Perschke v. Westinghouse Elec. Corp.
| Decision Date | 06 June 1969 |
| Docket Number | Gen. No. 53248 |
| Citation | 249 N.E.2d 698,111 Ill.App.2d 23 |
| Parties | Paul E. PERSCHKE, Plaintiff, v. WESTINGHOUSE ELECTRIC CORPORATION et al., Defendants. GUST K. NEWBERG CONSTRUCTION COMPANY, Third-Party Plaintiff-Appellant, v. AMERICAN BRIDGE DIVISION, UNITED STATES STEEL CORPORATION, Third-Party Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Menk, Johnson, Ryan & Bishop, Chicago, for defendants-appellants, John Cadwalader Menk, Chicago, of counsel.
Harlan L. Hackbert, Chicago, for U.S. Steel Corp., third-party defendant-appellee, Hackbert, Rooks, Pitts, Fullagar & Poust, Chicago, of counsel.
The cause before us originated as an action under the Structural Work Act(1967 Ill.Rev. Statutes, Ch. 48 §§ 60--69) which was instituted as against Westinghouse Electric Corporation(hereinafter called 'Westinghouse') and Gust K. Newberg Construction Company(hereinafter called 'Newberg').Westinghouse was the elevator subcontractor and Newberg was the general contractor in the construction of the Chicago Civic Center.In the same action, Newberg and Westinghouse filed third-party complaint against United States Steel Corporation--American Bridge Division(hereinafter called 'Steel').The action was instituted by Paul E. Perschke, an employee of Steel.Newberg filed a counterclaim as against Westinghouse seeking indemnity on an 'active-passive' negligence theory with an express indemnity under provisions of the Westinghouse subcontract.Newberg also filed an amended third-party complaint as against Steel.At the close of the evidence of each defendant and the third-partyplaintiff, Steel moved for directed verdicts and judgments in its favor and those motions were granted and judgments were entered in favor of Steel and as against Newberg and Westinghouse.The evidence in the case disclosed that certain planks had been placed by Westinghouse and these were construed as 'scaffolds' within the act, and that both Newberg and Westinghouse were found to have been in 'charge of' such work.The jury returned a verdict of $812,000 as against Newberg and Westinghouse and judgment was entered upon such verdict.
The record discloses that a site was acquired for a new courthouse in Chicago by the Chicago Building Commission.Prior to awarding the general contract for construction of the new court building, the Commission entered into a contract on April 25, 1963, with the American Bridge Division of United States Steel Corporation to furnish and erect the structural steel for the building.This contract was described as 'ContractNo. 3'.It contained the following provisions which are pertinent to the issues involved in the case before us:
After this contract had been entered into between the Commission and Steel, the Commission awarded the general contract for construction of the court building to Gust K. Newberg Construction Company, and the Commission assigned its ContractNo. 3 with Steel to Newberg.The assignment expressly provided as follows:
Newberg accepted the assignment.It is noted that Steel had consented to the assignment irrevocably prior to such time.
Paul Perschke, plaintiff, an ironworker, who was employed by Steel, fell and was seriously injured on June 18, 1964.He received Workmen's Compensation from Steel.Perschke thereafter sued Newberg and Westinghouse Electric, as indicated herein, and Newberg filed a third-party complaint against Steel seeking indemnity from Steel under the provisions of written ContractNo. 3 between Steel and the Public Building Commission, which contract had been assigned to Newberg.
The award of $812,000 referred to was appealed from, but, so far as the record is concerned, the appeal was discontinued by the appellants.The only issue before us involves the third-party complaint filed as against Steel by Newberg.At the hearing of this cause, the court considered the indemnity claim of Newberg as against Steel and indicated a belief that the written construction ContractNo. 3 established a valid claim in favor of Newberg as against Steel for indemnity.The trial court, however, also found that Newberg had released his right to indemnity under the provisions of a written release between Newberg and Steel dated May 10, 1967.This release recited the circumstances surrounding the assignment to Newberg of Steel's contract and recited that Steel owed Newberg $150,000 for work Newberg did for Steel.The release also recited that the amount due Steel was reduced by $125,000 'because of two accidents which occurred during the erection of Structural Steel and Architectural Exposed Steel--the first on January 23, 1964, the second on February 12, 1964'.Neither of the accidents referred to were the Perschke accident, and both of the accidents involved damage caused to the building by acts of Steel without any resulting personal injuries.The release then specifically recited:
'IT IS FURTHER UNDERSTOOO AND AGREED that in consideration of the release of NEWBERG by AMERICAN BRIDGE of any liability or claim against NEWBERG arising out of the Chicago Civic Center Project, NEWBERG does hereby release AMERICAN BRIDGE from any any all claims or demands of any kind or character whatsoever that NEWBERG may have against AMERICAN BRIDGE which arise out of Civic Center ContractNo. 3andCivic Center ContractNo. 4 and will indemnify and save harmless AMERICAN BRIDGE from any and all claims and demands of any kind or character including, but not limited to, penalties, delays, direct, indirect and consequential damages which have been made, may be made, or may be pending against AMERICAN BRIDGE by NEWBERG'S agents, servants, employees, representatives, subcontractors, materialmen and the Public Building Commission of Chicago, Illinois, its Architects and any and all insurance companies, bonding companies and sureties which may arise out of the Chicago Civic Center Project.'
The trial court thereupon refused to allow the claim of Newberg under the third-party complaint and also, refused to permit any testimony with respect to any negotiations or discussions preceding the execution of the written release.
The principal issue before us is whether the release referred to is a bar to the asserted right of indemnity by Newberg as against Steel.In connection with the determination of such issues, it is also necessary to determine whether extrinsic evidence should have been admissible to vary or limit the terms of such release.A further issue remains as to whether the trial court correctly determined that Newberg was entitled to indemnity under the terms of ContractNo. 3, in absence of the written release of such obligation.
As a preliminary matter, appellee Steel asserts that the report of proceedings in this appeal which was presented for filing and approval and was not filed and approved within the provisions of Supreme Court Rule323(b) and (e) Ill.Rev.Stat.1967, c. 110A, § 323(b, e) with respect to notice of and time for filing and approval of such report of proceedings.The chief point for consideration here involved an order which the trial court entered on May 24, 1968, extending the time for approval in filing the report of proceedings.A motion for extension was filed by Newberg and notice was given to all parties except Steel.This was apparently an oversight by Newberg.Steel contends that the omission makes the entire appeal invalid.This Court has already determined that the motion to dismiss by reason of such matters relating to filing and approval of the report of proceedings should be denied, on the ground that the failure to give such notice was an oversight, and, also, that there was no prejudice resulting therefrom.Under the circumstances we see no reason to change the conclusion heretofore announced by this Court, and such motion to dismiss the appeal, now again made by appellee, is herewith denied.
The fundamental issue here is whether the trial court correctly construed the release of May 10, 1967, in concluding that any rights which Newberg had to indemnity from Steel were extinguished or terminated by such release.It is contended on appeal by Newberg that the general language of the release was by the terms of the release limited to certain specific items which appear in the wording of the release.Newberg contends that the release covered only questions of...
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