National Oats Co. v. Volkman

• Decision Date: 06 June 1975
• Docket Number: No. 73--348,73--348
• Citation: 330 N.E.2d 514,29 Ill.App.3d 298
• Parties: NATIONAL OATS COMPANY, a corp., for the use and benefit of the Hartford Insurance Group, Plaintiff-Appellee, and Ehrsam, Inc., a corp., for the use and benefit of Home Indemnity Co., Plaintiff-Appellant, v. Adolph VOLKMAN, Defendant-Appellant-Appellee.
• Court: United States Appellate Court of Illinois

Page 514

330 N.E.2d 514

29 Ill.App.3d 298

NATIONAL OATS COMPANY, a corp., for the use and benefit of the Hartford Insurance Group, Plaintiff-Appellee and Ehrsam, Inc., a corp., for the use and benefit of Home Indemnity Co., Plaintiff-Appellant, v. Adolph VOLKMAN, Defendant-Appellant-Appellee.

No. 73--348.

Appellate Court of Illinois, Fifth District.

June 6, 1975.

Rehearing Denied July 8, 1975.

Howard Boman, Dunham, Boman, Leskera & Churchill, East St. Louis, for defendant-appellant, Adolph Volkman.

Francis D. Conner, Belleville, for plaintiff-appellant, Ehrsam, Inc.

Pope & Driemeyer, East St. Louis, for plaintiff-appellee; W. Thomas Coghill, Jr., East St. Louis, of counsel.

JONES, Presiding Justice.

In a prior action under the Structural Work Act (Ill.Rev.Stat. ch. 48, sec. 60 et seq.), the next of kin of Carl Volkman, deceased, recovered a judgment against National Oats Company, the owner of premises on which work was being done, and Ehrsam, Inc., the prime contractor for that work. The subcontractor for the work in question was Volkman Brothers Construction Company, a partnership comprised of Carl Volkman, the deceased, and Adolph Volkman. Joining in a common complaint, National Oats Company and Ehrsam, Inc., instituted a third-party action against adolph Volkman, the surviving partner of Carl Volkman, individually, although the complaint made it clear that Adolph was being sued because of the activity of the Volkman Brothers partnership. In the third-party action National Oats Company recovered, but Ehrsam, Inc. was denied recovery. We have before us an appeal from Ehrsam, Inc. asking for entry of judgment here in its favor or in the alternative for a new trial, and an appeal by Adolph Volkman asking for reversal of the judgment against him or in the alternative for a new trial.

In 1964 National Oats Company contracted with Semmelmeyer Rubber & Supply Co. for the installation of a batch plant at the East St. Louis plant of National Oats Company. Ehrsam, Inc. was employed to design, manufacture, and install the equipment. The batch plant was to be ready for operation on December 1, 1964, and if it was not ready by that date Ehrsam was to be penalized $100 per working day.

Volkman Brothers provided all carpenters, millwrights, sheet metal workers and laborers, together with the tools necessary to perform the installation. The project engineer for Ehrsam, Inc. was assigned the duty of overseeing the installation. No other personnel or equipment of Ehrsam, Inc. were utilized on the job.

Adolph Volkman testified that Volkman Brothers, the partnership, subcontracted the National Oats job from Ehrsam, Inc., that they furnished all the men to do the work and all the tools and equipment used on the job. Further, that as subcontractors they hired a carpenter foreman and a millwright foreman and that he and his brother, Carl, worked as millwrights on the National Oats job as employees of their partnership and as such employees took orders from the millwright foreman.

The plant of National Oats Company consisted of nine buildings designated A through I. The new machinery was installed in building C. The accident occurred in building I, adjacent to building C but connected at the trial and fourth story levels with bridges. In building I was located the manlift on which Carl Volkman was killed on January 10, 1965. Erected in 1946 it was a permanent installation of a one-man elevator used to get from floor to floor. It is started by a pull on a rope on the right side of the manlift. This activates an electric motor which puts into motion an endless belt to which steps and handles are attached. The manlift is stopped by pulling the rope. The holes in the floor through which the manlift passed were 32 1/2 inches in diameter. There was no type of protective device at the bottom of the holes in the floors through which the manlift operated. Carl Volkman was killed on a Sunday. The job had gone beyond the penalty time and work was being done on weekends. At the time Carl Volkman was killed he was working as a carpenter. He was killed under circumstances which indicated that he was using the manlift and was crushed at the underside of the fourth-story floor. He was found on the floor of the third story. A damaged step of the manlift which appeared to be a fresh break was located four to six feet or more above the level of the third floor.

Near the manlift was a printed sign which stated: 'Danger; keep off manlift; For employees only; Notice: 1. Keep both hands on handle; 2. Face belt at all times; 3. Don't carry large tools in hands or pockets; 4. Don's use manlift to move equipment.' Though the plant superintendent for National Oats testified that 'employees only' meant National Oats employees and that he would have prohibited use of the lift by anyone else had he been asked, the record shows that the lift was used continuously by Volkman employees. The plant superintendent said that no one in his company told him that the manlift was being used by others but that later he found out that they had been using it continually. Though he testified that if he had been asked he would have prohibited use of the manlift, he had in fact not prohibited its use either by Ehrsam, Inc. or Volkman Brothers. The sole representative of Ehrsam, Inc. on the job, Mr. Hollomon, testified that he knew of the manlift and was aware of its use by the men in the performance of the contract work. He never made any objections or suggestions to the men with regard to their use of the manlift.

We are confronted with three issues: 1. Whether or not a common law indemnity action lies against Adolpt Valkman; 2. Whether National Oats should have recovered in a third-party action under the 'active-passive' theory; and, 3. Whether Ehrsam, Inc. should have been denied recovery under the same theory.

The first issue, whether or not a common-law indemnity action will lie against a subcontractor when the prime contractor and the owner have been required under the Structural Work Act to pay damages to an employee of the subcontractor is well settled in Illinois. In Rovekamp v. Central Construction Co., 45 Ill.App.2d 441, 195 N.E.2d 756, the court, after discussing the holding in Moroni v Intrusion-Prepakt, Inc., 24 Ill.App.2d 534, 165 N.E.2d 346 said: 'We adhere to our holding that the Illinois rule forbidding contribution between tort-feasors does not apply between parties, when one is the active and primary wrongdoer and the other bears a passive or secondary relationship to the cause of the injury.' In Miller v. DeWitt, 37 Ill.2d 273, 226 N.E.2d 630, the Illinois Supreme Court followed the rule establshed in Moroni, Rovekamp, and earlier Illinois appellate court cases.

Against allowing such a third-party action it was argued in DeWitt that if a subcontractor had to indemnity a prime contractor or an owner, he would in effect be paying double damages, once to his employee under the Workmen's Compensation Act and again to the third-party plaintiffs as common law idemnity. But as the court in DeWitt pointed out, section 5(b) of the Workmen's Compensation Act protects the subcontracting employer against this contingency. (Ill.Rev.Stat. ch. 48, sec. 138.5(b).) This section provides that when an employee recovers from a third party there shall be paid to the employer from the amount recovered any amount which the employer might have paid the employee. As the court pointed out, since recovery under the Structural Work Act is likely to be greater than that recovered under the Workmen's Compensation Act, the employer is made whole while the workman gets the larger amount. Therefore, unless a third-party action is allowed against the employing subcontractor, he could escape paying any damages at all though he may have been the real party at fault. The court in DeWitt summarized its consideration of this issue by saving: 'However, we feel that the argument in favor of allowing a third party who was not actively negligent to obtain indemnification from an employer who was actively negligent is the better view.'

But the real question in this case is not whether the third-party action will lie; that it will under the proper factual circumstances is now well established and universally recognized. We are faced here with the complicating factor that the injured (deceased) party, who obtained recovery under the Structural Work Act, was also the subcontractor since Carl Volkman was a general partner in the firm that held the subcontract. Plaintiffs National Oats and Ehrsam are apparently fully aware of the complications that flow from Carl Volkman's dual relationship in this case and they have sought to alleviate its impact by bringing their suit for indemnity not against the partnership but against Adolph Volkman individually.

That Adolph Volkman as a partner is liable individually is not open to question. (Ill.Rev.Stat., ch. 106 1/2, sec. 15.) Furthermore, the legal nature of the partnership entity entitles Adolph to cast liability for the judgment against him upon the partnership since the partnership was the subcontractor and it was found actively negligent in the violation of the Structural Work Act. Ill.Rev.Stat. ch. 106 1/2, sec. 13.

Under these circumstances Adolph contends that it is a fiction for the National Oats and Ehrsam to bring an action against him. He argues that the injured person is a partner in the subcontracting firm found liable under the Act and that judgment against Adloph is tantamount to a judgment against the injured person and the injured person is thus being compelled to indemnify for his own injury through his partnership liability. If the judgment is permitted to stand it will subvert the intent and purpose of the Structural Work Act by depriving the injured person of the benefits of the Act. Palier v. Dreis & Krump Mfg. Co., 81 Ill.App.2d 1, 225 N.E.2d 67.

We have no hisitation in holding Adolph Volkman responsible...