Miller v. DeWitt

• Court: Appellate Court of Illinois
• Writing for the Court: PER CURIAM; The defendants architects urge that under a contract to 'supervise the work' of construction, an architect undertakes only a duty to see that a building is constructed, which, when completed, meets the plans and specifications and is the
• Citation: Miller v. DeWitt, 59 Ill.App.2d 38, 208 N.E.2d 249 (Ill. App. 1965)
• Decision Date: 26 April 1965
• Docket Number: Gen. No. 10546,No. 2,FISHER-STOUN,D,INC,2
• Parties: Harold A. MILLER, Ellis Furry and Donald E. Engel, Plaintiffs-Appellees-Appellants, v. Lyle V. DeWITT and Russell M. Amdal, d/b/a DeWitt-Amdal & Associates, Defendants-Third-Party Plaintiffs-Appellants, and Maroa Community Unit School Districtefendant-Appellee, v., Third-Party Defendant-Appellee.

Page 249

208 N.E.2d 249

59 Ill.App.2d 38

Harold A. MILLER, Ellis Furry and Donald E. Engel, Plaintiffs-Appellees-Appellants, v. Lyle V. DeWITT and Russell M. Amdal, d/b/a DeWitt-Amdal &

Associates, Defendants-Third-Party Plaintiffs-Appellants, and Maroa Community Unit School District No. 2, Defendant-Appellee, v. FISHER-STOUNE, INC., Third-Party Defendant-Appellee.

Gen. No. 10546.

Appellate Court of Illinois, Fourth District.

April 26, 1965.

Rehearing Denied July 1, 1965.

Giffin, Winning, Lindner & Newkirk, Springfield, for appellants.

Greanias & Owen, LeForgee, Samuels, Miller, Schroeder & Jackson, Decatur, Earl S. Hodges, Springfield, for appellees Carl R. Miller, Jerald E. Jackson; Robert W. Ohlsen, Decatur, of counsel.

PER CURIAM.

This action was brought by three employees, Harold A. Miller, Ellis Furry, and Donald E. Engel, of a contractor, Fisher-Stoune, Inc., against the architects, Lyle V. DeWitt and Russell M. Amdal, d/b/a DeWitt-Amdal and Associates, and against the owner, Maroa Community Unit School District No. 2, for injuries sustained as the result of the collapse of a roof of a school gymnasium building during remodeling operations by the contractor. The jury returned verdicts in favor of the plaintiff Miller for $30,000.00, Furry for $90,000.00, and Engel for $5,000.00, against the defendants architects under both the negligence and Structural Work Act counts, upon which the Court entered judgments, and from which this appeal is taken by the defendants architects, Lyle V. DeWitt and Russell M. Amdal. The jury returned a verdict for the defendant School District and against the plaintiffs, upon which a judgment was entered, and the plaintiffs cross appeal from that. Also, the Court, on motion, before trial, dismissed a third party complaint filed by the defendants architects against the contractor, Fisher-Stoune, Inc., and entered a judgment in bar of that action, and from that judgment this appeal is likewise taken by the defendants architects. The defendants architects' motions for directed verdicts, and to withdraw the charges of negligence in Counts I, II, and III, at the close of the plaintiffs' evidence and all of the evidence had been denied, and the defendant School District's motions for directed verdict had been denied. And the defendants' architects' post trial motion was denied as well as the plaintiffs' post trial motion.

The plaintiffs' actions were predicated on charges against the defendants architects of negligence, and of violation of the Structural Work Act, and against the defendant School District of violation of the Structural Work Act. The complaint was in six Counts, Counts I, II, and III by each respective plaintiff, Miller, Furry, and Engel, against only the defendants architects, DeWitt-Amdal, and Counts IV, V, and VI by each respective plaintiff against the defendant School District and the defendants architects. Court I alleged, in substance, that the transaction occurred in Maroa on May 3, 1960; the defendant School District had begun extensive remodeling of the gymnasium attached to the hight school; the defendant school district had contracted with and retained the defendants architects to do the necessary architectural work and to supervise the construction; the defendant School District had contracted with Fisher-Stoune, Inc., general contractors, to do the work involved in remodeling under the direction and supervision of the defendants architects; the plaintiffs were employed by Fisher-Stoune, Inc. and were engaged in removing certain structural steel members supporting the roof; Fisher-Stoune, Inc., under the direction and supervision of the defendants architects had undertaken to support the roof by tubular steel scaffolding; while the plaintiffs were engaged in removing certain supporting beams the tubular steel scaffolding gave way and collapsed under the weight of the roof, causing a portion on which the plaintiffs were working to fall; as a direct and proximate result of the collapse the plaintiffs received personal injuries; the collapse of the roof and the plaintiffs' injuries were the direct and proximate result of one or more of the following negligent acts or omissions of the defendants architects:

(a) Negligently and carelessly failed to provide for adequate support for the roof of said gymnasium prior to having the structural supports therefor removed;

(b) Negligently and carelessly failed to calculate a sufficient safety factor to be use in the scaffolding under said roof;

(c) Negligently and carelessly failed to oversee and inspect the scaffolding as used to determine whether or not it was safe to use;

(d) Otherwise negligently and carelessly failed to apply to the work aforesaid the degree of skill which would customarily be brought to such work by competent architects in and about this community;

the plaintiffs were in the exercise of due care for their own safety; in the collapse the plaintiff Miller received serious permanent injuries. Counts I and III were similar. Count IV alleged, in substance, in addition to realleging parts of Count I, that the defendants each violated Ch. 48 Ill.Rev.Stats., 1959, Sec. 60, which was a direct and proximate cause of the collapse of the roof and the injuries occasioned; and by Ch. 48 Ill.Rev.Stats., 1959, Sec. 69, a cause of action has accrued to the plaintiffs for damages. Counts V and VI were similar.

The answer of the defendants architects, in substance, admitted that the defendant School District had contracted with and retained them to do the necessary architectural work on the remodelling and to provide architectural supervision during the construction, the defendant School District had contracted with Fisher-Stound, Inc. to do the work involved in the remodeling under the architectural direction and supervision of the architects, Fisher-Stoune, Inc. had undertaken to support the roof by tubular steel scaffolding, while the plaintiffs were removing certain supporting beams the roof collapsed, and as the direct and proximate result of such collapse the plaintiffs sustained personal injuries, and denied all the other allegations, including the applicability or violation of the Structural Work Act.

The answer of the defendant School District to Counts IV, V, and VI, in substance, admits certain allegations, including that Fisher-Stoune, Inc. had undertaken to support the roof by tubular steel construction, and while the plaintiffs were removing certain supporting beams the roof collapsed, and denies the remaining allegations, and says that it is not an owner, contractor, or other person or firm as contemplated by the Structural Work Act and no liability attaches to it by virtue thereof or at common law.

The amended third party complaint by the defendants architects against Fisher-Stoune, Inc., made the plaintiffs' complaint and their answer thereto parts thereof, and, in substance, alleged that as architects, their responsibility consisted of drafting plans and specifications and such supervision of the actual construction as would assure that the contractor complied with the plans and specifications, but they had no right or duty to direct or in any manner control the method or means by which the contractor accomplished the results called for by the plans and specifications; Fisher-Stoune, Inc. had sole responsibility for the means and method of accomplishing the results called for by the plans and specifications; the designing, construction and placing of the temporary supports and the manner and method of removal of the permanent supports were solely under the control of Fisher-Stoune, Inc., and not the architect; these temporary supports did not come within the purview of the Structural Work Act, nor did the Act apply to the third-party plaintiff; if any liability is imposed on the third party plaintiffs under Counts, I, II, and III of the complaint their negligence, if any, is passive, the active negligence being solely that of Fisher-Stoune, Inc.; if any liability is imposed on the third-party plaintiffs by Counts IV, V, VI of the complaint, it is a liability imposed by law without fault on their part, the person having actual charge of the work being Fisher-Stoune, Inc.; if there is any liability imposed on the third-party plaintiffs they have a cause of action over against Fisher-Stoune, Inc. for indemnity; they were in the exercise of due care; Fisher-Stoune, Inc. was negligent in certain respects, which proximately caused the injuries and damages set forth in the complaint; and as a direct and proximate result of such negligence the roof collapsed, thereby proximately causing the plaintiffs' injuries.

The motion of Fisher-Stoune, Inc. to dismiss the amended third party complaint urges, as grounds, in substance, that it does not state a cause of action; the original complaint charges the defendants architects with primary active negligence and one so charged is not entitled to indemnity from another alleged tort feasor; the Structural Work Act is inapplicable, there is no derivative liability, if the defendants architects and Fisher-Stoune, Inc. were co-tort feasors Section 25 of the Civil Practice Act precludes a third party action for contribution among alleged tort feasors; certain portions are conclusions; a certain part contains more than one allegation; it is an attempt to do indirectly what cannot be done directly, in that if it is not dismissed the plaintiffs employees will be given an opportunity to seek damages from their employer, Fisher-Stoune, Inc., which exceed their Workmen's Compensation benefits; if the defendants architects were actively negligent they are not entitled to contribution from an alleged co-tort feasor, and if they were passively negligent or not negligent at all they are not liable to the plaintiffs and have no cause of action for indemnity.

Some time prior to April 14, 1959, Maroa Community Unit School District No. 2, which is governed...