Appeal from the Circuit Court of Cook County; the Hon. BEN
SCHWARTZ, Judge, presiding. Order affirmed.
MR. PRESIDING JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
This is an appeal from an order dismissing a counterclaim for indemnity brought by New City Iron Works, a third party defendant in the proceedings below, against Francis Michael Palier, its employee and original plaintiff to the action. The counterclaim against Palier was filed in response to a third party complaint impleading New City Iron Works brought by Dreis and Krump Manufacturing Company, a defendant in this action, for damages under The Structural Work Act in a suit initiated by Palier.
On September 8, 1960, the original plaintiff and now counter-defendant-appellee, Francis Michael Palier (hereinafter referred to as Palier) was in the employ of the third party defendant and counter-plaintiff-appellant, New City Iron Works (hereinafter referred to as New City) as a structural iron worker of some seventeen years' experience. Palier was working on the premises of defendant and third party plaintiff, Dreis and Krump Manufacturing Company (hereinafter referred to as Dreis and Krump). Palier personally erected a hanging scaffold some thirty to thirty-five feet above the ground which hung from the building's framework. The scaffold, a small plywood deck with a one-inch lip around its perimeter, was erected without the protection of the customary two by four-inch guard rails in specific violation of paragraph 2 of section 60 of The Structural Work Act, more commonly referred to as the Scaffold Act (Ill Rev Stats 1965, c 48, par 60). Palier was in the process of bolting up certain girders with an air impact wrench and riveting gun atop the scaffold. He had taken up with him numerous bolts, pins, and washers onto the scaffold, some of which he scattered on the floor of the deck on which he was working. Stepping back to position the riveting gun, Palier slipped on one of these loose pins or bolts on the floor, causing him to fall backward off the scaffold resulting in the injuries for which his claim was brought against Dreis and Krump under the Scaffold Act. New City had paid Palier, its employee, benefits in the amount of $2,818.20 under the Workmen's Compensation Act.
Dreis and Krump filed a motion for summary judgment against Palier which was sustained by the trial judge, appealed, reversed and remanded, and is still pending determination. Dreis and Krump then filed a third party complaint based on implied indemnity against New City. New City filed a motion to dismiss that complaint, which was denied. This third party action is also still pending at this time. New City then filed its counterclaim against Palier, based upon the same theory of implied indemnity by which it was impleaded. Palier filed an unsupported motion to dismiss the counterclaim which was sustained and from which this appeal is taken by New City. The relevant provision of the Scaffold Act (Ill Rev Stats 1965, c 48, par 69), imposes civil liability upon:
Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, . . . .
It is appellant-New City's theory of the case: (1) that Palier's motion to dismiss its counterclaim admits all the allegations well pleaded, (2) that an impleaded party has the same right to maintain an indemnity action as any other defendant, (3) that an employer, vicariously liable for the negligence of its employee, may maintain an action for indemnity against that employee, and (4) that the counterclaim for indemnity is an action separate and apart from those traditionally barred by the Scaffold Act.
It is appellee-Palier's theory of the case that no action for indemnity may be maintained against an injured workman who has recovered or seeks to recover for a wilful violation of the Scaffold Act because: (1) to permit such an action would, in effect, deny protection of the Act to any workman guilty of contributory negligence, and (2) to allow an employee's negligence under the Act to bar or negative his right to recovery would frustrate the very object of the Act which was designed to eliminate such negligence as a defense to actions brought thereunder.
[1-4] That a third party defendant has a right to maintain a proper indemnity action by way of counterclaim against the plaintiff, there can be no doubt. Ill Rev Stats 1965, c 110, par 25(2) and par 38(1). A motion to dismiss admits all of the allegations of the complaint or counterclaim well pleaded. On review of a dismissal made in response to such a motion, it is the function of this court to determine whether the facts alleged in the counterclaim, uncontested and standing alone, evidence any possibility of recovery. Should such a possibility appear, the order of dismissal must be vacated. Such a motion to dismiss does not, however, admit alleged conclusions of the pleader, opinions, argumentative matter, irrelevant material, or other parts not properly pleaded. Reat v. Illinois Cent. R. Co., 47 Ill. App.2d 267, 197 N.E.2d 860 (1964).
New City argues that since Palier's negligent acts and omissions are admitted to be true and since an employer is vicariously liable for such conduct by its employee, it may maintain an action for indemnity against that employee even when no express indemnity agreement is in effect between the parties. Holcomb v. Flavin, 37 Ill. App.2d 359, 185 N.E.2d 716 (1962); Embree v. Gormley, 49 Ill. App.2d 85, 199 N.E.2d 250 (1964). This court recognizes the existence of such "implied" indemnity agreements. Essentially, this theory of indemnity has found its way into Illinois law because of this State's long established refusal to allow contribution among tort-feasors who acted in pari delicto. Instead, it allows a passively negligent tort-feasor to obtain indemnification from an actively negligent tort-feasor on the basis of the legal fiction of an implied indemnity agreement.
The Holcomb and Embree cases relied upon by New City, however, involved indemnity actions by an employer against his employee as here, but only where the employee's own negligence injured a third party, thus creating a vicarious liability upon the employer-indemnitee. These cases are distinguishable from the case at bar, for in the instant case the alleged negligence of the employee occasioned injury only to himself. Moreover, Palier's opportunity for recovery is specifically provided for by two statutes to the exclusion of the common law.
New City's reliance on the case of The John Griffiths & Son Co. v. The National Fireproofing Co., 310 Ill. 331, 141 N.E. 739 (1923), where the court stated that the ultimate responsibility should be placed upon him whose fault was the primary cause of the injury, is equally not in point to the issue here involved because, unlike the facts under consideration, there existed an express written indemnity agreement between the parties.
New City further maintains that its indemnity action is separate and apart from the Scaffold Act and the immunities granted employees thereunder. It contends that the action it brings is based solely upon a liability which may accrue to them as a result of an action over by Dreis and Krump, independent of the Scaffold Act. The court is of the opinion that such a contention is not well founded. New City's liability to Dreis and Krump, if at all, can only be predicated upon a violation of the Scaffold Act. It cannot be said that an indemnity action against an employee by an employer, whose indemnity counterclaim hinges upon the possibility of being liable to another under the provisions of the Scaffold Act, is an action separate and apart from such statute. We feel such a result would be incorrect.
New City next argues that Palier is, in the final analysis, attempting to obtain from it a double recovery in express violation of the Workmen's Compensation Act, Ill Rev Stats 1965, c 48, par 138.5(a), which defines but a singular liability for the employer:
No common law or statutory right to recover damages from the employer or his employees for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employee who is covered by the provisions of this Act, . . . .
Furthermore, New City maintains, notwithstanding the existence of the Scaffold Act, that an injured employee does not necessarily have a twofold remedy at his disposal. In this conjunction, it relies on Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill.2d ...