Before HASTINGS, Chief Judge, CASTLE, Circuit Judge, and GRANT, District Judge.
Appellee, Shell Oil Company, brought this action to recover from appellant, Foster-Wheeler Corporation, the amount which Shell was compelled to pay Golden Kennerly as a result of a judgment obtained by Kennerly against Shell. Each party filed a Motion for Summary Judgment. Defendant's Motion was denied. Plaintiff's Motion was granted and defendant, Foster-Wheeler, brought this appeal.
On April 7, 1953, Golden Kennerly, an employee of Foster-Wheeler, sustained injuries when he fell from a scaffold used in the construction of a new refinery on property of the plaintiff, Shell Oil Company. Kennerly sued Shell in the Circuit Court of St. Clair County, Illinois, charging willful violation of the Illinois Scaffold Act (Secs. 60-69, Chap. 48, Ill.Rev.Stat.) by knowingly permitting the erection of a scaffold which was not safe, without a guardrail, with loose boards, while the construction of the project was under the joint charge and control of Shell and Foster-Wheeler.
In its Answer Shell denied that it had, or exercised, any joint control with Foster-Wheeler, or any other construction companies, and further, answered that the work in question was being undertaken and done by Foster-Wheeler.
Shell, acting through its insurers, and its attorneys, tendered Foster-Wheeler the defense of said case, which was refused.
Shell Oil Company had engaged Foster-Wheeler to do a portion of the construction work on a distilling unit at its Roxana, Illinois refinery. The written contract, admitted in evidence at the trial and made a part of this proceeding, provided, under the heading "Scope of Work" that the contractor (Foster-Wheeler) shall diligently execute and perform the following work:
"The Contractor will provide mechanical design and prepare all drawings and specifications, and will furnish all labor and materials, ship, unload, deliver to site, suitably store all materials as required, construct and erect the complete 60,000 Bbl./Day Crude Distillation Unit at PURCHASER'S Wood River, Illinois, Refinery, in accordance with the attached EXHIBIT 'C,' entitled 'Description of 60,000 Bbl. Crude Distillation Unit, Wood River, Illinois Refinery, Shell Oil Co.,' dated September 13, 1951, and the addendum thereto entitled EXHIBIT 'D'."
Further provisions of the contract authorized Shell to inspect as the work progressed and for a final inspection before acceptance. The construction contract also provided that:
"The contractor shall enforce the Purchaser's instructions regarding photography, signs, advertisement, fires and smoking, and shall not trespass, nor unreasonably encumber the PURCHASER'S premises outside the site of erection, unloading and storage of materials."
The Illinois Scaffold Act (Secs. 60-69, Chap. 48, Ill.Rev.Stat.) under which that State Court action was brought, provided in pertinent part, as follows:
"Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structures within the provision of this act, shall comply with all the terms thereof." (Emphasis supplied.)
At the close of the evidence in the case, the Court, at Kennerly's request, instructed the jury in the language of the above statute. The Court, however, refused to give Shell's profered instruction numbered 11, reading as follows:
"The Court instructs the jury that before the plaintiff can recover in this case he must prove that Shell Oil Company, the defendant, had charge of the erection or construction of the refining unit in question before the terms of the ...