dissenting:
I disagree with the opinion of the majority insofar as it sustains the jury’s determination that the negligence or fault of National Oats was passive or technical as compared to the fault of Volkman Brothers which was active or primary. I would also disagree with entering judgment n.o.v. on behalf of Ehrsam against Volkman Brothers. The determination of tire “active-passive” issue is normally a question for the jury to resolve. (Lambert v. D. J. Velo & Co., 131 Ill.App.2d 30, 268 N.E.2d 170 (1971).) However, on these facts, relevant to the determination of the indemnity question, which are not in.dispute in any substantial aspect, I would hold that neither National Oats or Ehrsam is entitled to indemnity as a matter of law (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513 (1967)).
That this hoist or manlift was a dangerous and unsafe contrivance must be said to have been conclusively established by the verdict of the jury in favor of the widow and children.of Carl Volkman against National Oats and Ehrsam. That verdict established that each was “in charge of” the project on which Carl Volkman was working at the time of his death. The verdict also established a “wilful” or knowing violation of the Structural Work Act on their part.
The accident did not occur from the use or malfunction of any scaffold, hoist or contrivance constructed or erected for the performance of the construction project at hand. The hoist had been built as a permanent installation in Building I in 1946.
, While the manlift was posted in the manner noted, and National Oats’ superintendent testified he did not know of its use by Volkman Brothers employees, the uncontradicted testimony was that it was in fact used continuously by Volkman Brothers’ employees in the construction of the project; the project engineer of Ehrsam knew of this use and did nothing to prevent it, and the conclusion is inescapable that National Oats knew or should have known of its use, and, charged with this knowledge did nothing to prevent it. Its superintendent testified that he was at the construction site and lift area daily. It has long been established that liability may be imposed not only when the dangerous condition is known, but when it should have been known in the exercise of reasonable care. Those charged with the duty to comply with the Act may not escape their responsibility by ignoring dangerous scaffolds, hoists or other contrivances. Kennedy n. Shell Oil Co., 13 Ill.2d 431, 150 N.E.2d 134 (1958); Juliano v. Oravec, 53 Ill.2d 566, 293 N.E.2d 897 (1973).
We have a situation where all parties knew or should have known, which in law is the equivalent of knowledge, of the use of this dangerous hoist by Volkman Brothers employees. Each was “in charge of” the project so far as this use is concerned as each had the power and authority to prevent this use of an instrumentality not erected for the performance of the construction project in question.
I am not willing to impose liability on Volkman Brothers or Adolph Volkman, partner, because of language in the pleadings of an informal contract, consisting, in part, of correspondence, requiring in general terms Volkman Brothers to provide all tools, equipment and manpower, including scaffolding and hoists. In fact, Volkman Brothers did provide a material hoist for the performance of its contract. It seems to me to misapply the decision in Louis v. Barenfanger, 39 Ill.2d 445, 236 N.E.2d 724 (1968), which holds the failure to supply an adequate scaffold actionable under the Structural Work Act, as authority for the proposition that this failure results in active wrongdoing in an action for indemnity brought by one who built and maintained a dangerous manlift or contrivance, as a jury had found here.
Since in my opinion all parties were equally active wrongdoers in failing to prohibit Volkman Brothers’ employees use of this unsafe man-lift, allowing this verdict of active wrongdoing or fault to stand can only be based on Volkman Brothers’ failure to construct or somehow provide a manlift, when there has been no showing that the furnishing of a hoist or manlift was necessary or desirable for the efficient performance of this work. In fact, the evidence is that it was not necessary and that the use of the lift was simply a convenient means of reaching the place where the work was being performed.
I would not extend the doctrine of Miller v. DeWitt, 37 Ill.2d 273, 226 N.E.2d 630 (1967), or its progeny this far. Numerous cases hold that the party who built or erected a scaffold is always an active wrongdoer in the indemnity context (see Lindner v. Kelso Burnett Electric Co., 133 Ill.App.2d 305, 273 N.E.2d 196 (1971); Shell Oil Co. v. Hercules Construction Co., 74 Ill.App.2d 166, 219 N.E.2d 392 (1966)), and that failure to discover a defective condition of a scaffold is merely passive conduct. How can failure to provide an unneeded manlift be called “active” wrongdoing? Admittedly, none of the reported cases are four square with the instant case since we are deahng with a manlift not erected for use in the performance of the construction project at National Oats, but a device used daily in the owners business and under its control. Liability is thus imposed for Volkman Brothers’ failure to provide another and different hoist or lift for what would appear to be the convenience of its employees. If this be wrongdoing, I am not willing to describe it as “active” as against the conduct of National Oats or Ehrsam on these facts. The negligence or fault of the indemnitee and indemnitor must be different in kind in my opinion to ever justify the allowance of indemnity. See Loehr v. Illinois Bell Telephone Co., 21 Ill.App.3d 555, 316 N.E.2d 251 (1974).
I find no authority for this extension of indemnity liability in Gadd v. John Hancock Mutual Life Insurance Co., 5 Ill.App.3d 152, 275 N.E.2d 285 (1971); Jones v. McDougal-Hartmann Co., 115 Ill.App.2d 403, 253 N.E.2d 581 (1969); or Banks v. Central Hudson Gas & Electric Corp., 224 F.2d 631 (2d Cir. 1955), all of which are clearly factually inapposite, as in the instant case, the owner, National Oats, constructed and erected the defective manlift.
I would affirm as to Ehrsam and reverse the judgment in favor of National Oats.