United States District Court, Eastern District of Illinois
June 17, 1960
PHILLIP SKINNER, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT AND THIRD-PARTY PLAINTIFF, V. ED GEIGER CONSTRUCTION COMPANY, INC., AND EDWARD C. SIMON PAINTING COMPANY, INC., THIRD-PARTY DEFENDANTS.
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 any
losses it may suffer as a result of the suit under the common
law right of indemnity.
Under Illinois law there exists a general principle that
there is no contribution among tort feasors. There are,
however, exceptions to this general rule, which have been
recognized by the courts of the State of Illinois and other
courts and by the federal courts. One of these exceptions is
here involved. That exception provides as follows: Where two
parties acting together commit an illegal or wrongful act, the
party injured may hold both responsible for the damage
resulting from their joint act and neither can recover from
the other the damages he may have paid or any part of them,
but where one does the act which produces the injury and the
other does not join in the act but is thereby exposed to
liability and suffers damage, the latter may recover against
the principal delinquent and the law will inquire into the
real delinquency and place the ultimate liability upon him
whose fault was the primary cause of the injury. Gulf, Mobile
& Ohio R. Co. v. Arthur Dixon Transfer Co., 343 Ill. App. 148,
98 N.E.2d 783. Griffiths & Son v. National Fireproofing Co.,
310 Ill. 331, 141 N.E. 739, 38 A.L.R. 559.
In accordance with the above authorities it is clear that
Illinois law provides for a right of action to a person who is
held liable for merely passive negligence and gives to him a
right of action against a party guilty of active negligence in
order that the ultimate loss may be fixed upon the principal
wrongdoer, who may be made to respond for all damages suffered
by the one less culpable, although legally liable to third
persons, and the one less culpable may escape the payment of
damages assessed against him by placing the ultimate loss upon
the one principally liable for the injuries.
The Court cannot say that at the trial of this cause the
third-party plaintiff will be unable to prove a cause of
action against the third-party defendants;
and, accordingly, the motion to dismiss of third-party
defendant, Edward C. Simon Painting Company, Inc., will be
Part of the motion, which attacks the legal sufficiency of
the complaint based on the defense of the Workmen's
Compensation Law of the State of Illinois, is unfounded since
in none of the pleadings nor in the motion does it appear that
the Workmen's Compensation Act is involved. Accordingly, any
ruling by the Court at this time on the applicability of the
Illinois Workmen's Compensation Act would be premature.
At the hearings heretofore held in this matter the Court
denied the plaintiff's motion for separate trial and allowed
the plaintiff's objections to interrogatories submitted to him
by the defendant. These motions having been disposed of, they
are not again considered here.
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