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PANKEY v. HIRAM WALKER & SONS

November 26, 1958

JAMES W. PANKEY, PLAINTIFF,
v.
HIRAM WALKER & SONS, INC., A FOREIGN CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Mercer, Chief Judge.

On July 18, 1958, plaintiff, James W. Pankey, filed a complaint in the Circuit Court of Peoria County, Illinois, praying judgment against the defendant, Hiram Walker & Sons, Inc., for alleged damages for personal injury.

In material part the complaint alleged: That plaintiff was, on August 29, 1956, 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.

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 ...

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