dissenting: The defendant in its amended affidavit of merits sets up as a defense that the judgment obtained by Slaughter against John Griffiths & Son Company was by reason of a violation by that company of the penal statute set up in the Slaughter declaration, and “that the said defendant is not by reason of anything contained in said contract set forth in said plaintiff’s statement of claim” liable in any way. It also sets forth the statute, above referred to, and, also, the instruction given in the Slaughter case on behalf of John Griffith & Son Company, and alleges that the only issue submitted to the jury for decision was whether John Griffiths & Son Company had violated or failed to comply with the requirements of the statute in question. The defendant having appealed from the order striking the amended affidavit of merits, the question arises whether the defense therein set forth was well founded?
It is stated in the brief of counsel for the plaintiff, John Griffiths & Son Company, that: “On the trial of the Slaughter suit, every issue but one was eliminated and appellee (John Griffiths & Son Company) was held liable solely on the theory that it was liable for what was done by appellant (National Fire Proofing Company) which the jury held to be a* violation of section 1 of the Act requiring all scaffolds to be well and safely constructed.”
The adjudication in the Slaughter suit was that the John Griffiths & Son Company was liable because of a violation of the penal statute in question. The question then arises whether under the terms of the contract of April 29, 1912 — whereby the defendant, National Fire Proofing Company, agreed to exercise due diligence in the performance of the work and to hold the plaintiff, John Griffiths & Son Company, harmless “from all loss, cost or expense arising from any and every accident happening to any person whomsoever and occasioned directly or indirectly by the operations” of the defendant — the plaintiff is entitled to recover a judgment against the defendant in the sum of $9,921.87.
• It is contended on behalf of the defendant that by the Act of June 3, 1907, the legislature made it a duty of each of the parties to this suit to inspect the scaffold in question for the purpose of assuring its proper construction, and that neither could avoid its obligation to do so; that a contract or undertaking to indemnify a person against loss which such person may suffer by reason of his own violation of the law is against public policy and void. There is no doubt but that section 9 of the Act [Cahill’s Ill. St. ch. 48, [f 132] imposed upon both the plaintiff and the defendant a like obligation to see that the scaffold in question should be ‘ ‘ erected and constructed in a safe, suitable and proper manner * * ° so erected and constructed, placed and operated as to give proper and adequate protection to the life and Hmb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” Further, the act provides that not only must the owner, contractor or subcontractor, as well as others, comply with the terms of the act, but that any one of them violating the act shall be, upon conviction, fined or imprisoned.
It is generally true that where one of two joint tortfeasors is not in pari delicto with the person from whom he seeks - to recover, he may obtain indemnity. Farwell v. Becker, 129 Ill. 261; 14 R. C. L. 52. Also, that contracts to indemnify against acts of the indemnitor are valid and binding. So, further, an agreement to indemnify against certain acts of the indemnitee has been held to be valid. Chicago, R. I. & P. Ry. Co. v. Hamler, 215 Ill. 525; Blank v. Illinois Cent. R. Co., 182 Ill. 332.
The exact question here involved does not seem to have been definitely decided. Seemingly a promise of indemnity may be binding even though it may have a tendency to invite carelessness or a lack of vigilance or indifference in regard to certain normal obligations and responsibilities. In Phœnix Ins. Co. v. Erie Transp. Co., 117 U. S. 312, where the court was called upon to decide the legality of certain insurance which was taken out by a common carrier on goods which it carried and which might be lost by the negligence of the servants of the carrier, the court said, referring to the policies of insurance: “By obtaining insurance he does not diminish his own responsibility to the owners of the goods, but rather increases his means of meeting that responsibility.” “They contain no provision impugning or questioning in the slightest degree the full measure of that responsibility * * * but they are all, it is alleged, repugnant to public policy because, by furnishing the carrier with a fund with which to reimburse himself for losses caused by his own negligence, their inevitable tendency or effect is to reduce such viligance or to promote greater carelessness on the part of the carrier. Precisely the same reasoning would invalidate, as repugnant to public policy, every species of fire and marine insurance * * * but in neither instance can it be said that because a temptation to be negligent may possibly result from the possession of an insurance policy the contract of insurance necessarily begets negligeiice or conflicts with public policy.” Breeden v. Frankfort Marine, Accident & Plate Glass Ins. Co., 220 Mo. 327, 119 S. W. 576; California Ins. Co. v. Union Compress Co., 133 U. S. 387; Perry v. Payne, 217 Pa. 252, 11 L. R A. (N. S.) 1173.
On behalf of the plaintiff, cases are cited to the effect that a municipal corporation may have a remedy over against the party who was immediately in fault. Robbins v. City of Chicago, 71 U. S. 657. Such cases are, however, not quite parallel with the instant case because a municipal corporation is not subject to statutes providing for fines and imprisonment. Here the legislature has made it a crime for the plaintiff to do that for which he now seeks indemnity from the defendant. The statute in question is a penal statute. Apparently the intention of the legislature is to provide that in the construction of scaffolds, etc., extraordinary care should be taken so as to protect the public from unnecessary injury. As the act stands, the owner, contractor and subcontractor, each and all, are equally bound to inspect the construction of scaffolds and see that they are properly and safely constructed. Bearing in mind the apparent intent of the legislature, may the original contractor enter into an agreement of indemnity with a subcontractor, the effect of which is that the latter undertakes to assume the obligations imposed upon the former by the act in question, the statutory obligations being such that the failure to perform is a crime Í
A number of cases are cited by counsel for the defendant holding that “contracts are illegal when founded upon a consideration contra bonos mores or against the principles of sound public policy or founded in fraud or in contravention of the provisions of some statute.” Goodrich v. Tenney, 144 Ill. 422.
In Fields v. Brown, 188 Ill. 111, where an owner knowingly leased property for use as a house of ill-fame, which was a criminal offense, the court said in a suit for rent- that: ‘ ‘ The lessee in such case even though in pari delicto with the lessor ought not to be denied or deprived of the privilege of presenting the defense that the lease was illegal because of its being in violation of the public law of the State, for the defense is not allowed on the ground that the person presenting it is entitled to relief but, as we said in Goodrich v. Tenney, 144 Ill. 422, ‘upon principles of public policy and to conserve the public welfare.’ ” Penn v. Bornman, 102 Ill. 523.
In Crichfield v. Bermudes Asphalt Paving Co., 174 Ill. 466, where the court was considering a contract which provided for a contingent compensation for obtaining ordinances for paving, it is said: “The principle to be extracted from all the cases is that the law will not lend its support to a claim founded on its violation.”
If it is to be assumed that the adjudication in the Slaughter case was to the effect that the John Griffiths & Son Company violated the statute referred to, and that it is the law that a right of action is denied to one who has suffered an injury which came about while violating a public statute, may it not follow, reasonably, that the plaintiff is not entitled to compensation under its contract of indemnity with the defendant?
The plaintiff was held liable to Slaughter only because it had violated a penal statute. That statutory obligation and the failure to fulfil it constituted a tort as well as a crime irrespective of the conduct of the defendant. It is true that if the defendant had obeyed the statute and constructed the scaffolding properly, there then would have been no ground for the judgment such as was rendered against the plaintiff for a violation of the statute. But are we-concerned here with the comparative conduct of the two parties? Are they joint tort-feasors — assuming the tort involved to be a violation of the statute — and is one more to blame than the other? Each may have been liable for a violation of the statute, but the plaintiff may not, with reason, say to the defendant we are not in pari delicto, the statute was more of an obligation on you than on me. Penal statutes bind all equally. And when the jury in the Slaughter case found the plaintiff here (the Griffiths & Son Company) guilty of a violation of a penal statute, it infer entially decided that the promise of indemnity by the defendant, as far as it pertained to the liability arising out of the Slaughter judgment, was to pay the Griffiths & Son Company for a violation of a penal statute; and, under the law, such a promise cannot be enforced. The law will not permit one who is mulcted in damages for a violation of a penal statute and for that only to recover on a promise of indemnity. Two or more persons, who, by reason of a given condition which has arisen, are equally guilty of violating a penal statute, may he joint tort-feasors, hut, if they are, they are also something more, they are particeps criminis, and neither by the common law nor as the result of contract may any one of them sue any of the others for contribution, reimbursement or indemnity. Harris v. Hatfield, 71 Ill. 298.
The oft-quoted dictum of Lord Mansfield in Holman v. Johnson, Cowper, 341, is apt. “The principle of public policy is this: ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If from the plaintiff’s own stating, or otherwise, the cause of action appears to arise ex turpi causa, or the trangression of a positive law of this country, there the court says he has no right to be assisted.” Williston on Contracts, ch. 44.
The contract sued upon was not necessarily in toto in contravention of any statute, but the plaintiff’s cause of action as set forth in the pleadings, being founded upon a judgment obtained by reason of a violation of the statute, the court on the ground of public policy refuses to aid it in obtaining indemnity. Gibbs & Sterrett Mfg. Co. v. Brucker, 111 U. S. 597.
It is argued on behalf of the plaintiff that it “has done no actual wrong,” and, yet, the history of the Slaughter judgment, which the plaintiff here desires to obtain indemnity for, demonstrates that it came into being solely as the result of the plaintiff’s violation of the statute.
The argument ab inconvenienti is urged. But the public welfare which evidently inspired the mailing of the statute must be considered as outweighing private convenience. Practically, as it is, the statute may make building more onerous; that, however, does not permit the court to refuse to apply it. If the plaintiff had fulfilled its duty as required by the statute and taken care that the scaffold had been “erected and constructed in a safe, suitable and proper manner” and “so erected and constructed, placed and operated, as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon” the injury to Slaughter would not have occurred; and, further, there would have been no violation of the statute justifying the judgment in the Slaughter case. The sole reason why the plaintiff is unable to obtain relief is that it failed to perform its own duty in compliance with the statute.