APPEAL from the Circuit Court of Will County; the Hon. THOMAS
W. VINSON, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This is an appeal by Thomas Reed & Sons, Inc., a third-party defendant in the above cause. It appeals from the entry of summary judgment in the third-party action against it by Union Oil Company of California, as third-party plaintiff. Judgment was entered in the sum of $128,000 as against defendant Thomas Reed & Sons, Inc.
The action from which the present appeal stems was commenced in the circuit court of Will County against defendants Union Oil Company of California (hereinafter called "Union") and Pure Oil Corporation to recover damages under the Structural Work Act (Ill. Rev. Stat. 1975, ch. 48, pars. 60-69) for personal injuries sustained by Charles A. Quilico, as plaintiff. Defendant Union then filed the third-party action involved in this appeal, based upon three theories, namely, (1) contractual indemnity, (2) implied indemnity and (3) equitable apportionment, all for indemnity against the third-party defendant Thomas Reed & Sons, Inc. (hereinafter called "Reed"). Following a jury trial, plaintiff Quilico received a verdict in his favor as against Union in the sum of $128,000. The third-party action against Reed then resulted in entry of summary judgment against Reed for the same sum.
The record discloses that a Union refinery was located in Lemont, Illinois, which was damaged by fire in July of 1970. Since Union did not have either the equipment or manpower to make the necessary repairs, Union contracted with various companies for completion of the repair work. Union and Reed contracted for performance by Reed of the electrical portion of the repair work. On July 18, 1970, plaintiff Quilico, an employee of Reed, was working at the Union refinery on the repairs referred to. Quilico received daily work assignments and orders from his foreman, Fred Robinson, an employee of Reed, and while Quilico was on the job at the Union plant, Quilico never took orders of any kind from anyone other than Robinson, acting on behalf of Reed.
On July 18, 1970, plaintiff Quilico and two other Reed employees, Winsor and McGill, were removing and replacing conduit at the Union site. Winsor and McGill were standing on a steel rack, approximately 12 to 20 feet above the ground, which served as a support for pipes and conduit, while Quilico was kneeling on the ground underneath the pipe rack tying a rope to a section of conduit so that Winsor could raise the rope and conduit to the pipe rack. No one else was in the vicinity. A pipewrench which was owned by Reed and which had been used by the Reed employees earlier in the day, fell and struck plaintiff Quilico in the head. It appears that just before the wrench fell, it was laying on the rack upon which Winsor and McGill were standing, and that Winsor and McGill were at that time climbing over and through pipes so that they could hoist the conduit which Quilico was tying to the rope. Immediately after the accident, Winsor said that he hit the wrench with his foot.
As we have noted, Quilico commenced his action against Union to recover damages for personal injuries suffered in the July 18, 1970, accident. The complaint sought recovery solely under the Structural Work Act (Ill. Rev. Stat. 1975, ch. 48, pars. 60-69), and generally alleged that Union, being the owner of the premises and in charge of the work then in progress, had willfully violated the Structural Work Act by failing to institute adequate safety measures while the repair work was in progress. After Union had filed a motion to strike and dismiss the Quilico complaint, Union answered the complaint. Union thereafter filed its third-party complaint against Reed. Pursuant to Reed's motion, the circuit court, on April 12, 1976, severed the third-party action from plaintiff Quilico's cause for purposes of trial. Trial of Quilico's action commenced on September 27, 1976, and the verdict was returned, as we have indicated, on October 1, 1976, in favor of Quilico and against defendant Union, and judgment was entered on that verdict.
Union's third-party complaint, as amended on October 12, 1976, sought indemnification from Reed for the judgment entered in Quilico's action on theories of contractual indemnity, implied indemnity and equitable apportionment, as we have noted. On October 12, 1976, Union moved for summary judgment on its third-party complaint, and in support thereof attached a copy of the contract between Union and Reed and portions of the testimony given in the trial of Quilico's cause. The contract between Union (designated "company") and Reed (designated "contractor") provided in relevant part:
"(2) Contractor agrees to perform such work, generally doing or causing to be done all things necessary therefore [sic], including, without being limited thereto, the furnishing of all labor, supervision, materials, equipment, supplies, construction tools, and construction equipment (except such items of materials and equipment as Company might furnish).
Under "General Conditions" appears the following:
"ARTICLE II PERFORMANCE OF WORK
All work shall be performed in a good and workmanlike manner, and shall conform to the best standard practice for the type of work involved and where care, skill and precision are required, only competent journeymen shall be employed. Contractor shall exercise due diligence and take all reasonable precautions in the performance of the work and in the inspection of materials, machinery, equipment and workmanship entering into the work.
ARTICLE III INSPECTION AND ACCEPTANCE OF WORK
1. Company shall have the right, but not the obligation, to inspect the work during the preparation or progress thereof, and Contractor shall provide proper access for such inspection.
ARTICLE IV SUPERVISION AND REPRESENTATION
1. Contractor or a competent representative of Contractor shall give constant personal attention to the work, and shall at all times be readily available for contact by Company's representative regarding performance of the work. Contractor shall immediately report to Company's representative any error, inconsistency or omission which Contractor observes or discovers in the prosecution of the work.
ARTICLE VII INDEPENDENT STATUS OF CONTRACTOR
In the performance of all the work, Contractor shall be an independent contractor. Neither Contractor nor any persons employed by Contractor or any subcontractor for the work shall ...