
    Margaret L. Gerlach, as Admr. et al., Plaintiffs, v. Pepper Construction Company et al., Defendants,—(Pepper Construction Company, Third-Party Plaintiff-Appellant, v. Continental Electric Company, Third-Party Defendant-Appellee.)
    (No. 54460;
    First District
    — October 22, 1971.
    Rehearing denied November 22, 1971.
    
      Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago, (William H. Symmes and John M. O’Connor, Jr., of counsel,) for third-party plaintiff-appellant.
    Jerome M. Brooks and Gilbert Gordon, of Chicago, for third-party defendant-appellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Albert J. Gerlach (hereafter “Gerlach”), an electrician, working for Continental Electric Company (hereafter “Continental”), sustained fatal injuries while working on a job wherein Pepper Construction Company (hereafter “Pepper”) was the general contractor. Gerlach’s widow and children sued Pepper under the Structural Work Act. (Ill. Rev. Stat. 1961, ch. 48, par. 60-69.) Pepper answered Gerlach’s complaint and brought a third-party action against Gerlach’s employer, Continental. In its third-party complaint Pepper alleged that if the Gerlachs received a verdict it would be the obligation of Continental to satisfy any judgment since (1) Continental was guilty of active negligence and Pepper was guilty only of passive negligence and (2) Gerlach’s accidental death resulted from Continental’s breach of promise to do the electrical work in compliance with its purchase order and the plans and specifications. Subsequently, by agreement of the parties to the original complaint, a judgment was entered against Pepper and in favor of Margaret Gerlach and her children in the sum of $112,000, which judgment was satisfied in open court.

The third-party action then proceeded to trial on Pepper’s third-party complaint. At the close of Pepper’s evidence Continental moved for a directed verdict which was denied. At the close of all evidence both Pepper and Continental moved for directed verdicts in their favor. The trial court denied their motions. The case went to the jury which found in favor of Continental. Peppers post-trial motion was denied.

On appeal Pepper contends: (1) that the trial court erred by denying its motion for a directed verdict; and (2) that the trial court erred by denying its post-trial motion for a new trial.

The evidence disclosed that on April 11, 1962, Gerlach, a journeyman electrician, was working for Continental on remodeling a building at 522 North Michigan Avenue, Chicago. Pepper was the general contractor on the job. At about 1:30 P.M. Gerlach climbed a ladder to a place where his feet were about six to eight feet above the ground. Gerlach cut a tie wire attached to a structural ceiling which was holding one side of a four by ten foot piece of plaster weighing several hundred pounds. The piece of plaster swung away from Gerlach after he cut the wire, then swung back toward him, broke away from the ceiling and hit the lower part of the ladder causing Gerlach to fall and suffer injuries from which he died.

Testimony of Cameron Sipple, called by Pepper under Section 60:

He is an electrical estimator for Continental. Exhibit 3 for identification was probably a copy of the purchase order. (More details of his testimony regarding this exhibit appear hereafter.)

Testimony of Walter Popowski, called by Pepper under Section 60:

He is a journeyman electrician and foreman for Continental. At about 10:00 A.M. on April 11, 1962, he assigned Gerlach and Bennett, two Continental employees, to the first floor of the 522 North Michigan Avenue Building where remodeling work was being performed. Before 10:00 A.M. Gerlach and Bennett had been engaged elsewhere in the building working for Continental. He told Gerlach and Bennett to run a two inch feeder line across the ceiling from a panel box down to a column. The line was to run across the ceiling from the northwest corner of the area to the column. The distance was about thirty feet.

With regard to the instructions that he gave, the witness said, “Usually a journeyman, you don’t tell how to do every little specific thing. A journeyman knows his job and he does it. You tell them to run from this point to this point.” A journeyman’s job includes electrical wrecking.

He did not remember if he looked at the ceiling to see if it was clear before Gerlach and Bennett started to work. He might have seen the soffit (the underside part of the ceiling) before the accident but he did not discuss it with Gerlach. He did not talk to Gerlach about the piece of plaster in the ceiling.

He must have seen the plaster when he told Gerlach to take his pipe from one side to the other but he did nothing about it. It is actually the job of the general contractor to do all wrecking not pertaining to electricity. His journeymen electricians take their orders from him. He made no request of Pepper to remove the plaster.

Testimony of William Bennett, called by Pepper under section 60:

In 1962 he was an apprentice electrician employed by Continental. On April 11, 1962, he was working in a building at 522 North Michigan with Gerlach. Walter Popowski gave them their assignments. While Gerlach and he were working, Gerlach cut a wire causing a piece of plaster to fall. Gerlach was standing on a ladder for thirty seconds before he cut the wire which held the plaster. Gerlach had to look at the wire before he could cut it. Gerlach intended to cut the wire. The plaster swung away, broke loose and hit the ladder knocking Gerlach to the floor. The accident occurred around 1:30 P.M. When Gerlach cut the wire Frank Romanelli was present.

Testimony of Frank Romanelli, called by Pepper:

In April 1962 he was a carpenter foreman for Pepper. He did not talk to any of Continental’s men on April 11, 1962, before Gerlach’s accident. He never told Continental’s men what to do or when to do it. He demolished everything that was supposed to come down according to the plans and specifications.

The four by ten foot piece of plaster was no longer hidden once he removed the ceiling. This piece of plaster was exposed for ten days to two weeks once the ceiling covering it came down. However, he' did not consider this plaster dangerous or he would have cut it down.

Continental started its electrical demolition at practically the same time Pepper began its work. Continental’s job was to deaden wires and remove conduit (pipe).

The piece of plaster which fell was suspended by laths and hangers. He was fifteen or twenty feet away from Gerlach when the accident occurred.

Testimony of William Bennett, called by Continental:

After being assigned the task of running pipeline by Popowski, Gerlach and he located the necessary materials and proceeded to mount the lighting panel on the wall. Once the panel was mounted it had to be fed a two-inch pipe by hanging the pipe to the ceiling. They finished with a portion of the pipe when they reached the plaster piece in the ceiling. Gerlach asked Romanelli if this section of the ceiling was coming down and Romanelli said yes, it was, so Gerlach in turn asked, “Can we take it down?” Romanelli answered, “Go ahead, cut it down.”

He considered the placement of the A-frame ladder Gerlach used to be safe. April 11th was Gerlach’s and his first day on the job at the 522 North Michigan Avenue Building. He noticed the plaster before the accident occurred.

Popowski told them what work was to be done. Even though the witness was aware of the plaster he never asked anybody from Pepper to remove it. If Gerlach moved the ladder before he climbed up to cut the wire it was only a matter of inches. The removal of plaster is not an electrician’s job.

Looking back today, he would say that the placement of the ladder by Gerlach was not safe. The piece of plaster which fell from the ceiling severed the back legs of the ladder. The plaster fell because Gerlach intentionally cut the tie wire.

Testimony of Walter Popowski, called by Continental:

In April 1962 he was Continental’s foreman on the job at 522 North Michigan Avenue. Pepper’s general foreman, Romanelli, coordinated the work of the trades. Romanelli gave the orders and told the witness when his men could work. April 11th was Bennett’s and Gerlach’s first day of work at this building. He never instructed Gerlach or Bennett to do anything about the four by ten foot piece of plaster. He might have mentioned the ceiling to Gerlach but it was nothing specific. A journeyman with a good apprentice knows what to do. “You tell them what to do and that’s it. They know what to do.”

He felt the section Gerlach and Bennett were working on before the accident occurred to be safe. Continental’s men received their orders from him. Romanelli is a carpenter and the witness’ men are electricians and therefore Romanelli is not going to tell electricians how to do their work. Between the various trades no one tells another trade how and when to do his work.

Testimony of Frank Romanelli, called by Continental under Section 60:

He did not consider the four by ten foot section of plaster dangerous or he would have done something about it. He did not know whether he saw Gerlach fall.

On November 13, 1968, at approximately 12:15 P.M., the jury commenced its deliberations upon receipt of the instructions from the trial court. At approximately 5:35 P.M. the jury sent a written communication to the trial judge reading: “We cannot reach a decision according to law. Does plaintiff have to prove defendant 100% at fault to make him liable?” The trial court advised the jury that it could not answer the question since the jury had been instructed as to the law. Shortly thereafter the jury returned a verdict in favor of third-party defendant.

Opinion

Pepper first contends that the trial court erred in denying its motion for a directed verdict. Pepper argues that under the theory of “active-passive indemnity” set out in Count I there was no issue of fact for the jury to decide and therefore the trial court should have granted its motion for a directed verdict. However, we conclude that the conflicting evidence concerning the circumstances surrounding the cutting of the wire raised issues of fact.

In Wrobel v. Trapani, 129 Ill.App.2d 306, at page 316, the question presented for review was whether the evidence supported Trapani’s active-passive theory of the case, and this court concluded:

In our opinion, this conflict in the evidence presented a question of credibility — and, thus, an issue of fact — which could properly have been resolved only by the jury. It relates materially to the factual determination necessary to a correct application of the active-passive rule as a basis for indemnity.

In Miller v. DeWitt, 37 Ill.2d 273, 291, the court, in reversing a dismissal of a third-party complaint based on a violation of the Scaffold Act, discussed the basic principles of accountability under that Act. It quoted from Rovekamp v. Central Const. Co., 45 Ill.App.2d 441, 449, where the court stated that:

“[although the liability imposed by the [Structural Work] Act does not rest upon negligence, there can be degrees of fault among those who, under the Act, are accountable to an injured plaintiff. Who is the more culpable, a party who supervises and coordinates the overall project, or a party who is responsible for the scaffolding and the particular work which produced the injury? Both are in charge of the work, to be sure, but of different phases of the work. Neither can escape liability to the [injured] plaintiff — thus the purpose of the Act is accomplished — but the lesser delinquent, if held accountable by the plaintiff, can transfer its statutory liability to the active delinquent, whose dereliction from duty brought about plaintiff’s injury.
We accordingly conclude that this is a proper case for a third-party complaint and that the trial court erred in dismissing the architect’s third-party complaint on motion without presenting the issue to the jury.” (Emphasis supplied.) Citing cases.

See also Lambert v. Velo & Co., 268 N.E.2d 170.

In the instant case we believe that Pepper’s theory of “active-passive indemnity” was a question of fact to be decided by the jury under proper instructions. Therefore, we find that the trial court properly denied Pepper’s motion for a directed verdict on Count I.

Pepper also contends that it was entitled to a directed verdict on Count II because of Continental’s breach of the following obligations under its contract:

“To perform all necessary wrecking in the electrical work;
To comply with all laws governing the electrical work;
To follow the work of others and to accept the work of the contractors it followed;
To furnish all labor, materials, and equipment to complete the electrical installation.”

The cardinal question in the instant case is whether Pepper or Continental was the more culpable party in regard to the matter of the cutting of the wire under the then existing circumstances. We again hold that this presented an issue of fact under the conflicting evidence and therefore find no error in the denial of Peppers motion for a directed verdict as to Count II.

In Skezas v. Safway Steel Products, Inc., 85 Ill.App.2d, 295, the court held that in order to recover for a breach of contract the third-party plaintiff must do more than set forth the contractual language and the occurrence of an incident. It also held that “[t]he injury must be tied to specific acts or omissions in contravention of the contract provision for this action [breach of contract] to Me.”

Pepper next contends that the trial court should have granted a new trial because the court erred in substituting Exhibit 3A for identification (an order form for the work in question which contained no stamped indemnification provision) for Exhibit 3 (an order form which did have stamped thereon a contractual indemnification clause) and further erred in striking Count III of its amended third-party complaint which was grounded on the contractual indemnification stamped on Exhibit 3. Continental, however, argues (1) that the trial court properly substituted Exhibit 3A for identification for Exhibit 3 since the witness’ identification of Exhibit 3 was tenuous and uncertain, the document was iHegible and the document was not a valid contract obligating Continental to its terms; and (2) that the trial court properly struck Count III of Pepper’s amended third-party complaint since Pepper’s amended third-party complaint failed to attach the alleged written agreement citing Ill. Rev. Stat. 1967, ch. 110, par. 36, Exhibits.

John Sipple, an electrical estimator for Continental, testified concerning Pepper’s Exhibit 3 marked for identification which was a typed purchase order from Pepper to Continental stating the date, March 30, 1962; job No. 3795; amount $7,700; description, “Do Electrical work as per plans and specifications Plus extra work for changes; CONFIRMATION”; and at the bottom reading “No 9935 rev.” The purchase order also had stamped on it three paragraphs, the first of which dealt with the subcontractor’s (Continental’s) duty to provide insurance protection. Under the second and third paragraphs the subcontractor (Continental) agreed to indemnify and save harmless Contractor (Pepper) against all liability.

The following questioning of Sipple by Pepper’s attorney under section 60 occurred at trial:

“Q. I ask you to examine 3rd Party Plaintiff’s Exhibit 3 for identification and ask you if that is a copy of the purchase order?

A. It probably is. I don’t recognize it off-hand. But we usually do

receive purchase orders.

Q. That is the one under which the work was performed?

A. Yes.”

Continental’s attorney asked to be heard outside the presence of the jury. Continental argued that the stamp on Exhibit 3 for identification, having to do with indemnity, was put on after April 11, 1962, the date of Gerlach’s accidental death.

Thereafter, in the presence of the jury, Sipple testified that while he did not have the original purchase order under which the work of Continental was performed. Pepper’s Exhibit 3 for identification was probable received by Continental on April 1, 1962. Pepper then proffered Exhibit 3 for identification in evidence. Continental objected. Pepper then asked to be heard outside the presence of the jury. The trial judge then stated: “You may substitute for the time being. # * # The ruling is that I will admit it with the confirmation [sic] stamped on it.” Later the court admitted Exhibit 3 subject to the objection “pertaining to this stamp that is on the yellow copy of Exhibit 3.” The record shows Exhibit 3 for identification with “for identification” lined out and Exhibit 3A for identification, purportedly the original purchase order without the indemnification stamp, as not admitted into evidence.

The argument in chambers indicated that the trial court actually admitted Exhibit 3 “subject to” Continental’s objection to the indemnification stamp thereon and the case proceeded but with Exhibit 3A for identification (without the stamped indemnification) substituted for Exhibit 3. The substitution was made without any evidence being heard with respect to Exhibit 3A. Since Sipple had testified that he had received Exhibit 3 with the indemnification clause on April 1 and that it was the order under which the work was done, it should have been admitted into evidence. If Continental had evidence to show that Exhibit 3 was not sent out until April 11 and that the contract was closed without the indemnity clause, it should have presented such evidence.

We find that the trial court erred in substituting Exhibit 3A for identification for Exhibit 3 because Exhibit 3 was the only exhibit testified to by Sipple as the purchase order Continental received. Under the indemnity clause stamped on Exhibit 3 Continental’s liability was clear. Therefore, the judgment will be reversed and the cause remanded for a new trial.

At the close of all the evidence, the trial court permitted Pepper to file an amended third-party complaint including Count III which was based upon the indemnification stamp appearing in Exhibit 3. On motion of Continental Count III was stricken. Count III was based on the indemnity agreement and was therefore improperly stricken. The trial court is directed to vacate the order striking Count III.

Continental’s contention that Count III was properly stricken because Pepper failed to attach a copy of the purchase order thereto was not raised in its motion to strike Count III. Therefore, it cannot now be considered for the first time on appeal. Senese v. City of Chicago, 88 Ill.App.2d 178.

Since we have heretofore determined that a new trial is necessary based on the tidal court’s erroneous substitution of exhibits without supporting testimony and the subsequent striking of Count III of Pepper’s amended third-party complaint aUeging contractual indemnity, we need not consider the remainder of Pepper’s new trial argument.

We would point out one area of concern which may be clarified on a new trial. Pepper’s Instruction 8 to the jury concerned the theory of active-passive conduct of Pepper and Continental. This instruction was refused by the trial court. Pepper claims this instruction was based on Chicago and Ill. Midland Ry. Co. v. Evans Const. Co., 32 Ill.2d 600. Instruction 8 stated:

“The fact that Pepper Construction Company may have been liable in damages for the death of Albert J. Gerlach does not bar it from recovering the amount it paid from Continental Electrical Construction Company.
It is the policy of the law in this State that the person whose fault was the primary cause of a loss should bear the ultimate liability.
Sometimes the courts say that the active causer of the injury should reimburse those who are passively liable. This means that when the law makes one person responsible for the act of another, once such a person pays a claim arising from the act of another for which he is liable by law, the payer can recover the amount of the payment from the one whose act caused the injury and required the payment.
Sometimes the courts say that when several persons are liable for an act because of a statute, the one who performs the act that causes the injury is primarily hable. Those who do not actually perform the act, but who are still responsible for it, are said to be secondarily hable. If those who are secondarily liable pay damages resulting from the primary act, they may recover the amount of the payment from the primary person who performed the act causing the damage.
In reaching your verdict, you have the right and duty to inquire into the relative actions of the Pepper Construction Company and Continental Electrical Construction Company and to administer justice between them, placing the ultimate liability upon the one which was guilty of the clearly higher degree of fault. If you find from the evidence that it was Continental Electrical Construction Company, then Pepper Construction Company is entitled to recover from Continental Electrical Construction Company the amount Pepper Construction Company paid in damages for the death of Albert J. Gerlach.”

Peppers Instruction 11 which was given over objection by Continental provided:

“You are instructed that the word “active” means action and is the opposite of passive; and the word “passive” means inactive, consisting in endurance or submission, rather than action.”

Instruction 8 was properly refused for a number of reasons including the fact that it confusingly uses the terms “primary cause,” “active causer,” “passively liable,” “primarily liable,” “secondarily liable” and “higher degree of fault.’ Instruction 11, however, only defines the words “active” and “passive.” While both Instructions 8 and 11 refer to active and passive conduct, nowhere do they state that if Continental is actively hable and Pepper passively hable then Continental must reimburse Pepper.

If on a new trial of this cause of action the active-passive theory of indemnity is again rehed upon for recovery, the instructions to the jury should not only define the active-passive theory of indemnity but also state its apphcation and effect.

The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

ENGLISH, P. J., and LORENZ, J., concur. 
      
       Although some words in the stamped portion of the purchase order are not clearly imprinted, the gist thereof is clear.
     