¶1dissenting:
¶2I cannot agree with the construction of the statute adopted by the majority of the court. The suit is based upon a violation of section 1, which requires generally that “all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, … Ill. Rev. Stat. 1957, chap. 48, par. 60.
¶3The language relied upon to impose liability upon an owner per se is found in the first paragraph of section 9, which deals with criminal penalties. It provides as follows: “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, and any such owner, contractor, sub-contractor, foreman or other person violating any of the provisions of this act shall upon conviction thereof be fined not less than $25, nor more than $500 or imprisoned for not less than three months nor more than two years or both fined and imprisoned in the discretion of the court.” (Emphasis supplied.) It seems evident to me that only those owners “having charge” of the work are subjected to the detailed requirements as to its performance prescribed by the various sections of the act. The penalty for violation is expressly, limited to “such owner, contractor, sub-contractor, foreman or other person.” The word “such” can refer only to the phrase “having charge of” the work, and clearly shows an intent to confine the statutory duties to persons whose right to control or supervise the work malees it possible to comply therewith.
¶4The decisions of this court relied upon for the opposite conclusion involved issues different from those in the case at bar. In Claffy v. Chicago Dock and Canal Co. 249 Ill. 210, a workman fell down an unguarded elevator shaft, and the action was based upon a violation of section 7. That section in terms requires the owner to cause such shafts to be enclosed by guard rails, and this court was careful to point out that the decision concerned only that section of the act. Its wording is as follows: “If elevating machines or hoisting apparatus are used within a building in the course of construction for the purpose of lifting materials to be used in such construction, the contractors or owners shall cause the shafts or openings in each floor to be enclosed or fenced in on all sides by a substantial barrier or railing at least eight feet in height.” (Ill. Rev. Stat. 1957, chap. 48, par. 66.) It is apparent by its terms that the language quoted and italicized in the majority opinion was concerned only with the provisions of section 7, and was based upon the wording therein imposing a special duty upon the “contractors or owners.” The present case does not involve elevating machines or hoisting apparatus, nor are we presented with provisions similar to those construed in the Claffy case. Moreover, the language quoted from the opinion in that case not only related to a different section of the statute but constitutes mere dictum, since the owner in the Claffy case in fact had control and supervision over the work. The provisions applicable here are found in section 9. Unlike those of section ¡7, they do not purport tO' impose duties upon an owner as such.
¶5The remaining Supreme Court decision relied upon in the majority opinion is John Griffiths & Son Co. v. National Fireproofing Co. 310 Ill. 331, wherein a subcontractor agreed to indemnify the principal contractor against any liability for injury caused by the subcontractor’s negligence. An employee of the subcontractor was injured when material fell from an unstable scaffold and struck him. The contractor paid a judgment recovered against it by the injured workman, and brought suit against the subcontractor under the indemnit)'- contract. The subcontractor claimed that under the statute the contractor had an absolute duty of inspecting the scaffold, which it disregarded, and that the contract was against public policy because it purported to indemnify against the consequences of a violation of law. In holding the contract to be valid and enforceable, we pointed out that the argument advanced would apply equally to insurance policies, and that the contract did not undertake to' indemnify against an illegal act. The sole issue concerned the validity of the contract of indemnity, and the question of liability to an injured person under the statute was not presented. In my opinion the present interpretation is neither required by precedent nor warranted by the language of the statute.
¶6I must also express my disagreement with the conclusion that a willful violation was shown. If “willfully” is synonymous with “knowingly,” as the court apparently concedes, it is knowledge of the condition, not mere knowledge that scaffolds were being used, which determines willfulness. The language quoted from the opinion in Schultz v. Henry Ericsson Co. 264 Ill. 156, was used in disposing of a contention that knowledge of the danger is required. The court held that since the defendant in that case had constructed the scaffold it had knowledge of the condition, and that “Notice of the conditions is notice of the dangerous conditions, if the conditions are, in fact, dangerous.” The language quoted in the present opinion, when read in its context, means that willfulness may be present if there is knowledge of the conditions themselves, even though there is no notice of the fact that they are dangerous. The majority opinion in the case at bar goes much farther. It announces the proposition that a willful violation is present whenever the defendant, by the exercise of reasonable care, could have discovered the condition of the scaffold. This is the test of mere negligence, not of willfulness.
¶7Under the interpretation of the statute adopted by the majority, a person who engages a contractor to paint or repair his house may be subjected not only to civil liability but to criminal liability as well, for the latter’s failure to properly construct a scaffold or other piece of equipment. Such a departure from recognized bases of liability should not be inferred in the absence of clear and explicit statutory command, and in my opinion it finds no justification in the language of the present provisions.