Richard v. Illinois Bell Telephone Co., s. 76-777 and 77-931

• Decision Date: 03 November 1978
• Docket Number: Nos. 76-777 and 77-931,s. 76-777 and 77-931
• Citation: 66 Ill.App.3d 825,383 N.E.2d 1242,23 Ill.Dec. 215
• Parties: , 23 Ill.Dec. 215 Robert RICHARD, Plaintiff-Appellee and Cross-Appellant, v. ILLINOIS BELL TELEPHONE COMPANY, a corporation, and John M. Coan, Inc., a corporation, Defendants-Appellants, Richard A. Pena and L. W. Schiefelbein Cartage, Inc., a corporation, Defendants and Cross-Appellees. ILLINOIS BELL TELEPHONE COMPANY, an Illinois Corporation, Third-Party Plaintiff-Appellant, v. ROBERT R. ANDERSON CO., an Illinois Corporation, Third-Party Defendant- Appellee. JOHN M. COAN, INC., Plaintiff-Appellant, v. ROBERT R. ANDERSON CO., an Illinois Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1242

383 N.E.2d 1242

66 Ill.App.3d 825, 23 Ill.Dec. 215

Robert RICHARD, Plaintiff-Appellee and Cross-Appellant, v. ILLINOIS BELL TELEPHONE COMPANY, a corporation, and John M.

Coan, Inc., a corporation, Defendants-Appellants,

Richard A. Pena and L. W. Schiefelbein Cartage, Inc., a

corporation, Defendants and Cross-Appellees.

ILLINOIS BELL TELEPHONE COMPANY, an Illinois Corporation, Third-Party Plaintiff-Appellant, v. ROBERT R. ANDERSON CO., an Illinois Corporation, Third-Party

Defendant- Appellee.

JOHN M. COAN, INC., Plaintiff-Appellant, v. ROBERT R. ANDERSON CO., an Illinois Corporation, Defendant-Appellee.

Nos. 76-777 and 77-931.

Appellate Court of Illinois, First District, Fifth Division.

Nov. 3, 1978.

Rehearing Denied Dec. 26, 1978.

L. Bow Pritchett, Nathaniel Friends and Edward Butts, Chicago, for Illinois Bell Telephone Company, defendant-third party, plaintiff-appellant.

French & Rogers, Chicago, for John M. Coan, Inc., plaintiff-appellant; Richard G. French and Timothy G. Keating, Chicago, of counsel.

Lord, Bissell & Brook, Chicago, for Robert R. Anderson Co., defendant-appellee; Cornelius P. Callahan, James L. Pittman and Hugh C. Griffin, Chicago, of counsel.

Kirkland & Ellis, Chicago, for L. W. Schiefelbein Cartage, Inc., defendant, cross-appellee; Donald J. Duffy, Chicago, of counsel.

Van Duzer, Gershon, Jordan & Petersen, Chicago, for Richard A. Pena, defendant, cross-appellee; Horace W. Jordan and Edward W. Moltzen, Chicago, of counsel.

Ronald S. Fishman, Chicago, for Robert L. Richard, plaintiff-appellee.

SULLIVAN, Presiding Justice:

Two appeals are involved in this consolidated matter. In 76-777, Illinois Bell Telephone Company (Bell) and John M. Coan, Inc. (Coan) appeal from a verdict and judgment thereon against them in an action by plaintiff for personal injury. Plaintiff cross-appeals from the judgment on the verdict in favor of defendants Richard A. Pena (Pena) and L. W. Schiefelbein Cartage, Inc. (Schiefelbein), and Bell also appeals from a directed verdict in its third-party action for indemnity against Robert R. Anderson Co. (Anderson). In 77-931, Coan appeals from the granting of a motion to dismiss its separate action for indemnity against Anderson.

In 76-777, both Bell and Coan raised questions as to the applicability of "An Act to protect workmen and the general public * * * during construction or repair of bridges and highways * * * " (Ill.Rev.Stat.1977, ch. 121, par. 314.1 Et seq.) (hereinafter referred to as the Roads and Bridges Act). Bell separately contends that the alleged negligent acts of its employee, Raymond Boldt, were not within the scope of his employment. Coan also asserts that the jury was improperly instructed that its employee, William Lord (Lord), was its agent at the time of the occurrence and also that the court erred in failing to give separate verdict forms on each count of the complaint as to each defendant. In its separate appeal, Bell also contends that a verdict was erroneously directed against it on its third-party action for indemnity against Anderson because its negligence, if any, was passive whereas that of Anderson was active or primary. In a cross-appeal, plaintiff contends that if a new trial is granted as to either Bell or Coan a new trial should also be granted plaintiff as to Pena and Schiefelbein.

In 77-931, the issues are presented as follows: (1) if plaintiff's judgment against Coan is reversed in appeal 76-777, should there also be a reversal of the dismissal of its indemnity action against Anderson; and (2) if plaintiff's judgment against Coan is affirmed, were facts determined which were "fatal to recovery" in Coan's action against Anderson.

Anderson was the general contractor of a road construction project and, because it did not own enough dump trucks to handle all of the asphalt required, it hired Coan to provide additional trucks. Coan, in turn, hired trucks from other companies including Schiefelbein and Sinclair Cartage Company (Sinclair), to fulfill its commitment to Anderson. After being loaded with asphalt at another location, the trucks were driven by employees of the respective owners to the construction site, where they remained in line until signaled by an Anderson employee to dump their contents in front of a CMI machine which flattened and graded the asphalt. After the trucks were unloaded, each driver was supposed to lower his truck bed and proceed on an unpaved portion of the road under construction to the main highway. However, on the day of the occurrence in question, a Schiefelbein driver after dumping his load drove away with the truck bed still in a raised condition, and it struck a permanent telephone cable which extended from poles on the east and west sides of the road under construction. The impact disengaged the cable from the east pole and, although still attached on the west side, it fell across the moving lanes of the main highway traffic.

Ruben Thorp (Thorp), an Anderson construction foreman, telephoned to Bell and reported the downed cable. Raymond Boldt, a Bell employee, was dispatched and arrived at the scene about 10:30 a.m. He had a conversation with Thorp concerning which the testimony is conflicting, but it does appear that Thorp initially wanted to cut the cable to clear it from the road and that Boldt would not authorize this to be done, stating that if the cable was cut Anderson must bear the responsibility for the damage resulting.

Someone then decided to position dump trucks on either side of the road with their dump beds raised so that the cable could be draped over the trucks to allow traffic to pass under it. Thorp testified that an employee of Bell made the decision to raise the cable but on cross-examination stated that he did not know whether that person was an employee of Bell or Commonwealth Edison Company. It was the testimony of Boldt that he was the only Bell employee then present and that he took no part in the decision to drape the cable over the trucks, having left the area to telephone his company as to the nature of the problem presented. In any event, Coan's driver (Lord) took no part in the decision, and the draping was accomplished by a Sinclair driver and Lord placing their trucks, one on each side of the road with their beds raised, and the cable was stretched over the beds. Both drivers testified that they placed their trucks in this position at the request of Thorp and that traffic then passed under the cable. Later, a truck driven by Pena came in contact with the raised cable causing it to dislodge and strike plaintiff, an employee of Anderson, who was severely injured.

Another Bell employee, Alfred Seager, appeared on the scene before the accident involving plaintiff in response to a telephone call made by Boldt. Seager testified that he was the Bell "officer of the day" and, as such, was responsible for repairs and installations; that Boldt's telephone call informed him that a cable was down and lying across the road; that he did not send a construction crew at that time but, instead, went to the scene himself to determine the extent of the trouble; that when he arrived, he observed the cable strung over the beds of two trucks one on each side of the road; that he made a close visual inspection of the cable; that the accident involving the plaintiff occurred 15 or 20 minutes after his arrival; that it was not until after the plaintiff's accident that he called for a repair crew, which arrived at about 2:30 p.m.; and that using a snorkel truck with a boomer basket, the crew lifted the cable and made a temporary connection to the poles.

In one count of plaintiff's complaint, Bell, Coan, Pena and Schiefelbein were charged with being negligent, and in another count it was alleged that all except Pena violated the Roads and Bridges Act. Both counts were submitted to the jury, but the court refused to give the jury separate verdict forms requested by Coan as to each count and as to each defendant. The jury found in favor of plaintiff against Bell and Coan but against plaintiff and in favor of Schiefelbein and Pena. The jury also answered affirmatively to a special interrogatory submitted by Coan as to whether Coan's conduct constituted negligence which proximately caused the injury and damage complained of. No issue is raised as to the amount of damages awarded ($350,000).

OPINION

COAN'S CONTENTIONS IN 76-777

I.

Coan first contends the trial court erred in submitting plaintiff's Instruction No. 9 because it told the jury that Coan was liable for any acts of Lord, the driver of its truck. It argues that this instruction removed from the jury the question of whether Lord was acting outside the scope of his employment with Coan and the question of whether Lord was loaned to Anderson on the day of the accident. Instruction No. 9 stated:

"The (defendant) John M. Coan, Inc.'s truck drivers were agents of (Coan) at and before the time of this occurrence. Therefore any act or omission of the agent at this time was in law the act or omission of the (defendant) John M. Coan, Inc."

Initially, we note that at the jury instruction conference, the only objection made by Coan was that the instruction took the loaned servant question from the jury. Coan specifically stated it was making no objection on the basis that Lord was not acting within the scope of his employment. ¹ It is clear that the grounds for an objection to a jury instruction must be specifically stated at trial (Supreme Court Rule 239(b); Ill.Rev.Stat.1977, ch. 110A, par. 239(b)); otherwise, that objection cannot be raised on appeal. (Johnston v. Basic (1973), 16 Ill.App.3d 453, 306 N.E.2d 610; Baker v. Norfolk & Western Ry. Co. (1970), 120 Ill.App.2d 296, 256 N.E.2d 887; Henry v. Robert Kettell Const. Corp. (1967), 82 Ill.App.2d 420, 226 N.E.2d 89.) If a party makes an objection for one reason at trial, he cannot raise different reasons for his objection on appeal. (Northern Trust Co. v....