Appeal from the Circuit Court of Cook County, County
Department, Law Division; the Hon. EDWARD G. SCHULTZ, Judge,
presiding. Reversed and remanded with directions.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
This is an appeal from an order granting defendant, Gulf, Mobile and Ohio Railroad Company's motion for summary judgment.
The original complaint in this action was against Intrusion-Prepakt, Incorporated, and Gulf, Mobile and Ohio Railroad Company, hereinafter called G.M. & O. A motion to dismiss was filed by Intrusion on the ground that the Workmen's Compensation Act precluded plaintiff's recovery against Intrusion. See Moroni v. Intrusion-Prepakt, Inc., 24 Ill. App.2d 534, 165 N.E.2d 346, wherein the appellate court reversed the dismissal by the trial court.
The matter before us involves the count against defendant G.M. & O. to recover damages for personal injuries sustained by the plaintiff when a board on a scaffold on which he was standing became loose and caused him to be thrown to the ground. Intrusion-Prepakt, Incorporated, erected a scaffold to enable plaintiff, who was an employee of Intrusion-Prepakt, Incorporated, to perform certain construction work on a viaduct owned by the defendant, G.M. & O. A jury trial was demanded by defendant. The court on motion of defendant G.M. & O. granted summary judgment. The amended complaint charged G.M. & O. with violating the Illinois Structural Work Act, as a result of which the plaintiff was injured. The defendant G.M. & O. admitted ownership, maintenance, operation and control of the viaduct on which the plaintiff was working, but denied guilt under the Illinois Structural Work Act. A counterclaim was filed by G.M. & O. against Intrusion-Prepakt alleging that Intrusion was liable to G.M. & O. for any sums awarded to the plaintiff by reason of this action. A motion for summary judgment against the plaintiff was filed by G.M. & O. in which it stated that there was no genuine issue as to any material fact, and that it was entitled to a judgment as a matter of law. As heretofore noted, this motion was granted.
The plaintiff in this court raises two points: (1) a trial court must deny a motion for summary judgment when it appears that there is a triable issue of fact present and such a motion cannot be employed to impair the right of trial by jury, and (2) the record showed defendant had the right to control the work; this fact in itself made a triable issue of fact.
The defendant, G.M. & O., had entered into a contract with Intrusion-Prepakt, Incorporated, which provided, among other things, the following:
"The Contractor proposes: . . .
"5. To comply at all times with any instructions given by the designated representative of the Owner, provided that the Contractor shall retain full control of his special materials and processes."
Paragraph 2 of the contract provided in part as follows:
"The Contractor proposes: . . .
"2. To supply the fine and coarse aggregates and to supply all other materials and supplies, other than furnished by the Owner, necessary to carry out the work; provided that, if requested by the Owner, the Contractor first shall obtain approval of any purchase. . . ."
The contract also provided the following:
"This proposal is submitted with the understanding that the Owner will agree:
"1. . . . To furnish the Contractor with bi-monthly statements of costs of materials supplied by the Owner, for the purpose of computing the total ...