Burger v. Van Severen

• Decision Date: 19 February 1963
• Docket Number: Gen. No. 11635
• Parties: John BURGER, Appellant, v. Henry VAN SEVEREN.
• Court: United States Appellate Court of Illinois

Page 373

188 N.E.2d 373

39 Ill.App.2d 205

John BURGER, Appellant, v. Henry VAN SEVEREN.

Gen. No. 11635.

Appellate Court of Illinois, Second District, Second Division.

Feb. 19, 1963.

Eagle & Eagle, Winter & O'Toole, Rock Island, for appellant.

Reidy, Katz, McAndrews, Durkee & Telleen, Rock Island, for appellee.

WRIGHT, Presiding Justice.

The plaintiff, John Burger, brought this action in the Circuit Court of Rock Island County under the Illinois Structural Work Act (Chap. 48, Sec. 60, Ill.Rev.Stat.1961) to recover damages for injuries which he received when the scaffold upon which he was working collapsed. Plaintiff filed suit against the defendant, Henry Van Severen, who had erected the scaffold, and against the general contractor, Rock Island Lumber Company. The Rock Island Lumber Company prior to the trial paid the plaintiff $11,000.00 in consideration of a covenant not to sue and was dismissed as a party defendant.

The case was tried against the defendant, Henry Van Severen, and the jury returned a verdict for the plaintiff but awarded no damages.

Plaintiff's and defendant's post trial motions were overruled and judgment was entered upon said verdict, from which judgment plaintiff appeals.

The Rock Island Lumber Company had executed a contract with Mr. and Mrs. Hal Scarsdale to put new shingles and a new gutter on their two story frame house in Milan, Illinois. The Lumber Company sublet the gutter work to the plaintiff and sublet the shingling to the defendant. The defendant commenced work on April 13, 1960, and in order to lay the shingles on the roof he erected a scaffold. The scaffold was constructed by means of four iron brackets, or A-frames, nailed to the east side of the house approximately 9 feet apart and over 16 feet above the ground. After the brackets, or A-frames were nailed to the side of the house, planking was laid across the brackets. The defendant furnished the scaffold and he and his father erected it. The plaintiff was not present when the scaffold was erected.

On the afternoon of April 12, 1960, the plaintiff went to the Scarsdale residence to see how far the defendant had progressed with his work and whether the plaintiff could use defendant's scaffold in doing his guttering work. The defendant was on the scaffold and there was a conversation between the plaintiff and defendant as to the former's use of the scaffold. According to the testimony of the plaintiff, defendant informed him that it would be permissible for him to use the scaffold if he started early the next morning. This conversation was corroborated, in part, by the owner of the property, Mr. Hal Scarsdale and denied by the defendant who testified that the plaintiff did not ask permission to use the scaffold. In any event, the plaintiff and his helper, James Winter, arrived at the Scarsdale residence at approximately 8:00 o'clock A.M. on April 13, 1960, and used the defendant's scaffold to install a section of gutter approximately 20 feet long at the north portion of the east side of the house. After placing this section of guttering in place, they went to the ground and returned to the scaffold with a section of gutter approximately 16 feet long. Plaintiff went to the south end of the scaffold and stood immediately above the southern most A-frame, holding the south end of the 16 foot section of gutter and using a level to adjust the gutter so it would drain properly to the south. The southern most bracket of the scaffold pulled loose without any warning and the bracket, scaffold planking and the plaintiff fell over 16 feet to the ground. The plaintiff landed upon a large 8 X 8 railroad tie and was severely injured. The evidence as to how the scaffold was constructed and attached to the building is conflicting.

The plaintiff first contends that the trial court, over objection of plaintiff, erred in advising the jurors that the defendant, Rock Island Lumber Co., had been dismissed out of the case and was paying the plaintiff $11,000.00 for a covenant not to sue and in permitting defense counsel to argue this matter to the jury and produce evidence of the payment.

The trial Judge on voir dire examination, over objection of the plaintiff, told the jurors that the defendant, Rock Island Lumber Co., is not going to appear and that it would be brought out during the course of the trial that they have made a settlement with the plaintiff.

The defendant called the plaintiff as an adverse witness and questioned him concerning the covenant not to sue, which testimony was as follows:

'Q. Mr. Burger, when you commenced this law suit you had also sued Rock Island Lumber Company?

'A. Yes, I did.

'Q. And on the basis that you felt that they were legally liable to you under the facts and circumstances or your injury?

'A. Yes, I did.

'Q. I will ask you if at the commencement of this trial----

'By Mr. Eagle: (Interrupting) I would like the record just to show an objection to this line of questions, Your Honor.

'By the Court: Okey.

'Q. (By Mr. Katz): At the commencement of this trial yesterday morning you did agree through your attorneys to dismiss out the Rock Island Lumber Company from this lawsuit for a consideration?

'A. That's right.

'Q. And what was the amount of money which the Rock Island Lumber Company undertook to pay to you to be dismissed out?

'A. Well, the attorney said eleven thousand dollars, so I don't know. I didn't see any papers or anything.'

In his closing argument to the jury, counsel for the defendant repeatedly referred to the fact that plaintiff had sued the Rock Island Lumber Company and received $11,000.00 in consideration for a covenant not to sue.

The Appellate Courts of our state are in complete disagreement on the question as to whether or not a covenant not to sue and the payment made for the covenant by a defendant should be admitted in evidence on the trial of the case against a co-defendant or co-defendants whose alleged tort liability arises out of the same circumstances.

The shifting course of the Illinois law on this subject is fully reviewed in Aldridge v. Morris, 337 Ill.App. 369, 86 N.E.2d 143, (Sec.Dist., May 1949) and De Lude v. Rimek, 351 Ill.App. 466, 115 N.E.2d 561, (First Dist., November, 1953) in which conflicting rules are enunciated on the procedure to be followed in this type of case.

In Aldridge v. Morris, supra, this court held that the amount received from one defendant for a covenant not to sue should be deducted from the damages recovered from a co-defendant joint tort-feasor so as to prevent a double recovery and further stated that it was proper to submit evidence of such payment to the jury. The precise language used by this court being at Pages 380-381 of 337 Ill.App. and Pages 148-149 of 86 N.E.2d:

'This court holds that where plaintiff receives a payment for a covenant not to sue from one against whom tort liability could lie, such payment, made before or after judgment, may be deducted from the damages recoverable from persons whose tort liability arises out of the same circumstances, irrespective of whether the covenantee is made a party to the suit. Moreover, it should be proper to submit not only evidence of such payment, but instructions informing the jury of their right to consider such a payment in arriving at their verdict.

'Under this interpretation, the court would not be adjusting the burdens of misconduct, but merely assuring a single recovery for the damages sustained, rather than sanctioning as many complete recoveries as there may be defendants.'

The rule adopted in Aldridge v. Morris, supra, has been adhered to by our Appellate Courts in all subsequent cases in so far as deducting the amount received from one defendant for a covenant not to sue from damages recovered against another defendant, but all of the Illinois Appellate Courts passing upon the question since the Aldridge decision have uniformly held that it is better practice and procedure not to admit into evidence the covenant not to sue and the payment made therefor.

In De Lude v. Rimek, supra, the trial court permitted the introduction in a dram shop case of evidence of an amount paid by the driver (MacNevin) of a motor vehicle for a covenant not to sue. In reversing and remanding the cause for a new trial because of the error in permitting evidence of the payment under the covenant, the Appellate Court for the First District took specific note of the decision in the Aldridge case and then stated at Pages 473-475 of 351 Ill.App. and Pages 564-566 of 115 N.E.2d:

'The controlling principle is that where compensation is the objective of the law, recovery is limited to the damages sustained, and any payments made by MacNevin to the end of making plaintiffs whole must be deducted from the recovery in this action.

'The practical application of this principle is a separate question and a difficult one. It is well understood by lawyers and judges experienced in such matters that in a case where evidence is offered of the payment of a substantial sum for a covenant not to sue, the jury considers it evidence that the covenantee is the party responsible for the injury, and that defendant or defendants should be exculpated. Hence, there is always an effort on the part of the defense to put the covenant before the jury and to make the most of it during the course of the trial. * * *

'To permit the introduction of the covenant and its attendant facts in every case would seriously jeopardize a plaintiff's opportunity for a fair trial. Further, it would tend to discourage settlement of this type of litigation when two or more defendants are involved.

'While the amount paid under a covenant not to sue should be deducted from the total damages sustained, we hold it is the function of the jury to find the plaintiff's total damages, and the function of the judge, upon application of the defendant after verdict, to find the amount by which such verdict should be reduced by virtue of any...