Pioneer Fircproof Constr. Co. v. Hansen

• Decision Date: 24 October 1898
• Citation: 52 N.E. 17,176 Ill. 100
• Parties: PIONEER FIRCPROOF CONSTRUCTION CO. v. HANSEN.
• Court: Illinois Supreme Court

176 Ill. 100

52 N.E. 17

PIONEER FIRCPROOF CONSTRUCTION CO.

v.HANSEN.¹

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from appellate court, First district.

Action by Louise Hansen, as administratrix of the estate of Oscar Hansen, deceased, against the Pioneer Fireproof Construction Company and another. From a judgment of the appellate court (69 Ill. App. 659), affirming a judgment for plaintiff against the Pioneer Company, said company appeals. Affirmed.Burnham & Baldwin, for appellant.

Sullivan & McArdle, for appellee.

This is an action for damages under the statute by Louise Hansen, as administratrix of the estate of her deceased husband, Oscar Hansen, against the George A. Fuller Company and the Pioneer Fireproof Construction Company. In February, 1892, the George A. Fuller Company was engaged, as general contractor, in erecting a 14-story building at 34 and 36 Washington street, Chicago. The deceased, Oscar Hansen, was an employé of the Fuller Company. The Pioneer Fireproof Construction Company was employed by the Fuller Company to fill in the floors and partitions with fireproof material, and to put on the tile roof. The building faces north. Along the eastern side is an alley, in which material for the building was unloaded, and from which, by means of a derrick placed on the roof, it was hauled up. Oscar Hansen was stationed in the alley, and, with another employé of the Fuller Company, controlled the hoisting operation from that point. The material was loaded on a platform, called a ‘boat,’ five feet wide by seven feet long. This ‘boat’ was then fastened to the rope of the derrick, and hauled up, until it was level with the roof. Then the ‘boom,’ or arm of the derrick, over the end of which the hoisting rope passed, was raised, thus swinging the ‘boat’ in until it was over the spot where it was to be landed, when it was lowered, and guided to its resting place. This was done by the employés of the Fuller Company. The tile was then unloaded by laborers paid by the fireproof company. At this particular time the roof was partly on, and the ‘boat’ had to be pulled into a space left in the roof for a dormer window, the iron rafters slanting up on each side thereof. Running north and south on the floor, and near the slope of the roof, was a six-inch steam pipe. When the loaded ‘boat’ was hauled in through this hole in the roof, it was lowered, and rested across this pipe. There was sufficient room where it could have been drawn in clear of this pipe. On the morning of February 15, 1892, a ‘boat’ load was landed above and rested across the steam pipe. Thereupon the workmen began unloading the tile from the side nearest them,-the inner side,-and, after a certain quantity of tile had been removed from the inner side, the ‘boat’ tilted across the steam pipe, and one or more of the tiles slipped off, striking the steep roof, and thence fell down into the alley. A piece of tile struck Hansen on the head, and from the wound he died. At the close of the evidence the court instructed the jury to find the defendant the George A. Fuller Company not guilty. The case proceeded against the Pioneer Fireproof Construction Company, and the jury returned a verdict finding it guilty, and assessing the damages at $5,000. Motion for a new trial was overruled, and judgment was entered on the verdict. This judgment has been affirmed by the appellate court, and the present appeal is prosecuted from such judgment of affirmance.

MAGRUDER, J. (after stating the facts).

The main contention of the appellant in this case is that the court refused to give the fourth instruction asked by the appellant. That instruction told the jury that if they believed from the evidence that the servants of the defendant the Pioneer Fireproof Construction Company were not left entirely free as to the manner of doing the work in which they were engaged at the time the accident occurred, but that the George A. Fuller Company, as general contractor, retained control over them, with the power to direct them in the manner of doing the particular work in which they were engaged, then the appellant was not guilty, and that the jury should so find by their verdict. The point made by the objection to the action of the court in refusing this instruction is that the relation of master and servant existed between the George A. Fuller Company and the employés or servants of the appellant. On the other hand, the contention of appellee is that the appellant was an independent contractor, and liable for the negligent acts of its servants. The action was a joint one for pecuniary damages to the wife and next of kin of Oscar Hansen, deceased, against the contractor the George A. Fuller Company, and the subcontractor, the Pioneer Fireproof Construction Company. The declaration charges that there was in course of erection a certain building on Washington street, in Chicago, adjoining a public alley, and that the defendants were engaged in unloading a ‘boat’ of tiles on the fourteenth floor thereof while the deceased was in this public alley. The specific negligence charged in the declaration is that the defendants carelessly and negligently unloaded said tiles from the ‘boat’ or platform, on which they were elevated to the fourteenth floor of the building, and that by reason of such negligence part of the tiles fell from the ‘boat’ upon the deceased, causing his death. Pleas were filed by both defendants, and trial was had thereon. The Fuller Company offered no evidence, but at the close of the appellee's case made a motion that the court instruct the jury to find defendant the George A. Fuller Company not guilty. This motion was denied at that time, but was renewed at the close of the appellant's testimony; and thereupon the court instructed the jury that there was no evidence to support a verdict of guilty against the defendant the George A. Fuller Company, and that the jury should find said defendant not guilty. The present appellant made no objection to this motion or instruction, and took no exception to the giving of the instruction. At the close of appellee's case, the appellant, the Pioneer Fireproof Construction Company, also moved the court to instruct the jury to return a verdict in its favor. This motion was denied, and was not again renewed at the close of appellant's testimony. No instructions were asked on behalf of the appellee, the plaintiff below. But the appellant asked the court to give, and the court did give, an instruction telling the jury that, in order to entitle the plaintiff below to recover damages from the defendant the Pioneer Fireproof Construction Company, she must prove by a preponderance of the evidence that said defendant was guilty of the negligence charged against it in the declaration, and at the same time must also prove that the deceased, Oscar Hansen, was himself free from any negligence which contributed directly to his death. The court also instructed the jury, at the request of appellant, that, if they believed that the appellant was guilty of the negligence charged against it, and that the deceased was negligent in a manner directly contributing to the accident, then their verdict should be in favor of the appellant.

The George A. Fuller Company was the general contractor for the construction of the building, and a written contract was executed between the appellant, the Pioneer Fireproof Construction Company, as party of the first part, and the George A. Fuller Company, as party of the second part. By the terms of this contract the appellant was a subcontractor under the George A. Fuller Company for the purpose of filling in the floors and partitions with fireproof material, and putting on a tile roof. Such portions of this contract as are material will be stated hereafter.

If the servants of appellant were, under this written contract, the servants of the Fuller Company, so as to relieve appellant of liability, and cast the liability upon the Fuller Company, then it was error in the court below to instruct the jury to find for the Fuller Company, and thereby dismiss that company out of the case, which thereafter proceeded against the appellant alone. By allowing the motion of the Fuller Company for a direction to the jury to find it not guilty, the trial court so construed the contract in question as to hold that the servants of the appellant were not the servants of the Fuller Company. In other words, by dismissing the case as to the Fuller Company the trial court held that the relation of master and servant did not exist between the Fuller Company and the servants of the appellant, but that the appellant was an independent contractor, liable for the negligent acts of its own servants. The appellant, by failing to object to the action of the court in instructing the jury to find the George A. Fuller Company not guilty, acquiesced in what the court did in that regard. If the appellant considered the instruction or ruling of the court dismissing the Fuller Company out of the case detrimental to its rights and interests, it should have saved an exception to the action of the court. Wrecking Co. v. Dandelin, 143 Ill. 409, 32 N. E. 258.

There was no evidence in the case, so far as we have been able to discover, upon which to base the fourth instruction asked by the appellant. There is no proof in...