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Kennerly v. Shell Oil Co.





APPEAL from the Circuit Court of St. Clair County; the Hon. R.W. GRIFFITH, and the Hon. BYRON O. HOUSE, Judges, presiding.


Rehearing denied May 23, 1958.

Golden Kennerly brought this action against the Shell Oil Company to recover for personal injuries that he suffered while employed as a steamfitter welder by the Foster Wheeler Corporation, which was constructing a large distillation unit for Shell Oil Company on Shell's property. On April 7, 1953, while plaintiff was welding a water line he fell from a scaffold that was built by other employees of Foster Wheeler. He landed 17 or 18 feet below and suffered serious and permanent injuries. The jury returned a verdict for the plaintiff, and judgment was entered on the verdict.

Defendant appeals directly to this court. Plaintiff's right to recover is based upon a claimed violation of the Scaffold Act. (Ill. Rev. Stat. 1957, chap. 48, pars. 60-69.) Defendant contends that the Scaffold Act, properly construed, does not make it liable; that the Scaffold Act has been superseded by the Workmen's Compensation Act, and that it is so vague and indefinite as to violate due process and improperly to delegate legislative authority to those who are charged with its administration. It also argues that a wilful violation of the act was not proved, and that the plaintiff has been allowed a double recovery for his injuries.

The Scaffold Act relates to equipment used in the erection or repair of buildings and other structures. It imposes duties upon "Any owner, contractor, sub-contractor, foreman or other person having charge of the erection * * * of any building, * * * or other structure * * *," and it provides that for "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; * * *." (Ill. Rev. Stat. 1957, chap. 48, par. 69.) The defendant contends that the statute imposes liability only upon the person "having charge" of the work, and that it is not liable because the work was being done by an independent contractor, Foster Wheeler Corporation, the plaintiff's employer.

If the question were one of first impression, the contention thus urged would be a serious one, for the liability that the statute imposes is stated in the disjunctive. There is, however, a long history of interpretation that refutes the defendant's position. The statute was enacted in 1907. (Laws of 1907, p. 312.) In 1911 the first case under it, Claffy v. Chicago Dock and Canal Co. 249 Ill. 210, 228 U.S. 680, came to this court. The action was brought by the widow of a deceased workman against the contractor who was constructing the building, and the owner of the building, Chicago Dock and Canal Co. After a verdict of $10,000 had been returned against both defendants, the contractor paid the plaintiff $2,500 and received a covenant not to sue. On appeal the owner contended that it was not liable because the actual work was being done by several different contractors. The court said: "In our opinion it was intended by section 7 to, and said section 7 does, impose upon both the contractor and the owner the duty of complying with the provisions of said section so far as civil liability is concerned, but under the facts in this case the owner never parted with the control and supervision of the building to any contractor," but retained control of the construction through its own agent, as architect.

The language quoted above was deliberately used by the court after it had discussed and quoted from a decision of the Court of Appeals of New York that had reached a different conclusion under a similar statute. On the basis of this court's interpretation in the Claffy case, the Appellate Court in 1912 reversed its earlier construction of an ordinance of the city of Chicago that imposed liability on "all owners, contractors and builders or persons having control or supervision of all buildings in course of erection." (O'Donnell v. Riter-Conley Mfg. Co. 172 Ill. App. 601.) After quoting the language from the Claffy case that is italicized above, the Appellate Court continued, pp. 608, 609: "It is true that in that case the court further states that the fact there was, that there was no general contractor having a contract for the construction of the entire building, but separate contracts were let to different contractors for the different kinds of work to be done. Nevertheless, as we read the opinion, the court did not intend to make that question of fact controlling in the construction placed by it upon the statute above quoted. The fact that there were separate contracts was only cited as an additional argument going to show that the contention made in that case could not even be sustained on the facts. * * * A similar construction was placed by the Supreme Court upon the fire escape statute which made it the duty of `owners, lessees or occupants' to construct such fire escapes. Landgraf v. Kuh, 188 Ill. 484; Arms v. Ayer, 192 Ill. 601; Streeter v. Western Scraper Co. 254 Ill. 244."

In 1923 this court reaffirmed the construction adopted in the Claffy case, saying: "The act of 1907 imposes upon the contractor and the owner, as well as upon sub-contractors, foremen or others engaged in the work, the duty of complying with the provisions of the act so far as the civil liability is concerned. (Claffy v. Chicago Dock Co. 249 Ill. 210.) Before the enactment of this law, where work was done under such circumstances as to constitute the person doing it an independent contractor, the owner was not liable for an injury caused by the negligence of such independent contractor. (Scammon v. City of Chicage, 25 Ill. 424; Pfau v. Williamson, 63 id. 16; Jefferson v. Jameson & Morse Co. 165 id. 138.) Since the enactment of this law the owner of the property and every contractor and sub-contractor are equally bound by the act to comply with its provisions, and in case of willful failure are liable to the party injured for any direct damages sustained by reason of such failure. This liability to the person injured the owner or original contractor cannot evade by any contract with the contractor or sub-contractor." John Griffiths & Son Co. v. National Fireproofing Co. 310 Ill. 331, 335.

The Scaffold Act deals with highly dangerous activities. It has been regarded from the outset as intended to fix an independent, non-delegable duty of compliance upon the owner of the property and upon each contractor and sub-contractor engaged in the work. Neither this court nor the Appellate Court has deviated from this construction of the statute, first announced almost fifty years ago. In the face of this construction, the General Assembly has re-enacted the section without changing the language that imposes the liability here involved. (Laws of 1951, p. 1309.) We are not at liberty to change the meaning of that language now.

The defendant also argues that the Scaffold Act was superseded by the Workmen's Compensation Act which was adopted in 1913. The argument is that the Workmen's Compensation Act has consistently limited the right of employees under the act to recover against a third-party tortfeasor to those cases in which the injury was not caused by the negligence of the employer. Section 5(b) of that act provides: "Where the injury or death for which compensation is payable under this Act was not proximately caused by the negligence of the employer or his employees and was caused under circumstances creating a legal liability for damages on the part of some person other than the employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer's payment of or liability to pay compensation under this Act." Ill. Rev. Stat. 1953, chap. 48, par. 138.5.

The defendant reads this section as prohibiting an action against a third party in any case in which the injury was proximately caused by the negligence of the employer. This reading of the statute, however, cannot be applied to an action under the Scaffold Act. That act fixes its own standard of liability. It deals with work that the General Assembly has regarded as particularly hazardous, and its purpose is to reduce the hazard to the fullest possible extent. To that end it has imposed a duty upon both the contractor and the owner. The duty of each is independent of the duty of the other, and neither can escape his statutory liability by pointing to the other's breach of duty. If injury is caused by a defendant's "wilful violation" of the act or by his "wilful failure to comply with any of its provisions," he is liable regardless of the fault or liability of any other. Cf. John Griffiths & Son Co. v. National Fireproofing Co. 310 Ill. 331.

Since we hold that the Scaffold Act is applicable to the defendant as owner, we are brought to the question of its constitutionality. Section I of the act provides: "That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, * * * or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon."

Defendant contends that the act violates the due-process provisions of the State and Federal constitutions because it is incomplete, vague and indefinite, and fails to establish a clear and intelligible standard of duty. It is also argued that the act is unconstitutional because it empowers common-law juries to pass upon questions of law and delegates legislative power to judges and juries, and so violates article III of the constitution of Illinois. Other provisions of the act, not directly involved in this case, are said to be unconstitutional because they delegate legislative powers to an administrative officer.

The Fire Escape Act of 1907 was attacked on grounds like those that the defendant advances here, and its validity was sustained in Arms v. Ayer, 192 Ill. 601. The court there said: "Statutes and city ordinances providing for fire-escapes are usually somewhat general in their enactments, and necessarily so, for the reason that it is impossible for the legislature to describe in detail how many fire-escapes shall be provided, how they shall be constructed and where they shall be located in order to serve the purpose of protecting the lives of occupants, in view of the varied location, construction and surroundings of buildings; * * *. In People v. Reynolds, 5 Gilm. 1, it was ...

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