Claffy v. Chicago Dock & Canal Co.

• Decision Date: 05 April 1911
• Citation: 94 N.E. 551,249 Ill. 210
• Court: Illinois Supreme Court
• Parties: CLAFFY v. CHICAGO DOCK & CANAL CO.

249 Ill. 210

94 N.E. 551

CLAFFY

v.CHICAGO DOCK & CANAL CO.

Supreme Court of Illinois.

Feb. 25, 1911.

Rehearing Denied April 5, 1911.

Appeal from Superior Court, Cook County; Homer Abbott, Judge.

Action by Gertrude V. Claffy against the Chicago Dock & Canal Company and another. From a judgment for plaintiff, the Chicago Dock & Canal Company appeals. Affirmed.Henry B. Bale and Morse Ives, for appellant.

James C. McShane, for appellee.

FARMER, J.

This action was brought by the appellee, as widow of Charles F. Claffy, deceased, against appellant, for the death of said Charles F. Claffy. The action is based upon the alleged willful violation by appellant of section 7 of an act entitled ‘An act providing for the protection and safety of persons in and about the construction, repairing, alteration or removal of buildings, bridges, viaducts and other structures, and to provide for the enforcement thereof,’ approved June 3, 1907. Laws 1907, p. 312. The suit was originally brought against appellant, as owner of a building in process of construction, and Henry Erickson, a contractor doing part of the work in constructing the building. The building was six stories high, and the declaration allges there was an opening from the bottom to the top of the building through which material was elevated by a hoisting machine for use in the construction of the building, and that defendants willfully failed to cause the opening so used to be fenced on all sides, as required by the statute, by reason of which the deceased, who was working upon a certain pipe near the opening in the floor, accidentally fell into and down the said shaft a distance of six stories, as a result of which he died. The cause was tried in the superior court of Cook county before a jury, and a verdict returned against the defendants for $10,000. A motion for a new trial was made by both defendants, but before the motions were disposed of, in consideration of $2,500 paid by the defendant Erickson, plaintiff gave him a covenant not to further prosecute the suit against him, and said suit was dismissed as to him. Plaintiff below then remitted $2,500 from the verdict, and the motion of the Chicago Dock & Canal Company, appellant, for a new trial, was overruled and judgment rendered on the verdict against appellant for $7,500. In the court below appellant contended that the act upon which the suit is based is unconstitutional, and has prosecuted an appeal direct to this court.

The entire act embraces nine sections, and, as indicated by its title, was intended to, and it appears does, provide for the protection and safety of persons engaged in the work of constructing, repairing, altering, removing, or painting houses, buildings, bridges, viaducts, or other structures. The particular section upon which this action is based, so far as material to the decision of this case, is as follows: ‘If elevating machines or hoisting apparatus are used within a building in the course of construction for the purpose of lifting materials to be used in such construction, the contractors or owners shall cause the shafts or openings in each floor to be inclosed or fenced in on all sides by a substantial barrier or railing at least eight feet in height.’ Section 9 gives a right of action to the party injured, for an injury caused by any willful violation of or failure to comply with any of the provisions of the act, and, in case of loss of life by reason of such willful violation or failure, a right of action is given the widow of the person killed, his lineal heirs or adopted children, or other person or persons who were dependent for support on the person killed, for damages for injuries so sustained.

Briefly stated, the facts are: That on October 19, 1908, appellant was the owner of a six-story building then in course of construction in the city of Chicago. The building was near completion. Through the several floors of the building there were three openings, which ran from the bottom to the top, in each of which elevators were operated by hoisting machines for the purpose of lifting material used in the construction of the building. The opening through which the deceased fell was on the sixth floor, and was nine feet long from east to west and six feet and eight inches wide from north to south. This opening was protected on the west, north, and east by a plank nailed to posts on each of the three sides. The plank on the north side was about 3 1/2 feet from the edge of the opening. Deceased was a plumber, and on the day in question was making a change in a heavy iron pipe which was about three feet or a little more north of the opening and between the protecting plank and said opening. He was attempting to screw up the pipe with a wrench about three feet long and a chain attached to the pipe, just before he fell. In some manner he fell through the opening to the bottom of the building, and was killed. No one saw him fall, but he was seen at work just before falling. It is probable that while turning the pipe, with the wrench as a lever, the lever slipped, and he lost his balance and fell into the opening.

The right of action being given to the widow, there is no claim of a right to recover except under the provisions of the statute referred to, and appellant contends that section 7 of said act is unconstitutional, in that it is in violation of section 22 of article 4 and section 2 of article 2 of the Constitution of the state of Illinois. It is claimed that said section is special legislation, in that it does not apply to all persons similarly situated and under like conditions; that hoisting apparatus of similar character is used not only in the construction of buildings, but also in the repair, alteration, and removal of buildings; and that persons engaged in such work are not embraced in the statute. In an elaborate and able argument counsel for appellant take up and discuss every provision of the act, section by section, in an effort to show that the entire act is unconstitutional, but except for the purpose of ascertaining the legislative intent in the proper construction to be given section 7 we are concerned, in the decision of this case, only with said section 7. Counsel contend, as above stated, that this section violates the constitutional provisions referred to because it affords protection only to persons engaged in the construction of buildings where elevating machines or hoisting apparatus are used, and does not apply to persons engaged in the repair, alteration, or destruction of buildings where like hoisting apparatus or elevating machines are used. It is also contended the law is invalid because it attempts to impose a liability upon contractors and owners in the construction of buildings, but exempts contractors and owners engaged in using like elevating machines or hoisting apparatus in repairing, altering, or demolishing buildings.

We are not prepared to hold that, if section 7 is required to be construed as applying only to buildings in process of construction, it is invalid. The Legislature has power to form classes for the purpose of police regulation if it does not arbitrarily discriminate between persons in the same situation. Lasher v. People, 183 Ill. 226, 55 N. E. 663,47 L. R. A. 802, 75 Am. St. Rep. 103. The statute under consideration is an exercise of the police power by the Legislature and appellant concedes its application to all buildings in process of construction. But we do not agree that the construction contended for by appellant is required to be given said section. In Lane v. Dorman, 3 Scam. 238,36 Am. Dec. 543, it was said that in determining the constitutionality of statutes it is the duty of courts to sustain and give effect to them except in cases of clear necessity and where they are in plain and obvious conflict with the Constitution. This rule has never been departed from by this court, but has been repeated in slightly different language in a large number of decisions down to the present time. In People v. McBride, 234 Ill. 146, 165, 84 N. E. 865, 867 (123 Am. St. Rep. 82), the rule that has always been followed by this court, as shown by previous decisions, in determining the constitutionality of statutes, was stated in the following language: ‘The rule of law is that an investigation like this, concerning the constitutionality of an act of the Legislature, begins with the presumption that the act is valid. All doubts or uncertainties arising either from the language of the Constitution or the act must be resolved in favor of the validity of the act, and the court will only assume to declare it void in case of a clear conflict with the Constitution. The duty of the court is to so construe acts of the Legislature as to uphold their constitutionality and validity if it can reasonably be done, and, if their construction is doubtful, the doubt will be resolved in favor of the law.’ This rule is not peculiar to the courts of this state, but is the one generally adopted and followed by all courts throughout the country. The Legislature may, and sometimes does, pass acts which violate constitutional provisions, and, where this clearly appears, it is the duty of courts to hold such acts invalid, but it is never to be assumed that the Legislature intended to exceed its constitutional authority by the passage of any statute in conflict with the paramount law. An examination of the entire act of which section 7 now under consideration forms a part will clearly show that it was the intention of the Legislature to require owners and contractors constructing, repairing, altering, or painting the buildings and structures mentioned in the act to...