dissenting:
In the case at bar plaintiff was totally and permanently disabled as a result of a fall from a scaffold used in the remodeling of a structure owned by Commonwealth Edison. The fall resulted from a failure to fasten the brackets on the scaffold with holts in direct violation of the Structural Work Act. Edison claimed it was not in charge of the work and therefore not responsible in damages to the plaintiff.
Edison as the owner of premises located at 3501 South Pulaski Road entered into an extensive rehabilitation project of its plant which consisted of a number of buildings covering an area of at least three city blocks. Edison let out between 75 and 80 contracts to a large number of contractors. Not more than 2 or 3 of these contracts was with Paschen contractors. The work was divided into units and this case is concerned with operations in and about Units 7 and 8. All the scaffold construction on these units were done by workmen employed by Paschen. Since I feel that the facts of Edison’s participations have been fully set out in the opinion of the majority I shall not repeat them.
The plaintiff principally contends that the jury reached its verdict exculpating the defendant, Commonwealth Edison, as a result of an erroneous peremptory instruction given over plaintiff’s objection. The instruction was as follows:
The Court instructs the jury that the plaintiff is not entitled to recover damages under the provisions of the Structural Work Act unless he has proven by a preponderance, or greater weight of the evidence, that the defendant, Commonwealth Edison Company, had charge of the work by retaining control and supervision of such work being performed by Paschen Contractors, Inc.
Plaintiff contends that this instruction misstates the applicable law and places upon the plaintiff a burden of proof not sanctioned by the most conservative reading of the Act nor by the opinions of the courts of our State. I agree and it is upon this ground that I feel compelled to register my dissent.
The pertinent part of the Structural Work Act, Ill Rev Stats c 48, §§ 60-69 with which we are concerned provides as follows:
§ 69 — Any owner, contractor, sub-contractor, foreman or other person, having charge of the erection, construction, repairing, alteration, removal, or painting of any building, bridge, viaduct or other structure within the provisions of this act, shall comply with all the terms thereof . . .
The purpose of instructions in relation to statutory language is an attempt by the trial court to make clear the cold and rather forbidding exterior which statutory pronouncements may present to the layman. The instruction, however, should not modify the plain language of the enactment.
In this case Edison was exercising daily active participation in conjunction with Paschen and a jury under proper instructions could find that Edison was, in fact, “in charge of the work.” The jurors’ right to reach such a decision was, however, withdrawn from them by the giving of the instruction here appealed from. The trial judge not only limited the right of the plaintiff to recover damages from Edison to proof that Edison was “in charge” of the work, but also injected a requirement that plaintiff must prove by a preponderance of the evidence that Edison retained control and supervision of such worh being performed by Paschen Contractors, Inc. Thus Edison was exculpated because the evidence did not show (1) it retained control, and (2) it retained supervision of the work performed by the contractor. The statute, and the case decisions interpreting the statute, indicate, I believe, that an owner need not be engaged in both of these activities to be liable. To add these requirements as a test of liability is to deprive the plaintiff of his rights of recovery under the Act.
We do not have a passive or absent owner here, nor a defendant making casual inspections. A reading of the statute indicates that it was the intention of the General Assembly to hold an owner liable as also being in charge of the project if he is actively engaged in the work. The theory which motivated the Legislature was that each party whose active participation in the work was such that he could be said “to be in charge” should be held responsible for the effectuation of the minimum safety standards included in the Act. The question as to whether an owner would be deemed to be in charge of the construction in addition to the contractor would be for the jury to determine under proper instructions. Gannon v. C. M. St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785. The cases beginning with Gannon have laid down the test as to owner liability under the Structural Work Act as depending upon whether there was an evidentiary basis for the finding that the owner was a person “having charge of the work” within the meaning of the Act. And as was said in Gannon on p 321 “. . . wilful violations means knowing violations, and in the nature of things they can be perpetrated only by persons directly connected with the operations, and not by virtue of mere ownership of the premises. The inclusion of this phrase in the Act, therefore, further evidenced a legislative intention to impose the duty of compliance upon those having charge of the work.” (Emphasis mine.)
Counsel for Edison cite no cases approving the peremptory instruction here given. The only portion of the instruction taken from the Structural Work Act is the phrase “charge of.” I repeat, the statute does not provide that Edison be limited in its responsibility to the situation in which it might be “retaining control and supervision of such work being performed by Paschen Contractors, Inc.” I am also of the opinion that the quashing of the subpoena duces tecum served upon the defendants, Sargent and Lundy, was in error.
I would reverse the judgment in favor of Commonwealth Edison and remand the cause for a new trial.