Hernandez v. Power Const. Co.

• Decision Date: 10 November 1976
• Docket Number: No. 60463,60463
• Parties: , 2 Ill.Dec. 439 Leopoldo HERNANDEZ, Plaintiff-Appellant, v. POWER CONSTRUCTION COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 606

357 N.E.2d 606

43 Ill.App.3d 860, 2 Ill.Dec. 439

Leopoldo HERNANDEZ, Plaintiff-Appellant, v. POWER CONSTRUCTION COMPANY, Defendant-Appellee.

No. 60463.

Appellate Court of Illinois, First District, Fourth Division.

Nov. 10, 1976.

Alvin E. Rosenbloom, William J. Harte and Lawrence T. Stanner, Chicago, for plaintiff-appellant.

John B. Grogan and Patrick T. Driscoll, Jr., Chicago, for defendant-appellee.

DIERINGER, Justice:

The plaintiff, Leopoldo Hernandez, brought this action under the Structural Work Act against the Power Construction Company, a general contractor, for personal injuries sustained in a fall from a scaffold. At a bench trial in the Circuit Court of Cook County the court granted the defendant's motion for judgment at the close of the plaintiff's evidence, and the plaintiff appeals from that judgment.

The issues for review are whether the court abused its discretion when it refused to permit the plaintiff to file a jury demand when the defendant withdrew its demand immediately before trial, whether the judgment of the trial court was contrary to the manifest weight of the evidence, and whether the court committed reversible error in refusing to admit the opinion of an expert witness into evidence.

The plaintiff testified he was a laborer for Frank Miller & Sons Fireproofing, a bricklayer contractor. At the time of his injury he was employed in the building of the Washburn School at Hibbard and Elm Streets in Winnetka, Illinois. His duties consisted of making mortar, supplying the bricklayers with mortar and brick, building scaffolding and cleaning up.

On the afternoon of October 1, 1968, he had started to erect a scaffold on the central half of the building at the direction of his foreman. He testified it was a patent scaffold of a tubular type which came in two sections. It was in the shape of an 'H' with crossbars that go from top to bottom connecting the two frames into one solid piece of equipment. Each of these frames is five to six feet high and can be placed one on top of another. The scaffold he built was over ten feet high.

He testified he did not erect any toe boards or mid-rails and had never been told to erect them on the more than half dozen scaffolds he had built on that job site. He had not seen any other scaffolding on that site that had guard rails, mid-rails or toe boards, and he had supplied brick and mortar to bricklayers who worked on scaffolds without such protections. He laid planks across the beams of the scaffold, but he did not fasten them in any way. His normal working hours were 7:30 a.m. to 3:30 p.m., but on that particular day he left at 2:30 p.m. He informed the foreman that the planking had not been completed on the east wall.

On October 2, he arrived at the job site at 7:15, had a cup of coffee and then walked toward the section of scaffold he had built the previous day and where he was to work on that day. There was a mortar mixer and a labor foreman there from Frank Miller & Sons Fireproofing as well as numerous other workers from the other trades. He stated he was supposed to start supplying the scaffold with mortar to get the bricklayers started at 8:00 o'clock.

When he arrived, he observed the scaffold had been completed as the foreman told him it would be. When he said completed he meant there was planking on the scaffold. No ladder was attached to the scaffolding, so he used the stairwell to get up to the second floor. From the second floor to the scaffold planking was a drop of about three feet. He went over to the side of the building and 'more or less half stepped and half jumped to get down to the scaffolding.' As he stepped down his foot caught on a two by four that had been put through the braces of a wheelbarrow for hoisting purposes, and he stumbled back toward the end of the scaffolding. He stated that when he hit the planking, 'the plank and everything just went up. It just threw me over.' The wheelbarrow flew over his head and landed in a large trash bin. He bounced off the side of the bin and landed on a two by four on the ground. The plank itself flipped up and then slid down and hit him.

He testified that George Erda, the superintendent of the Power Construction Company, emerged from the general contractor's shack and told one of the men to drive him to the hospital, where it was determined he had sustained extensive injuries.

George Erda testified he did not see the plaintiff fall and only found out about the accident a year or more later when he heard some employees discussing it on another job site. He stated he could not recall the condition of the scaffold on that day and did not know whether it had been completed or not.

Immediately prior to trial and after certain evidentiary matters had been discussed and ruled on by the court, the defendant withdrew its jury demand. Plaintiff's counsel objected and then requested the court permit him to pay the required fee so his client might have a jury trial. Counsel for the defendant then stated to the court: 'I've viewed the matter at some detail with my principals and they are aware of the request and--particularly in view of the court's ruling with respect to the introduction, the utilization of the contract documents. I'm--I believe that we would prefer this--to have this case tried by your honor, as the trier of facts rather than by a jury of laymen. I think it's our right to withdraw our jury demand.' The court allowed the withdrawal and denied the plaintiff's request for a jury.

The plaintiff first contends it was an abuse of discretion for the court to deny his request for a jury immediately prior to trial when the defendant withdrew its demand. Section 64 of the Civil Practice Act (Ill.Rev.Stat.1971, ch. 110, par. 64) provides that a plaintiff must demand a trial by jury at the time the action is commenced or is deemed to have waived that right, but the court has discretion to allow a late jury demand pursuant to Section 59 of the Civil Practice Act and Supreme Court Rule 183 (Ill.Rev.Stat.1971, ch. 110A, par. 183). Relevant portions of those sections provide as follows:

Section 64 of the Civil Practice Act provides in part:

'(1) A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his answer. Otherwise, the party waives a jury.'

Section 59 of the Civil Practice Act provides in relevant part:

'On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.'

Supreme Court Rule 183 provides:

'The court, for good cause shown on motion after notice to the opposing party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time.'

The strong policy of this state as expressed in Article I, § 13 of the Illinois Constitution of 1970 is to favor jury trials, and the Illinois Supreme Court has ruled that the power of the legislature to regulate the right of jury trial should be liberally construed in favor of the right to a jury trial. Hudson v. Leverenz (1956), 10 Ill.2d 87, 139 N.E.2d 255; Stephens v. Kasten (1943), 383 Ill. 127, 48 N.E.2d 508. However, the defendant argues the plaintiff offered no evidence of 'good cause' as required by Section 59 and Supreme Court Rule 183 and relies on the majority opinion in the case of Smith v. Realcoa Construction Co., Inc. (1973), 13 Ill.App.3d 254, 300 N.E.2d 855. In that case the court found the plaintiffs were not entitled to a jury at the time of trial when the defendant withdrew its demand because of a need for a systematic order of procedure as provided for in Section 64 of the Civil Practice Act. The court concluded the plaintiffs had suffered no unfairness because they were in full control of the litigation when they commenced their suit and failed to demand a jury.

We must respectfully disagree with the rationale of the majority opinion, and we conclude the reasoning of the dissent, which takes the practical realities into consideration, is more persuasive. It points out that a plaintiff must weigh his desire for a jury against the added delay of at least two years which is required for a jury trial. As in the instant case where the plaintiff has been severely injured, a speedy conclusion of the litigation is of great importance and may take precedence over the desirability of having a jury decide the factual issues. If the defendant is allowed to waive the jury immediately prior to trial, the effect is to frustrate both the plaintiff's desire for speedy litigation and his desire for a jury, while the defendant gains both his objectives of delay and a bench determination of the issues.

Every experienced attorney and trial judge knows how and why these delays come about and cause backlogs on the circuit court jury calendar, and it is an imposition on the plaintiff to be denied a jury after waiting and preparing for it for four years.

It is clear there would have been no prejudice to the defendant by allowing the motion, and in the case of Department of Public Works and Buildings v. Melling (1966), 78 Ill.App.2d 37, 222 N.E.2d 515, the court stated:

'The rule is well settled in Illinois that a trial court should not deny the right to a jury trial when there is no showing of inconvenience to the court or to the parties--litigant or prejudice to any rights in any manner whatsoever, and that trial by jury is a favored mode of trial.'

In addition allowing the defendant to make his withdrawal of the demand after a discussion of trial related issues allows the defendant the advantage of opting for a bench trial if the preliminary rulings of the court appear to be favorable to his cause. In this case the...