Russell, for Use of Continental Cas. Co. v. Shell Oil Co.
| Decision Date | 06 December 1949 |
| Docket Number | Gen. No. 44441 |
| Citation | 339 Ill.App. 168,89 N.E.2d 415 |
| Parties | RUSSELL, for Use of CONTINENTAL CASUALTY CO., v. SHELL OIL CO., Inc. |
| Court | United States Appellate Court of Illinois |
Yates, Roche, Camp & MacDonald, Chicago, Harold N. Harrison, Chicago, of counsel, for appellant.
John J. Morris, Chicago, V. J. Liss, Chicago, of counsel, for appellee.
This is a suit for the use of Continental Casualty Company, a corporation, to recover from defendant, Shell Oil Company, Incorporated, $3,949.42, which the nominal plaintiff, T. W. Russell, became liable to pay and did pay to John Campbell, an employee of Russell, as compensation and medical and hospital expenses, on account of injuries sustained by Campbell. This action is based upon the theory that the proximate cause of Campbell's injuries was the negligence of defendant's employees and that Continental Casualty Company, plaintiff, is subrogated to the rights of T. W. Russell by virtue of sections 6 and 29 of the Workmen's Compensation Act, Ill.Rev.Stat.1949, c. 48, §§ 143, 166, and is, therefore, entitled to recover from defendant the sum of $3,949.42. Defendant filed an answer denying the controversial issues and included in the answer an affirmative defense setting up a certain indemnity contract executed by plaintiff and defendant. Plaintiff filed four replies to the affirmative defense, each of which was stricken by the court upon motion of defendant. Upon the hearing of the last motion the trial court held that the indemnity agreement constituted a complete defense to plaintiff's cause of action, dismissed the complaint, and entered judgment for defendant. Plaintiff appeals.
The complaint alleges that on June 17, 1942, nominal plaintiff Russell was a painting contractor and was operating under and bound by the provisions of the Workmen's Compensation Act; that defendant was also operating under and bound by that Act; that John Campbell was employed by said Russell as a painter; that Russell, for a consideration, had agreed with defendant to paint certain steel flood-light poles located upon the premises of defendant, a gas station located at 40 South Market street, Chicago, Illinois, and that said Campbell, while engaged as an employee of Russell, and in the course of his employment, was painting a certain pole; that the premises consisted of two lots, the most westerly of which was six or eight feet below the level of the other lot; that the pole was situated in the upper or east lot and within a very few feet of the dividing line of the two lots; that Campbell placed one end of an extension ladder of the bound of the upper lot and the other end against the pole, and that he then proceeded to climb up said ladder; that after reaching the top of the ladder the pole pulled out of the earth with the concrete in which it was imbedded, causing Campbell to fall with it; that the pole was dangerous and unsafe to Campbell, who was required to climb it; that defendant, in violation of its duty to Campbell, permitted the pole to be in an unsafe condition, as a result of which he was injured; that Campbell was in the exercise of ordinary care for his own safety, and that the injury was not caused by the negligence of Russell or his employees, but by the negligence of defendant; that Russell was required to pay and did pay to Campbell, under the provisions of the Workmen's Compensation Act, the aggregate sum of $3,949.42; that by virtue of Section 29 of that Act Russell was entitled to recover from defendant the said sum of $3,949.42; that Continental Casualty Company, a corporation, was the compensation insurance carrier for Russell and as such paid $3,949.42 as compensation, medical and hospital expenses on account of the injuries to Campbell, and it became and was subrogated to the rights of Russell, for which recovery it sues defendant. As heretofore stated, defendant filed an answer denying the controversial issues and included in the answer an affirmative defense setting out a certain indemnity contract executed by plaintiff and defendant. It is agreed that the only question before this court is whether paragraph 5 in the indemnity agreement contract constitutes a complete defense to p...
To continue reading
Request your trial
-
John E. Branagh and Sons v. Witcosky
...Fuel Co. (7 Cir. 1950) 183 F.2d 630; Macon v. Warren Petroleum Corporation (W.D.Tex.1962) 202 F.Supp. 194; Russell v. Shell Oil Co. (1949) 339 Ill.App. 168, 89 N.E.2d 415; Terminal R. Assn. of St. Louis v. Ralston-Purina Co. (1944) 352 Mo. 1013, 1018--1019; 180 S.W.2d 693; Polit v. Curtiss ......
-
Southern Pac. Co. v. Morrison-Knudsen Co., MORRISON-KNUDSEN
...See, also, Filipek v. Moore-McCormack Lines, Inc., D.C.E.D.N.Y.1957, 156 F.Supp. 854, 858; Russell for Use of Continental Casualty Co. v. Shell Oil Co., 1949, 339 Ill.App. 168, 89 N.E.2d 415, 417; Stern v. Larocca, 1958, 49 N.J.Super. 496, 506, 140 A.2d The Railroad's cause of action agains......
-
Buffa v. General Motors Corporation
...& N. R. Co., 6 Cir., 24 F.2d 347; Smoke v. Turner Const. Co., D.C., 54 F.Supp. 369; Russell, for Use of Continental Casualty Co. v. Shell Oil Co., 339 Ill.App. 168, 89 N.E.2d 415; 42 C.J.S., Indemnity, § 12. Since the indemnity contract is valid and since the third-party complaint alleges i......
-
Pickens-Bond Const. Co. v. North Little Rock Elec. Co.
...Northern Pac. Ry. Co. v. Thornton Bros. Co., 206 Minn. 193, 288 N.W. 226 (1939); Russell for Use of Continental Casualty Co. v. Shell Oil Co., 339 Ill.App. 168, 89 N.E.2d 415 (1949). See also, Atlantic Coast Line R. Co. v. Robertson, 214 F.2d 746 (4th Cir. 1954); Buckeye Cotton Oil Co. v. L......