Rone v. Boncar Const. Co.

• Decision Date: 30 December 1976
• Docket Number: No. 62059,62059
• Citation: 3 Ill.Dec. 630,45 Ill.App.3d 1,358 N.E.2d 1315
• Parties: , 3 Ill.Dec. 630 James D. RONE, Plaintiff-Appellant, v. BONCAR CONSTRUCTION CO., an Illinois Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1315

358 N.E.2d 1315

45 Ill.App.3d 1, 3 Ill.Dec. 630

James D. RONE, Plaintiff-Appellant, v. BONCAR CONSTRUCTION CO., an Illinois Corporation, Defendant-Appellee.

No. 62059.

Appellate Court of Illinois, First District, Second Division.

Dec. 30, 1976.

Kamin, Stanley & Balkin, Chicago, for plaintiff-appellant; Frank C. Stanley, Jr., Chicago, of counsel.

Lord, Bissell & Brook, Chicago, for defendant-appellee; John J. Berwanger, Cornelius P. Callahan, Richard E. Mueller, Chicago, of counsel.

JIGANTI, Justice:

This is a negligence action to recover for personal injuries suffered by plaintiff, James D. Rone, at a sewer construction site in Hobart, Indiana.

Plaintiff appeals from a jury verdict entered in favor of defendant Boncar Construction Company on count II. Plaintiff also appeals from an order before trial striking count I of the complaint which alleged a violation by defendant of the Illinois Structural Work Act.

The basis facts of this case are undisputed. Plaintiff James D. Rone (Rone), was injured in an accident at a sewer project in Hobart, Indiana. The installation of the sanitary sewer was contracted for with the City of Hobart by a joint venture consisting of defendant Boncar Construction Company (Boncar) and Dan Raymond Construction Company (Raymond). Both companies are Illinois corporations having the same officers and sharing the same offices.

On May 6, 1970, the date of the accident, plaintiff was employed by Raymond as a line foreman. The duties of the line foreman included installation of a sewer pipe in a trench dug by a machine called a backhoe. Rone was in charge of six laborers and set general objectives and directions for laying the sewer pipe, but did not have any duty or control over the operation of the backhoe which was operated by Robert Crank, who testified that at that time he was an employee of Boncar.

On the date of the accident it was necessary to move a metal box, measuring about 10 feet by 20 feet by 6 feet and weighing about six to eight tons, about 35 feet from the trench down the alley where the sewer pipe was being laid. The box had been used for the safety of the men who work inside the box at the bottom of the trench, but was not needed that day because the ground was firm and the trench was shallow. The metal box was attached to the bucket of the backhoe (or crane) by means of cables and hooks. The backhoe operator then moved the unit backwards away from the trench. Plaintiff walked along side the backhoe directing Crank since Crank was unable to see the metal box being pulled behind the machine. As the backhoe progressed backwards it was necessary for plaintiff to signal Crank to stop because the tallest part of the hoe, the gantry, could not clear under a telephone wire crossing the alley.

When Crank idled the unit plaintiff explained the clearance problem and told him that he would climb onto the grantry and hold up the telephone wires. He then climbed onto the grantry above the cab and lifted the wires while Crank moved the backhoe about six or eight feet passing the grantry under the wire, and then stopped.

As plaintiff was attempting to get down from the grantry he was out of the vision of the operator holding onto one of the cables to steady himself. The metal cables extend from a wheel inside the backhoe over the gantry through a sheave or cable guide out to the elbow of the hoe or bucket and back through the sheave. The cables are used to control the digging operation of the hoe. As he held onto the cable the cable moved carrying his right hand into the sheave and severing all his fingers on that hand. In an attempt to extricate himself plaintiff lost two fingers on the left hand.

Crank, the backhoe operator, testified that in order for the cable to move the operator would have to activate a certain hand lever or release the brake. He testified that he could have let up on the brake at the time plaintiff was injured allowing the weight of the boom to cause the cable to move but he definitely did not move the hand lever.

Crank testified that on the day of the accident there was no system of communication signals being used between the plaintiff and the operator.

Plaintiff filed a three count complaint. Count I alleges that defendant Boncar, its agents, servants and employees, violated provisions of the Illinois Structural Work Act (Ill.Rev.Stat.1969, ch. 48, par. 60 Et seq.) by wilfully failing to provide and maintain a complete and adequate system of communications between the operator and employees which proximately resulted in plaintiff's injuries.

In count II plaintiff alleges that defendant was negligent in that it failed to comply with a duty to have an adequate system of communication imposed by the Indiana Structural Work Act, commonly referred to as the Indiana Dangerous Occupation Act (5 Burns Ind.Stat.Ann., sec. 20--304) which provides:

'It is hereby made the duty of all owners, contractors, subcontractors, corporations, agents or persons whatsoever engaged . . . in the erection, repair or operation or management of any machinery, mechanism or contrivance . . . to see and require . . . that all hoists, machinery or machanism operated other than by hand power, are, when necessary for the safety of persons, employed in or about the same, or for the safety of the general public, provided with a system of communication by means of signals or otherwise, so that, at all times, there may be prompt and efficient communication between the employees and other persons and the operator of the motive power . . .'

Plaintiff further alleges that the violation of the above quoted statute proximately caused the injury to the plaintiff.

Count III alleges wilful and wanton negligence in violating the Indiana statutes. This count was dropped by plaintiff after the close of all the evidence and is not pertinent to this appeal.

On December 10, 1971, the trial court allowed defendant's motion to strike count I on the basis that the Illinois Structural Work Act cannot be invoked to apply to an accident which occurred in another state. On January 7, 1972, at plaintiff's request, the order was modified and the court made a finding that there was 'no just reason for delaying enforcement or appeal of this order.'

After plaintiff filed a timely notice of appeal of the dismissal of count I, the appellate court on July 20, 1972, at plaintiff's request, entered an order dismissing the appeal without prejudice and remanding the cause to the circuit court for trial under counts II and III.

The parties subsequently went to trial on counts II and III and at close of all evidence a judgment was entered for defendant.

On appeal plaintiff argues that the order to strike count I entered in January, 1972, is now appealable; that the motion court erred in striking count I charging defendant with wilfully violating the Illinois Structural Work Act; that the trial court erred in not directing a finding for the plaintiff on the issue of negligence; that there should have been a finding for plaintiff of freedom from contributory negligence by reason of certain provisions of the Indiana Employers Liability Act by virtue of the joint venture agreement; that plaintiff was free from contributory negligence under Indiana common law; and that failure to give two of plaintiff's proposed instructions was error.

Plaintiff first contends that the amended order to strike count I entered on January 7, 1972, is now appealable. Illinois Supreme Court Rule 304 (Ill.Rev.Stat.1969, ch. 110A, par. 304) states:

'If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal.'

At the outset it should be mentioned that the dismissal of the appeal 'without prejudice' had the same effect as if no appeal had ever been taken. People v. Bristow (1945), 391 Ill. 101, 62 N.E.2d 545.

Plaintiff now argues that the dismissal of count I did not become appealable until all counts were disposed of since all counts were based on the same occurrence.

Clearly the mere statement of a claim in several ways by multiple counts does not warrant a separate appeal; and a trial court cannot confer appellate jurisdiction by a finding that there is no just reason for delaying enforcement or appeal (Cunningham v. Brown (1961), 22 Ill.2d 23, 174 N.E.2d 153; Veach v. Great Atlantic and Pacific Tea Co. (1959), 22 Ill.App.2d 179, 159 N.E.2d 833.) However, even though arising from the same occurrence or transaction, where the bases of recovery for the separate counts are different, the dismissal of that count is appealable because it disposes of a distinct cause of action. (Cunningham; Weber v. Northern Illinois Gas Co. (1973), 10 Ill.App.3d 625, 295 N.E.2d 41.) In Weber there were two counts in the complaint seeking to recover for personal injuries. Count I was founded on common law negligence and count II on the Illinois Structural Work Act. Count II was dismissed on defendant's motion. The trial court found 'there is no just reason to delay enforcement or appeal of the order.' The Weber court, citing Cunningham found that the order was final and appealable since counts I and II each constituted a distinct cause of action because the basis for recovery under common law negligence was different from the basis for recovery under the Illinois Structural Work Act, even though both counts arose from the same occurrence.

In the instant case, count I, based on the Illinois Structural Work Act, is different from the basis of the negligence action in count II, and from the wilful and wanton theory of count III. Plaintiff waived his right to...