The opinion of the court was delivered by: Juergens, District Judge.
This suit against the United States arises under the Federal
Tort Claims Act, Sections 2671, 2680, and Section 1346(b),
Title 28 U.S.C.A.
The plaintiff alleges, inter alia, that he is a citizen of
the United States and was injured at Scott Air Force Base near
Belleville, Illinois, within the jurisdiction of the United
States District Court for the Eastern District of Illinois;
that at all times pertinent the plaintiff was in the exercise
of due care and caution for his own safety; that on the 22nd
day of September, 1958, while performing his duties as a
painter, plaintiff had placed a ladder against a hangar door
at defendant's Scott Air Force Base and had climbed up said
ladder approximately 25 feet and was in the process of
painting said hangar door when it was caused to move, thereby
causing the plaintiff to be thrown to the ground and injured;
that the defendant was guilty of one or more negligent acts or
"(a) That at the time and place aforesaid
defendant did negligently and carelessly move
said hangar door when it knew, or in the exercise
of ordinary care should have known, that movement
of said door would cause plaintiff to be thrown
to the ground and injured.
"(b) That at the time and place aforesaid
defendant negligently and carelessly failed to
properly maintain the opening mechanism of said
hangar door thereby causing it to move and as a
result thereof plaintiff was thrown to the ground
and injured as hereinafter more fully set forth.
"(c) That at the time and place aforesaid
defendant negligently and carelessly failed to
use a proper method to keep said hangar door in a
stationary position while plaintiff was painting
that as a direct and proximate result of one or more of the
negligent acts or omissions, the plaintiff suffered severe and
permanent injuries for which he prays damages.
In an amendment to the complaint the plaintiff alleges he
was working as a painter on a ladder placed against the hangar
door, which was a part of a building located on defendant's
premises, and that the said hangar and hangar door were under
the exclusive control of the defendant; that by and through
the negligence of the defendant the hangar door was suddenly
caused to be moved, throwing the plaintiff to the ground and
injuring him, for which he prays damages.
The defendant, United States of America, has filed its
amended third-party complaint against Ed Geiger Construction
Company, Inc., and Edward C. Simon Painting Company, Inc.,
wherein it alleges, among other things, that the defendant and
third-party plaintiff is guilty of no actionable negligence or
its negligence, if any, is passive, secondary and subordinate,
while the acts or omissions on the part of the third-party
defendants, Ed Geiger Construction Company, Inc., and Edward
C. Simon Painting
Company, Inc., were primary, active and direct, and prays that
in the event liability be found against the United States,
then judgment be rendered over and against the third-party
defendants for all sums that may be adjudged against the
defendant, United States of America, in favor of the
The third-party defendant, Edward C. Simon Painting Company,
Inc., has filed its motion to dismiss the third-party
complaint as to it and states therefor the following reasons:
"(1) That said Complaint fails to state a cause
of action on any grounds for which relief can be
granted against this defendant.
"(2) That the Illinois Workmen's Compensation
Law is a bar to said action.
"(3) That under the Illinois Workmen's
Compensation Law it is essential for the
plaintiff to maintain his action that he prove
that both he and his employer were in the
exercise of ordinary care."
Considering the attack to the legal sufficiency of the
complaint, it is noted that under the practice laid down by
the Federal Rules of Civil Procedure disposition of cases
solely upon the pleading is not encouraged. The office of the
motion to dismiss under Rule 12(b)(6) is simply to test
whether the allegations of the complaint, liberally construed,
are sufficient to make admissible enough evidence to support
a verdict for the plaintiff. If the plaintiff could recover
upon any state of facts which might be proved under the
allegations as laid, the complaint states a claim upon which
relief can be granted and the motion must be denied. Wilson v.
Illinois Central Railroad Company, D.C., 147 F. Supp. 513.
As noted above, the amended third-party complaint charges
that the negligence upon which the suit against the United
States is based by the original plaintiff was passive
negligence merely and that the active negligence, if any
exists, was that of the third-party defendants and because of
that the third-party plaintiff is entitled to recover ...