an employee of Val Jobst & Sons, Inc. (hereinafter referred to as
Jobst) a construction contractor then engaged in building a rack
house for defendant on premises owned by defendant in Peoria
County, Illinois; that, on said date, plaintiff, while working
upon said premises as an iron worker on a scaffold constructed by
employees of Jobst, was injured when one of the boards of which
the scaffold was constructed tilted under plaintiff's weight and
caused him to fall to the ground and become seriously injured;
that, on said date, there was in effect in the State of Illinois
a statute commonly known as the Scaffold Act, I.R.S. 1955, c. 48,
§§ 60 and 69, which requires that all scaffolds used in the
erection of any building be adequately constructed to give proper
protection from injury to persons working thereon and therefrom,
and which further provides that any person injured by reason of
any wilful violation of any provision of said statute shall have
a cause of action, inter alia, against the owner of the premises
upon which said scaffold is being used; that defendant,
notwithstanding its duty as created by said statute, wilfully
violated the provisions thereof by its failure to maintain the
said scaffold in a reasonable and safe condition, when in the
exercise of reasonable care it knew or should have known said
scaffold was unsafe, or, that defendant neglected and failed to
inspect said scaffold when, in the exercise of due care,
inspection would have shown said scaffold to be unsafe for the
purposes for which it was used by plaintiff, in the course of his
employment, or, that defendant failed to require Jobst to build
and maintain said scaffold in a safe and reasonable manner, and
that plaintiff was injured as a proximate result of one or more
of said alleged wilful violations. The complaint prayed judgment
against defendant in the sum of $50,000.
On August 5, 1958, defendant filed in this court its petition
averring the statutory conditions requisite to invoke the court's
jurisdiction by reason of the diversity of citizenship of the
respective parties to the cause, for removal of said cause on
said complaint to this court. On August 6, 1958 an order was
entered transferring said cause as prayed.
Thereafter, on August 6, 1958, defendant filed its answer and
two affirmative defenses addressed to said complaint. By its
answer, defendant admitted that it was engaged in the business of
manufacturing and selling alcoholic beverages at Peoria,
Illinois; that, on and and prior to August 29, 1956 Jobst was
engaged in the construction of a rack house for defendant at
Peoria; that, at said time, defendant was the owner of the
premises being built by Jobst, and that on August 29, 1956, the
said Scaffold Act was in full force and effect in Illinois. It
denied all other material allegations of the complaint, expressly
denying any wilful violation on its part of the said Scaffold Act
as alleged in the complaint.
As a first affirmative defense, defendant averred that
plaintiff's sole cause of action and remedy in the premises, if
any, is under the Workmens' Compensation Act of Illinois. I.R.S.
1955, c. 48, § 138 et seq.
As a second affirmative defense, defendant averred that it was
neither engaged in the erection or construction of any structure,
nor had charge of any such erection or construction, nor guilty
of any wilful violation of said Scaffold Act; and, further, that
plaintiff's injuries, if any, were caused solely by the
negligence of the plaintiff, or the negligence of Jobst, or the
combined negligence of both plaintiff and Jobst.
The cause is now before the court upon plaintiff's motions,
filed August 6, 1958, to strike the said first and second
affirmative defenses respectively.
Defendant now concedes that the Workmens' Compensation Act
imposes no bar to plaintiff's cause of action, and, therefore,
the first affirmative defense should be stricken. Kennerly v.
Shell Oil Company, 13 Ill.2d 431, 150 N.E.2d 134.
Plaintiff grounds its motion to strike the second affirmative
defense upon the contention that the allegations contained
in said second affirmative defense are merely conclusions of the
pleader, not allegations of fact, and the further contention that
the matters and things sought to be there averred do not as a
matter of law state a defense to plaintiff's claim.
In the view I take of the case, I will assume that the
averments of said defense are factual, and for the purpose of
plaintiff's motion, admitted by plaintiff to be true. Therefore,
for the purpose of deciding this motion, I assume that defendant
was not, at any time pertinent to plaintiff's claim, engaged in
the construction of any structure and had no charge of any such
construction work, and assume further that plaintiff's injuries,
if any, were occasioned by his negligence, or the negligence of
his employer, or the negligence of both him and his employer.
These facts do not constitute a defense to plaintiff's claim when
the statutory provisions as interpreted by the courts of Illinois
are applied to the assumed facts.
Section 1 of the Act provides, in pertinent part:
"All scaffolds, * * *, 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, building, * * *, or other
structure, shall be erected and constructed, in a
safe, suitable and proper manner, and shall be so
erected and constructed, * * * as to give proper and
adequate protection to the life and limb of any
person or persons employed or engaged thereon, or
passing under or by the same, * * *." I.R.S. 1955, c.
48, § 60.
Section 9 thereof provides, in pertinent part:
"Any owner, contractor, sub-contractor, foreman or
other person having charge of the erection,
construction, repairing, alteration, removal or
painting of any building, * * * or other structure
within the provisions of this act, shall comply with
the terms thereof, and any such owner, contractor,
sub-contractor, foreman or other person violating any
of the provisions of this act shall upon conviction
thereof [be fined or imprisoned, or both.]
"For any injury to person or property occasioned by
any wilful violation 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; * * *." I.R.S.
1955, c. 48, § 69.
As construed and applied by the courts of Illinois, the Act
imposes upon each the contractor engaged in the enumerated
structural activities and the owner of the premises upon which
such activities are conducted a duty, at his peril to construct
and maintain scaffolds in a safe manner. E.g., Kennerly v. Shell