author: JUSTICE WELCH

text:
    JAMES O. PEOPLES, Plaintiff-Appellant and Appellee, v. GRANITE CITY STEEL COMPANY, Defendant-Appellee.—(Granite Sheet Metal Works, Defendant-Appellant, Counterclaimant-Appellant, and Third-Party Plaintiff-Appellee; The Carborundum Company, Defendant-Appellant, Counterdefendant-Appellee, and Third-Party Plaintiff-Appellant; G. H. Sternberg & Company, Third-Party Defendant-Appellant and Appellee.)
    Fifth District
    No. 81—34
    Opinion filed September 14, 1982.
    Rehearing denied October 15, 1982.

      William G. Kaseberg, of Bernard, Davidson and Kaseberg, of Granite City, for Carborundum Company.
    Robert D. Francis, Howard Boman, and Russell K. Scott, all of Dunham, Boman and Leskera, of East St. Louis, for Granite Sheet Metal Works.
    John F. O’Connell, of O’Connell and Waller, of Belleville, for G. H. Stern-berg & Company.
    Law Offices of William W. Schooley, of Granite City, for James O. Peoples.
    Bernard H. Bertrand, of Wagner, Bertrand, Bauman and Schmieder, of Belleville, for Granite City Steel Company.
   JUSTICE WELCH

delivered the opinion of the court:

On October 10, 1977, plaintiff James Peoples was employed as an ironworker on a pollution control project at Granite City Steel Company (Granite City). To comply with government standards, Granite City contracted with the Carborundum Company (Carborundum) to construct a facility which would collect pollutants given off from its basic oxygen furnace. Carborundum, in turn, subcontracted with Granite Sheet Metal Works (Sheet Metal) to erect the structural steel, baghouses, bags, duct work and much of the dust collection system at the facility. Sheet Metal orally subcontracted all of the structural steel work to G. H. Sternberg and Company (Sternberg), which directly employed the plaintiff.

That day, the plaintiff was working with fellow ironworker Pat Haggerty attaching horizontal beams and diagonal braces to vertical steel supports. Haggerty and the plaintiff had finished attaching the top horizontal beam, at about 20 or 25 feet above ground level, and two diagonal braces were the next pieces to be installed. The plaintiff climbed to the top of the vertical support, inserted a bolt to attach the brace to the support, and threaded the bolt down one full nut. Haggerty, working on the first horizontal beam down from the top, attempted to secure the other end of the brace in a similar manner, but the brace was several inches short. Jack Drennan, Sternberg’s foreman for the ironworkers, who was on the ground, instructed Haggerty to rest the bottom of the brace on the horizontal beam, and it would be modified and attached later.

Haggerty and the plaintiff then started to fasten the remaining brace. The plaintiff descended to the horizontal beam on which Haggerty had been working, while Haggerty climbed to the top of the vertical support. Haggerty secured the top end of the second brace with a bolt, but the brace would not fit at the plaintiff’s end. The plaintiff called to the workers on the ground for a C-clamp to attach the brace, and one was brought up to him. As the plaintiff was installing the clamp, the first brace, which had been left unattached on the beam, scissored and struck the plaintiff in the back, knocking him to the ground. He sustained injuries to his right shoulder and wrist.

The plaintiff brought suit in the Circuit Court of Madison County against Granite City, Carborundum and Sheet Metal. The action was based upon alleged violations of the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, par. 60 et seq.). Carborundum and Sheet Metal each filed a third-party complaint against Sternberg for indemnity, and Sheet Metal brought a counterclaim for indemnity against Carborundum. All of these actions were submitted to a jury, and judgment was entered on their verdict in all respects. The plaintiff’s damages were assessed at $150,000, and, in the plaintiff’s original action, judgment was given in favor of the plaintiff against Carborundum and Sheet Metal, but in favor of Granite City against the plaintiff. Sheet Metal was allowed reimbursement from Sternberg, but not from Carborundum. Carborundum was denied reimbursement from Sternberg. The jury found, in answer to a special interrogatory, that Carborundum’s conduct constituted major fault which proximately caused the plaintiff’s injuries.

From these judgments, the plaintiff, Carborundum, Sheet Metal and Sternberg have appealed. Although the arguments vary from party to party, the assignments of error basically involve the sufficiency of the evidence and the propriety of certain closing arguments. Essentially, this cause presents six separate appeals, which are as follows: (1) The plaintiff appeals from the judgment against him in favor of Granite City. (2) Sheet Metal appeals from the judgment against it in favor of the plaintiff. (3) Carborundum appeals from the judgment against it in favor of the plaintiff. (4) Carborundum appeals from the judgment denying it reimbursement from Sternberg. (5) Sheet Metal appeals from the judgment denying it reimbursement from Carborundum, and (6) Sternberg appeals from the judgment which allowed Sheet Metal reimbursement from it. For convenience we shall discuss each of these appeals separately and in the order established above.

APPEAL OF PLAINTIFF AGAINST GRANITE CITY

In his appeal, the plaintiff argues that the trial court should have entered judgment in his favor and against Granite City, notwithstanding the jury’s verdict. He points to several factors which he claims establish Granite City’s liability to him under the Structural Work Act.

According to the terms of its contract with Carborundum, Granite City reserved the right to approve Carborundum’s superintendent and any subcontractors it engaged. Before it began work, Carborundum was to notify Granite City of its intention to do so, the nature, location and duration of the work, the number of personnel to be employed “and such other information as may be necessary to enable [Carborundum] to be advised of and to comply with all plant protection rules and regulations.” At a prejob safety orientation meeting, Granite City employees presented to the contractor and subcontractors Granite City’s supervisory safety manual for noncompany construction, which included those rules and regulations with which the contractor and subcontractors were expected to comply. The supervisory safety manual stated that all contractors who sublet their work would be responsible for safety matters involving the subcontractor, and it incorporated by reference the Manual of Accident Prevention in Construction, of the Associated General Contractors of America, Inc. The Manual of Accident Prevention provided in paragraph 2 — 6 that:

“Safety belts should be worn by employees working at elevated levels which are not protected by handrails or when working from suspended scaffolds. Belts should be secured to a structural members [sic] or to a line independent of the scaffold rigging. The support member should be strong enough to support the weight of the man if he falls.”

Alvin Miller, general supervisor for Granite City’s construction engineering department, testified that he visited the construction site almost daily, for between 15 minutes and a couple of hours. Granite City’s Dick Jung, also of the construction engineering department, was described by another witness as having been on the job “frequently.” Miller was not present when the plaintiff was injured, and Jung did not testify at trial.

According ,to Miller, if he saw a safety violation such as' a workman without a hardhat or safety goggles, he would bring this to the attention of John Peluso, who was the project coordinator for Carborundum. In his inspections of the job site, Miller was aware that some of the structural steel was not fitting properly, although he did not testify that he knew that some of the steel was temporarily left in place without being fastened. Miller interpreted the contract between Carborundum and Granite City to allow' Granite City to reject any structural steel it found unsuitable. David Partney, Sheet Metal’s vice-president, testified that the approval of Carborundum’s Peluso, not that of Miller or Jung, was required before the steel could be modified.

The plaintiff and Haggerty recalled that they did not receive any instructions from any of Granite City’s personnel. Even if such instructions had been given, the plaintiff said, he would not have accepted them unless those instructions came through his direct superiors at Sternberg. The plaintiff also testified that he was unfamiliar with any Granite City employees on that job.

The plaintiff contends that this degree of involvement by Granite City should establish its liability to him under the Structural Work Act. Certainly, the evidence tends to suggest that Granite City was one of those parties “in charge of” the work for purposes of that Act. (Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481, 394 N.E.2d 403; Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill. 2d 111, 373 N.E.2d 1348.) But, in returning a general verdict in favor of Granite City, the jury could have determined that Granite City was not in charge of the work, or that it had not wilfully violated the Structural Work Act, or that it was neither in charge of the work nor had it wilfully violated the Act. Moulton v. Shell Oil Co. (1976), 38 Ill. App. 3d 524, 347 N.E.2d 825.

wilful violation of the Structural Work Act occurs when one having charge of the work knows that a dangerous condition exists on a scaffold, or, by the exercise of reasonable care could have discovered the existence of the dangerous condition. (Lyle v. Sester (1981), 103 Ill. App. 3d 208, 430 N.E.2d 699.) The question of wilfulness is primarily for the jury. (Katz v. Shaf Home Builders, Inc. (1981), 94 Ill. App. 3d 526, 418 N.E.2d 822.) In the case at bar, the jury could have found that the Act was violated by the failure to secure the cross brace, but that this violation was not wilful on the part of Granite City. Although there is testimony that cross braces had previously been left unfastened on other portions of the structural steel, there is no indication of how often this practice had been followed before the plaintiff was injured. Nor was it shown that Miller or any other Granite City employee knew of this practice. Moreover, Granite City had cautioned Carborundum, in the original contract, to be attentive to job safety problems, including those which occurred in the work of all its subcontractors, and Carborundum had a full-time project coordinator on the job, who, along with the representatives of the subcontractors, had been instructed to comply with Granite City’s rules. Given that these personnel were involved with discovering and preventing safety hazards, the jury could have found that it was reasonable for Granite City not to have learned that the Structural Work Act was being violated. Because the evidence introduced at trial presented a jury question, at least concerning the wilfulness of Granite City’s conduct, the trial court did not err in failing to enter judgment for the plaintiff notwithstanding the verdict.

APPEAL OF SHEET METAL AGAINST PLAINTIFF

Sheet Metal advances two arguments to justify reversal of the judgment in favor of the plaintiff against it. First, Sheet Metal contends that the jury’s verdict in favor of the plaintiff was contrary to the evidence at trial. Second, it is argued that plaintiff’s rebuttal argument denied Sheet Metal a fair trial.

David Partney, vice-president of Sheet Metal, was the only witness from that company to testify at trial. On the Granite City job, Partney was project manager for Sheet Metal. When the job first started, Partney, the only Sheet Metal employee to visit the site, did so “a couple times a day.” Later, he was joined by James Berleman, who was responsible for that part of the work which Sheet Metal did not subcontract to Sternberg, although he did not visit the job site until after the plaintiff’s injury.

If a piece of structural steel did not fit properly, Partney testified, Sternberg’s men would usually go directly to Peluso, Carborundum’s project coordinator, for further instructions. Pieces which were not corrected in the field would be sent to Sheet Metal’s shop for more extensive modification. Partney stated that he was aware that much of the structural steel had not been properly fabricated.

On the day of the accident, Partney was at the job site, although he and Peluso were at lunch when the plaintiff was injured. The absence of Partney from the scene of the mishap, and the fact that Sternberg’s Jack Drennan decided to rest the brace on the cross beam without consulting Partney or Peluso are two factors which Sheet Metal argues prove as a matter of law that it did not wilfully violate the Structural Work Act.

However, as we noted in the plaintiffs appeal, the question of wilfulness is generally for the jury (Katz v. Shaf Home Builders, Inc.), and even though Partney did not testify that he knew that braces were being left unfastened on cross beams, Pat'Haggerty and Jack Drennan stated that this had been done in other sections of the structural steel. Since Partney was at the Granite City site for several inspections every day, in his capacity as project manager, the jury could have found that Sheet Metal could have, by the exercise of reasonable care, discovered the violation of the Structural Work Act. (Bishop v. Crowther (1980), 92 Ill. App. 3d 1, 415 N.E.2d 599; Zizzo v. Ben Pekin Corp. (1979), 79 Ill. App. 3d 386, 398 N.E.2d 382.) And, as the jury could also have found that Sheet Metal was one of those parties “in charge of” the structural steel work (Smith v. Georgia Pacific Corp. (1980), 86 Ill. App. 3d 570, 408 N.E.2d 117; Domena v. Prince (1977), 52 Ill. App. 3d 462, 367 N.E.2d 717), we will not disturb the jury’s verdict.

Next, Sheet Metal argues that plaintiff’s rebuttal in closing argument denied it a fair trial. Two specific remarks are complained of as prejudicial. First, plaintiff’s counsel, in arguing that the defendants were unconcerned with the safety of the ironworkers, stated: “They have a safety manual. Did they use it? No. They threw it away.” To emphasize his point, plaintiff’s counsel then picked up the Manual of Accident Prevention in Construction and threw it to the floor. No contemporaneous objections to this conduct were made by counsel for any of the defendants, and therefore this argument has been waived for purposes of appeal. Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill. 2d 591, 294 N.E.2d 689; Funk v. Venture Stores, Inc. (1981), 94 Ill. App. 3d 115, 418 N.E.2d 498.

But we would also note that, while we disapprove of this sort of tactic in closing argument, the judgments in favor of the plaintiff, as well as the amount of damages awarded, are sufficiently supported by the evidence so as to preclude relaxation of the waiver rule. As a result of his fall, the plaintiff was out of work for six months, resulting in lost wages of between $10,000 and $12,000 and medical bills of approximately $4,500. He suffered a permanent shoulder deformity, characterized by protusion of the right clavicle, and although he regained the full range of motion in his right shoulder, there remains a possibility that surgery may be necessary if complications develop in the shoulder. The plaintiff, who is right handed, has become permanently limited in the motion of his right wrist, this limitation affecting his ability to bend his wrist up, down and sideways, and consisting of a 50% loss of range of motion, as compared to the left wrist. For a plaintiff who is employed as an ironworker, and who testified to the difficulties he has experienced in his work as a result of his injuries, we do not believe the damages awarded to have been affected by plaintiff’s counsel’s rebuttal conduct.

Second, Sheet Metal observes that, also in rebuttal, plaintiff’s counsel argued to the jury that:

“That is your duty in there, folks. Come in there and tell them, ‘Get out there and keep those folks safe on the job.’ And there’s only one way to tell them. Hit the pocket book. They tried to save their money. They took Jim’s money.”

Counsel for Carborundum objected to this comment on the ground that punitive damages were not involved in the present action. This objection was overruled. Following this rebuttal, counsel for Carborundum moved for a mistrial based on these remarks. This motion was joined by counsel for the other defendants. It was denied.

Sheet Metal contends that, by this argument, plaintiff’s counsel intended to urge the jury to act as advocates for job safety, and thereby deprived it of a fair trial. It cites as authority Ryan v. Blakey (1979), 71 Ill. App. 3d 339, 389 N.E.2d 604, and Hubbard v. McDonough Power Equipment, Inc. (1980), 83 Ill. App. 3d 272, 404 N.E.2d 311. In Ryan and Hubbard, closing arguments were held to be improper, in part because they were intended to transform the jury into a consumer vigilance committee, although in Ryan, counsel also referred to information beyond the evidence introduced at trial and argued his personal feelings to the jury, and in Hubbard, counsel spent most of his closing argument impugning the honesty of the defendant’s counsel and witnesses as well as the motives of the defendant.

The remarks objected to in this case do not contain any misstatements of evidence nor do they cast aspersions on the integrity of the defendant, its witnesses or counsel, nor do they inject the feelings and opinions of plaintiff’s counsel into the case. While we believe that counsel’s urging the jury to “tell them” to keep the workers safe is near the bounds of propriety, we cannot say that these comments constituted an appeal to the jury to decide the case in a punitive manner, without considering the law and the evidence. (Compare Department of Conservation v. Strassheim (1981), 92 Ill. App. 3d 689, 415 N.E.2d 1346.) Indeed, the reference to “Jim’s money” might also be viewed as limiting the request of plaintiff’s counsel to the compensatory damages properly recoverable in this case. Moreover, as we discussed earlier, the judgments in favor of the plaintiff are well supported by the evidence. Viewing plaintiff’s rebuttal argument as a whole, we cannot say that it was “clearly improper and prejudicial” (Crump v. Universal Safety Equipment Co. (1979), 79 Ill. App. 3d 202, 398 N.E.2d 188; Jones v. Chicago Housing Authority (1978), 59 Ill. App. 3d 138, 376 N.E.2d 26), and therefore the judgment in favor of the plaintiff and against Sheet Metal is affirmed.

APPEAL OF CARBORUNDUM AGAINST PLAINTIFF

In its appeal, Carborundum does not challenge the sufficiency of the plaintiff’s case against it. Instead, it argues that the plaintiff’s closing argument denied it a fair trial. In addition to the remarks assigned as error by Sheet Metal, Carborundum takes issue with argument by plaintiff’s counsel in which, it is contended, it was falsely stated that Carborundum’s Peluso ordered Haggerty to leave unsecured the brace which injured the plaintiff. We have examined these remarks, which were unobjected to, and conclude that this argument merely restates the evidence that Peluso had given similar instructions to the ironworkers on previous occasions. Plaintiff’s counsel did not suggest that Peluso was there to give the order which left that particular brace unfastened. Elsewhere in closing argument, he informed the jury that Drennan had given that order and that Peluso had been at lunch when the accident occurred. We find no error in these remarks, and, as we have discussed plaintiff’s rebuttal argument in connection with Sheet Metal’s appeal and found no reversible error, we affirm the judgment in favor of the plaintiff and against Carborundum.

APPEAL OF CARBORUNDUM AGAINST STERNBERG

Carborundum’s appeal from the judgment denying it reimbursement from Sternberg presents four assignments of error. (1) Carborundum’s misfabrication of the brace which struck the plaintiff, as a matter of law, constituted only a condition by which the plaintiff’s injury was made possible through the subsequent negligence of Sternberg’s foreman, Drennan, and was thus not a proximate cause of the plaintiff’s injuries. (2) Sternberg, as a subcontractor which held itself out as an expert in the erection of structural steel, should be es-topped to assert that the misfabrication of the brace constituted major fault. (3) A directed verdict should have been granted for Carborundum on its complaint for indemnity from Sternberg, and (4) counsel for Sternberg committed reversible error in his closing argument, which compounded the errors made by plaintiff’s counsel in his closing argument.

Relying upon such cases as Merlo v. Public Service Co. (1942), 381 Ill. 300, 45 N.E.2d 665, Denniston v. Skelly Oil Co. (1977), 47 Ill. App. 3d 1054, 362 N.E.2d 712, and Watson v. Byerly Aviation, Inc. (1972), 7 Ill. App. 3d 662, 288 N.E.2d 233, Carborundum contends that its misfabrication of the cross brace was only a condition which made the plaintiff’s injuries possible through the actions of Jack Brennan. Carborundum is correct that, in order to prove that Brennan’s conduct was an intervening efficient cause of the plaintiff’s injuries as a matter of law, the evidence must show that that conduct was such “as in the exercise of reasonable diligence would not be anticipated” and that Brennan was not under the control of Carborundum. Merlo v. Public Service Co. (1942), 381 Ill. 300, 317, 45 N.E.2d 665, 675; Vest v. City of Granite City (1982), 106 Ill. App. 3d 36, 39, 435 N.E.2d 755, 757.

Without deciding whether Brennan was “under the control of” Carborundum, we do not believe that the facts of this case prove that Brennan’s instruction to Haggerty was unforeseeable as a matter of law. Whether or not Brennan ever took any orders directly from John Peluso, the record establishes that, during the course of the work, improperly fitting braces had been left resting on cross beams, either pursuant to Peluso’s express instructions or with his approval. Since this practice was, at the least, known to Peluso, it cannot be said, as a matter of law, that Brennan’s instruction to Haggerty was unforeseeable. The question of proximate causation was, therefore, properly submitted to the jury. Zizzo v. Ben Pekin Corp.

Next, Carborundum states that Sternberg held itself out as an expert in the erection of structural steel, knew of the irregularities in the steel supplied by Carborundum and agreed to cure these irregularities, and, in reliance upon these representations, Carborundum amended its contract with Sheet Metal to be liable to it for extra charges resulting from additional work by Sternberg to correct the irregularities. These facts, Carborundum argues, should estop Stern-berg from asserting that the misfabrication of the braces constituted major fault which contributed to the plaintiff’s injuries.

Carborundum does not direct us to any Structural Work Act cases which employ its theory of estoppel. Nor do we understand Carborundum to argue that principles of equitable estoppel should supercede the weighing of fault traditionally applied in indemnity actions under the Structural Work Act (Miller v. De Witt (1967), 37 Ill. 2d 273, 226 N.E.2d 630; Svenson v. Miller Builders, Inc. (1979), 74 Ill. App. 3d 75, 392 N.E.2d 628), for if this were a correct statement of the law, it would seem unlikely that a subcontractor, who is employed specifically for his expertise in the work which is the subject of the subcontract, would ever be entitled to indemnity for injuries suffered during that work, no matter how minor the fault of the subcontractor.

Simply stated, Carborundum’s estoppel argument is that Stern-berg’s agreement to work with the defective steel, which induced Carborundum to change its contract with Sheet Metal, should bar Stern-berg from asserting the misfabrication of the metal as “major fault.” But even if we were to accept this application of equitable estoppel, it does not follow that Sternberg should be prevented from defending against Carborundum’s indemnity action. Contrary to the tenor of the argument in Carborundum’s brief, the dereliction of Carborundum stems not only from its role as a manufacturer, but also from its role as general contractor. Sternberg did not simply accept the metal from Carborundum, knowing of the misfabrication, with full authority to decide for itself on all future modifications. Instead, its personnel worked with and took instructions from John Peluso on the refabrication of the pieces. Given that Carborundum did more than improperly manufacture the brace in question, Sternberg’s agreement to perform the additional modifications does not prevent it from asserting Carborundum’s conduct as major fault, where the action for indemnity is based, in large part, on the decisions made by Carborundum as a general contractor.

It is further asserted by Carborundum that the court should have entered judgment for it in its third-party action against Sternberg, notwithstanding the verdict. A closely related question is whether the conduct of Carborundum constituted major fault, and although this issue also affects our resolution of Sheet Metal’s indemnity action against Carborundum, we shall discuss it here.

Carborundum notes that Sternberg was specifically responsible for the erection of the structural steel, it provided its workmen with all of the tools necessary for the work, it supervised the job through its superintendent, William Tutka, its general foreman, Frank Babka, and its ironworker foreman, Jack Drennan, and it was Drennan who gave Haggerty the order to leave the brace in question resting on the cross beam. These facts, Carborundum argues, justify the entry of judgment in its favor against Sternberg.

In Sack v. Arcole Midwest Corp. (1961), 33 Ill. App. 2d 344, 179 N.E.2d 441, the court affirmed a judgment based on a verdict directed in favor of three general contractors against a plumbing subcontractor in an indemnity action resulting from a Structural Work Act complaint. The plaintiff, an employee of the subcontractor, was injured in a fall from a scaffold which had been furnished and erected by the subcontractor. One of the general contractors employed a superintendent who was on the job site daily to inspect and coordinate the efforts of the subcontractors. In holding that this evidence was insufficient to prevent the direction of a verdict in favor of the general contractors, the court stated that the facts did not present “a case of joint design, construction, maintenance or use of the scaffold” by the general contractors and the subcontractor. 33 Ill. App. 2d 344, 348, 179 N.E.2d 441, 443.

Judgment was entered on a jury’s verdict in favor of a subcontractor in a general contractor’s Structural Work Act indemnity action, in Jones v. McDougal-Hartmann Co. (1969), 115 Ill. App. 2d 403, 253 N.E.2d 581. The appellate court held that the trial court erred in failing to enter a judgment in favor of the general contractor notwithstanding the verdict. The evidence supporting this conclusion was that the scaffold from which the plaintiff fell had been erected by the subcontractor, with no assistance from or involvement by the general contractor. Similarly, in Jackson v. H.J. Frierdich & Sons, Inc. (1971), 1 Ill. App. 3d 381, 274 N.E.2d 189, the appellate court affirmed the trial court’s direction of a verdict in favor of the general contractor because the record was “without evidence of any activity” by the general contractor in connection with the construction of the scaffold.

In National Oats Co. v. Volkman (1975), 29 Ill. App. 3d 298, 330 N.E.2d 514, a partner of a subcontracting firm was killed while riding a permanent manlift in a building belonging to National Oats, which had engaged a prime contractor, Ehrsam, which had hired the Volkman partnership. Ehrsam’s subcontract with Volkman Brothers provided that the partnership would furnish all tools, equipment and manpower for the performance of the work of the subcontract. The task of Ehrsam’s sole supervisor on the job was to see that the work conformed to specifications. On these facts, the majority in the appellate court granted judgment n.o.v. in favor of Ehrsam and against the surviving Volkman partner.

Nogacz v. Procter & Gamble Manufacturing Co. (1975), 37 Ill. App. 3d 636, 347 N.E.2d 112, involved an appeal from summary judgment granted in favor of an architect and a building owner on their claims for indemnity against the plaintiff’s employer, a masonry subcontractor. The depositions in support of the motions for summary judgment revealed that the subcontractor assembled the scaffold, without assistance from the owner or the architect, that the architect visited the job two or three times a week and inquired only as to the progress of the wall, and that the architect’s plans did not specify any particular type of scaffold to be used. In affirming the summary judgments, the court noted that the owner and the architect “elected to limit their participation in the construction of the building to such matters as the timely progress of the building, quality control, and the compliance with specifications of materials used.” 37 Ill. App. 3d 636, 646, 347 N.E.2d 112, 119-20.

In Kleeman v. Fragman Construction Co. (1980), 91 Ill. App. 3d 455, 414 N.E.2d 1064, the subcontractor agreed to furnish all equipment, labor and personnel necessary to the carpentry work, including scaffolding. A rolling scaffold was not provided to the plaintiff, who was injured when shelving upon which he was kneeling gave way. The general contractor, it was said, “merely supervised and coordinated the project for the owners” and its construction superintendent “only ensured that the subcontractors performed their jobs according to specifications.” (91 Ill. App. 3d 455, 465, 414 N.E.2d 1064, 1071.) A directed verdict in favor of the general contractor was upheld on appeal.

Most recently, in Rynders v. Sangamo Construction Co. (1982), 103 Ill. App. 3d 552, 431 N.E.2d 1357, the plaintiff, who was employed by a painting subcontractor, was injured when the plank on the scaffold on which he stood broke due to an obvious knothole on one side. The plank had been taken from a woodpile, either with permission of the general contractor or of another subcontractor not in privity with the painting subcontractor. No evidence was presented to establish the ownership of the lumber.

The appellate court reversed judgment entered on a jury’s verdict in favor of the painting subcontractor and against the general contractor, and in so doing, commented that the construction, use and dismantling of the scaffold were responsibilities undertaken by the painting subcontractor, and the defective plank was selected by one of the subcontractor’s employees. The general contractor’s superintendent, on the other hand, did not directly supervise the painting, nor did he inspect or stand on the scaffold.

A directed verdict in favor of the second subcontractor, and against the painting subcontractor, was affirmed because the only connection of the second subcontractor with the injury was, at best, the gratuitous bailment of the plank, such bailment only giving rise to a duty to warn of known defects. There was no evidence that the second contractor knew of the knothole in the plank.

Through the principles derived from these cases, we can determine whether Carborundum was entitled to indemnity as a matter of law. While the failure of the general contractor to discover an unsafe condition will not, alone, preclude a directed verdict in favor of the contractor on its indemnity action (Lindner v. Kelso Burnett Electric Go. (1971), 133 Ill. App. 2d 305, 273 N.E.2d 196), a greater involvement by Carborundum in the structural steel work has been shown in this case. It is undisputed that all modifications to the beams had to be approved by Carborundum’s superintendent, John Peluso, and that Peluso had previously instructed Sternberg’s personnel to leave improperly fitting braces resting on the cross beams, or if they would not rest there, to leave them hanging without support underneath. This is not a case of an isolated defect in the scaffolding, which was undiscovered by the general contractor. (Compare Rynders v. Sangamo Construction Co.) Instead, the plaintiff was injured as a result of a continuing practice which had been ordered, or, at least, approved by Peluso. We cannot say that there was no participation by Carborundum in the work which was the subject of Sternberg’s subcontract (Jones v. McDougal-Hartmann Co.; Jackson v. H.J. Frierdich and Sons, Inc.) or that Carborundum limited its participation in that work to ensuring that Sternberg made satisfactory progress and that its work conformed to specifications. (Nogacz v. Procter & Gamble Manufacturing Co.; Kleeman v. Fragman Construction Co.) Carborundum’s role in the structural steel work was substantial enough to render its indemnity action against Sternberg a question for the jury (Mclnerney v. Hasbrook Construction Co. (1975), 62 Ill. 2d 93, 338 N.E.2d 868), and therefore we will not disturb the jury’s conclusions that Carborundum’s conduct constituted “major fault” which led to the plaintiff’s injuries and that Carborundum is not entitled to indemnity from Sternberg.

Finally, Carborundum argues that the closing arguments of counsel for plaintiff and counsel for Sternberg deprived it of a fair trial on its third-party complaint. We have previously considered plaintiff’s closing argument in connection with the appeal of Sheet Metal against the plaintiff and the appeal of Carborundum against the plaintiff, and found that argument not to have been prejudicial. Nor do we believe that the closing argument of Sternberg’s counsel, none of which was objected to by Carborundum, constitutes error, either by itself or in combination with plaintiff’s argument. Consequently, we affirm the judgment in favor of Sternberg and against Carborundum.

APPEAL OF SHEET METAL AGAINST CARBORUNDUM

Sheet Metal contends that the judgment against it on its indemnity action against Carborundum should be reversed. First, it is argued that the jury’s answer to the special interrogatory, in which it found Carborundum guilty of “major fault,” is inconsistent with the general verdict in favor of Carborundum in the indemnity action, and therefore the former should control the latter. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1108, formerly Ill. Rev. Stat. 1979, ch. 110, par. 65.) Carborundum does not claim that the jury’s answer to the special interrogatory is consistent with their general verdict against Sheet Metal (see Burns v. Howell Tractor & Equipment Co. (1977), 45 Ill. App. 3d 838, 360 N.E.2d 377), but instead asserts that the jury’s answer to the special interrogatory is contrary to the evidence introduced at trial and should be vacated. (Lesperance v. Wolff (1979), 79 Ill. App. 3d 136, 398 N.E.2d 360.) We have already determined, in connection with Carborundum’s appeal against Sternberg, that the answer to the special interrogatory was not contrary to that evidence.

Carborundum argues, in the alternative, that, as the court’s authority to enter judgment on the special interrogatory instead of the general verdict is only discretionary, not mandatory (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1108, formerly Ill. Rev. Stat. 1979, ch. 110, par. 65; Borries v. Z. Frank, Inc. (1967), 37 Ill. 2d 263, 226 N.E.2d 16), this court should remand the indemnity action for a new trial. We decline to exercise our authority in this manner, because we believe that the general verdict in Carborundum’s favor can and should be set aside as a matter of law.

A review of the evidence pertinent to Sheet Metal’s indemnity action against Carborundum shows that, unlike Sternberg, Sheet Metal did not provide tools or equipment for the ironworkers, nor did any of its personnel supervise the erection of the structural steel as did Sternberg’s foreman and supervisor. In fact, David Partney testified that Sternberg unloaded the structural steel when it arrived at the job site, even though Sheet Metal’s personnel unloaded the duct work and the baghouse components. According to Partney, Sternberg’s workers would usually contact Peluso directly about the misfabricated steel, and, on those occasions when they would mention their problems to him, he would refer the matter to Peluso for his approval.

Partney was on the job site on October 10, 1977, but there is no testimony to indicate that he ordered or even knew of the practice of leaving braces resting unfastened on cross beams. Nor does the evidence at trial suggest that he, or Sheet Metal, were significantly involved in the construction of the structural steel, apart from their role in refabricating some of the defective pieces, and as an intermediary, on infrequent occasions, between Sternberg and Carborundum. Moreover, when the plaintiff was injured, it was Sternberg’s employee, acting under the authority of Carborundum’s project coordinator, who gave the order which ultimately led to thát injury.

Under the principles of the cases discussed in connection with Carborundum’s appeal against Sternberg, we conclude that the judgment in favor of Carborundum cannot stand. The evidence in this indemnity action does not demonstrate that Sheet Metal was substantially involved in the design, maintenance or construction of the structural steel (Sack v. Arcole Midwest Corp.) even though it refabricated some of the metal in its shop. Its participation in the construction of the steel was largely limited to making modifications in the beams and ascertaining that suitable progress was being made. (Nogacz v. Procter & Gamble Manufacturing Co.) Neither activity, in our view, raises a jury question of Sheet Metal’s connection with the particular decisions which resulted in the plaintiff’s injuries. Consequently, according to the standards of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, Sheet Metal has proven that it is entitled to indemnity from Carborundum as a matter of law, and therefore the judgment against Sheet Metal on its third-party claim for indemnity is reversed.

APPEAL OF STERNBERG AGAINST SHEET METAL

Sternberg presents essentially three assignments of error in its appeal from the judgment granting Sheet Metal indemnity against it. First, it argues that, because the jury found Carborundum guilty of major fault while denying Sheet Metal indemnity from Carborundum, the jury impliedly found Sheet Metal guilty of major fault, and therefore Sheet Metal may not be indemnified by Sternberg. We have already resolved this argument in favor of Sheet Metal by reversing the judgment against Sheet Metal in its third-party action. Second, Stern-berg asserts that Sheet Metal is guilty of breach of an affirmative duty to the plaintiff and thus may not be indemnified by Sternberg. Finally, Sternberg contends that public policy prohibits implied indemnity as granted to Sheet Metal.

In its brief, Sternberg does not claim that Sheet Metal was more actively involved in the construction of the structural steel than it, Sternberg was, but it attempts to characterize the conduct of Sheet Metal as of “the same quality” as its own, and therefore sufficient to deny Sheet Metal indemnity. Yet, Sternberg, which admits that it was in direct charge of the erection of the structural steel, does not point to any affirmative action taken by Sheet Metal which violated the Structural Work Act. Sheet Metal’s transgression, according to Stern-berg, consisted of its failure to discover the unsafe working conditions on the structural steel.

It has been held that the general contractor’s failure to discover and remedy defects does not bar the contractor from seeking indemnity from a party who is more significantly at fault in causing the plaintiff’s injuries. (Gadd v. John Hancock Mutual Life Insurance Co. (1971), 5 Ill. App. 3d 152, 275 N.E.2d 285.) We need not review again the actions taken by Sternberg to demonstrate that its conduct was considerably greater in contributing to the plaintiff’s injuries than was Sheet Metal’s failure to discover and remedy the dangers surrounding the structural steel work. A jury question was presented concerning whether there was a “qualitative difference” between the acts of Sternberg and those of Sheet Metal (Bloodsaw v. Corbetta Construction Co. (1980), 86 Ill. App. 3d 52, 407 N.E.2d 876; Zajac v. Illinois Heating & Ventilating Co. (1980), 82 Ill. App. 3d 1148, 403 N.E.2d 674), and thus we will not disturb their decision that the evidence entitles Sheet Metal to indemnification from Sternberg.

Finally, Sternberg argues that the implied indemnity sought by Sheet Metal in this case is against public policy. In Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 336 N.E.2d 881, the Illinois Supreme Court held that agreements to indemnify another for liability under the Structural Work Act are unenforceable, according to section 1 of “An Act in relation to indemnity in certain contracts” (Ill. Rev. Stat. 1971, ch. 29, par.' 61) and at common law. Arguing from Davis, Sternberg asserts that “it takes some judicial sophistry” to prohibit express indemnity under the Structural Work Act while allowing implied indemnity. We do not agree.

A careful reading of Davis indicates that it is not the granting of indemnity by a court which violates public policy, but the agreement to allocate the responsibility for a Structural Work Act violation in advance of any such violation. The widespread use of these agreements in the construction industry “may have removed or reduced the incentives to protect workers and others from injury.” (61 Ill. 2d 494, 499, 336 N.E.2d 881, 884.) In contrast, no similar difficulties are created if indemnity is granted pursuant to a determination of the relative faults of the parties involved. The courts of this State have upheld indemnity actions based on a violation of the Structural Work Act, as long as there is a pretort relationship between the indemnitor and the indemnitee (Zajac v. Illinois Heating & Ventilating Co.), which, in this case, is established by the oral subcontract between Sternberg and Sheet Metal. There is no inconsistency between not enforcing an indemnity agreement under the Structural Work Act and granting indemnity based on the pretort relationship between, and the degree of fault exhibited by, the parties involved. Therefore, the judgment in favor of Sheet Metal in its indemnity action against Sternberg is affirmed.

CONCLUSION

The judgment denying Sheet Metal indemnity against Carborundum is reversed. The remaining judgments of the Circuit Court of Madison County are affirmed.

Affirmed in part, reversed in part.

EARNS, P. J., and JONES, J., concur.


source: Caselaw Access Project

author: JUSTICE LONDRIGAN

license: Public Domain

text:
    MARTIN BROTHERS IMPLEMENT CO. et al., Plaintiffs-Appellees and Cross-Appellants, v. DELBERT DIEPHOLZ, d/b/a Mattoon Farm Service, Defendant and Third-Party Plaintiff-Appellant and Cross-Appellee.—(Paul F. Compton, Defendant and Cross-Appellee; Larry Allen, d/b/a L & L Construction Company, Third-Party Defendant.)
    Fourth District
    No. 17680
    Opinion filed September 13, 1982.

      Dotson Law Office, of Mattoon, and Edward C. Eberspacher III, of Dove and Dove, of Shelbyville, for appellant.
    Jack C. Vieley, of Peoria, for appellees.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Defendant Diepholz appeals from the entry of summary judgment against him in an action for conversion of a tractor. Plaintiffs cross-appeal from the entry of summary judgment in favor of defendant Compton.

Larry Allen purchased a Caterpillar model D-5 bulldozer from Martin Brothers on June 14, 1976. The purchase of the bulldozer was financed on an installment basis and Martin Brothers retained a security interest in the bulldozer. Martin Brothers perfected its security interest by filing a financing statement with the Secretary of State on June 15,1976.

Allen sold the bulldozer to Delbert Diepholz, a farm implement dealer, on May 3, 1977, for $19,350. Diepholz did not check with the Secretary of State regarding any outstanding security interest against the bulldozer and he had no actual knowledge of Martin Brothers’ security interest. Compton purchased the bulldozer from Diepholz for $29,000. Compton testified that the sale took place in May of 1977. Diepholz, in an answer to an interrogatory, claimed the sale took place in December of 1979.

Allen defaulted on his obligation to the plaintiffs on June 15, 1977. Plaintiffs brought suit against Allen in Champaign County. On June 23, 1978, plaintiffs filed suit against Diepholz in Coles County. Diepholz joined Allen as a third-party defendant. Allen executed an agreement with Diepholz on August 17, 1978, agreeing to hold Diepholz harmless and assuming all responsibility for the transaction involving the bulldozer. On October 13, 1978, Allen conditionally assigned his beneficial interest in a land trust to plaintiffs as security for the payment of the judgment entered in the Champaign County case. In exchange for the conditional assignment, plaintiffs agreed not to pursue other remedies it might have had against Larry Allen.

Allen made payments on the Champaign County judgment until 1981, at which point he ceased making payments on the judgment. No further action was taken in the Coles County proceeding during this period. Plaintiffs filed a motion for summary judgment against Diepholz on June 29, 1981. Diepholz filed an affidavit in opposition to the motion, claiming that he had relied on the agreement between Allen and plaintiffs in the Champaign County proceeding and had substantially changed his position. The trial court granted plaintiffs’ motion and entered judgment for $6,300 on August 20,1981.

Plaintiffs also filed an amended complaint against Compton on August 20, 1981, seeking $29,000 in damages and replevin of the bulldozer. Compton filed a motion for summary judgment on September 2, 1981. In an affidavit accompanying the motion Compton stated that he purchased the bulldozer from Diepholz, who was engaged in the business of selling such equipment; that he paid fair market value for the bulldozer; and that he was unaware that the sale was in violation of Martin Brothers’ security interest. The trial court granted Compton’s motion on November 31,1981.

Diepholz raises two issues on appeal: (1) whether the trial court erred in granting summary judgment without first ruling on his motion to dismiss and his motion to strike the complaint; and (2) whether the trial court erred in granting plaintiffs’ motion for summary judgment because of the existence of genuine issues of material fact. Plaintiffs, in their cross-appeal, argue that the trial court erred in granting Compton’s motion for summary judgment.

Diepholz contends that the trial court ignored his motion to dismiss and his motion to strike. Plaintiffs deny this and state that Diepholz failed to call his motions for hearing within 90 days, as required by Rule IV(c) of the rules of Practice of the Fifth Judicial Circuit. This being the case, plaintiffs argue, the trial court was within its power in ruling on plaintiffs’ motion for summary judgment and ignoring Diepholz’ motions.

Diepholz has waived any objection to the trial court’s handling of his motions. Circuit courts have the power to enact and enforce rules regulating their calendars and dockets, as long as the rules do not conflict with supreme court rules or statutory law. (See Ill. Rev. Stat. 1979, ch. 110, par. 2(2).) Valid rules of practice of the circuit courts have the binding effect of a statute and are to be obeyed. (Axtell v. Pulsifer (1895), 155 Ill. 141, 39 N.E. 615; Vasco Trucking, Inc. v. Parkhill Truck Co. (1972), 6 Ill. App. 3d 572, 286 N.E.2d 383.) Diepholz failed to take the necessary steps to bring his motions before the court in a timely manner. He will not now be heard to complain that his motions were ignored, having slept on his rights below.

Diepholz also argues that genuine issues of material fact precluding summary judgment do exist. He contends that whether the conditional assignment by Allen to the plaintiffs was a future advance, which would release Diepholz from liability under section 9 — 307(3) of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 9— 307(3)), was a genuine issue of material fact. Furthermore, Diepholz maintains that genuine issues of fact are present with respect to the affirmative defenses he offered below: laches, waiver and equitable estoppel.

Summary judgment under section 57 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 0110, par. 57) is a drastic method of terminating litigation, but its use in proper cases is encouraged. (Green v. Mc-Clelland (1973), 10 Ill. App. 3d 350, 293 N.E.2d 629.) The function of the trial court on a motion for summary judgment is not to try the facts presented, but to determine whether a triable issue of fact exists. (Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (1979), 74 Ill. App. 3d 778, 392 N.E.2d 1352.) The trial court determines whether, if what was contained in the pleadings and affidavits was presented at trial, the case would go to the jury. Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 272 N.E.2d 497.

Section 9 — 307(3) of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 307(3)) states that, under certain conditions, a buyer other than a buyer in the ordinary course of business takes free of a security interest which secures future advances. The term “future advance” is not defined by the Code. Black’s Law Dictionary defines “future advances" as “[m]oney lent after a security interest has attached and secured by the original security agreement.” (Black’s Law Dictionary 609 (5th ed. 1979).) Using this definition, it is clear that the conditional assignment by Allen in favor of plaintiff was not a future advance. Plaintiffs lent no money to Allen; they merely took the assignment as additional security for the payment of the judgment in the Champaign County case. No genuine issue of material fact was present.

Diepholz also maintains that genuine issues of material fact exist with respect to his affirmative defenses of laches, waiver and equitable estoppel. The particular provision of the conditional assignment which Diepholz contends supports his position that jury questions were present with respect to his affirmative defenses is set forth below:

“The condition of this Conditional Assignment is that it is given purely as security for the payment of the judgment herein entered in favor of the Grantees and against LARRY D. ALLEN in the above-described lawsuit; and that this Conditional Assignment shall be null and void upon the occurrence of any one of the following events:
1. Satisfaction of the judgment hereinbefore set forth;
2. The Grantees, their agents, attorneys or employees pursuing collection remedies against LARRY D. ALLEN or any other person or organization, other than such as provided herein, at any time prior to the expiration of_days from the date hereof; or
3. LARRY D. ALLEN is prosecuted for acts involving the transfer of the machine which is the subject matter of said lawsuit.”

Laches “has been defined to be such a neglect or omission to assert a right, taken in conjunction with lapse of time of more or less duration, and other circumstances causing prejudice to an adverse party, as will operate as a bar in a court of equity.” (Freymark v. Handke (1953), 415 Ill. 360, 366, 114 N.E.2d 349, 352.) Failure to prosecute an action after its commencement can constitute laches. (Thomas v. Van Meter (1896), 164 Ill. 304, 45 N.E. 405; Trustees of Schools v. City of Chicago (1941), 308 Ill. App. 391, 32 N.E.2d 180.) In Thomas, a delay of 14 years after the entry of a decree of foreclosure acted to bar the right of complainant’s receiver to recover the proceeds of the decree where the principal witness had died during the period of delay, rights of innocent parties had intervened and no reasonable excuse existed for the delay.

In the present case, plaintiffs did delay further prosecution of the Coles County case against Diepholz for approximately years. However, Diepholz failed to move to dismiss the action for lack of prosecution and has failed to establish any facts which would indicate injury or prejudice to him as a result of the delay. In his affidavit, Diepholz makes a bare conclusory allegation that he is unable now to protect himself. This is not sufficient to establish a genuine issue of material fact on the issue of laches.

Waiver is the intentional relinquishment of a known right. (Gras v. Clark (1977), 46 Ill. App. 3d 803, 361 N.E.2d 316.) The facts of this case belie Diepholz’ claim that plaintiffs waived their rights against him. The language of the conditional assignment does not bar any further action against Diepholz. Nor did plaintiffs dismiss the Coles County proceeding it had brought against Diepholz. The evidence before the trial court could not support an inference that plaintiffs intentionally relinquished their right of action against Diepholz.

Equitable estoppel or estoppel in pais is a doctrine developed by the chancery courts to prevent a party from asserting his rights where the assertion of those rights would work a fraud or an injustice on another party. (18 Ill. L. & Prac. Estoppel sec. 22 (1956).) In Stewart v. O’Bryan (1977), 50 Ill. App. 3d 108, 365 N.E.2d 1019, this court listed six factors which must be present in order for the doctrine of equitable estoppel to be available:

“(1) Words or conduct by the party against whom the estoppel is alleged constituting either a misrepresentation or concealment of material facts; (2) knowledge on the part of the party against whom the estoppel is alleged that representations made were untrue; (3) the party claiming the benefit of an estoppel must have not known the representations to be false either at the time they were made or at the time they were acted upon; (4) the party estopped must either intend or expect that his conduct or representations, will be acted upon by the party asserting the estoppel; (5) the party seeking the benefit of the estoppel must have relied or acted upon the representations; and (6) the party claiming the benefit of the estoppel must be in a position of prejudice if the party against whom the estoppel is alleged is permitted to deny the truth of the representations made. [Citation.]” 50 Ill. App. 3d 108, 110, 365 N.E.2d 1019, 1020-21.

Diepholz produced no evidence establishing any words or conduct by plaintiffs amounting to a misrepresentation of the material fact. Diepholz also failed to show that plaintiffs intended or expected their conduct to result in some sort of action by Diepholz.

Diepholz failed to establish that any genuine issue of material fact existed with respect to any of his affirmative defenses. The trial court acted properly in granting plaintiffs’ motion for summary judgment against Diepholz.

Plaintiffs cross-appeal from the trial court’s entry of summary judgment in favor of Compton. The trial court found that Compton was a buyer in the ordinary course of business and that Diepholz was a person engaged in the business of selling used heavy equipment. Therefore, the trial court reasoned, Compton took free of plaintiff’s perfected security interest under section 9 — 307(1) of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 307(1)).

Section 9 — 307(1) of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 307(1)) provides:

“A buyer in ordinary course of business (subsection (9) of Section 1 — 201) other than a person buying farm products from a person engaged in farming operations takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.”

The trial court’s decision was clearly erroneous. While Compton was undoubtedly a buyer in the ordinary course of business (See Ill. Rev. Stat. 1979, ch. 26, par. 1 — 201(9)), he could take free of only those security interests created by his seller. No Illinois court has decided a case involving a buyer in the ordinary course of business and a “remote” secured party. However, the decisions of the reviewing courts in our sister States are unanimous in holding that section 9— 307 does not protect a buyer in the ordinary course of business from a security interest created by a former owner who is not the buyer’s seller. Black v. Schenectady Discount Corp. (1974), 31 Conn. Supp. 521, 324 A.2d 921; Commercial Credit Equipment Corp. v. Bates (1980), 154 Ga. App. 71, 267 S.E.2d 469; National Shawmut Bank v. Jones (1967), 108 N.H. 386, 236 A.2d 484; Muir v. Jefferson Credit Corp. (1970), 108 N.J. Super. 586, 262 A.2d 33; Lindsley v. Financial Collection Agencies, Inc. (1978), 97 Misc. 2d 263, 410 N.Y.S. 2d 1002; see generally 4 Anderson, Uniform Commercial Code sec. 9 — 307:9 (1971).

In Security Pacific National Bank v. Goodman (1972), 24 Cal. App. 3d 131, 100 Cal. Rptr. 763, the California court was faced with a factual situation similar to the one presented in the case at bar. The bank lent money to A in exchange fór a security interest in A’s boat. A later sold his boat to B, a dealer in boats. B sold to C, a buyer in the ordinary course of business. A defaulted on his loan and the bank sued C for possession of the boat. The court held for the bank because the security interest in question was not created by C’s seller (B), but by A, a remote party. Under these circumstances, the court found that the protection given a buyer in the ordinary course of business by section 9 — 307(1) was not available to B.

We recognize that the result which flows from this construction of the statute may seem unjust. The buyer who purchases goods from a seller who has created the security interest takes free of that interest even though the buyer could conceivably discover the existence of a security interest by a title search. When a security interest exists in favor of a remote seller, however, that same buyer will not take the goods free and clear of the security interest, even though the burden of locating the remote party’s interest is much greater. However, this is consistent with the general rule set forth in the Code that a security interest continues in collateral despite a sale or other disposition of that collateral. (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 306(2).) Section 9 — 307(1) is an exception to this general rule of continuing security. Furthermore, our holding is in accord with the decisions rendered in other States and thus is in keeping with the goal of national uniformity underlying the Code. See Ill. Rev. Stat. 1979, ch. 26, par. 1— 102(2)(c).

The trial court’s decision granting plaintiffs’ motion for summary judgment against Diepholz is affirmed. The trial court’s grant of Compton’s motion for summary judgment against the plaintiffs is reversed and remanded for further proceedings consistent with this opinion.

Affirmed in part, reversed and remanded in part.

GREEN, R J., and WEBBER, J., concur.


author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROY M. WENTLENT, JR., Defendant-Appellee.
    Second District
    No. 81—679
    Opinion filed September 10, 1982.
    Rehearing denied October 20, 1982.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, of counsel), for the People.
    G. Joseph Weller and Joel Tiebloom, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

The State appeals from an order of the circuit court of Du Page County dismissing criminal charges against defendant, Roy M. Wentlent, Jr., for failure to comply with the 120-day speedy trial provision of section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(a)). On appeal, the State contends that (1) the decision of the trial court was against the manifest weight of the evidence, and (2) the trial court erred in applying section 103 — 5(a) to the instant case.

On October 22, 1980, defendant was charged by complaint issued in Du Page County with the offense of felony theft. A warrant for defendant’s arrest was also issued the same day. On February 14, 1981, defendant was arrested in Cook County on charges arising there and was incarcerated in the Cook County jail. The charges in Cook County were subsequently dropped on March 19, 1981, and on March 20, 1981, defendant was remanded to the Joliet Correctional Center to serve a six-month term of imprisonment for an unrelated parole violation.

On April 21, 1981, the Joliet Correctional Center acknowledged receipt of a Du Page County detainer for the instant offense. There was no indication on what date the detainer had been issued by Du-Page County. On April 28, 1981, the defendant filed a notice and request for the disposition of the Du Page County charge in conformity with section 3 — 8—10 of the Unified Code of Corrections. Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 8—10.

Pursuant to a writ of habeas corpus ad prosequendum, the defendant was brought before the court in Du Page County on May 29, 1981. The case was continued to July 10, 1981, and on that date the State filed a two-count information charging the defendant with theft. The case was set for trial on August 10, 1981.

On the day of trial the defendant moved for discharge under section 103 — 5(a) on the ground that he had not been brought to trial within 120 days of March 19, 1981, the day when the Cook County charges had been dropped. Defendant claimed that a Du Page County “detainer” had been lodged against him on March 9, 1981, while he was incarcerated in the Cook County jail. Therefore, he argued, he was “in custody” for Du Page County when the Cook County proceedings terminated, and the 120-day limitation period of section 103 — 5(a) of the Code of Criminal Procedure of 1963 had expired. (Elapsed time between March 19 and the August 10 trial date = 144 days.)

The State, on the other hand, argued that no Du Page County detainer had lodged against defendant until after he was committed to the Joliet Correctional Center. Since defendant was “committed” to a Department of Corrections, the State reasoned the 160-day limitation of section 3 — 8—10 applied and the speedy trial term did not begin to run until defendant demanded a speedy trial on April 28, 1981. Under this theory, the trial date was well within the 160-day limitation. (Elapsed time between April 28 and August 10 = 104 days.)

The evidence regarding the date and place of service of the complaint and arrest warrant is conflicting. The defendant testified he was served in open court with the Du Page County complaint and warrant on March 9, 1981, as he was appearing on the Cook County charge. Defendant later testified he was unsure of the exact date of service and that no papers were handed to him in court. He also stated that he had no copies of any papers that were handed to him at that time. Defendant stated that to the best of his knowledge he was sent to Joliet on March 20, 1981, to serve a six-month term for parole violation.

The complaint itself indicates that a March 9, 1981, service date was crossed out and replaced with the date of May 28, 1981. On the signature line of the complaint, the name “Detective Paul Sarch” was also lined out, and the name “G. Figiel” appears above it. The arrest warrant indicates that it was served on the defendant on May 29, 1981, by Officer Figiel. Unlike the complaint, the arrest warrant contains no irregularities on its face.

Mary Kloeckner, an assistant in the warrant division of the Du Page County Sheriff’s Office, testified for the State. Ms. Kloeckner testified that all complaints, warrants, and all detainers which are to be filed in other counties go through the sheriff’s office and according to their records no detainer or hold had been placed against the defendant in Cook County. She stated that the only detainer on file in connection with the defendant was the one acknowledged by the Joliet Correctional Center on April 21, 1981. She did not indicate the date the detainer had been issued. The detainer itself was not produced at the hearing. The witness testified that according to the sheriff’s records, the original complaint and warrant were served on the defendant on May 29, 1981, by Officer Figiel.

Gregg Figiel also testified for the State. He testified that on May 29, 1981, he served the defendant with the complaint and arrest warrant. Deputy Figiel stated that the May 28 date on the complaint was not in his handwriting, but the signature was his. He noted that the May 28 service date on the complaint was incorrect, since it was not served until May 29, 1981. He recalled serving the defendant with the yellow copy of the complaint and testified that if defendant had been served on March 9, 1981, no yellow copy would have been available for service on May 29, 1981.

In a side bar, defense counsel informed the court that the defendant claimed to have the yellow copy of the complaint, dated March 9, 1981, among his papers at the penitentiary. However, this copy was never produced by defense counsel for the court’s inspection, and is not a part of the record on appeal.

The trial court found that defendant was “served with process” on March 9, 1981, while he was incarcerated in Cook County, that a detainer became effective on that date, and that the defendant was in custody for the instant offense upon termination of the Cook County proceedings. In accordance with these findings, the court discharged the defendant pursuant to the speedy trial provisions of section 103— 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(a)).

The State initially contends the trial court’s finding that defendant was “served with process” on March 9, 1981, rather than on May 29, 1981, was against the manifest weight of the evidence. We note at this juncture that the trial court did not specify what it meant by “service of process.” We will assume, therefore, that it found defendant was served with both the complaint and warrant on that date.

Reviewing courts will not reverse a trial court’s determination of questions of fact unless such determination is found to rest on doubtful, improbable or unsatisfactory evidence. (People v. Powell (1978), 72 Ill. 2d 50, 377 N.E.2d 803, cert. denied (1979), 440 U.S. 907, 59 L. Ed. 2d 455, 99 S. Ct. 1214.) We believe the trial court’s finding that defendant was served with a Du Page County complaint on March 9, 1981, ’was supported by the record. The fact that the complaint itself shows a discrepancy with respect to the service date is sufficient to support this finding.

We do not, however, arrive at the same conclusion with regard to service of the arrest warrant. The warrant on its face unequivocally states it was served by Officer Figiel on May 29, 1981. Both State’s witnesses testified it was served on that date. The only evidence in the record which supports the trial court’s finding in this regard was defendant’s affirmative response to his counsel’s leading question that he was served with a complaint and.warrant in Cook County on March 9, 1981. However, defendant later responded that no papers were handed to him in court, and that he had no copies of any documents that were handed to him; nor could he remember the precise date on which he was allegedly served. No duplicate of the warrant was ever produced to rebut the unequivocal document filed with the court. We note that in making its findings the trial court relied upon corroboration supposedly contained in the common law record. The common law record does not, however, corroborate that the arrest warrant was served on March 9, 1981. Further, there is no evidence to support an inference that the complaint and arrest warrant were served at the same time. Under these circumstances, we believe the trial court’s finding that defendant was served with an arrest warrant was against the manifest weight of the evidence.

Having determined that defendant was served with a Du Page County complaint, but not an arrest warrant, on March 9, 1981, while he was incarcerated in Cook County, we must next determine (1) which speedy trial provision applies here, and (2) from which date the speedy trial period began to run.

Section 103 — 5 provides in pertinent part:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody ***.
(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial ***.
* * *
(d) Every person not tried in accordance with subsections (a), (b) and (c) of this Section shall be discharged from custody or released from the obligations of his bail or recognizance.” Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5.

Section 3 — 8—10, regarding intrastate detainers, incorporates section 103 — 5(b) in the following provision:

“Except for persons sentenced to death, subsection (b), (c) and (e) of Section 103 — 5 of the Code of Criminal Procedure of 1963 shall also apply to persons committed to any institution or facility or program of the Illinois Department of Corrections who have untried complaints, charges or indictments pending in any county of this State ***.” Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 8—10.

Defendant essentially relies on People v. Woodruff (1980), 90 Ill. App. 3d 236, 412 N.E.2d 1171, to support his position that he was “in custody” on the Du Page charge prior to his commitment to the Joliet Correctional Center. He, therefore, urges us to apply to the instant case the provisions of section 103 — 5(a) rather than those of section 3-8-10.

In Woodruff, the defendant was incarcerated in a Macon County juvenile detention center pending his transfer to the Department of Corrections, Juvenile Division, in St. Charles. Just prior to his transfer, on June 28, 1979, defendant was served with the summons for several Macon County offenses. Defendant was subsequently transferred to St. Charles on July 2, 1979, and on July 23, 1979, the State filed a writ of habeas corpus which was served on defendant. Defendant was not tried on the Macon County charges until November 19, 1979, 144 days after service of the summons. The defendant moved for discharge under section 103 — 5(a), and the parties stipulated defendant was in custody on the date service of the summons was made. The trial court denied the motion, however, finding defendant was not in custody for these offenses until the writ of habeas corpus was filed on July 23, 1979 (119 days prior to trial). In reversing the trial court’s order, the appellate court noted defendant was already in custody for a previous conviction in Macon County when he was charged with the offenses involved. It further found that the service of the summons effectively began the case and, therefore, the speedy trial term began to run from that date (June 28). Since defendant’s trial was held more than 120 days from June 28, he was entitled to discharge under section 103 — 5(a).

We believe the Woodruff case is readily distinguishable from the case at bar. The court there expressly limited its holding to those cases involving more than one set of charges in the same county, rather than the involvement of more than one county. (See People v. Arbuckle (1964), 31 Ill. 2d 163, 201 N.E.2d 102, cert. denied (1965), 380 U.S. 945, 13 L. Ed. 2d 964, 85 S. Ct. 1029.) Further, when a defendant is confined in one county following conviction, some prosecutorial action is generally required before the speedy trial period will commence. (People v. Smith (1976), 42 Ill. App. 3d 731, 356 N.E.2d 656 (dicta); People v. Arbuckle.) Thus, the service of the summons in Woodruff was sufficient. Where, however, defendant is in custody awaiting trial in one county and charges are pending against him in another county, then a different rule applies. In that situation, the 120-day period does not begin to run until the proceedings in the first county end and defendant is held in custody by or for the second county on the subject charges. (People v. Evans (1979), 75 Ill. App. 3d 949, 394 N.E.2d 710; People v. Kerley (1979), 72 Ill. App. 3d 916, 391 N.E.2d 225; People v. Karr (1979), 68 Ill. App. 3d 1040, 386 N.E.2d 927; People v. Clark (1968), 104 Ill. App. 2d 12, 244 N.E.2d 842.) Finally, where following conviction a defendant is commited to the Department of Corrections (as opposed to a county jail), and a charge is pending against him in any county in the State, a still different class of case controls. In that situation, section 3 — 8—10 governs, and the 160-day speedy trial term does not begin to run until defendant files his speedy trial demand. (People v. Davis (1981), 92 Ill. App. 3d 869, 416 N.E.2d 85; People v. Bivens (1976), 43 Ill. App. 3d 79, 356 N.E.2d 665; People v. Smith (1976), 42 Ill. App. 3d 731, 356 N.E.2d 656.) For the reasons set forth below, we are unable to conclude, as the Wood-ruff court did, that defendant here was “in custody” for the Du Page charge prior to his commitment to the Department of Corrections.

Defendant in the case at bar was incarcerated in Cook County awaiting trial, and was, therefore, subject to the rule that he cannot be in custody for the second county until the proceedings in the first county have ended and he is either held by or for the second county on the subject charges. (People v. Clark (1968), 104 Ill. App. 2d 12, 244 N.E.2d 842.) Thus, a defendant cannot be in the custody of the second county until the first proceedings have ended, even where a defendant is served with a warrant while incarcerated in the first county (People v. Gardner (1982), 105 Ill. App. 3d 103, 433 N.E.2d 1318), where a “hold” or “detainer” is lodged against him while incarcerated in the first county (People v. Kerley (1979), 72 Ill. App. 3d 916, 391 N.E.2d 225; People v. Mikrut (1969), 117 Ill. App. 2d 444, 253 N.E.2d 556), or where defendant is brought before the court in the second county, but then is returned again to the custody of the first county. People v. Gardner; People v. Evans (1979), 75 Ill. App. 3d 949, 394 N.E.2d 710.

Further, it has been held that where a defendant is not served with a complaint and arrest warrant prior to the termination of court proceedings in the first county, he is not deemed to be “in custody” for the second county even upon termination of the first action. (People v. Mikrut (1969), 117 Ill. App. 2d 444, 253 N.E.2d 556.) In Mikrut a defendant who had a “hold” order placed upon him while he was incarcerated in another county, but who had not been served with the complaint and warrant, was deemed not to be in the custody of the second county. The court stated:

“The practice of placing formal requests for notification of a prisoner’s release date, sometimes characterized as ‘hold orders’ or ‘detainers,’ is without any legal sanction in Illinois as far as we have been able to determine. The practice appears to be a matter of voluntary cooperation between authorities. Here the sending of the complaint and warrant to the Cook County jail authorities operated as a request to hold defendant on the DuPage County charge if defendant was released on the Cook County charge. But without actual service of process on the defendant (or an arrest without a warrant), we know of no theory on which it may be said that defendant was ‘in custody’ on the DuPage County charge by reason of the detainer practice.” (Emphasis added.) 117 Ill. App. 2d 444, 450, 253 N.E.2d 556, 559. See also People v. Akins (1971), 132 Ill. App. 2d 1033, 270 N.E.2d 107.

We have already determined that defendant was not served with an arrest warrant on the instant offense during his incarceration in Cook County. Nor does it appear from the record that he was arrested without a warrant on the Du Page charge, since he was subsequently remanded to Joliet on an unrelated charge. We do not consider the service of a complaint without a warrant sufficient to render defendant “in custody” upon termination of the Cook County proceedings. A complaint merely serves to institute an action and does not command any official to seize or retain the person of the defendant. We are directed to no case in which the service of the complaint alone is treated as the equivalent of the service of an arrest warrant under the circumstances here. Moreover, neither Cook County nor Du Page County officials took any action upon the previously issued, but unserved, warrant when defendant was released from Cook County. (See People v. Akins (1971), 132 Ill. App. 2d 1033, 270 N.E.2d 107; People v. Mikrut (1969), 117 Ill. App. 2d 444, 253 N.E.2d 556.) The mere fact that defendant here was held over one day by Cook County officials before his transfer to Joliet is insufficient to find that the holdover was pursuant to the Du Page County charge. It would be more logical to assume that the holdover was pursuant to the unrelated parole violation rather than the Du Page offense. Thus, we conclude that defendant was not “in custody” under section 103 — 5(a) for the instant offense upon termination of the Cook County proceedings. See also People v. Karr (1979), 68 Ill. App. 3d 1040, 386 N.E.2d 927.

We further conclude that the provisions of section 3 — 8—10 are applicable to the case at bar. Defendant does not assert he was not a person committed to the Department of Corrections within the meaning of section 3 — 8—10. Instead he states the statute is not applicable to his circumstances. A plain reading of the statute discloses that the requirement imposed by section 103 — 5(b), the necessity for demanding trial, applies to persons in custody of the Department of Corrections. On March 20, 1981, defendant was a person committed to the custody of the Department of Corrections having an untried theft charge pending against him in Du Page County. He was, therefore, required to make a demand for trial before the 160-day period under that section would begin to run. (People v. Freeland (1981), 103 Ill. App. 3d 94, 430 N.E.2d 277; People v. Davis (1981), 92 Ill. App. 3d 869, 416 N.E.2d 85.) On April 28, 1981, defendant did make such a demand and it was on that date that the speedy-trial term commenced under section 3 — 8—10. Since the August 10 trial date was well within the 160-day limitation, defendant was not denied his statutory right to a speedy trial.

We are mindful of that line of cases in which it is held that the prosecutor has a duty to bring a defendant to trial within 120 days of the date he discovers, or should have discovered, defendant’s whereabouts and no other bar to prosecution exists. (See People v. Powell (1976), 43 Ill. App. 3d 934, 357 N.E.2d 725; People v. Vaughn (1972), 4 Ill. App. 3d 51, 280 N.E.2d 253; People v. Gray (1967), 83 Ill. App. 2d 262, 227 N.E.2d 159; People v. Fosdick (1967), 36 Ill. 2d 524, 224 N.E.2d 242.) However, we do not find these cases to be applicable here. We note that this rule was developed prior to the enactment of section 3 — 8—10 to avoid the delay of trial by the State when the State knew of an accused’s whereabouts in the penitentiary or county jail. Section 3 — 8—10, however, represents a legislative decision to impose upon a defendant committed to a Department of the State, the burden of demanding a speedy trial. (See People v. Bivens (1976), 43 Ill. App. 3d 79, 356 N.E.2d 665; People v. Smith (1976), 42 Ill. App. 3d 731, 356 N.E. 656.) Further, in People v. Davis (1981), 92 Ill. App. 3d 869, 416 N.E.2d 85, 87, this court stated that section 3 — 8—10 applies even where the defendant’s whereabouts are known to the authorities in the courts where the charge is pending. Thus, the fact that Du Page authorities knew, or should have known, of defendant’s whereabouts in Joliet as of March 19, 1981, is of no significance here.

For the foregoing reasons, the judgment of the circuit court of Du Page County is reversed and this cause remanded for further proceedings.

Reversed and remanded.

SEIDENFELD, P. J., and NASH, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    ELDON HARMS, Plaintiff, v. ROBERT HARMS et al., Defendants-Appellees—(Esther Flessner et al., Defendants-Appellants; Adrian Harms et al., Defendants).—ELDON HARMS, Plaintiff, v. ROBERT HARMS et al., Defendants-Appellees—(Esther Flessner et al., Defendants; Adrian Harms et al., Defendants-Appellants).—ELDON HARMS, Plaintiff-Appellant, v. ROBERT HARMS et al., Defendants-Appellees—(Esther Flessner et al., Defendants).
    Fourth District
    Nos. 17685, 4—82—0064, 4—82—0065 cons.
    Opinion filed September 13, 1982.

      John A. Carlon, of Normal, for appellants Adrian Harms and Thora Mercer.
    John C. Hirschfeld, of Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, of Champaign, for appellants Esther Flessner et al.

    Gale W. Saint, of Bane, Allison & Saint, P. C., of Bloomington (Douglas W. Worrell, of counsel), for appellant Eldon Harms.
    James Yoder, of Yoder, Yoder, Zanoni, Flynn, Prall & Willard, of Bloomington, for appellees.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On March 18, 1980, plaintiff, Eldon Harms, filed suit in the circuit court of Woodford County seeking construction of the will and codicil of Folkert J. Harms, deceased, as they concerned the rights of tenancy on a farm tract of approximately 120 acres in that county and related questions concerning limitations upon the sale of the property. Numerous persons were joined as defendants. Some answered and counterclaimed, others merely answered, and some were defaulted. After completion of an evidentiary hearing, the court entered an order on November 21, 1981, determining defendants-counterclaimants, Robert Harms and Alfred Harms, to be entitled to be tenants of the tract, and the property not to be then subject to being sold without their consent. Defendants, Esther Flessner, David Bruns, Paul Bruns, James Bruns, Margaret Van Hoveln, E. O. DeWeerth, Raymond De-Weerth, E. Allen DeWeerth, Phyllis Holtfreter, Adrian Harms and Thora Mercer, and plaintiff have appealed. We affirm.

The testator died on March 5, 1966, survived by his wife, Tenna Harms, who lived until December 22, 1979. The testator devised to her a life estate in all his realty, terminable if she remarried. Clause Fourth of the will provided that, upon termination of the life estate, persons “hereafter named” shall sell all the real estate “within two years.” The clause further stated:

“During the period which may elapse from the time of my wife’s death or remarriage until the time of sale my said personal representative shall have the power and authority to rent and collect the rents from said real estate but not for a period of more than two years.”

On May 6, 1965, 10 months before his death, the testator executed a codicil, the pertinent portions of which stated:

“I provide that the provisions in the Fourth Clause relative to the two year period for the sale Of my real estate, which is farm land and leased to tenants, be deleted and eliminated and in lieu thereof I provide that said real estate shall be sold as provided in and by said clause' ten (10) years from the date of the death of my wife, or upon her remarriage, and if she shall have preceded me in death, then ten (10) years after my death. My purpose in making this provision is to give the tenants on said real estate the right to remain on and in the possession of said farm land as I realize that it is sometimes difficult for a tenant to move and secure another farm.
In the event that the tenant on any of the land does not wish to avail himself of the ten (10) years period as above provided, then he can waive the same and my Executors can then sell the said real estate as soon after the death of myself and my wife as they in their judgment shall deem proper.
I also provide that in the ten (10) year period as above provided, that if- any such tenant shall die, or does not wish to avail himself further of the right to remain as a tenant on the farm land, then he can waive the further right of possession and my said Executors can then proceed with the sale of said real estate.”

Plaintiff, Eldon J. Harms, was the tenant on the 120-acre tract in question at the time of the execution of the codicil and at the time of the testator’s death. During the existence of the life estate of Tenna Harms, she terminated plaintiff’s tenancy and leased the tract to defendants, Robert Harms and Alfred Harms. Plaintiff maintained that under the provisions of the codicil, he had a right to remain as tenant. However, in a suit entitled Tenna Harms v. Eldon J. Harms, Docket No. 69 — L—104, the circuit court of Woodford County ruled on May 12, 1979, that under the terms of the will and codicil, Tenna Harms had authority during the existence of her life estate to rent the tract to whom she pleased. No appeal was ever taken from that order.

Throughout the litigation, plaintiff maintained that a patent ambiguity existed in the codicil. He further maintained that when properly construed, the codicil provided that only he was entitled to be the tenant during the 10-year period following the death of Tenna Harms or, in the alternative, no one was entitled to be the tenant and, accordingly, the property was subject to immediate sale. The defendants, other than Robert and Alfred Harms, contend that the 10-year period was intended to be operative only if plaintiff was tenant at the termination of the life estate and because he was not, the provision does not come into effect, and the property is subject to immediate sale. Defendants Robert and Alfred Harms assert the trial court properly ruled that by virtue of being the tenant of the tract when the life estate terminated, they are entitled to be tenants for 10 years, and they have the power to determine whether a prior sale may be made.

The plaintiff and defendants-appellants contend that the statement in the codicil that “[m]y purpose in this provision is to give the tenants on said real estate ***” is patently ambiguous as to whether the “tenants” referred to were those holding that position at the execution of the codicil, at the testator’s death, or at the life tenant’s death. To show the ambiguity and to support the contention that the testator did not intend to benefit the plaintiff, appellants rely upon the testimony of attorney James A. Riely of Minonk. He stated that after discussion between the testator, the witness and attorney Edward E Riely, the latter dictated the codicil in the presence of the other two. On cross-examination by attorney John C. Hirschfeld on behalf of defendants-appellants, the witness stated that in the discussion the testator mentioned plaintiff Eldon Harms, defendant Alfred Harms, and a Mr. Kalkwarf who were then the existing tenants on the three farms of the testator. The following colloquy then took place:

“MR. HIRSCHFELD: I will ask you the question. Did he specifically state to you that he wanted to benefit these three tenants?
A. He did.
Q. And you’re sure of that?
A. I am positive.”

Evidence also showed plaintiff had been leasing the 120-acre tract since 1962, and a close relationship existed between plaintiff and testator for even longer because plaintiff, as a boy and young man, worked in the testator’s corn shelling and threshing business.

The trial court determined that the testimony of James A. Riely should be treated as that of a scrivener who could explain the intent of the language used. The court then ruled that an ambiguity existed in the codicil, thus making extrinsic evidence admissible to explain the document. The court found the testator expected Eldon Harms to be the tenant at the time of the termination of the life estate, but that he also intended to place reliance “upon the ability of Tenna Harms to make and carry out any decisions relating” to the property subject to her life tenancy. Accordingly, the trial court found that the testator (1) recognized that his widow might find it necessary to change the tenancy, and (2) intended the new tenants to also have the protection of a protracted tenancy beyond the expiration of the widow’s life estate.

We need not pass upon defendants Robert and Alfred Harms’ theory that no latent ambiguity existed in the will because we hold that even if such ambiguity did exist, the trial court’s determination was not erroneous.

The intent of the testator as stated in the codicil was to protect tenants from the difficulties of being required to move and obtain new land to farm. A binding determination was previously made that the tenants on the land at the time of the testator’s death were not intended to have the right to remain during the life estate. A former tenant, not farming the land at the termination of the life estate, would not have to move upon the termination of that estate. The determination of the trial court here that such an individual was not intended to be reinstated as a tenant was logical and not contrary to the manifest weight of the evidence. The trial court did not err in ruling plaintiff had no right to be tenant. .

A stronger argument is that of the defendants-appellants which is also the alternate argument of plaintiff. Their theory is that the testator intended the 10-year provision of the codicil to benefit only the three tenants farming the three tracts at the time of the execution of the codicil and, accordingly, the 10-year provision is not applicable to any tract where that tenant was not the tenant at the conclusion of the life estate. Defendants-appellants liken the benefits of the 10-year provision to devised to the three tenants of a base fee vesting at the time of the testator’s death but subject to an executory devise which would take effect as to a particular tract if the intended tenant was not lessee of that tract at the termination of the life estate. See Carr v. Hermann (1959), 16 Ill. 2d 624, 158 N;E.2d 770.

The 10-year provision in aid of tenants was most unusual. A strong argument can be made that the testator would not want it to benefit unascertained persons who might be tenants sometime in the future but would want its application limited to persons he knew such as the three named tenants. However, the witness Riely did not testify the testator said he intended to benefit only the three tenants. As the trial court noted, a landowner of testator’s background would likely recognize that one or more of the tenants might not be farming the land at the end of the widow’s life estate and would refer specifically to that circumstance had he not wanted the 10-year provision to apply then. Because of the conflicting conclusions that might be reached from the evidence, the trial court’s conclusion that the testator intended for the 10-year provision to benefit any tenant farming the land at the termination of the life estate was not contrary to the manifest weight of the evidence.

In explaining its order in open court, the trial court indicated it had uncertainty about the correctness of the testimony of the witness Riely because it seemed to be contrary to the specific language of the instrument. The court noted the rule that when an instrument is drafted by lawyers the specific language should control. Plaintiff contends this was improper. Although, as stated in Krog v. Hafka (1952), 413 Ill. 290, 109 N.E.2d 213, when construing an ambiguous provision of a will, the court should put itself in the position of the testator. We are aware of nothing which prevents the court from considering that a lawyer would be likely to mean what he states.

We also disagree with plaintiff’s theory that because the life tenant could, by leasing to a particular tenant, control the person who would benefit from the 10-year provision as to a particular tract, the life tenant was given a power of appointment. Plaintiff asserts the consideration given by the court violates the rule that a power of appointment cannot be created in a life tenant unless expressly stated in the testimentary instrument. (First United Presbyterian Church v. Christenson (1976), 64 Ill. 2d 491, 356 N.E.2d 532.) By virtue of a binding prior order, the life tenant clearly had the power to enter into a lease with a new tenant. We do not understand the above rule to negate the effect of all indirect consequences of that act of the life tenant unless the will and codicil expressly gave the life tenant the power to bring about those consequences.

The order appealed is affirmed.

Affirmed.

LONDRIGAN and TRAPP, JJ., concur.