Appeal from the Superior Court of Cook County; the Hon. LAN
HANEY, Judge, presiding. Reversed and remanded with directions.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
This action originated with a complaint by William Rovekamp against the Central Construction Company to recover damages for personal injuries. Central was a general contractor engaged in building new homes. One of its subcontractors was Hines Construction Company, which had the job of roofing the homes. Rovekamp, an employee of Hines, claimed he was injured when he fell from a scaffold while laying plywood sheeting on a roof.
The Rovekamp complaint was brought under the Structural Work Act (commonly called the "Scaffold Act"), Ill Rev Stats, c 48, §§ 60-69, 1957. It alleged that Central had charge, control and supervision of the construction work; that its duty was to provide safe scaffolds and supports for the scaffolds and to keep them in a safe condition; that it failed in this, and that it was derelict in permitting the scaffolding to be placed in an improper position. The complaint also stated a cause of action for negligence. It did this by charging Central with various specific acts of negligence concerning the supports and the scaffold and by alleging that the plaintiff was in the exercise of due care for his own safety.
Central filed a third party complaint against Hines. It asserted that Central was not guilty of any active negligence or wilful misconduct; that if Rovekamp was injured it was the result of misconduct by Hines; that Hines erected the scaffold and that the scaffold was under Hines' immediate control and supervision. Central claimed, under these circumstances, the right to indemnity from Hines in the event it had to respond in damages to Rovekamp. Hines moved to dismiss the third party complaint on the ground that even if Central proved the facts alleged in its complaint it had no right of action. The motion was sustained. The order of the court stated that under the Structural Work Act, Central was not entitled to indemnity from Hines. This is the order appealed from, the court having found that there was no just reason for delaying an appeal.
Insofar as the Rovekamp complaint charged Central with negligence, there can be no question predicated on the averments of Central's own third party complaint, which stand admitted for the purpose of the motion to dismiss that Central would have a right of action over against Hines, who it stated was the party actively at fault in causing any injury suffered by Rovekamp. John Griffiths & Son Co. v. National Fireproofing Co., 310 Ill. 331, 141 N.E. 739; Gulf, M. & O.R. Co. v. Arthur Dixon Transfer Co., 343 Ill. App. 148, 98 N.E.2d 783. However, stating a common law action for negligence appears to have been an incidental result, not the purpose, of the Rovekamp complaint. The obvious purpose was to bring a statutory action for violation of the Structural Work Act. The allegations of negligence and due care were superfluous to this action. Although these allegations are stressed in this appeal by Central they were not considered consequential by either Central or Hines in the trial court. The third party complaint and the motion to dismiss were directed to the Act. The sole issue argued before and passed upon by the trial court, was whether a contractor who is accused of having charge of the work which caused a plaintiff's injury can, in turn, claim indemnity from another contractor who it declares was responsible for the injury. And this is the principal issue to be decided by this court. We regard the allegations of negligence and due care, elements not necessary to a cause of action under the Act, as surplusage. Taylor v. Hughes, 17 Ill. App.2d 138, 149 N.E.2d 393.
The Structural Work Act has in the last few years been the subject of much attention. It has been accurately stated that: "Although the statute was originally enacted in 1907, and amended slightly only once, problems arising from litigation in Illinois have only in recent years been of major consequence." Strodel, Illinois Scaffold Act Liability, vol 50, IBJ, p 1092, 1962. Difficulty has centered around section 9 of the Act. Section 9 prescribes the responsibility for complying with, and the penalties and liability for those who violate, section 1. The pertinent portions of each are as follows:
"§ 1. . . . all scaffolds . . . supports . . . erected or constructed by any person, firm or corporation in this State for the use in the erection . . . of any house, 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 . . ."
"§ 9. Any owner, contractor or sub-contractor, foreman or other person having charge of the erection, construction . . . of any building . . . or other structure within the provisions of this act, shall comply with all the terms thereof, and any such owner, contractor, subcontractor, foreman or other person violating any of the provisions of this act shall upon conviction thereof be fined not less than $25, nor more than $500 or imprisoned for not less than three months nor more than two years or both fined and imprisoned in the discretion of the court."
"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 injured, for any direct damages sustained thereby; . . ."
The most important cases interpreting section 9 have been Kennerly v. Shell Oil Co., 13 Ill.2d 431, 150 N.E.2d 134 (1958); Moroni v. Intrusion-Prepakt, Inc., 24 Ill. App.2d 534, 165 N.E.2d 346 (1960); Gannon v. Chicago, M., St. P. & P. Ry. Co., 25 Ill. App.2d 272, 167 N.E.2d 5 (1960) and Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill.2d 305, 175 N.E.2d 785 (1961). A review of these cases will be helpful in focusing the issue in the present case.
In Kennerly v. Shell Oil Co., the defendant, Shell, had engaged a contractor to perform work on its property. Kennerly, the plaintiff, an employee of the contractor, fell from a scaffold and was injured. The scaffold had been built by the contractor. One of Shell's defenses was that it did not have charge of the work. The court rejected this defense. It held that section 9 imposed the same responsibility on an owner as on a contractor and that the responsibility of each was non-delegable. The court stated that a knowing violation was the same as a "wilful" one (Schultz v. Henry Ericsson Co., 264 Ill. 156, 106 NE 236), that Shell "knew that scaffolds were being used, and it cannot escape the mandatory duty that the statute imposes by closing its eyes to their condition." This construction of section 9 meant that an unsuspecting owner, who might know nothing more about a scaffold than that it was on his premises, could be held liable if the condition or improper use of the scaffold, or of a ladder, or of a support, could have become known to him by the exercise of reasonable care.
Indirect relief from imposition of the guilt-without-fault concept came in Moroni v. Intrusion-Prepakt, Inc. In Moroni this court extended to the Structural Work Act the principle enunciated in Griffiths & Son Co. v. National Fireproofing Co. and Gulf, M. & O.R. Co. v. Arthur Dixon Transfer Co., supra; that one who, without fault on his part, has become subject to tort liability for the wrongful conduct of another is entitled to indemnity from the active and primary wrongdoer. Moroni, the plaintiff, alleged that he sustained injuries when he fell from a scaffold used in construction work on the property of the Gulf, Mobile & Ohio Railroad Company. A third party complaint was filed by the property owner against Moroni's employer, Intrusion-Prepakt, Inc. The complaint was based on the ground that Intrusion had contracted to do the work and had erected and maintained the scaffold. The appeal was from an order dismissing the third party complaint. Intrusion argued that the duty incumbent upon the owner was derived from the statute and was the same as that of the contractor. This court said:
"It is true that the duty of both is derived from the statute, but the duty of each is independent of the duty of the other. The liability stems from the act, but the duties as between G.M. & O. and Intrusion are not the same. When G.M. & O. made its contract for the work, Intrusion became the one primarily charged with the duty of looking after the scaffold. G.M. & O. might not escape statutory liability under the Scaffolding Act . . . as interpreted in Kennerly v. Shell Oil Co. . . . but nothing in the act requires it to waive the right to hold the contractor liable under the general principle set forth in the Griffiths and Gulf, M. & O.R. Co. v. Dixon cases."
Direct relief from the Kennerly construction of section 9 was foreshadowed in Gannon v. Chicago, M., St. P. & P. Ry. Co., 25 Ill. App.2d 272, 167 N.E.2d 5. In a forthright opinion another division of this court held that the statutory words "having charge of" meant what they said. The facts in the case were identical with those in Kennerly. The defendant-owner, the railroad, engaged a contractor to erect a dock on its premises. Gannon, an employee of the contractor, fell from a scaffold and was injured. The scaffold had been built by the contractor and the erection of ...