APPEAL from the Circuit Court of Perry County; the Hon. ROBERT
BASTIEN, Judge, presiding.
MR. PRESIDING JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Plaintiff appeals from a judgment of the Circuit Court of Perry County entering summary judgment in favor of the defendant in a personal injury suit.
The defendant General Telephone Company, to accomplish the authorized installation of its underground cable, signed an agreement with the Harris-McBurney Construction Company which by its terms engaged the latter to excavate and install said cable along Highway 154 abutting plaintiff's property. The contract agreed to by defendant and Harris-McBurney allegedly made the latter an independent contractor who had the sole control over the work of excavation.
The complaint alleges that the plaintiff was injured when he fell into a hole dug by Harris-McBurney because no warning or barricades were placed around the hole to prevent an injury of persons such as the plaintiff who used the right-of-way in which the hole was dug.
The complaint alleged that it was the duty of the defendant to:
"* * * exercise reasonable care in the excavation and installation of said wire and cable and the maintenance thereof, so that said site would not become and remain dangerous and unsafe, and thus endanger the life and limb of persons, including plaintiff, using the right-of-way, * * *."
The defendant maintained below that it could not be held liable for the negligent acts of the independent contractor, Harris-McBurney, since the defendant had no control over the course of excavation work or the site thereof.
The trial court granted the motion for summary judgment on that basis. The only question presented for review is whether the trial court correctly entered a summary judgment in favor of the defendant.
Section 57 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, par. 57 (2)) provides that defendant may, at any time, move for summary judgment in his favor; that the opposite party may file counter-affidavits and that the judgment sought shall be rendered forthwith if the pleadings, depositions and admissions on file, together with any affidavits, show no genuine issue as to any material fact and that movant is entitled to judgment as a matter of law.
The affidavit of James Samples, construction superintendent for the defendant, averred that defendant did not do any of the construction work it was charged in the complaint with performing, and further averred that the work was done by Harris-McBurney as an independent contractor. The affidavit incorporated by reference the contract between the defendant and Harris-McBurney Company.
Reith filed a counter-affidavit stating that the allegations in the complaint were true; that he observed and talked with employees of the defendant and that they admitted their responsibility for the work.
• 1 It is well settled that the right to summary judgment must be free from doubt and determinable solely as a question of law and if there is a disagreement on any material fact or facts, the motion should be denied. To warrant the granting of a motion for summary judgment based on discovery depositions, a fact or facts that would bar recovery as a matter of law must be admittedly so clear and unequivocal that such admissions are not open to dispute or different interpretations. Simaitis v. Thrash, 25 Ill. App.2d 340.
In the instant case there are no discovery depositions or any other facts that would bar recovery as a matter of law except the contract and the affidavit of Samples. In our opinion the affidavit of Samples, even if uncontradicted, only declared what he in fact interpreted as his duties according to this contract; therefore, the affidavit does not dispel all doubt as to the interpretation of the said contract.
• 2 In other words, it is the right or duty to supervise and control, and not the exercise of the right that determines the relationship of principal and agent or of contractor and independent contractor. The relationship of principal and agent exists if the principal has the right or duty to supervise and control and to terminate the relationship at any time, even though he does not exercise that right. Hartley v. Red Ball Transit Co., 344 Ill. 534, 539; ...