Before HASTINGS, Chief Judge, CASTLE, Circuit Judge, and PLATT, District Judge.
Plaintiff, Gust Bounougias, brought this action against the Republic Steel Corporation, hereafter referred to as Republic. Republic in turn filed a thirdparty action seeking indemnity from Alavina O'Malley, doing business as B. Pedersen & Company, hereafter referred to as O'Malley, for any judgment obtained against it by the plaintiff. The entire cause was tried to a jury and plaintiff obtained a verdict and judgment of $105,000 against Republic. the trial court instructed the jury that in the event of a verdict for plaintiff, a like amount should be returned in favor of Republic and against O'Malley.The jury followed this instruction and returned a verdict in favor of Republic and judgment was entered against O'Malley for Republic in the amount of $105,000. Motions for judgment notwithstanding the verdict in accordance with prior motions were overruled. Republic and O'Malley have appealed from this ruling.
1. The evidence failed to show a violation of the Act by Republic for the reason that the Structural Work Act, or Scaffold Act, does not apply to the crane from which the plaintiff fell, because
(a) The crane was a permanent part of Republic's plant; and
(b) It was not a mechanical contrivance erected or constructed for use in the repairing or painting of any building.
2. That if there was a violation it was not the proximate cause of plaintiff's injuries.
O'Malley stands on the same contentions as Republic to defeat plaintiff's recovery, and in addition contends:
1. That O'Malley, by virtue of the purchase order agreement, did not undertake to indemnify Republic for having wrongfully violated the provisions of the Scaffold Act;
2. Republic is barred from recovery from O'Malley by virtue of the provisions of the Workmen's Compensation Act [Ill.Rev.Stat.1959, c. 48, § 138.1 et seq.];
3. Republic is not entitled to recover from O'Malley on the basis of common law indemnity; and
4. That the trial court erred in directing a verdict in favor of Republic and against O'Malley in the event the jury found for the plaintiff.
To determine the issues in this case it is necessary to examine the facts as disclosed by the evidence. O'Malley was a painting contractor and plaintiff was employed by her as a painter. Republic entered into a contract with O'Malley to paint the structural steel and windows in its Chicago plant.
On the morning of March 4, 1956, plaintiff with other painters and his foreman, Chris Zannis, went to the Republic plant. Zannis had procured the use of the crane for painting the upper structure from one of Republic's superintendents. An electrician employed by Republic had placed the crane in the initial position, and switched off the power on the crane. The crane moved the full length of this bay of the building on steel rails fastened to the girders or roof trusses.It consisted of a trolley on which was mounted a drum about 38 inches in diameter, and a control cab which hung down from the trolley on one side. The top of the drum was more than forty (40) feet from the floor. A cable was attached to the drum and when fastened to various products raised and lowered them when the drum revolved. The crane was used principally to move products about the Republic plant. It had also been used when necessary in the maintenance of the upper portion of the plant such as placing light fixtures, changing light bulbs, and painting. Zannis had used cranes in other plants and had moved this crane several times on the day plaintiff was injured.After lunch the plaintiff and two other painters were on the trolley painting. Zannis was in the cab when someone called him to move the crane. He had the power on for the crane and the hoist, and hung out of the cab window to determine whether it was one of his men who called. He leaned out so far he almost fell, grabbed for support, and caught hold of the lever which started the drum to revolve. Plaintiff, who was standing on the drum, was thrown to the floor, and received the serious injuries for which he recovered the judgment.
Upon these essential facts Republic and O'Malley first contend that the Act is not applicable for the reason that the crane was a permanent part of Replublic's plant and was not a temporary structure erected and constructed for use in painting the building. The Act reads in part:
"An Act providing for the protection and safety of persons in and about the construction, repairing, * * * and to provide for the enforcement thereof. [Ill.Rev.Stat., 1959, Ch. 48, § 60.]
"60. Scaffolds, cranes, ladders, etc. - Erection and construction.] * * * 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, * * * or painting * * * building, * * * 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, or passing under or by the same * * *.
"Scaffold, or staging, swung or suspended from an overhead support more than twenty (20) feet from the ground or floor shall have, where practicable, a safety rail properly bolted, secured and braced, rising a [at] least thirty-four (34) inches above the floor. * * *"
"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 ...