Huckabee v. Bell & Howell, Inc.

• Court: Illinois Supreme Court
• Writing for the Court: WARD
• Citation: Huckabee v. Bell & Howell, Inc., 265 N.E.2d 134, 47 Ill.2d 153 (Ill. 1970)
• Decision Date: 04 December 1970
• Docket Number: Nos. 41949,41955,s. 41949
• Parties: Francis HUCKABEE, Appellee and Appellant, v. BELL & HOWELL, INC. et al. (Safeway Steel Scaffolds Co. of Illinois, Appellant and Appellee.)

Page 134

265 N.E.2d 134

47 Ill.2d 153

Francis HUCKABEE, Appellee and Appellant, v. BELL & HOWELL, INC. et al. (Safeway Steel Scaffolds Co. of Illinois, Appellant and Appellee.)

Nos. 41949, 41955.

Supreme Court of Illinois.

Dec. 4, 1970.

Barbera & Friedlander, Chicago (Dom J. Rizzi, A. J. Hardiman and Frank M. Greenfield, Chicago, of counsel), for appellee and appellant.

David Jacker, William H. Symmes, John M. O'Connor, Jr., and Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago (Jon R. Waltz, Chicago, of counsel), for appellant and appellee.

WARD, Justice.

A jury in the circuit court of Cook County returned a verdict of $80,000 for the plaintiff, Francis Huckabee, against the defendant, Safeway Steel Scaffolds Company. Pn appeal the Appellate Court for the First District reversed in part, affirmed in part and remanded for a new trial. (102 Ill.App.2d 429, 243 N.E.2d 317.) We granted the petitions of both parties for leave to appeal.

The facts which led to the litigation are described in the opinion of the appellate court. 'Plaintiff was injured as a result of an accident which took place on Friday, March 29, 1957. At the time of the accident, plaintiff, a painter for the Guy M. Zettler & Co., was engaged in painting the Bell & Howell plant located at 7100 McCormick in Chicago. Anderson was the general contractor supervising the construction of an addition to the plant, and Zettler was the painting sub-contractor.

'Plaintiff and his co-worker Emery Nissen were engaged in painting certain pipes and steel structures below the ceiling. They were able to reach these pipes by use of a scaffold tower fifteen feet above the floor. This scaffold was constructed or tubular steel members and was mounted on four wheels or casters so that it could be rolled from place to place. The four wheels were equipped with lever-operated brakes to prevent the scaffold from rolling. The brake and wheel comprised a single unit, which had a four-inch stem that was inserted into the tubular, vertical scaffold member.

'The component parts of the scaffold had been brought to the job site in January 1957 by a Zettler employee in one of its trucks. The disassembled parts were then assembled into five separate scaffolds of the same type of the Zettler employees. All five scaffolds remained on the job through April 4, 1957 when the job was completed. Nissen and another employee of Zettler, Lang Ward, who did not testify, had disassembled the scaffold involved in the occurrence, moved the parts to the room in which the accident happened, and there reassembled the parts into a single scaffold. Nissen and Ward had used the scaffold uneventfully for two days in March.

'Plaintiff had begun working at the Bell & Howell job in January, but was sent to another site for a period of time. On Thursday, March 28, the day before the accident, the plaintiff and Nissen began working together on the reassembled scaffold. On that day, the scaffold moved twice while they were using it. After it moved the first time, both men descended, adjusted the brakes and found them working well. Nissen returned to the top of the scaffold when it moved again and one of the wheels came off. The plaintiff held up the corner of the scaffold from which the wheel came off while a man who was sweeping the floor re-inserted the wheel; this man did not testify. Afterwards, Nissen and the plaintiff resumed work on the same scaffold because 'it seemed to be fine' after they checked it, and plaintiff testified that he did not know of any other scaffolds in the area. The scaffold was always on a level floor.

'They used the same scaffold all next morning, the day of the accident, without incident. After lunch they checked the brakes and resumed work. About ten minutes later, the scaffold tipped and then fell to the floor. Nissen managed to hang on to a sprinkler pipe hanging from the ceiling but plaintiff fell to the concrete floor with the scaffold landing on top of him. As a result, he sustained severe and permanent injuries, including a fractured jaw and fractures of both wrists.

'Dominic Pomponio, an employee of Bell & Howell, testified that, although he did not witness the accident, he heard the crash and ran to the scene. He saw the scaffold lying on the floor with a caster missing from one of the corners.'

The plaintiff charged the defendant with a violation of the Structural Work Act (Scaffold Act) (Ill.Rev.Stat.1969, ch. 48, pars. 60--69) and with common-law negligence. Motions by the defendant for a directed verdict and for a judgment notwithstanding the verdict were denied. The appellate court held that the defendant's motion for a directed verdict should have been allowed as to the Structural Work Act claim, since the evidence showed that the defendant, who was the owner-supplier of the scaffold, was not 'in charge of' the work within the meaning of the Act. As to the negligence claim, the court said that the evidence was sufficient to create a jury question and that, therefore, the defendant's motions for a directed verdict and for a judgment notwithstanding the verdict were properly denied. The court ordered a retrial on the negligence count because the proof required under the Scaffold Act count is 'of a different degree and nature than the proof required for common-law negligence * * *,' (102 Ill.App.2d at 442, 243 N.E.2d at 324.) and the presumption that a general verdict is based upon evidence which supports the valid count could not be invoked.

The plaintiff argues that the appellate court erred in holding that in order to be subject to civil liability under the Scaffold Act it is necessary that the person charged with a violation of the Act must be in charge of the work being performed. His complaint alleged that the defendant wilfully violated section 60 of the Act, which provides in part: 'all scaffolds * * * erected or constructed * * * shall be erected and constructed, in a safe, suitable and proper manner * * *.' The defendant was within the terms of the Act, the plaintiff says, because, the terms 'erect and construct' have been construed to mean 'furnish' as well, citing Bounougais v. Republic Steel Corp. (7th Cir., 1960), 277 F.2d 726, and Oldham v. Kubinski, 37 Ill.App.2d 65, 185 N.E.2d 270. He argues that the section of the Act imposing civil liability for injuries which result from violations of the Act does not condition that liability upon this defendant's having been in charge of the work involved. However, this analysis does not consider the language of the penal provision of the Act, which appear in an earlier paragraph of the same section of the Act. That paragraph says: 'Any owner, contractor, subcontractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building * * * within the provisions of this act, shall comply with the terms thereof * * *.' (Ill.Rev.Stat.1969, ch. 48, par. 69.) We have read that 'having charge of' requirement of the penal provisions into the civil liability part of the Act and declared its applicability to 'other persons' referred to in section 9. (par. 69.) This court said in Gannon v. Chicago, Milwaukee, St. Paul & Pacific Railway Co., 22 Ill.2d 305, 175 N.E.2d 785: 'It is inescapable from these words that the legislature intended to hold liable those named persons who are in charge of the work, and the words 'or other person' were included to cover the situation where someone other than the named persons was in charge of the work, in order to prevent such person from escaping liability.' (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Railway Co., 22 Ill.2d 305, 319, 175 N.E.2d 785, 792; see also, Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 211 N.E.2d 247.) Thus, before civil liability will attach, whether the defendant is an owner, contractor, subcontractor, foreman or other person, under the Act, the defendant must have been in charge of the work. The appellate court's holding was not in error.

The defendant contends that the appellate court should have ordered a full reversal of the trial court. It argues that its motions for a directed verdict and for judgment notwithstanding the verdict were erroneously denied on the common-law-negligence count. Although this court appears not to have considered the question, the duties of a bailor to third persons for negligence have been...