{ "id": 2965276, "name": "LEONARD M. CROTHERS, Plaintiff-Appellant, v. LA SALLE INSTITUTE, Defendant-Appellee", "name_abbreviation": "Crothers v. La Salle Institute", "decision_date": "1976-07-29", "docket_number": "No. 59113", "first_page": "984", "last_page": "996", "citations": [ { "type": "official", "cite": "40 Ill. App. 3d 984" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "306 N.E.2d 66", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "16 Ill. App. 3d 315", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2520088 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/16/0315-01" ] }, { "cite": "250 N.E.2d 537", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. App. 2d 391", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1592983 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/111/0391-01" ] }, { "cite": "235 N.E.2d 323", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill. App. 2d 392", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2818976 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/91/0392-01" ] }, { "cite": "296 N.E.2d 740", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. 2d 271", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2932228 ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0271-01" ] }, { "cite": "153 N.E.2d 98", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill. App. 2d 593", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5187246 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/18/0593-01" ] }, { "cite": "328 N.E.2d 297", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill. 2d 520", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5416298 ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0520-01" ] }, { "cite": "188 N.E.2d 497", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "39 Ill. App. 2d 413", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2455383 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-2d/39/0413-01" ] }, { "cite": "211 N.E.2d 247", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill. 2d 316", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2883616 ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0316-01" ] }, { "cite": "175 N.E.2d 785", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "22 Ill. 2d 305", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2788626 ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0305-01" ] } ], "analysis": { "cardinality": 1039, "char_count": 28837, "ocr_confidence": 0.89, "pagerank": { "raw": 7.875631612373267e-08, "percentile": 0.4600005637394304 }, "sha256": "9ec0d392e9d40de690bf23e2928706996789bf70e21fda30d19c9c0f606f8f4c", "simhash": "1:bdc3f4884e9f8df4", "word_count": 4716 }, "last_updated": "2023-07-14T17:46:14.004939+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LEONARD M. CROTHERS, Plaintiff-Appellant, v. LA SALLE INSTITUTE, Defendant-Appellee." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE MEJDA\ndelivered the opinion of the court:\nPlaintiff, Leonard M. Crothers, appeals from a judgment entered upon a jury verdict for defendant, La Salle Institute, a not-for-profit Missouri corporation, in an action arising from plaintiff\u2019s fall from the roof of defendant\u2019s gymnasium where he was working as an apprentice roofer. Plaintiff filed a two-count complaint, charging defendant with negligence in one count and violations of the Structural Work Act in the other. (Ill. Rev. Stat. 1967, ch. 48, par. 60 et seq.) Plaintiff dismissed the negligence count prior to trial. The trial court denied plaintiff s post-trial motion for a judgment notwithstanding the verdict or, in the alternative, a new trial.\nOn appeal plaintiff contends that the trial court erred in the following:\n(1) failing to direct a verdict or grant a judgment notwithstanding the verdict against defendant;\n(2) failing to hold as a matter of law that defendant was \u201cin charge of the work\u201d within the meaning of the Structural Work Act;\n(3) failing to submit plaintiff\u2019s tendered instruction defining the gymnasium roof as the scaffold which allegedly was in violation of the Act;\n(4) excluding from evidence a letter written by defendant\u2019s agent to plaintiff\u2019s employer;\n(5) denying plaintiff\u2019s motion in limine, as well as a later motion for a mistrial, to exclude reference to defendant as a not-for-profit corporation; and\n(6) not granting plaintiff a new trial on the ground that the verdict was contrary to the manifest weight of the evidence.\nWe conclude that the judgment must be reversed and the cause remanded for a new trial due to errors in the instructions and the improper exclusion of evidence. The pertinent facts follow:\nPrior to the presentation of any evidence plaintiff made a motion in limine that no reference be made before the jury to defendant as a not-for-profit corporation or as a religious organization. The trial court denied the motion. The case then proceeded to trial and the following evidence was presented.\nPlaintiff testified: on July 27,1967, he was employed by Norton & Sons Roofing as an apprentice roofer for approximately four months. For three or four days he had been working at a construction project on the campus of Lewis College, in particular, on the roof of a gymnasium. The only person who gave him orders at the job site was George Anderson, Norton\u2019s foreman. Although the structural steel portion of the gymnasium roof had been installed, skylights remained to be put in place and the insulation for the roof was to be installed. On July 27 the wind was gusting. Plaintiff was assigned to stuff insulation material into the cracks between sections of the steel roof. He began by working backwards toward the edge of the roof with his back to the edge. This enabled him to prevent the wind from blowing out insulation he had already laid. Wooden boards were scattered around the roof to prevent other insulation from being blown away. As he neared the edge a gust of wind threw plaintiff off balance, causing him to fall over the edge onto a concrete landing some 35 feet below, sustaining severe and permanent injuries.\nEdward Stephenson, a safety inspector for the Illinois Department of Labor, testified on behalf of plaintiff. He supervises State inspectors who police the safety of construction projects in Illinois. When improper safety measures are found his department has authority to order construction stopped until appropriate measures are implemented. He was familiar with the customary safety practices in Will and Cook Counties in 1967. Where men are working on a flat roof, perimeter butting is the customary safety method for protection from falling. This can be accomplished in a variety of ways; safety belts with lead lines given to the men; use of safety nets; and by the use of imbedded pins and uprights or welded uprights connected by ropes or cables. Ladders can also be extended up to the roof and connected with lines of some kind. In some instances, merely ropes with streamers attached can be used as an appropriate warning to workmen. Stephenson also testified that it was the custom of the industry to use one or more of these safety devices to protect men working on a flat roof.\nOn cross-examination Stephenson stated that a safety device considered appropriate for a particular building under construction would depend upon the physical layout of such building. He admitted that he did not know the physical layout of defendant\u2019s gymnasium. He added, however, that a perimeter rope with streamers would be the least desirable if any of the other devices were available.\nRobert Messer was called by plaintiff as an adverse witness. He had been chief estimator for the Paxton Construction Company at defendant\u2019s project. Paxton had been hired as the general contractor. Messer\u2019s function for Paxton was to evaluate costs and answer questions for the subcontractors as to the intent of the architect\u2019s plans. He stated that defendant subsequently dismissed Paxton as the general contractor and he was then hired by defendant to work as its project manager. His function for defendant was to evaluate costs and answer questions of the subcontractors if they had difficulty in interpreting the architect\u2019s plans. He had nothing to do with the manner in which the construction was carried out, and the methods of doing the work were left to the various subcontractors. He only interpreted the plans and inspected work to insure that defendant was getting its \u201cmoney\u2019s worth.\u201d His approval, as well as that of the architect, was necessary before defendant made payment to a subcontractor for completed work. Messer was the only person at the project to schedule the subcontractors by informing them of the progress of the construction and when to come to begin their particular part of the work. Although the architect was not on the job site at all times, the final interpretation of the plans and the final determination of conformity of the work with the plans was left to the architect.\nBrother Joel Damian was called by plaintiff as an adverse witness. He was the legal equivalent of a corporate secretary to defendant. Defendant was a not-for-profit Missouri corporation licensed to do business in Illinois, and had contracted with Paxton Construction Company to erect several buildings on the campus of Lewis College. Paxton was the general contractor and he in turn engaged the various subcontractors on the project. Subsequently, the architect informed defendant that Paxton was not performing satisfactorily, and defendant then dismissed Paxton. Brother Damian wrote to the subcontractors and asked them to continue work under the same terms as in their contracts with Paxton. Each of them agreed to complete work in accordance with the former terms. Defendant did not enter into any new agreements with the subcontractors. Following the dismissal of Paxton there was no general contractor for the project although defendant did hire Robert Messer, previously employed by Paxton. The method of performance of the work was left to the subcontractors and this included the question of whether scaffolds were needed. Messer\u2019s duties were to inspect the final product and coordinate the trades only to the extent of informing them the work was at a certain stage of completion and that they should come onto the job at a certain time. Brother Damian denied that Messer was the supervisor of the construction and stated that the architect had the responsibility of supervising the subcontractors. He stated that although Messer attended weekly meetings of the subcontractors at which the status of the work was reviewed, Messer merely coordinated the trades. He admitted, however, that he had referred to Messer as the \u201csuperintendent of the project\u201d in a letter to the subcontractors advising them of Paxton\u2019s dismissal as general contractor; the Messer\u2019s function was in reality that of a job inspector whose duties were to help individual subcontractors keep the project going, and that \u201cproject director\u201d was a more accurate description of his position. The witness stated that no Christian Brother had anything to do with the day-to-day supervision of the construction; further, that if the plans were to be changed or the work stopped for any reason, it was the architect who would have that responsibility. He finally testified that the work of the subcontractors was subject to the approval of both the architect and Messer before defendant would make any payment.\nAt the conclusion of Brother Damian\u2019s testimony plaintiff moved for a mistrial because the witness had referred to defendant as a not-for-profit corporation. The trial court denied the motion. In closing his case-in-chief, plaintiff moved that the trial court hold as a matter of law that defendant was in charge of the construction within the meaning of the Structural Work Act. The trial court denied the motion, as well as subsequent motions for directed verdicts by both plaintiff and defendant.\nDefendant did not present any evidence; however, prior to the formal closing of defendant\u2019s case, plaintiff moved for leave to introduce a letter from Brother Damian to Norton & Sons Roofing advising that Paxton had been dismissed as general contractor. Initially, defendant objected that introduction of the letter at that time would be prejudicial, but the trial court overruled the objection. Defendant then objected that the letter would be merely cumulative evidence of Brother Damian\u2019s previous admission that he had once referred to Messer as the superintendent of the project in letters sent to the subcontractors. Plaintiff argued that the letter was not cumulative because it was addressed to \u201cthe issue of the case as to who was in charge of the construction.\u201d The objection was sustained as cumulative by the trial court. Plaintiff\u2019s counsel then made an offer of proof. In making a formal offer of proof, he stated, \u201cthe letter, of course, will speak for itself, which indicates that he\u2019s [Messer] not the job inspector, but that he\u2019s superintendent of the project as characterized by Brother Joel Damian.\u201d\nThe letter in question, included in the record as Plaintiff\u2019s Exhibit No. 34 for identification, states in pertinent part:\n\u201cNovember 21, 1966\nNorton & Sons Roofing\n610 W. 76th St.,\nChicago, Illinois\nGentlemen:\nThis is notification that the Christian Brothers have decided to discontinue the services of Paxton Construction Company and to handle the details of completing certain projects on the campus of Lewis College under their own direction. These are: 888 Scholasticate Building (including a gymnasium addition 8 8 8).\nMr. Robert Messer has been hired as superintendent of the project. Mr. Clare Wallace will continue as supervisor of The Drake Partnership, architect.\nPlease furnish to me at the above address full evidence of your interest in these projects, separately \u2014 copy of contract or purchase order from Paxton indicating authorized additions and deductions, date and amount of each progress billing to date, and amount of each payment received to date.\nA new purchase order will be issued by the Christian Brothers upon verification of the status of your agreement with Paxton, as well as an indication of willingness on your part to participate under the new circumstances.\nI expect that we will be able to continue the projects in good, order.\nVery sincerely,\nBrother Joel Damian, FSC\u201d\nThereafter, a conference on instructions was conducted. Plaintiff\u2019s Instruction No. 5 was tendered, based upon Illinois Pattern Jury Instruction, Civil, No. 180.14, and stated:\nElsewhere in these instructions I have used the term \u201cviolation of the Structural Work Act.\u201d The statute was violated if the roof in question was not safe so as to give adequate protection to the life and limb of any person employed thereon and the defendant knew of the condition or, in the exercise of ordinary care it could have discovered it.\nDefendant objected to the instruction on the basis that it held the gymnasium roof to be a scaffold as a matter of law within the meaning of the Act, whereas such determination was a question of fact for the jury to determine. The trial court sustained the objection and refused to submit the instruction to the jury. Thereafter, the jury returned a verdict for defendant and judgment was entered. After the denial of his written post-trial motion, plaintiff instituted the present appeal. We proceed to a consideration of those contentions raised by plaintiff which must necessarily be addressed.\nPlaintiff first contends that the trial corut erred in failing to direct a verdict or grant a judgment notwithstanding the verdict against the defendant on its liability under the Structural Work Act. Plaintiff also contends that the trial court erred in failing to hold as a matter of law that defendant was in charge of the work within the meaning of the Act. These contentions are interdependent. The trial court could not direct a verdict or enter a judgment notwithstanding the verdict on defendant\u2019s liability under the Act unless it could also hold as a matter of law that defendant was in charge of the work. As we conclude that the trial court was correct in denying plaintiff\u2019s motion to hold defendant in charge of the work as a matter of law, plaintiff\u2019s initial contention must also fail.\nSection 9 of the Structural Work Act (Ill. Rev. Stat. 1967, ch. 48, par. 69) provides in part:\n\u201cAny owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of this act, shall comply with all the terms thereof, \u00b0 \u00b0 \u00b0.\n<* # #\nFor any injury to person or property, occasioned by any wilful violations of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby; \u00b0 \u00b0\nBefore liability may be imposed upon a defendant under section 9, it must be established that the defendant had charge of the operations involving the alleged violation of the Act. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill. 2d 305, 175 N.E.2d 785.) It has been held that the language \u201cin charge of\u201d is a generic phrase of broad import. (Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 211 N.E.2d 247.) However, in cases such as the instant one, where an owner is sought to be held under section 9, the owner must have had some direct connection with the work out of which the violation arose, over and above mere ownership, inspection of the work, or the employment of an independent contractor. (Gannon; Melvin v. Thompson (1963), 39 Ill. App. 2d 413, 188 N.E.2d 497.) Whether the connections and activities in a given case are such that an owner can be deemed to have been in charge of the work is primarily a question of fact for the determination of the jury. Voss v. Kingdon & Naven, Inc. (1975), 60 Ill. 2d 520, 328 N.E.2d 297; Larson.\nIn the instant case, the evidence presented on the issue of whether defendant was in charge of the construction of the gymnasium was not conclusive as to either party. Plaintiff testified that only George Anderson \u2014 Norton & Sons\u2019 foreman \u2014 gave him orders at the job site. Robert Messer testified that the manner in which the construction was to be performed on the project was left to the various subcontractors. He stated that he merely evaluated costs, answered questions as to the intent of the architect\u2019s plans, scheduled the trades as to when they should come onto the job, and approved work as completed before defendant made payment to the subcontractors. Brother Damian testified that Messer additionally attended weekly meetings with the subcontractors to review the progress of the work; that the architect had final responsibility if the plans were to be changed or the work stopped for any reason. Brother Damian stated, however, that after defendant dismissed Paxton Construction Company there was no general contractor on the project. The removal of Paxton left no other entity between defendant and the subcontractors. Brother Damian also testified that no new agreements were entered into with the subcontractors after the dismissal of Paxton, but rather, the subcontractors were asked and in fact agreed to continue their work under the same terms as provided in their contracts with Paxton.\nMoreover, Brother Damian admitted to referring to Messer\u2019s position as the superintendent of the project in letters to all subcontractors. The letter sent to plaintiff s employer was the subject of an offer of proof at trial. Hereinafter we conclude that the letter was improperly excluded; therefore, we consider it instead as having been substantively introduced and received in evidence at trial. In the excluded letter Brother Damian advised plaintiffs employer that Paxton had been dismissed and defendant was now handling the details of completing the construction. We find that the conflicting nature of the evidence presented on this issue dictates a conclusion that it cannot be said no reasonable men could disagree that defendant was in fact proved to be in charge of the gymnasium construction as in the meaning of section 9 of the Act. Therefore, plaintiffs motion that defendant be held to have had charge of the work as a matter of law was properly denied. It follows that the trial court was also correct in refusing to enter either a directed verdict or a judgment notwithstanding the verdict for plaintiff on the issue of defendant\u2019s liability under the Act.\nPlaintiff contends that the trial court erred in failing to submit to the jury plaintiffs tendered instruction defining defendant\u2019s gymnasium roof as the scaffold alleged to be in violation of the Structural Work Act. Initially, defendant argues that plaintiff has failed to preserve that issue for review by not specifying in his written post-trial motion the grounds for his objection to the trial court\u2019s refusal to submit the instructions to the jury. Section 68.1 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 68.1) requires that a post-trial motion contain the points relied upon, particularly specifying the grounds in support thereof. In his post-trial motion plaintiff stated that the trial court erred in refusing to give Plaintiffs Instruction No. 5 and thereafter set forth the instruction verbatim. It has been held to be sufficient to preserve error in the giving or refusing to give an instruction to state that the trial court erred in regard to the instruction and to identify or set it forth verbatim. (Tabor v. Tazewell Service Co. (1958), 18 Ill. App. 2d 593, 153 N.E.2d 98.) This plaintiff has done and the contention is properly before this court.\nPlaintiff\u2019s Instruction No. 5 was based upon Illinois Pattern Jury Instruction (Civil) No. 180.14 which sets forth:\n\u201c180.14 Violation \u2014 Definition\nElsewhere in these instructions I have used the term \u201cviolation of the Structural Work Act.\u201d The statute was violated if the [scaffold] [hoist] [crane] [stay] [ladder] [support]\n[-]\nother mechanical contrivance or device\nin question was [placed] [used] [operated] [in a condition] [in a manner] [under circumstances] that [was] [were] not safe so as to give adequate protection to the life and limb of any person [(employed) (engaged) thereon] [passing under or by it] and the defendant(s) knew of the [condition] [manner of (use) (operation)] or, in the exercise of ordinary care, [he] [it] [they] could have discovered it.\u201d\nPlaintiff prepared Plaintiff\u2019s Instruction No. 5 by simply modifying the pattern instruction with appropriate wording to fit the facts and theory of his action. In the space for the contrivance or device which would bring the injury within the ambit of the Structural Work Act, plaintiff inserted the word roof. Defendant objected to the instruction on the ground that it held in effect that the gymnasium roof was a scaffold as a matter of law rather than a question of fact for the jury to determine. The trial court sustained the objection and refused to submit the instruction. We hold that in so doing, the trial court erred.\nOn an almost identical factual setting in St. John v. R.R. Donnelley & Sons Co. (1973), 54 Ill. 2d 271, 296 N.E.2d 740, the Supreme Court decided that a roof which was under construction could be a scaffold as a matter of law. There, two workmen had fallen through a hole in a roof under construction, the holes having been intentionally left for the later installation of ventilation equipment. The court held that it was clear the roof was being used as a platform for the workmen, and that the factor of the roof being intended as a permanent part of the building was not relevant , as it was being put to temporary use as a scaffold and therefore was within the Structural Work Act. In arguing that whether the roof was a scaffold was a question of fact for the jury, defendant cites Spiezio v. Commonwealth Edison Co. (1968), 91 Ill. App. 2d 392, 235 N.E.2d 323. We find Spiezio to be distinguishable. There, the court was presented with a factual question of whether a workman was on a device that was to provide him with temporary support within the ambit of the Act. The court held that the factual resolution depended upon a determination of whether it was the intention of the parties that the device was to be utilized as a temporary support. In the instant case, however, there is no dispute that the gymnasium roof was intended to provide support for plaintiff and the other workmen. There is no evidence of record that the roof was not intended to be so utilized. Indeed, as in St. John, using the roof as a support for his work of installing insulation was all the plaintiff could practically do. Here, as there was no dispute of fact as to the use to which plaintiff had put the gymnasium roof, he was entitled to have the jury instructed that the roof was a scaffold within the meaning of the Structural Work Act.\nDefendant also argues that Plaintiffs Instruction No. 5 was not in conformity with the allegations of the complaint, and further, that plaintiffs other given instructions adequately advised the jury as to plaintiffs theories of liability and the law. Neither argument is persuasive. First, plaintiffs complaint alleged that defendant violated the Act in that it \u201cwillfully failed to erect, construct, place in a safe, suitable and proper manner a guard rail, net, warning signs, horses, barricades or scaffolds so as to give adequate protection to the life and limb of any person or persons employed or engaged thereon.\u201d It suffices to say that the failure to provide a safe, suitable and proper scaffold would also encompass the providing of an unsafe, unsuitable and improper scaffold, namely, the gymnasium roof. Second, the other instructions submitted to the jury did not adequately advise them of this particular theory of plaintiff s case. No other instruction given to the jury stated that the gymnasium roof could be a scaffold within the meaning of the Structural Work Act. The jury thus deliberated without being informed of one of plaintiffs theories of liability which found support in the evidence.\nPlaintiff next contends that the trial court erred in excluding from evidence a letter written by Brother Damian to plaintiffs employer. The letter was rejected by the trial court on the basis that it was cumulative of Brother Damian\u2019s prior testimony wherein he admitted that he had referred to Robert Messer as \u201csuperintendent of the project\u201d in letters he had written to all subcontractors. Plaintiff contends that the letter should have been substantively admitted to demonstrate that defendant was in charge of the construction of the gymnasium. Defendant, however, argues that plaintiff has not preserved the issue of the substantive introduction of the letter. Defendant argues that in his offer of proof plaintiffs counsel stated that the letter was being offered to show that Messer was not the job inspector, but rather, the superintendent of the project as characterized by Brother Damian. Thus, defendant asserts that the offer of proof was limited to the ground that the letter would impeach Brother Damian, and since Brother Damian had already admitted he had so referred to Messer, the letter as limited by the offer of proof could only be cumulative of Brother Damian\u2019s testimony.\nDefendant has isolated one remark of plaintiff\u2019s counsel to support its argument, but when read in the context of the entire discussion concerning the admissibility of the letter, that isolated remark takes on a different meaning. Shortly before making the remark to which defendant gives emphasis, plaintiffs counsel had stated that the letter \u201csays in effect that which concerns the issue of the case as to who was in charge of the construction.\u201d A fair reading of all the remarks plaintiffs counsel made on the subject indicates that the letter was being offered substantively on the issue of whether defendant was in charge, rather than merely as a means of impeaching Brother Damian. We find that plaintiff has properly preserved the question of the substantive exclusion of the letter from evidence. Moreover, we further find that the trial court erred in excluding the letter as cumulative evidence. The substantive introduction of the letter was crucial to a portion of plaintiff\u2019s burden of proof; that is, whether defendant was in charge of the gymnasium construction and therefore liable for wilful violations of the Structural Work Act. The letter, in addition to referring to Messer as the superintendent of the project, states that defendant itself will handle the details of completing the construction. The letter thus represented possibly the strongest evidence available to plaintiff that defendant was in fact in charge of the work. Its exclusion from evidence was error which operated to the obvious prejudice of plaintiff\u2019s case.\nPlaintiff next contends that the trial court erred in denying his motion in limine as well as a later motion for a mistrial. Both motions were predicated upon references to defendant at trial as a not-for-profit corporation. Initially, plaintiff made his motion in limine to prevent all references to defendant before the jury as either a not-for-profit corporation or a religious organization. The motion was denied. In doing so, the trial court was exercising its discretion over the conduct of trial and its determination cannot be disturbed on review in the absence of an abuse of such discretion. (Sherman v. City of Springfield (1969), 111 Ill. App. 2d 391, 250 N.E.2d 537.) Here, there was no abuse of discretion. Section 5 of the Illinois General Not for Profit Corporation Act provides that a not-for-profit corporation is empowered to \u201csue and be sued, complain and defend, in its corporate name.\u201d (Ill. Rev. Stat. 1973, ch. 32, par. 163a4(b).) Plaintiff\u2019s complaint stated that the action is brought against \u201cLaSalle Institute, A Not-For-Profit Missouri Corporation.\u201d Thus, not only has plaintiff so designated defendant in his pleadings, but defendant had the right to defend in its corporate name, and in particular, as designated by plaintiff. Plaintiff does not complain of any instances in which defendant was referred to at trial as a religious organization. The foregoing reasons also apply to plaintiff\u2019s argument that the trial court erred in not declaring a mistrial after Brother Damian had referred to defendant as a not-for-profit corporation. The determination of whether a mistrial is warranted is within the discretion of the trial court. (Stuart v. Rahn (1974), 16 Ill. App. 3d 315, 306 N.E.2d 66.) We find no abuse of discretion in the denial of plaintiffs motion for a mistrial. Moreover, the record indicates that Brother Damian\u2019s reference to defendant\u2019s status was invited by plaintiff\u2019s counsel in his preliminary examination of Brother Damian when called as an adverse witness.\nFor the reasons stated, it is not necessary to reach the contention that the court erred in not granting a new trial on the ground that the verdict of the jury was contrary to the manifest weight of the evidence. The judgment of the circuit court of Cook County is reversed and the cause remanded for a new trial not inconsistent with this opinion.\nReversed and remanded.\nMcNAMARA and McGLOON, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE MEJDA" } ], "attorneys": [ "Morrill, Koutsky, Chuhak and Upton, of Chicago (Lawrence T. Stanner, of counsel), for appellant.", "Baker & McKenzie, of Chicago (Francis D. Morrissey, of counsel), for appellee." ], "corrections": "", "head_matter": "LEONARD M. CROTHERS, Plaintiff-Appellant, v. LA SALLE INSTITUTE, Defendant-Appellee.\nFirst District (3rd Division)\nNo. 59113\nOpinion filed July 29, 1976.\nMorrill, Koutsky, Chuhak and Upton, of Chicago (Lawrence T. Stanner, of counsel), for appellant.\nBaker & McKenzie, of Chicago (Francis D. Morrissey, of counsel), for appellee." }, "file_name": "0984-01", "first_page_order": 1012, "last_page_order": 1024 }