Shell Oil Company v. Foster-Wheeler Corporation

• Court: U.S. District Court — Eastern District of Illinois
• Writing for the Court: JUERGENS
• Citation: Shell Oil Company v. Foster-Wheeler Corporation, 209 F.Supp. 931 (E.D. Ill. 1962)
• Decision Date: 26 September 1962
• Docket Number: Civ. A. No. 4342.
• Parties: SHELL OIL COMPANY, a Corporation, Plaintiff, v. FOSTER-WHEELER CORPORATION, a Corporation, Defendant.

209 F. Supp. 931

SHELL OIL COMPANY, a Corporation, Plaintiff, v. FOSTER-WHEELER CORPORATION, a Corporation, Defendant.

Civ. A. No. 4342.

United States District Court E. D. Illinois.

September 26, 1962.

Oehmke, Dunham & Boman, East St. Louis, Ill., for plaintiff.

Wagner, Conner, Ferguson, Bertrand & Baker, Belleville, Ill., for defendant.

JUERGENS, District Judge.

This suit is the aftermath of one filed in the Circuit Court of St. Clair County, Illinois; there tried to conclusion with an appeal to the Supreme Court of the State of Illinois, which affirmed.

The judge of this court, then a judge of the Third Judicial Circuit of the State of Illinois, heard the pretrial motions in the original case entitled "Golden Kennerly v. Shell Oil Company," Cause No. 3457. The trial was before another judge.

The parties to the present suit stipulated and agreed that the copies of the amended complaint, the answer and the reply thereto, attached to the answer of Foster-Wheeler Corporation, are true and correct copies of the amended complaint filed by Golden Kennerly v. Shell Oil Company in the Circuit Court of St. Clair County, Illinois in Cause No. 3457, of the answer of Shell Oil Company to the amended complaint, and of the plaintiff's reply thereto. They also stipulated and agreed that copies of the instructions, verdict and judgment, attached to the stipulations, are true and correct copies of the original instructions offered, given and refused at the trial, of the verdict of the jury and the judgment of the court. They further stipulated and agreed that the copy of the transcript of the evidence and testimony, attached to said stipulation, constitutes a full and complete transcript of the proceedings at the trial of the action brought by Golden Kennerly, deleting and excluding therefrom evidence and testimony concerning the injuries and damages sustained by Kennerly and the medical testimony with respect to treatment rendered to him. They further stipulated and agreed that defendant's exhibit 1, being a photostatic copy of the contract between Shell and Foster-Wheeler for the construction work being done at the time Kennerly was injured, may be used by the court in the determination of this case.

The parties further stipulated and agreed that all of the above encompasses all of the evidence necessary to a decision in this case except as to the amount of plaintiff's recovery and no factual dispute is involved between plaintiff and defendant relative to the evidence to be considered in this case on the question of liability herein. They further stipulated that the only question is whether or not the plaintiff is entitled to recover in this proceeding against the defendant and, if so, the amount of damages to be awarded.

The instant complaint and amendment thereto allege that the action by Kennerly in 3457 was predicated on a claimed violation of the Structural Work Act (Illinois Revised Statutes, 1957, Chapter 48, paragraphs 60-69); that the evidence showed that Kennerly was an employee of Foster-Wheeler Corporation, which had a contract as general contractor with Shell to construct and erect a distillation unit at Shell's Wood River, Madison County, Illinois refinery; that Kennerly fell from a scaffold and received various serious and permanent injuries; that Foster-Wheeler was careless and negligent in the erection of the scaffold and that such negligence was the proximate cause of the injuries to Kennerly; that the verdict of the jury and judgment of the court were based on the evidence that the scaffold was not erected in a safe, suitable and proper manner as required by the statute; that on May 23, 1958 the decision of the Supreme Court of Illinois, affirming the judgment of the Circuit Court of St. Clair County, Illinois, became final and thereafter Shell paid the judgment with interest thereon in the aggregate amount of $85,020.83 plus costs; that no part of this amount has been repaid to the plaintiff by the defendant herein or by any other person, firm or corporation in its behalf.

The complaint and the amendment thereto further allege that the injury to Kennerly was produced solely through negligence on the part of the defendant and through no negligence on the part of the plaintiff; that a carpenter of defendant built the scaffold with lumber furnished by the defendant; and that Kennerly was an employee of the defendant and no employee of Shell when the incident occurred. Plaintiff further alleges that it had no control over the materials used in the scaffolds or the employees working thereon — all of which were under the control of the defendant. Plaintiff further alleges that Foster-Wheeler was primarily negligent and that it should be reimbursed for the expenditures made by it to Kennerly in the original case.

Foster-Wheeler has filed its answer, denying the material allegations of the complaint and amendment thereto; and in its third defense alleges that Shell failed to comply with the Act; that Shell was the owner and that the buildings were jointly occupied and controlled by Shell and Foster-Wheeler; that Foster-Wheeler was controlled and directed by Shell; that the effect of the general verdict was to find Shell guilty of all charges made in the amended complaint; that the charges made by Shell in the instant case are the same charges made against Shell by Kennerly; and that Shell was a joint tort-feasor.

By its fourth defense it alleges that Kennerly's amended complaint charged Shell as being the owner, jointly occupying the building with Foster-Wheeler and controlling and directing the construction thereof; that the effect of the general verdict was to find Shell guilty of all charges; that Shell had actual knowledge that the scaffold was defective; and that the effect of the verdict was finding Shell guilty of active negligence.

The fifth defense alleges that Kennerly's amended complaint charges Shell with willfully and knowingly failing to comply with the Act and jointly occupying and controlling the building with Foster-Wheeler; that the effect of the general verdict was to find Shell guilty of all charges; that the jury had evidence that Kennerly informed Shell that the scaffold was dangerous; and that the verdict was in effect finding Shell guilty of active negligence.

By its sixth defense the defendant says that Kennerly's amended complaint charges that Shell failed to comply with the Act and jointly occupied and controlled the building with Foster-Wheeler and Foster-Wheeler was controlled by Shell; that the effect of the general verdict was to find Shell guilty of all charges; that the Act imposed a nondelegable duty upon the owner and grants no right of indemnity or subrogation or contribution.

By its seventh defense it alleges that Kennerly was an employee of Foster-Wheeler, both of whom were bound by the Illinois Workmen's Compensation Act; that the injury arose with, of and in the course of his employ with Foster-Wheeler; that Foster-Wheeler has discharged its obligation under the Illinois Workmen's Compensation Act; that the Illinois Workmen's Compensation Act prohibits a common law or statutory right of action by Kennerly against Foster-Wheeler; and that Shell has no cause of action against Foster-Wheeler for any liability over and beyond the liability of Foster-Wheeler.

The accuracy of all the pleadings, the testimony (excluding medical), the instructions, verdict and judgment has been stipulated by the parties. Both parties have moved for summary judgment. A legal question only is involved.

The copy of the transcript of the evidence, attached to the motion of Foster-Wheeler for summary judgment, having been stipulated to as constituting a full and complete transcript of the proceedings of the trial of the original action, deleting and excluding therefrom evidence and testimony concerning the injuries and damages sustained by Kennerly and the medical testimony with respect to treatment rendered to him therefor, authorizes this court to rely thereon for its decision.

For a proper and full consideration of this case it is deemed advisable to briefly set forth the testimony of the various witnesses in Kennerly v. Shell.

Everett Turner, a welding foreman for Foster-Wheeler, testified that Foster-Wheeler was putting up a new distilling unit on the Shell property; that the scaffold was built on the day of the accident; that several other subcontractors had employees in the area, including one or two inspectors from Shell's inspection department; that Shell's protection department (who were watchmen) was daily "making the rounds"; that the inspection department was there to inspect materials and workmen doing the welding and they calipered all fittings, namely, the pipe and valve fittings and also inspected the welding work and type of material; that Mr. Lambert of Shell was the construction engineer who checked with Foster-Wheeler; that someone from the engineering office periodically would come in and check progress of the work and blueprints; that revisions were made by Shell on the blueprints as work progressed; that "our men" would put tests on the pipes and the inspection department would okay; that "we" had a Shell and a Foster-Wheeler badge; that Shell gave "us" a mimeographed sheet of rules (Rules for Contractors' Employees); that the protection department and the safety department enforced smoking and rules "the like of that"; that smoking rules were enforced; that if violations were encountered, they were reported to the office and Foster-Wheeler would terminate the employment; that "Shell inspection department would inform Foster-Wheeler when we were wrong and come back to us."

On cross-examination he testified that his pay check came from Foster-Wheeler; that he was not an employee of Shell; that Shell enforced smoking rules; and that Shell watchmen or policemen would report smoking regardless of whether it was Shell or Foster-Wheeler men. He further...