt with the subcontractor’s (Continental’s) duty to provide insurance protection. Under the second and third paragraphs the subcontractor (Continental) agreed to indemnify and save harmless Contractor (Pepper) against all liability.

The following questioning of Sipple by Pepper’s attorney under section 60 occurred at trial:

“Q. I ask you to examine 3rd Party Plaintiff’s Exhibit 3 for identification and ask you if that is a copy of the purchase order?

A. It probably is. I don’t recognize it off-hand. But we usually do

receive purchase orders.

Q. That is the one under which the work was performed?

A. Yes.”

Continental’s attorney asked to be heard outside the presence of the jury. Continental argued that the stamp on Exhibit 3 for identification, having to do with indemnity, was put on after April 11, 1962, the date of Gerlach’s accidental death.

Thereafter, in the presence of the jury, Sipple testified that while he did not have the original purchase order under which the work of Continental was performed. Pepper’s Exhibit 3 for identification was probable received by Continental on April 1, 1962. Pepper then proffered Exhibit 3 for identification in evidence. Continental objected. Pepper then asked to be heard outside the presence of the jury. The trial judge then stated: “You may substitute for the time being. # * # The ruling is that I will admit it with the confirmation [sic] stamped on it.” Later the court admitted Exhibit 3 subject to the objection “pertaining to this stamp that is on the yellow copy of Exhibit 3.” The record shows Exhibit 3 for identification with “for identification” lined out and Exhibit 3A for identification, purportedly the original purchase order without the indemnification stamp, as not admitted into evidence.

The argument in chambers indicated that the trial court actually admitted Exhibit 3 “subject to” Continental’s objection to the indemnification stamp thereon and the case proceeded but with Exhibit 3A for identification (without the stamped indemnification) substituted for Exhibit 3. The substitution was made without any evidence being heard with respect to Exhibit 3A. Since Sipple had testified that he had received Exhibit 3 with the indemnification clause on April 1 and that it was the order under which the work was done, it should have been admitted into evidence. If Continental had evidence to show that Exhibit 3 was not sent out until April 11 and that the contract was closed without the indemnity clause, it should have presented such evidence.

We find that the trial court erred in substituting Exhibit 3A for identification for Exhibit 3 because Exhibit 3 was the only exhibit testified to by Sipple as the purchase order Continental received. Under the indemnity clause stamped on Exhibit 3 Continental’s liability was clear. Therefore, the judgment will be reversed and the cause remanded for a new trial.

At the close of all the evidence, the trial court permitted Pepper to file an amended third-party complaint including Count III which was based upon the indemnification stamp appearing in Exhibit 3. On motion of Continental Count III was stricken. Count III was based on the indemnity agreement and was therefore improperly stricken. The trial court is directed to vacate the order striking Count III.

Continental’s contention that Count III was properly stricken because Pepper failed to attach a copy of the purchase order thereto was not raised in its motion to strike Count III. Therefore, it cannot now be considered for the first time on appeal. Senese v. City of Chicago, 88 Ill.App.2d 178.

Since we have heretofore determined that a new trial is necessary based on the tidal court’s erroneous substitution of exhibits without supporting testimony and the subsequent striking of Count III of Pepper’s amended third-party complaint aUeging contractual indemnity, we need not consider the remainder of Pepper’s new trial argument.

We would point out one area of concern which may be clarified on a new trial. Pepper’s Instruction 8 to the jury concerned the theory of active-passive conduct of Pepper and Continental. This instruction was refused by the trial court. Pepper claims this instruction was based on Chicago and Ill. Midland Ry. Co. v. Evans Const. Co., 32 Ill.2d 600. Instruction 8 stated:

“The fact that Pepper Construction Company may have been liable in damages for the death of Albert J. Gerlach does not bar it from recovering the amount it paid from Continental Electrical Construction Company.
It is the policy of the law in this State that the person whose fault was the primary cause of a loss should bear the ultimate liability.
Sometimes the courts say that the active causer of the injury should reimburse those who are passively liable. This means that when the law makes one person responsible for the act of another, once such a person pays a claim arising from the act of another for which he is liable by law, the payer can recover the amount of the payment from the one whose act caused the injury and required the payment.
Sometimes the courts say that when several persons are liable for an act because of a statute, the one who performs the act that causes the injury is primarily hable. Those who do not actually perform the act, but who are still responsible for it, are said to be secondarily hable. If those who are secondarily liable pay damages resulting from the primary act, they may recover the amount of the payment from the primary person who performed the act causing the damage.
In reaching your verdict, you have the right and duty to inquire into the relative actions of the Pepper Construction Company and Continental Electrical Construction Company and to administer justice between them, placing the ultimate liability upon the one which was guilty of the clearly higher degree of fault. If you find from the evidence that it was Continental Electrical Construction Company, then Pepper Construction Company is entitled to recover from Continental Electrical Construction Company the amount Pepper Construction Company paid in damages for the death of Albert J. Gerlach.”

Peppers Instruction 11 which was given over objection by Continental provided:

“You are instructed that the word “active” means action and is the opposite of passive; and the word “passive” means inactive, consisting in endurance or submission, rather than action.”

Instruction 8 was properly refused for a number of reasons including the fact that it confusingly uses the terms “primary cause,” “active causer,” “passively liable,” “primarily liable,” “secondarily liable” and “higher degree of fault.’ Instruction 11, however, only defines the words “active” and “passive.” While both Instructions 8 and 11 refer to active and passive conduct, nowhere do they state that if Continental is actively hable and Pepper passively hable then Continental must reimburse Pepper.

If on a new trial of this cause of action the active-passive theory of indemnity is again rehed upon for recovery, the instructions to the jury should not only define the active-passive theory of indemnity but also state its apphcation and effect.

The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

ENGLISH, P. J., and LORENZ, J., concur.

       Although some words in the stamped portion of the purchase order are not clearly imprinted, the gist thereof is clear.


source: Caselaw Access Project

author: Mr. JUSTICE LYONS.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. O’Dell Mitchell, Defendant-Appellant.
    (No. 54714;
    First District
    — October 26, 1971,

      W. Getty, Public Defender, of Chicago, (Judith S. Smith and loherty, Assistant Public Defenders, of counsel,) for appellant.
    V. Hanrahan, State’s Attorney, of Chicago, (Robert A. No-George Pappas, Assistant State’s Attorneys, of counsel,) for >
   Mr.

Mr. JUSTICE LYONS.


author: Mr. PRESIDING JUSTICE ADESKO.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ivory Anderson, Defendant-Appellant.
    (No. 54752;
    First District
    — October 26, 1971.
   Mr.

Mr. PRESIDING JUSTICE ADESKO.

Gerald W. Getty, Public Defender, of Chicago, (Lee T. Hettinger and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.

Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Arthur Belkind, Assistant State’s Attorneys, of counsel,) for the People.


author: Mr. PRESIDING JUSTICE BURKE

text:
    Edward Gomez, Plaintiff-Appellee, v. Resolute Insurance Co., Defendant-Appellant.
    (No. 54771;
    First District
    — October 26, 1971.

      Cohen and Wollack and Lapping, Niederman & Facktor, aU of Chicago, (Steven E. WoHack, Ray Jeffrey Cohen & Alan I. Lapping, of counsel,) for appeHant.
    Steven C. Spencer, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

This was an action brought by plaintiff, Edward Gomez to enforce the terms of an insurance policy issued to plaintiff by defendant. After a bench trial, judgment was entered for plaintiff and against defendant in the amount of $2,140.00, plus costs. Defendant appeals.

It appears from the record that on March 6, 1966, the defendant issued a policy insuring plaintiff’s automobile against loss or damage resulting from among other things, fire. At the time the policy of insurance was issued, plaintiff resided at 1719 South Racine Avenue, Chicago. On July 4, 1966, plaintiff’s automobile was destroyed by fire. Plaintiff, on February 17, 1969, filed the instant complaint alleging in paragraph (1): That on March 6, 1966, defendant issued plaintiff a policy insuring plaintiff’s automobile against loss or damage resulting from, inter alia, fire; in paragraph (2), that at the time the said policy was issued, plaintiff was the owner of the automobile so insured; in paragraph (3), that on July 4, 1966, the automobile was destroyed by fire and plaintiff sustained a loss in the amount of $2,750.00; in paragraph (4), that on July 7, 1966, plaintiff gave defendant written notice of the occurrence; in paragraph (5), that the automobile was not covered by any other policy of insurance; and in paragraph (6), that plaintiff performed all obligations required of him by virtue of the terms of the policy, but nevertheless, the defendant refuses to reimburse plaintiff for the loss.

In its answer, defendant admitted the allegations in paragraph (1) of the complaint; neither admitted nor denied the allegations in paragraphs (2), (3), and (5) of plaintiff’s complaint, and denied the allegations in paragraphs (4) and (6) of the complaint. In addition, defendant affirmatively alleged that “* * * the plaintiff has not kept and/or performed all the things necessary under said policy and among other things, specifically didn’t advise the defendant of a change of his address which is a violation of the terms of the policy and material factor in underwriting this risk; further, the plaintiff didn’t cooperate with the insurance company in the investigation of this alleged loss, although repeatedly requested to do so.”

At the initial stage of the trial, the parties agreed that the Supplementary Police Report, the Recovered Vehicle Supplementary Report and the Motor Vehicle Theft Report, all of which were prepared by the Chicago Police Department, would be received in evidence by the court, without qualification or reservation. The Report of Proceedings indicates that these documents were offered and received in evidence.

The Supplementary Police Report indicates that on the evening of July 3, 1966, plaintiff parked his automobile at 1931 West Erie Street, that the following day, it was discovered to be missing, and that the automobile was found later that day at 1311 West Fillmore Street, its interior having been destroyed by fire.

The Recovered Vehicle Supplementary Report indicates, inter alia, that the interior and roof of the automobile had been destroyed by fire, that its front and rear were also damaged, that the vehicle had been stolen from 2039 South Trumbull Avenue, Chicago, and that subsequent to its discovery on Fillmore Street, it was removed to the police pound.

The Motor Vehicle Theft Report states among other things, that the location of the occurrence was 1931 West Erie Street, and the value of the vehicle to be $2,215.00.

At the trial, plaintiff testified that on July 3, 1966, he parked his car in front of his home at 1931 West Erie Street, Chicago. Plaintiff further stated that upon discovering that his auto was missing he telephoned the Police Department, a Mr. Don Murray, who was his insurance broker, and a Mr. Ray Hartnett, an insurance adjuster who had negotiated previous claims which plaintiff had against defendant. It appears that Mr. Hartnett instructed plaintiff to obtain a release from the police pound so that the car could be retrieved by the insurance company.

On cross-examination, plaintiff testified that he resided at the address indicated on his insurance policy for several weeks subsequent to its issuance, and that he never notified the company of his subsequent changes of address. Plaintiff further testified that he never submitted a written report of the incident, or a Proof of Loss. Regarding the discrepancy of addresses indicated on the various Police Reports, plaintiff stated that the police did not question him at home, but at his sister-in-law’s house located at 2039 South Trumbull Avenue, Chicago.

At the conclusion of plaintiff’s case-in-chief, defendant moved for a finding against plaintiff, contending that the evidence established that plaintiff violated the insurance contract by not notifying the insurer of his changes of address and in failing to submit a written report and Proof of Loss. In addition, defendant contended that the plaintiff failed to establish the value of the automobile prior to the time of its destruction. The trial judge, in denying defendant’s motion, stated that there would be no basis for ruling that plaintiff violated the terms of the insurance contract due to the fact that the portions of the contract allegedly containing the provisions violated, were never offered in evidence or submitted to the court for examination. The court also found that the telephone call to Mr. Hartnett constituted sufficient notice and that plaintiff made out a prima facie case by virtue of the evidence presented and the admissions contained in the defendant’s answer.

It is defendant’s contention on appeal that plaintiff is precluded from enforcing his insurance contract due to the fact that he failed to file a written report and a Proof of Loss. Defendant also contends that the failure of plaintiff to report his changes of address and prove the value of his car also preclude recovery. We disagree.

Regarding the contentions relating to plaintiff’s failure to submit a written report, a Proof of Loss, and his failure to notify the company of his changes of address, the portions of the policy which allegedly contained these requirements were never offered in evidence. A prerequisite to a decision that a contract of insurance has been violated is that the court be apprised of the requirements of the contract. The trial judge, not having had the opportunity to examine the insurance contract, or otherwise be informed of its contents, was not in a position to rule that it had been violated.

Defendant is also precluded from complaining of plaintiff’s failure to submit a written report and Proof of Loss due to the fact that it did not plead the alleged lack of notice. (Maltby v. The Empire Auto Ins. Assn., 239 Ill.App. 532; Mowery v. Washington Nat. Ins. Co., 289 Ill.App. 443. These points were not at issue and were therefore waived. Briggs v. Bankers Accident Ins. Co., 214 Ill.App. 181.

Appellant’s final contention is that plaintiff failed to prove the value of his car prior to the time of its loss and destruction. The exhibit indicating the value of the car at the time it was stolen was admitted in evidence without qualification. Defendant therefore, is not now in a position to question the admissibility of that document. (McElroy v. Force, 38 Ill.2d 528.) In determining the damages to be awarded, the trial judge had the right to consider the Police Report so admitted by agreement and in doing so, did not commit error. It is the rule that incompetent evidence may be considered for what it is worth when it is offered and received in evidence without objection. Ascher Bros. v. Industrial Com., 311 Ill. 258.

The issue of the value of plaintiff’s automobile was a question of fact to be resolved by the trial judge on the basis of all the evidence presented. The record reveals no evidence which would contradict the value indicated on the report, or otherwise impeach the report as evidence establishing the value of the plaintiff’s automobile. We cannot say that the judgment is manifestly against the weight of the evidence, and it is affirmed.

Judgment affirmed.

LYONS and GOLDBERG, JJ„ concur.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Henry Davis, Defendant-Appellee.
    (No. 54842;
    First District
    — October 26, 1971.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Assistant State’s Attorney, of counsel,) for the People.
    Gerald W. Getty, Public Defender, of Chicago, (Elliot M. Samuels and James J. Doherty, Assistant Public Defenders, of counsel,) for appellee.
   Opinion by

Mr. JUSTICE LYONS.


author: Mr. JUSTICE STAMOS

text:
    Veronica Scully et al., Plaintiffs-Appellees, Appellants-Cross-Appellants, v. Otis Elevator Company, et al., Defendants-Appellants-Cross-Appellees—(J. L. Simmons Company, Inc., Counter-Plaintiff-Appellant.)
    (No. 53867;
    First District
    — October 12, 1971.

      Rehearing denied November 9,1971.

      John J. Sulhvan and William J. Harte, both of Chicago, for appeHants.
    Forrest L. Tozer, Thomas W. Dempsey, and Clausen, Hirsh, MiUer & Gorman, aU of Chicago, for appeHees.
   Mr. JUSTICE STAMOS

deHvered the opinion of the court: Plaintiffs, as widow and lineal heirs of the decedent Robert ScuHy, instituted this action against defendants aHeging violations of the Structural Work Act (IU. Rev. Stat. 1961, ch. 48, par. 60-69.) Defendants in the cause were Otis Elevator Company, J. L. Simmons Co., Inc. and the architectural firm of Berners, Scober & Kffp. A counter-claim for indemnity was also instituted by Simmons against Otis. The jury found in favor of plaintiffs and against Otis and Simmons. Damages were assessed at $400,000 in favor of plaintiff Veronica ScuHy and $150,000 in favor of each of the minor plaintiffs. The jury also found in favor of Berners, Schober & Kilp and against plaintiffs. On the counter-claim the jury found in favor of counter-defendant Otis and against counter-plaintiff Simmons.

Plaintiffs and defendants, Otis and Simmons, aH filed post-trial motions requesting judgments notwithstanding the verdicts or in the alternative, new trials. In its post-trial motion, Otis also requested a remittitur as alternative relief. The trial court denied aH the post-trial motions contingent upon the two minor plaintiffs, by their mother and next friend, filing written consents in reduction of judgment. The consents to remittitur were filed and the court entered judgments in favor of plaintiff Veronica ScuHy in the amount of $400,000; in favor of the minor plaintiff John Scully in the amount of $95,000; and in favor of the minor plaintiff Kathleen ScuHy in the amount of $105,000. Otis appeals from the judgments entered against it and in favor of the plaintiffs. Simmons appeals from the judgments entered against it and in favor of the plaintiffs and counter-defendant Otis. Plaintiffs cross-appeal from the entry of the remittitur.

The evidence reveals that defendant, Berners, Schober & Kilp, was hired to design an addition to St. Joseph’s Hospital in Joliet, Illinois. It was to prepare preliminary plans and prime contract and generally administer construction. Eleven prime contracts were awarded in the construction of the addition. No sub-contracts were involved. Two of these contracts were awarded to defendants Simmons and Otis. Simmons contracted with the hospital to handle all of the general work including excavation, masonry, concrete and finishing. Simmons was also directed by the architects to prepare a critical path schedule of the work in order to coordinate the efforts of the other contractors. Otis contracted to install eight elevators and dumbwaiters. The Simmons and Otis contracts provided that Simmons was to prepare the shafts for tire installation of the elevators.

On July 25, 1962, Robert Stein, an architect, told James Dempsey, Otis’ foreman, that he wanted Otis to work on elevator shafts six and seven, since the bricklayers and terrazzo men were being delayed in their work schedules in that area. However, Dempsey informed Stein that Otis could not work on those shafts because Simmons had constructed a bricklayers’ scaffold over shaft seven at the eighth floor. Later the same day, Vern Castell, Simmons’ Construction Superintendent, informed Dempsey that he would make arrangements with his bricklayer foreman, James Delaney, to prepare for Otis’ work.

The next morning at 8:30 A.M. Dempsey told Delaney that openings would have to be cut in the scaffold over shaft seven to enable Otis to proceed with the installation of the elevators. The openings were necessary so that plumb lines could be dropped into the shaft to accurately align the elevator guide rails. Dempsey also told Delaney that there would be men working beneath the scaffold in the shaft cleaning out the pit which extended seven feet below basement level. The pit had been designed to accommodate equipment capable of stopping an elevator’s descent. Delany at first objected to the opening of the holes for safety reasons, but eventually consented. Dempsey told Simmons’ carpenters the size and location of the required openings. After the openings were cut some of Simmons’ bricklayers placed pallets of bricks on the scaffold to facilitate their work in the area. They also took the metal retaining bands off the pallets. Dempsey went to the tenth floor and dropped four plumb lines in shaft six and four plumb lines in shaft seven. The plumb lines extended from the tenth floor, through the openings in the scaffold, to the basement.

Dempsey intended to anchor the plumb lines in the basement. However, when he went to the basement, he discovered that Simmons’ laborers were cleaning out the elevator pit. When Dempsey discovered Simmons’ workers in the pit, he warned them that bricklayers were working above them on the scaffold. Since Dempsey was unable to proceed with the measurements until the pit was cleaned, he returned to shaft one where he had been working previously.

Later in the day Dempsey returned to the pit in shaft seven and learned that the Simmons’ workers were unable to dry the pit due to a drainage problem. Castell asked Scully, plaintiffs’ decedent and a plumber, to help with the problem. Scully obtained a test plug and handed it down to one of the men in the pit. As he leaned over to look into the pit, he was struck on the head and fatally injured by a brick which fell from the scaffold. The only bricklayers working in the shaft were on the eighth floor scaffold. On the eighth floor Delaney had seen two or three bricks fall through one of the openings in the scaffold. The bricks fell because of the vibration caused by the hydraulic buggy that Simmons’ workers were using to carry the brick pallets. Shortly before the accident, Melville Anderson, Simmons’ masonry foreman and Delaney’s superior, had seen the openings in the scaffold and told someone to cover them. The openings were again ordered to be covered by Delaney just before the accident.

Otis contends that there was no proof that it had “charge” of the work within the meaning of section 9 of the Structural Work Act, hence it is entitled to a judgment notwithstanding the verdict. Alternatively Otis contends that it is entitled to a new trial, since the verdict finding it liable under the Act was against the manifest weight of the evidence.

Section 9 of the Structural Work Act renders liable, “any * * * contractor * * * having charge of the erection, construction, repairing, [or] alteration * * * of any building * # * within the provisions of this act,” who wilfully violate its provisions.

In Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, the court was confronted with the issue of whether there was a need to instruct jurors with the definition of the statutory words “having charge of.” The court stated at page 323:

“We do not believe such a need exists. It is well established that the meaning of words, used in their conventional sense, need not be defined or explained in giving instructions to the jury, [cited authority.] The term “having charge of’ is one of common usage and understanding, and it is our opinion that further attempt at definition can only lead to confusion and error.”

From the evidence the jury could have reasonably concluded that Otis was in charge of that segment of the work in the area of shafts six and seven involving the installation of elevators which resulted in Scully’s death. Otis was bound by its contract with the owners of the hospital to install the elevators. To facilitate the work of the other contractors Otis began work in shafts six and seven. Otis’ foreman Dempsey directed the Simmons employees in the area to clean out the elevator pit. He also directed them to cut openings in the scaffold which rendered it unsafe. Dempsey testified that he was in charge of the work to the extent of preparing the Simmons scaffold for the elevator installation. Moreover, it appears that Dempsey was in charge of the complete operations of the elevator installation. The mere fact that Simmons was also present in the same work area fulfilling its contractual obligations does not absolve Otis of liability. It is now well settled that more than one person can be in “charge.” Gannon v. Chicago, Milwaukee, St. Paul and Pacific Co. (1961), 22 Ill.2d 305.

Otis also suggests that since Simmons could have properly refused to cut the openings in the scaffold, Otis was not truly in “charge.” We do not find this argument meritorious. While Simmons was also in “charge” of work in the area and violated its duty to render safe the scaffold, the direction to alter the scaffold was supplied by Otis. This direction touched Otis’ area of work and Otis must necessarily be deemed to have been in “charge” irrespective of the alternative courses of action open to Simmons.

Therefore, the trial judge correctly denied Otis’ motion for judgment n.o.v. The evidence when viewed in its aspect most favorable to plaintiffs did not so overwhelmingly favor Otis that no contrary verdict could stand. (Pedrick v. Peoria and Eastern RR. Co., 37 Ill.2d 494.) Moreover, the verdict of the jury was not clearly and palpably erroneous or against the manifest weight of the evidence so as to warrant a new trial. Russell v. Rowe, 82 Ill.App.2d 445.

Otis next contends that the trial court erred in instructing the jury as to the provisions of the Structural Work Act. Specifically, Otis cites Plaintiffs’ Instructions 15A, 17 c and 18 which substituted “work” and “work in question” for the statutory language of having charge of the “erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of this act.” Otis also contends that the peremptory burden of proof instruction (Plaintiffs’ Instruction 17c) was further misleading because it did not tell the jury that plaintiffs were required to show that Otis was in charge at the time of the accident.

Instructions are to be considered as a series. (Miller v. DeWitt, 59 Ill.App.2d 38.) When so considered in the present case we find no error. Plaintiffs’ Instruction 13A paraphrased the provisions of the Structural Work Act and in particular utilized the exact language omitted in the instructions complained of.

Otis maintains that the “redeeming” effect of Plaintiffs’ Instruction 13A was obliterated by final argument of plaintiffs’ counsel wherein he stated that the substance of the Structural Work Act was contained in the burden of proof instructions. However, since the jury was instructed to consider the instructions as a whole, we find no prejudice accruing to Otis.

We similarly find Otis’ contentions with regard to Plaintiffs’ Instruction 17c without merit. Otis maintains that the court erred in failing to instruct the jury that plaintiffs had to prove each defendant had charge at the time of the accident. Otis deems the time factor critical to the issues of the case and cites Campione v. Henry C. Lytton & Co., 57 Ill.App.2d 147, 158. However, in Campione the defendant had left the premises and could no longer have been in charge. In the present case Otis was still on the job site and had not finished its work in shafts six and seven. Otis’ plumb lines were still suspended in the shafts. Otis’ foreman was at the scene of the accident inspecting the elevator pit. Therefore, no issue as to time existed. Otis was either in charge at all times herein pertinent or never in charge.

Otis next contends that the trial court erred in refusing to submit Otis’ special interrogatory which read:

“Do you find from the evidence that Otis Elevator Company was in charge of the erection or construction at the time and place of the accident in question?”

Plaintiffs maintain that the court properly refused the special interrogatory since it could have misled the jury. Plaintiffs reason that the interrogatory could not test the general verdict since it did not reflect the applicable case law under the Structural Work Act which only requires a party to have charge of a phase of the erection or construction to be deemed liable.

Special interrogatories are used to test the general verdict against the jury’s conclusions concerning the ultimate controlling facts. (Ill. Rev. Stat. 1969 ch. 110 par. 65; Mathias v. Baltimore & O. R. Co., 93 Ill.App.2d 258.) When a special interrogatory is in proper form, the trial court has no discretion but to submit it to the jury. (Pushauer v. Demers, 86 Ill.App.2d 251.) However, the special interrogatory must relate to an ultimate issue of fact. (Mathias, supra.) While Otis’ special interrogatory was couched in the language of the Act, it did not relate to an ultimate issue of fact, because a negative answer would not be determinative of whether Otis was in charge within the meaning and intent of the Structural Work Act as defined by case law. Therefore, the special interrogatory could not have tested the general verdict and the trial court properly refused to submit it to the jury.

Otis next contends that the trial court erred in submitting to the jury Plaintiffs' Instructions 15A and 17c, since each singled out and emphasized certain evidence to the prejudice of Otis. Plaintiffs’ Instruction 15A related to the issues in the case and in its pertinent parts read:

“The plaintiffs claim that Robert Scully was injured while working on the premises of St. Joseph’s Hospital, employed as a plumber of the plumbing contractors, and died subsequently as a result of those injuries.

Plaintiffs further allege that the defendants, and each of them, were in charge of the work in question, and that Robert Scully’s death was proximately caused by one or more of the following violations of the Structural Work Act:

(a) The scaffold used in erection and construction of the building was not erected, constructed, placed and operated as to give proper and adequate protection to the life and limb of any person passing under or by the same.
(b) The scaffold used in erection and construction of the building was not erected, constructed, placed and operated in such manner as to prevent the falling of any material that may be used or deposited thereon.
(c) There were holes in the scaffold contrary to the custom and practice in the industry.
(d) The holes in the scaffold were not covered nor were barricades placed around them to prevent the falling of material placed on the scaffold.”

Plaintiffs’ Instruction 17c was the burden of proof instruction which in its pertinent parts read:

“Plaintiffs have the burden of proving each of the following propositions as to each of the defendants:
First: that the defendant violated the Structural Work Act in one of the ways claimed by the plaintiffs as stated to you in these instructions; * *

Otis reasons that there were many other facts in addition to the holes in the scaffold which combined to cause the accident; that of all the facts that combined to cause the accident, the holes were the only one which Otis had anything to do with and that therefore, since holes were the only factor mentioned in the instructions, Otis was unduly prejudiced.

Other facts which Otis cites as having induced the accident are the architect’s directions to Otis to start work in shafts six and seven; the act of Simmons in continuing the bricklaying after the openings were cut; Simmons bringing brick pallets on the scaffold; Simmons taking the bands off the pallets and Simmons vibration of the unbanded pallets. While it might have been error to exclude these factors we need not decide the issue on that basis for no prejudice accrued to Otis. The other facts cited by Otis did not relate to Otis’ liability, but rather to that of the other defendants. Obviously, Otis was not unduly singled out from the other defendants, since the jury also returned a verdict against Simmons. Therefore, we do not find Otis’ contention meritorious.

Otis next contends that plaintiffs’ counsel’s cross-examination of Dempsey, Otis’ foreman, was so prejudicial as to require a new trial. Plaintiffs called Dempsey to testify under Section 60 of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110 par. 60.) Plaintiffs’ counsel repeatedly questioned Dempsey as to his knowledge of tire Structural Work Act. Otis’ counsel objected on nine separate occasions to this line of inquiry and the court sustained five of these objections. Dempsey’s knowledge of the Structural Work Act was irrelevant to any issue in the case. Moreover, plaintiffs’ counsel’s repeated inquiries into this irrelevant matter was improper.

However, while such questioning was improper we find no prejudice accruing to Otis which would require reversal. The sole issue for the jury’s determination with regard to the existence of Otis’ liability was whether it was in charge within the meaning of the Structural Work Act. We have already held that there was sufficient evidence from which I the jury could have reasonably concluded that Otis was in charge. I

Otis next contends that it was error to admit into evidence Plaintiffs’ I Exhibit #5 and that the error was subsequently compounded by the I argument of the attorneys for plaintiffs and Simmons. Dempsey, Otis’ I foreman, had testified that two working days after the accident the I plumb lines were still suspended in shaft seven and that no further I work was done in the shaft until two months later. Subsequently, plain- I tiffs called Otto E. Sporer, who testified that he had taken the picture I labeled Plaintiffs’ Exhibit #5; that it portrays an elevator shaft on the I eighth floor of the construction site at St. Joseph’s Hospital ten days ■ after the accident, and that the picture was taken for Simmons. Plaintiffs I then offered the picture into evidence for the limited purposes of show- I ing the appearance of pallets, center beams and shafts and to impeach I Dempseys testimony wherein he allegedly stated that the plumb lines remained in place for two months. Otis objected to the admission of the picture and a conference was held outside the presence of the jury. The trial court sustained Otis’ objection insofar as it contained matter which might impeach Dempsey’s testimony. However, the court allowed its admission to show the appearance of pallets, center boards and shafts and to show the general appearance of the area ten days after the accident.

During closing argument Otis’ counsel referred to the picture and pointed out to the jury that there was a hole in the scaffold shown in the picture. Otis’ counsel asked the jmy to consider this in relation to the evidence of Simmons’ seeming concern over safety. In obvious rebuttal to this argument Simmons' counsel commented that it could be inferred that the hole was still present ten days after the accident because the Coroner might be interested in viewing the scene as it was the day of the accident. Otis contends that even though the jury was directed to disregard the colloquy relating to the picture as impeachment of Dempsey's testimony, its admission into evidence and the remarks of Simmons' counsel were constant reminders that plaintiffs' counsel had maintained that the picture contradicted Dempsey's testimony. We find no merit in this contention. Plaintiff's Exhibit #5 could not have impeached Dempsey's testimony since Dempsey did not state that the plumb lines remained in place at all times during the two month period following the accident. Additionally since the plumb lines were only one-sixteenth of an inch thick, there was no showing that the picture would have portrayed the lines even if they had been present.

After plaintiffs' counsel stated that the picture impeached Dempsey's testimony, it was within the discretion of the trial court to exclude it from evidence or admit it for the limited purpose of pictorial reproductions of the objects of interest (pallets, center beams, and shafts) with direction to the jury to disregard counsel's remarks. (Baggett v. Ashland Oil & Refining Co., 92 Ill.App.2d 433.) We find no abuse of this discretion. Moreover, it is to be presumed that the jury followed the direction of the court. Danile v. Oak Park Arms Hotel, Inc., 55 Ill.App.2d 2.

With regard to the remarks of Simmons' counsel which Otis contends compounded the original prejudice, these were made only in response to those made by Otis' counsel who himself violated the ruling of the court utilizing the picture beyond the limited purpose enunciated. Otis cannot now complain about such invited response. Schneider v. Kirk, 83 Ill.App.2d 170.

Otis next contends that the voir dire examination of prospective jurors by plaintiffs’ attorney was so prejudicial that a new trial is required. Otis had presented a motion in limine to the trial court to instruct plaintiffs’ counsel not to mention any specific sum of money during voir dire. The court denied Otis’ motion and stated, “the plaintiff may so inquire, within the limitation, of course, of not fixing as certain an amount in the minds of the jurors.”

During the course of voir dire, plaintiffs’ counsel used the figure of $600,000 in framing questions to the prospective jurors. Otis contends that the usage of this figure in the context of the questions propounded indoctrinated each juror into thinking that an award for a lesser sum would be unjust and unfair.

The figure of $600,000 was utilized six times in framing questions to the prospective jurors. Counsel inquired whether the figure of $600,000 was a figure the prospective jurors “could not possibly consider under any circumstances * * whether the figure of $600,000 would “scare” them; and whether a recovery of that amount would be “too much money for anybody.”

The purpose of voir dire is to secure an impartial jury. (People v. Lobb, 17 Ill.2d 287.) While counsel may inquire to determine prejudice, he cannot indoctrinate or persuade the jurors. (Christian v. New York C. R. Co., 28 Ill.App.2d 57.) The defendant in Murphy v. Lindahl, 24 Ill.App.2d 461, 470 raised the same contention as Otis raises here, alleging indoctrination of the jury. The court therein held that there was no error in eliciting answers showing the attitude of the prospective jurors toward returning a $300,000 verdict because:

“[S]ome prospective jurors may have had fixed opinions, which indicate bias or prejudice against large verdicts, and which might not readily yield to proper evidence.”

The questions propounded by plaintiffs’ counsel in the instant case were similarly designed to expose any latent prejudice against large verdicts. We find no indoctrination present and no prejudice accruing to Otis.

Otis next contends that the trial court erred in submitting to the jury Plaintiffs Instruction No. 16A on damages over Otis’ objection. Otis maintains that the instruction improperly directed the jury to consider pecuniary loss as under the Wrongful Death Act instead of “direct damages” sustained by persons “dependent for support” under the Structural Work Act and also improperly instructed the jury that the law recognizes a presumption of some substantial pecuniary loss where the decedent leaves a widow and lineal next of kin. Otis also maintains that assuming arguendo the propriety of a pecuniary loss test, the instruction was misleading because the jury was required to consider decedent’s future earnings but not future expenses.

Section 9 of the Structural Work Act provides:

"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; and in case of loss of life by reason of such wilful violation or wilful failure as aforesaid, a right of action shall accrue to the widow of the person so killed, his lineal heirs or adopted children, or to any other person or persons who were, before such loss of life, dependent for support on the person or persons so killed, for a like recovery of damages for the injuries sustained by reason of such loss of life or lives.”

Otis argues that since the wording of this section limits recovery only to those widows and lineal heirs who were dependent for support upon decedent, the Liquor Control Act (Ill. Rev. Stat. 1969, ch. 43 par. 94 — 195) is an analagous statute. The measure of damages under the Liquor Control Act has been differentiated from the measure under the Wrongful Death Act in Knierim v. Izzo, 22 Ill.2d 73. However, plaintiffs argue that Mines and Miners Act (Ill. Rev. Stat. 1961, ch. 93 par. 10.07) is in pari materia.

In Mitseff v. Acme Steel Co., 208 F.Supp. 805 the court stated at page 807:

“The only reasonable inference is that the Scaffolding Act was copied from the Mines and Miners Act but that the limitation on the amount of recovery in the earlier law was omitted.”

In O’Fallon Coal Co. v. Laquet, 198 Ill. 125, the court was confronted with the issue of whether the jury was properly instructed as to the measure of damages in an action brought by a lineal heir of a decedent under the Mines and Miners Act. Section 33 of the Mines and Miners Act was identical to the pertinent part of Section 9 of the Structural Work Act quoted above except that recovery was limited to $5,000. The instruction complained of in the case similarly included pecuniary damages in place of the term direct damages. That court held that the statutory term “direct damages” limited recovery to “pecuniary loss.” The latter term was defined as “the value of the life of the parent,” as determined by the parent’s future earning potential to the extent it would go to family support and the estimated value of his normal parental services. (O’Fallon Coal Co., supra, at 127.) In using the terms "direct damages” and “pecuniary loss" interchangeably, the comt apparently viewed the purported distinction as semantical rather than substantive. We agree and find there was no error in instructing the jury to consider plaintiffs’ “pecuniary loss.”

As to Otis’ contention that the instruction was misleading since the jury was called to consider decedent’s future earnings but not future expenses, we similarly find no error. Paragraph A3 of Plaintiffs’ Instruction No. 16A directed the jury in determining pecuniary loss to consider, ‘What he spent for customary personal expenses.” This amount would necessarily be a deduction against his future contributions.

Otis next contends the verdict was grossly excessive and the result of either passion and prejudice or the pledges improperly obtained on voir dire. Otis asks for a new trial or in the alternative a substantial further remittiture of damages. Simmons similarly makes the same contention. On plaintiffs’ cross-appeal they contend that the evidence warrants the original verdict of the jury and therefore, they request reinstatement of the original verdict or in the alternative, affirmance of the judgments in the amount ordered by the trial court.

Under the Structural Work Act plaintiffs were entitled to recover the direct damages incurred by reason of the death of Robert Scully. We have already held that the “direct damages” as utilized in the statute means the pecuniary losses to which plaintiffs were subjected. Pecuniary damages have traditionally been held to consist of the value of the sum of monetary contributions and personal services the decedent would have provided. (O’Fallon Coal Co. v. Laquet, supra.) The original jury verdicts in favor of plaintiffs were returned in the amounts of $400,000 for the widow and $150,000 for each of decedent’s two minor children. The two minors subsequently consented to remittiturs reducing the amounts to $95,000 for John Scully and $105,000 for Kathleen Scully.

The evidence reveals that decedent was 38 at the time of his death and had a life expectancy of 33.6 years. He left surviving him a wife, 35, and two children, 5 and 3. He had recently been promoted to the position of foreman in the plumbing trade in Joliet, Illinois. In 1968 a foreman would have made $12,911 excluding overtime which was readily available in the Joliet area. The present value in 1962 of decedent’s wages for a life expectancy of 34 years invested at 5% would be approximately $209,000.

Decedent’s health had been very good although he previously had an ulcer condition. His personal expenses consisted of $200 a year for clothes and a couple of dollars a week for coke or milk with the lunch his wife prepared for him. He also expended some funds on gas, tools, and union dues. With respect to the personal services decedent rendered his family, the evidence reveals that he did all the plumbing and helped the electrician and heating contractor. He did the painting, decorating, and landscaping. After completion of the home, he built a recreation room.

Decedent spent most of his non-working hours at home. The family did everything together such as going on picnics and visiting friends. He took John to Mass and almost every place he would go to visit or do chores. He helped the children at bedtime and taught them their evening prayers. He also did all the repair work around the home.

Initially, plaintiffs and defendants Otis and Simmons take issue over the legal efficacy of the utilization of inflationary trends and present value calculations in calculation of damages. It has been held to be error to present evidence to the jury of future inflationary trends. (Raines v. New York Cent. R. Co., 129 Ill.App.2d 209.) However, since the jury was not presented with such evidence nor instructed to consider it, we do not find the issue pertinent to resolution of the appeal.

We similary find no pertinency in the issue as to present value and its method of calculation, since the jmy was properly instructed and the parties take no issue with the instruction.

The remaining issue between the parties as to damages is whether the amount of $700,000 or even the amount of $600,000 after remittitur, was justified in light of the $209,000 discounted value of decedent’s future earnings. According to the measure of damages, the excess over the future contributions represents the value of decedent’s personal service to the plaintiffs over the period of his life expectancy.

Initially, we note that defendants again complain of the voir dire examination of prospective jurors and the alleged “indoctrination” by plaintiffs’ counsel. However, since we have already decided the point, we need not discuss it here.

In Smelcer v. Sanders, 39 Ill.App.2d 164, the court stated at page 173: “[T]he question is whether reasonable men might differ in their answers to the question of the damages; we cannot substitute our judgment for that of the jury; reasonable men might differ here, and because we think they might we cannot say the jury was moved by passion or prejudice or other improper motive: [cited cases.]”

Similarly, in the present case it is not clear that all reasonable men would agree that the amount was excessive due to all the imponderables involved. The trial court was in a better position to evaluate the verdict and granted a remittitur in the amount of $100,000. Without other indications of passion or prejudice of the jury, we cannot now say that the judgment as entered after remittitur was excessive.

Therefore, we affirm the judgments in favor of plaintiffs and against Otis and Simmons as entered.

On its appeal Simmons contends that the trial court erred in failing to direct a verdict in its favor, or in the alternative grant a new trial, on its claim for indemnity. Simmons maintains that it is entitled to indemnity since the evidence established that Simmons merely acted as Otis’ agent and that Simmons was passively negligent while Otis was actively negligent.

Otis contends that Simmons waived its right to raise the theory of agency on the question of indemnification since it was not argued in the trial court. The question of agency in the present case is one of law and not of proof and, therefore, Simmons is not barred from asserting this contention. (Hux v. Raben, 38 Ill.2d 223.) Additionally we note that Simmons implicitly argued the agency theory in the trial court in contending that it was merely an instrumentality of Otis. (See J & R Electric Co. v. Edward P. Allison Co., 125 Ill.App.2d 123). However, we find that the agency theory of indemnification has no applicability in the present case.

With regard to the active-passive issue, the jury was instructed that if it found from all the evidence that the quality of misconduct of Simmons was of the same degree or character, or was greater in degree or character, than that of Otis, then the verdict must be for Otis. This was a correct statement of the law. The jury was therefore presented with alternative theories upon which it could have based a general verdict for third-party defendant. Its general verdict for defendant should not be set aside if evidence was presented which was legally sufficient to support either of these theories. Goldschmidt v. C.T.A., 335 Ill.App. 461, 470. The proper standard to be applied is whether the verdict is contrary to the manifest weight of the evidence. Biel v. Wolff, 126 Ill.App.2d 209, 224. We hold that there was sufficient evidence upon which the jury could have concluded that the misconduct of Simmons was either equal to or greater than the misconduct of Otis. The court did not err in denying Simmons’ motion for a new trial. What we have said also disposes of Simmons’ contention that a verdict should have been directed in its favor.

We affirm the judgment.

Judgment affirmed.

LEIGHTON, P. J., and SCHWARTZ, J., concur.

       The scaffold over shaft six had pre-existing openings through which the plumb lines were dropped.


author: Mr. PRESIDING JUSTICE ENGLISH

text:
    Jesse Chase, Plaintiff-Appellee, v. Morgan Cab Company, Defendant-Appellant.
    (No. 53520;
    First District
    — November 5, 1971.
    George F. Barrett, of Chicago, (Sidney Z. Karasik and Ellis B. Rosenzweig, of counsel,) for appellant.
    Seymour Ogden, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court:

Defendant appeals from a $2500 judgment entered on a verdict for plaintiff as compensation for injuries sustained while attempting to enter defendant’s cab.

On November 2, 1960, defendant’s driver, James Cheppell, stopped his cab at the comer of 36th Street and Cottage Grove and had a ten-minute discussion with plaintiff, a prior acquaintance. There is conflicting testimony about what followed this conversation.

Plaintiff testified that after he had been leaning through the open window talking to Cheppell, he asked how much it would cost to be driven to 40th and Oakwood. Cheppell is said to have replied, “About 35 cents. Get in.” Plaintiff claims he then attempted to open the right front door but was unable to do so. He stepped back about a foot when Cheppell leaned across the front seat and forced the door open. As it was jarred loose, the door flew open and struck plaintiff in the face, breaking his glasses and causing injury to his eye. Cheppell immediately took plaintiff to Michael Reese Hospital.

Defendant testified that he did not offer to drive plaintiff anywhere and did not attempt to open the door for him. Rather, he states that after they had been talking about old times, plaintiff opened the right front door and, as he did so, struck himself in the face with the door.

The case was tried to a jury which, in addition to the forms of general verdict, was asked to respond to the following special interrogatory: “Do you find from consideration of all the evidence and under the instructions of the court that the plaintiff was guilty of contributory negligence which proximately contributed to cause his alleged injury?” The jmy returned a general verdict of $2500 for plaintiff, but, by its affirmative response to the special interrogatory, also found plaintiff guilty of contributory negligence. Upon the receipt of the inconsistent findings and over persistent objections by counsel for defendant, the judge instructed the jury in the following manner:

“Ladies and gentlemen of the jury, you have brought in an inconsistent verdict.

# # *

Now, if you intend to give the defendant * * * the plaintiff $2,500, then your answer to the interrogatory must be no. If you decide not to give the plaintiff anything, then your answer is yes.

I’m going to ask you to reconsider it. I don’t feel that you understood what you were doing.

Mb. Lindmabk: Your Honor, objection to the entire procedure.

The Court: Very well, your objection is noted, Mr. Lindmark. Foreman: Your Honor, may I say, we had quite a deliberation on this. There was opposing factions—

The Court: That’s all right.

Foreman: This is a matter of degree * * *

The Court: Wait just a minute. I’m not telling you to change it, I just want you to understand what you have done.

It’s entirely up to you. If you wish to award the plaintiff $2,500, then your answer to the interrogatory must be no. If you wish to award the plaintiff nothing, then your answer is yes.

Now, would you go back and reconsider * °

Upon reconsideration, the jury returned the same general verdict, but reversed its earlier response to the special interrogatory and found the plaintiff free from contributory negligence. Judgment was entered on the verdict, and defendant appeals.

Defendant contends that the jury was improperly instructed as to the consequences of inconsistency between general and special verdicts, and that it was entitled to judgment on the jury’s first response to the special interrogatory.

Section 65 of the Civil Practice Act provides:

“Unless the nature of the case requires otherwise, the jury shall render a general verdict. The jury may be required by the court, and must be required on request of any party, to find specially upon any material question or questions of fact stated to them in writing. Special interrogatories shall be tendered, objected to, ruled upon and submitted to the jury as in the case of instructions. Submitting or refusing to submit a question of fact to the jury may be reviewed on appeal, as a ruling on a question of law. When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may render judgment accordingly.” (Emphasis supplied. ) Ill. Rev. Stat. 1967, ch. 110, par. 65.

The reason for this declaration as to the primacy of a special over a general verdict was recently stated by the Supreme Court to be that a jury finds it easier to understand a special interrogatory than it does all of the various elements of the case which produce a general verdict, and its answer to an interrogatory will therefore, presumably, be a more accurate reflection of its true finding in the case. Borries v. Z. Frank, Inc., 37 Ill.2d 263.

In Swanson v. Chester Johnson Electric Co., 5 Ill.App.2d 175, 177-178, the trial judge instructed the jury that “The verdict you reach should be compatible with the interrogatories.” Finding this direction erroneous, the court said:

“The jury is free in its defiberations subject to the instructions which must correctly state the law. The trial court was in error in seeking to impose a restraint which is unwarranted. The legislature presupposed that a jury in the free exercise of its functions might return interrogatories inconsistent with the general verdict. It provided in that event that the interrogatory controls.”

A similar result was reached in Mathes v. Basso, 104 Ill.App.2d 237, where the judge entered the jury room at the request of the jurors who were confused by the special interrogatory and did not understand its bearing on the case. The court told them that then answer to the special interrogatory should be consistent with the verdict. The Appellate Court held this to have constituted reversible error. See, also, Sutton v. Peoples Gas Light and Coke Co., 119 Ill.App.2d 471.

In the instant case, the portion of the transcript quoted above demonstrates that the trial court, in effect, reversed the control feature of a special interrogatory over a general verdict, and in so doing erroneously frustrated the purpose of the statute.

Plaintiff counters, however, with the proposition that the form of the special interrogatory was vague, ambiguous and confusing, and therefore should have been ignored in any event. While the interrogatory did not contain a clause limiting its concern to the time “at and immediately prior to the occurrence,” we believe that this did not, under the circumstances, lead to any confusion as to the period contemplated. Nor do we find any merit in plaintiffs argument that the term, “contributory negligence,” and the clause, proximately contributed to cause,” were productive of confusion in the minds of the jurors. We say this because by separate instructions the jury was properly given the definition of both concepts.

The judgment is reversed and the cause is remanded with directions to enter judgment for defendant.

Reversed and remanded with directions.

DRUCKER and LORENZ, JJ., concur.


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph Miller et al., Defendants-Appellants.
    (Nos. 54054, 54055 cons.;
    First District
    — November 5, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (Suzanne M. Kohut and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and George M. Elsener, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

An indictment was returned against both defendants charging them in count one with armed robbery and in counts two and three with aggravated battery. * The court, sitting without a jury, found both defendants guilty on all counts of the indictment but sentenced them only on counts one and two. Miller received two concurrent sentences of three to six years and Brown received two concurrent sentences of two to four years. On appeal defendants contend:

(1) that the identification of them as the assailants was insufficient to sustain their conviction,

(2) that various prosecutorial conduct deprived them of a fair trial, and

(3) that because the convictions resulted from the same conduct it was improper for the court to impose sentences for more than one crime.

Wilburn Watkins, the sole prosecution witness, testified that he lives at 1515 South Sawyer in Chicago. At approximately 7:00 P.M. on January 28, 1967, he went into a poolroom near 16th and Kedzie in Chicago. After talking with friends, he began playing pool with a man he knew only as “J.W.” As the game progressed Watkins noticed that the defendants, one of whom, Brown, he had seen many times before and both of whom he identified in court were watching him and “J.W.” In fact at one point MiUer was so close that Watkins could not play his game. Shortly before midnight defendants left the pool haU. When Watkins left to go home, shortly after midnight, he walked alone on Kedzie to 16th Street. As he walked in a westerly direction on the north side of 16th Street he noticed the defendants standing near a budding on the opposite side of the street. As he continued on 16th Street they crossed the street into a lighted area and walked behind him. When Watkins came to Sawyer Avenue, a Ughted street, he turned north on the west side of the street with the defendants stiU following him. After proceeding only a short distance on Sawyer, MiUer, carrying a gun, came up to Watkins and hit him repeatedly. MiUer, looking directly at Watkins, said he was going to kiU Watkins. After Brown began beating him, Watkins feU to the ground where MiUer kicked him numerous times. One of the defendants went through Watkins’ pockets taking $44, his wallet, driver’s license, other identification cards and keys. MUler then told Watkins that if he did not lie there for five minutes he would be küled. The pair then fled on foot. After unsuccessfully trying to find a police car, Watkins went home and called the police. The next day Watkins saw Brown on the street but before the police could be called Brown had disappeared.

Charles Jones testified for the defense that MiUer, a close friend, came to Jones’ house at 4:30 P.M. on January 28, 1967. They played cards and records until 8:00 P.M. when they left for the “Bucket of Blood,” a tavern, for a drink. They then went on to “Harold’s Place,” another tavern, where at 10:00 P.M. they were joined by Diane Jones. The trio remained in “Harold’s Place” drinking, talking and dancing until 2:00 A.M. the next morning when they went to the “Squeeze Club.” They remained there until 4:00 A.M. When they left the “Squeeze Club” Diane walked home alone. Jones and MUler walked together for awhüe and then went their separate ways. Jones did not see Brown at all that day.

Diane Jones, a good friend of defendants, testified for the defense that she met MiUer and Charles Jones at 10:00 P.M. on January 28, 1967, at “Hal’s,” a tavern. They drank, talked and danced until, at 2:00 A.M. the next day, they went to “Squeeze After-Hour Tavern” where they drank, talked and shot pool until 4:00 A.M., when she was walked home by Jones and MiUer. She did not see Brown that night.

Joe Miller, Junior, testified on his own behalf that he lived at 3136 West 15th Street in Chicago. At 4:00 P.M. or 4:30 P.M. on January 28, 1967, he went to Charles Jones’ house. They played cards and records until 8:00 P.M. when they went to “Field’s Tavern” and “Bucket of Blood.” At 9:00 P.M. or 9:30 P.M. they arrived at “Hal’s Tavern” where, at 10:00 P.M., they were joined by Diane Jones. The three remained at “Hal’s” drinking, dancing and talking until 2:00 A.M. the next morning when that tavern closed. They then “went down to the Squeeze,” where they drank and shot pool until it closed at 4:00 A.M. When Jones and Miller left they walked Diane home and then went home themselves. Miller, although he knew Brown and had seen Watkins before, did not see either on the night in question. In mid-February, Miller learned he was sought by the police but he was not arrested until April 8, 1967. He denied all connection with the crime.

William Edward Brown testified in his own behalf that he lived at 3142 West 15th Place in Chicago. Although he knew Miller, Charles Jones, Diane Jones and Watkins he did not see them on January 28, 1967, and he denied all connection with the crime. He spent January 28th repairing his door and lock which were damaged in an attempted burglary. His landlord saw him that day. About two weeks before he was arrested, a precinct captain told him that the police were looking for him. He went to both Central Police Headquarters and the Maxwell Street Police Station in an attempt to determine whether the report was true. At both places he was informed that the police were not looking for him. Sometime later Brown discovered that Police Officer Davis wanted to talk to him. Brown contacted Davis and a meeting was arranged at which Brown was arrested.

On cross-examination of all defense witnesses attention was directed to the ability of each to accurately recall what he or she had done on the date of January 28,1967.

Opinion

Defendants first contend that the identification testimony of the complaining witness, the only person called upon to testify for the State, was insufficient to establish beyond a reasonable doubt, that they beat and robbed Watkins. We cannot agree.

The defendants concede and it is well settled law as stated in People v. Tribbett (1968), 41 Ill.2d 267, 271 that:

“The testimony of a single witness, if it is positive and the witness is credible, is sufficient for a conviction even though the accused has contradicted the testimony.”

The essence of defendants’ contention is that the opportunity of Watkins to observe his attackers was so limited and impaired that it lacks that positive character required to sustain their conviction. This contention, however, does not find support in the record. Moreover, the record supports the State’s position that Watkins’ testimony demonstrated that he had ample opportunity to observe defendants before, during and after they beat him. Watkins saw both defendants several times before January 28, 1967. He knew Brown and both defendants knew him. Watkins saw both defendants as they watched him play pool that night, Miller at one point getting so close to him that Watkins had to stop playing for awhile. He saw them as they left the pool haE and, after he left, as they crossed 16th Street from the darkness into the light. Watkins saw them as they followed him, came up to him and beat him to the ground under light emitted from street lights. MiEer was face to face with Watkins when MiEer threatened to kiE him. Watkins saw both defendants flee after beating him and also saw Brown on the street the next day. He made two positive in-court identifications of both defendants, once in Branch 44 of the Felony Court and once at the trial of this case. This account does not lead this Court to believe that the identification of defendants was anything less than positive and based upon numerous observations prior to the incident and the trial judge so found.

Defendants contend that where the identification testimony is that of a single witness there must be some fact or circumstance which aids the trier of fact in determining the weight to be given the identification testimony. In support of this theory they cite People v. Oswald (1963), 26 Ill.2d 567. The standard advanced by defendants is appropriate for cases in which the identification is not positive (People v. Washington (1970), 121 Ill.App.2d 174, 179), but where the identification testimony is positive, and the witness credible as in this case, that testimony alone may be sufficient to establish defendants’ guilt beyond a reasonable doubt (People v. Williams (1968), 104 Ill.App.2d 329, 333), even though defendants introduced evidence of alibi. People v. Renallo (1951), 410 Ill. 372, 377.

Defendant Brown calls our attention to aUeged prosecutorial misconduct which purportedly prejudiced his cause. The basis of his contention lies in the cross-examination of him regarding the whereabouts of Officer Davis, the arresting officer; questions relating to the date, time and place of Brown’s arrest; references to photographs and a resulting implication that Watkins identified Brown at a line-up; and the questioning of Brown with regard to the whereabouts of witnesses who could substantiate his alibi.

In People v. Grodkiewicz (1959), 16 Ill.2d 192 the Supreme Court restated the principle which is to be applied in non-jury cases. The court stated at pages 199 and 200:

“This case was tried before the court and in such a hearing “the court is supposed to disregard all evidence heard except that which is competent and relevant, and is considered to possess such legal discernment when determining the degree of punishment.” (People v. Grabowski, 12 Ill.2d 462, 467.) This rule applies to arguments and remarks of counsel. Unless it affirmatively appears that the court was misled or improperly influenced by such remarks and that they were productive of a judgment and sentence contrary to the law and the evidence, we will not reverse.”

Assuming arguendo that the conduct of the prosecutor was improper, an analysis of the record in this case reveals that the judgment was not contrary to the evidence, the purported insinuations, if improper, were not of the aggravated character found in People v. Nuccio (1969), 43 Ill.2d 375 and there is no showing that the trial judge took those purportedly improper insinuations into consideration when he found defendants guilty as in People v. McGovern (1970), 126 Ill.App.2d 393, 400. Therefore, a reversal of Brown’s conviction on this ground would not be proper.

Brown also contends that the concealment of a police report by the prosecutor and the failure of the corut to order production of that report was error.

This contention arises out of the following colloquy:

“Mb. Schreier [Assistant State’s Attorney]: As a matter of fact, Mr. Brown, what day were you arrested by Officer Davis?

The Witness: A. I think it was March 14th.

Q. Could it have been March the 7th—

Mr. Tisci [Assistant Public Defender]: Object. He answered the question.

Mr. Schreier: He said he thought it was the 14th, Counsel.

Mr. Tisci: That’s right. And now you are asking about every day in the month. He told you when it was.

The Court: Overruled.

Mr. Schreier: Q. Could it have been March 7th, 1967?

The Witness: A. It could have been.

Q. You are not sure, are you?

A. No.

Q. And as a matter of fact, he arrested you at 1530 South ICedzie Avenue, is that correct?

A. No, that is not a fact.

Q. And it wasn’t at a liquor store at approximately 8:00 P.M.?

A. No, it is not a fact. That is not — that is not right.

Q. It wasn’t at 8:00 P.M. on March 7th?

A. That is wrong, no, not right.

Mr. Tisci: Your Honor, I object. If the State’s Attorney is going to refer to the police report, I would like to have a copy of it.

Mr. Schheier: I now refer to my own file as I ask the question, Your Honor. I think this has been kind of a longstanding practice in this building, that the State’s Attorney might refer to his notes in asking a question.

Mr. Tisci: And if his notes consist of a police report, I would like to have a copy of it. He is talking about with reference to the officer that he has now referred to.

If the Court please, I will acknowledge the information pursuant to the officer’s report.

The Court: Proceed with your cross-examination.

Mr. Scheier: Thank you, Judge.”

There is nothing in the above to support defendant’s contention that the State’s Attorney was consulting a police report.

Defendants lastly contend that the trial judge improperly sentenced them to concurrent terms for offenses resulting from the same conduct. We agree.

After finding defendants guilty on all counts of the indictment the court sentenced them to concurrent terms for the offenses of armed robbery and aggravated battery. In People v. Baker (1969), 114 Ill.App. 2d 450, 453 — 457 this court has stated the background to and principles governing this area of the law and it is unnecessary to reiterate such at this time. Suffice it to say that where the facts of the case demonstrate that separate and distinct conduct resulted in the commission of more than one offense, even though the acts were not wholly unrelated in time and fact, concurrent sentences are proper. Since the decision in Baker the Supreme Court treated the same subject in People v. Stewart (1970), 45 Ill.Bd 310, 312-313. The court, at page 313, said:

“Nothing in the record in this case suggests that the acts which constituted the offense of aggravated battery were independently motivated or otherwise separable from the conduct which constituted the offense of attempted robbery. The entire series of acts’ were a part of ‘the same transaction * * * the attempted robbery.”

The force used by defendants in the instant case was that used to effectuate the armed robbery and was not, as in People v. Baker, supra, also used after the robbery had been completed. Therefore, because the acts of defendants, which if considered separately constituted the offense of aggravated battery, were not “independently motivated or otherwise separable” from the offense of armed robbery it was improper for defendants to be sentenced on either charge of aggravated battery.

The judgment entered on the charge of armed robbery is affirmed and the judgment entered on the charge of aggravated battery is reversed.

Judgment affirmed in part, reversed in part.

ENGLISH, P. J., and DRUCKER, J., concur.

       One of the aggravated battery counts, count two of the indictment, charged that the defendants “intentionally and knowingly, without legal justification, committed a battery on Wilburn Watkins which caused great bodily harm to [him] * * *. “The second aggravated battery count, count three of the indictment, charged that the defendants “in committing a battery on Wilburn Watkins, used a deadly weapon * * *.” See Ill. Rev. Stat. 1965, ch. 38, par. 12 — 4(a) and 12 — 4(b)(1).