{
  "id": 2455383,
  "name": "Von Lee Melvin, Plaintiff-Appellant, v. George R. Thompson, and Helyn Thompson, Defendants-Appellees",
  "name_abbreviation": "Melvin v. Thompson",
  "decision_date": "1963-02-18",
  "docket_number": "Gen. No. 48,899",
  "first_page": "413",
  "last_page": "418",
  "citations": [
    {
      "type": "official",
      "cite": "39 Ill. App. 2d 413"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "125 NE2d 690",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1955,
      "opinion_index": 0
    },
    {
      "cite": "5 Ill App2d 390",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
      "case_ids": [
        5135871
      ],
      "year": 1955,
      "pin_cites": [
        {
          "page": "393"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-2d/5/0390-01"
      ]
    },
    {
      "cite": "175 NE2d 785",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1960,
      "opinion_index": 0
    },
    {
      "cite": "22 Ill2d 305",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
        2788626
      ],
      "year": 1960,
      "pin_cites": [
        {
          "page": "323"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-2d/22/0305-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 488,
    "char_count": 8021,
    "ocr_confidence": 0.581,
    "pagerank": {
      "raw": 2.997664543537822e-07,
      "percentile": 0.8521732348102148
    },
    "sha256": "788ab5a0771c662560cd0a0b0dcaccc5b9e6b035c12a586ff3e60547b19399df",
    "simhash": "1:5b8ad8930caf0c58",
    "word_count": 1325
  },
  "last_updated": "2023-07-14T20:51:26.818234+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "HTTP,MAN, P. J. and ENGLISH, J., concur."
    ],
    "parties": [
      "Von Lee Melvin, Plaintiff-Appellant, v. George R. Thompson, and Helyn Thompson, Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "MR. JUSTICE MURPHY\ndelivered the opinion of the court.\nPlaintiff appeals from a summary judgment, entered for defendants, in his suit under the Structural Work Act (Ill Rev Stats 1959, c 48, \u00a7\u00a7 60-69), commonly referred to as the Scaffold Act. Recovery was sought for injuries sustained by plaintiff on August 30, 1960, when he fell from a scaffold while painting a sign on a building owned by defendants.\nDefendant George R. Thompson is a mortician. His mortuary was located in a three-story building owned by Thompson and his wife, the other defendant. Shortly before August 30, 1960, Thompson orally engaged Jesse Stringer to retrace the mortuary signs on the east and west walls of the building. Stringer had painted the original signs some years before. About two days before the occurrence, William Woodward came to the mortuary to arrange for doing the work. He told Thompson that he was Stringer\u2019s partner and that Stringer was in the hospital. On the evening of August 29, 1960, Woodward and plaintiff rigged a scaffold belonging to Stringer on the east wall of defendants\u2019 building, and the next morning they commenced work. Plaintiff fell from the scaffold about 9:30 a. m.\nAfter answering the complaint, defendants moved for summary judgment, attaching as exhibits to their motion the discovery depositions of plaintiff and of defendant George R. Thompson. Plaintiff filed the counteraffivadit of William Woodward in opposition to the motion. On the issues thus presented, the trial court granted defendants\u2019 motion, holding that there was no genuine issue as to any material fact and that defendants were entitled to judgment as a matter of law.\nBefore civil liability may be imposed on these defendant owners under the Scaffold Act, it must appear that they \u201chad charge\u201d of the painting operations involved in the violation. (Gannon v. Chicago, M. St. P. & Pac. Ry. Co., 22 Ill2d 305, 323, 175 NE2d 785 (1960).) If the pleadings, depositions of plaintiff and defendant George R. Thompson, and the counter-affidavit of William Woodward' show that there is no genuine issue as to the material fact that the defendant owners were not in charge of the painting work during the performance of which plaintiff was injured, the summary judgment should be affirmed.\nPlaintiff relies principally on Woodward\u2019s counter-affidavit, which, shows that: Thompson informed Woodward that he was dissatisfied with the prior painting job and intended to \u201cwatch this job extra carefully\u201d and if he \u201cwas not satisfied with the workmanship or quality of work as the same progressed, he would stop the painting immediately and no payment would be made\u201d; Thompson went into detail with respect to what was to be done, the type of paint to be used, the time at which the work was to be commenced; on the evening of August 29,1960, Thompson furnished Woodward with a ladder to gain access to the roof from which the scaffolding was then hung; Thompson inspected the paint which was to be used, examined the scaffolding rope, and told Woodward that it did not appear to be very sturdy; Thompson jerked the rope violently to test its strength, and then stated, \u201cI guess it is all right, it looks as if it will hold\u201d; while the work was in progress, Thompson instructed Woodward to move in various directions and to scrape off most of the old paint, and pointed out to Woodward various locations where insufficient paint was being used; Thompson said that the paint appeared to be too thick and instructed that it be thinned out; after plaintiff\u2019s fall, Thompson instructed Woodward to clean up the debris.\nPlaintiff\u2019s deposition shows that: he and Woodward rigged the scaffold, which came from Stringer\u2019s truck the evening before the accident; they tested the scaffold, pulled it up close to the top of the Avail, and then left it hanging there overnight; plaintiff was familiar with rigging scaffolds of this type; the folloAVing morning, plaintiff and Woodward mounted the scaffold and proceeded to work; while they were painting, the scaffold began \u201ccracking and popping\u201d and Woodward hollered \u201chit it, grab ahold of something\u201d; Woodward succeeded in grabbing a safety rope, but plaintiff failed to do so; the scaffold broke and plaintiff fell some forty feet to the pavement below, being severely injured.\nPlaintiff further testified in his deposition that he had no conversation with defendants, knew nothing about the painting contract, and did not know what Thompson looked like; he stated that while he and Woodward were painting, a man \u201ccame out\u201d and told them to \u201cbe sure and scrape it good.\u201d This was the only thing he heard anyone say concerning the painting job.\nThe answers of the defendants admit ownership of the building and contracting for painting of the signs. They deny any duty to plaintiff and allege that defendants did not \u201chave charge\u201d of the painting work. In his deposition, defendant Thompson admits.telling the painters to \u201cdo a good job. ... I did not give Woodward any instructions other than to do a good job. I did not suggest any choice of paints. He was just to redo the existing sign.\u201d Thompson testified that he owned no sign painting equipment. He further said, \u201cI had nothing to do with the job at all, other than the contract. He was to do the job, the sign, and retrace it as he formerly did, and I was to pay him.\u201d\nIt is not disputed that Woodward was an independent contractor and that plaintiff was his employee. Nor is it disputed that the scaffold and rigging and all painting equipment belonged to Stringer, the person with whom defendants had initially contracted. Defendants had no control over the hiring or firing of plaintiff. Plaintiff was not a party to the contract and defendants were not required to pay him his wages.\nAt most, the activities of defendant Thompson can be considered as an effort to require compliance with the contract and to ensure that the quality of work done was as agreed; he inspected the painting as it progressed and threatened to terminate the work if the job was not being done satisfactorily. In so doing, he conld not be considered by reasonable men to have been \u201cin charge\u201d of the work, as required for owner-liability under the terms of the Scaffold Act. We therefore conclude that, taken in the aspect most favorable to plaintiff, the pleadings, depositions, and counteraffidavit do not raise a genuine factual issue with respect to control by defendants of the painting operation. It follows that summary judgment for defendants was proper.\nWe find no merit in plaintiff\u2019s contention that the trial court erred in denying his motion to file an amended counteraffidavit, an amendment to the complaint, and to vacate the summary judgment. Plaintiff admits that the proposed amended counter-affidavit is \u201cthe same in substance\u201d as Woodward\u2019s affidavit which already appears in the record. The proposed amendment to the complaint would merely allege that defendant Thompson was \u201cin charge\u201d of the painting job without alleging any additional facts to justify this conclusion. Even if so amended, plaintiff\u2019s complaint would not state a good cause of action here. While we believe that discretion should be liberally exercised in favor of allowing such new pleadings as are essential to the presentation of a party\u2019s cause of action or defense (Martin v. Kozjak, 5 Ill App2d 390, 393, 125 NE2d 690 (1955)), we also recognize that justice is not served by the fruitless expenditure of time and effort by our courts, their officers, and litigants.\nFor the reasons given, we conclude that the summary judgment in favor of defendants should be affirmed.\nAffirmed.\nHTTP,MAN, P. J. and ENGLISH, J., concur.",
        "type": "majority",
        "author": "MR. JUSTICE MURPHY"
      }
    ],
    "attorneys": [
      "Richard J. Billik, of Chicago (Louis A. Rosenthal, of counsel), for appellant.",
      "Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (Oswell G. Treadway, of counsel), for appellees."
    ],
    "corrections": "",
    "head_matter": "Von Lee Melvin, Plaintiff-Appellant, v. George R. Thompson, and Helyn Thompson, Defendants-Appellees.\nGen. No. 48,899.\nFirst District, First Division.\nFebruary 18, 1963.\nRichard J. Billik, of Chicago (Louis A. Rosenthal, of counsel), for appellant.\nHinshaw, Culbertson, Moelmann & Hoban, of Chicago (Oswell G. Treadway, of counsel), for appellees."
  },
  "file_name": "0413-01",
  "first_page_order": 423,
  "last_page_order": 428
}