author: TRAPP, P. J. CRAVEN, J.,

text:
    Frank Parizon, Plaintiff-Appellee, v. Granite City Steel Company, a Corporation, and Bowman Steel Corporation, a Corporation, Defendants-Appellants, and M. H. Wolfe and Company, a Corporation, Defendant.
    Gen. No. 65-51.
    Fifth District.
    May 18, 1966.

      CRAVEN, J., dissenting.
    Pope and Driemeyer, of East St. Louis (Joseph B. McDonnell, of counsel), for appellant, Granite City Steel Company, and R. W. Griffith, Jr., Griffith & Hoefert, of Alton, for appellant, Bowman Steel Corporation.
    Beatty, Schooley & Theis, of Granite City (William L. Beatty, of counsel), for appellee.
   TRAPP, P. J.

The defendants, Granite City Steel Company, a corporation, and Bowman Steel Corporation, a corporation, each appeal from a judgment in the sum of $105,000, entered upon the verdict of a jury. The several post-trial motions of the defendants were denied. The “Scaffold Act” is in issue.

The structure on which plaintiff was working was an addition to an existing building owned by Granite City, designated in the pleading and evidence as the “8 Bay Bar Extension Building,” constructed by extending the building apparently in its long dimension. The building was generally fabricated by the use of metal sheets attached to a metal framework.

The first issue raised involves the nature of the roof of the building and its use as a surface for the men working in laying the roof. The Abstract provides minimal data concerning the dimensions. Plaintiff’s Exhibit 4 is identified as a photograph of a portion of the building and it shows the roof from the side of the building which appears to be a roof sloping from a ridgepole along the center of the long dimension. A witness for the plaintiff testified that he thought it was about 20 feet from the center ridge to the edge of the roof. Plaintiff testified that he had “heard” that the edge of the roof was 32 feet above the ground. One Bloomquist, a Granite City building inspector, testifying only from the photographic exhibit, estimated that the edge of the roof was 35 or 40 feet above the ground. From the same source he estimated that the pitch of the roof was 4 inches per lateral foot. In his opening statement, plaintiff’s counsel stated that the roof slanted but “it was not exceedingly steep.”

The roofing material consisted of corrugated sheets which were coated with an asbestos or a bituminous and asbestos material, at least upon the outer or upper surface as the sheets were laid. The sheets of roofing varied in length, and there is no agreement by the witnesses as to such dimensions. It is probable that a sheet 4 feet long was first laid at the lower edge of the roof, a sheet 7 or 8 feet long was laid next above it, and a third sheet 10 or 11 feet long was laid to the center ridge. The sheets were 30 or 33 inches in width and they were attached by screws to metal purlins which extended the length of the building.

In laying the sheets to form the roof, a crew of three men were employed. Two men, standing on the roof of an existing building, fastened the sheets to the purlins. Upon being so fastened, the sheets became a permanent part of the building, as there was nothing more to be done so far as the roof was concerned. The men moved upon these fastened sheets and worked from them to lay the next row or section of the sheets of roofing. Prior to the time of plaintiff’s injury, the roofing had been laid for a distance of 50 or 60 feet from the starting point.

The plaintiff, as the third man in the crew, had the duty of carrying the sheets as needed to the men who laid them. Sheets of roofing were stacked according to their respective sizes across the center ridge of the building at a point near the place where the work began, apparently resting upon a frame so that the sheets would lie flat. In performing his duties plaintiff would pick up a sheet and walk along the roof, carrying it to the other men. From his testimony it appears that he walked along the “upper part” of the roof, which we take to mean along the center ridge. No guardrails or other protective devices were in place along the edge of the roof or at any other place.

Plaintiff had been an ironworker for 13 years, climbing ladders, working on beams high in the air, and had had, upon other occasions, engaged in installing roofing of buildings in the manner generally described. He had known that work of this character was to be done and had purchased “some work shoes for that purpose 2 or 3 days before.” At the time of the injury he had replaced a man on this particular sheeting crew.

Just prior to the injury, the men engaged in fastening the sheets were some 50 or 60 feet distant from the stacks of sheets. Plaintiff picked up a sheet and started to carry it to the men. He testified that he did not know what caused him to fall, but “my footing got out from under me and I landed on my seat in a sitting position,” and he then slipped down the roof and over the edge, suffering severe injury. The two men in his crew saw or heard nothing of this event and learned that plaintiff had fallen when someone shouted from below.

The pleadings in this case consist in the following:

On October 19, 1962, plaintiff filed a suit against Granite City Steel Company, which alleged that plaintiff was working on the roof of the building being erected on the property of the defendant, and that by reason of the negligence of the defendant, the plaintiff fell a great distance from the roof to the ground.

On November 28, 1962, plaintiff filed an amended complaint against Granite City Steel Company, Bowman Steel Corporation and M. H. Wolfe & Company. (At the close of plaintiff’s evidence, the court directed a verdict in favor of Wolfe.) This complaint alleged that the plaintiff was working on the roof of the building erected under the control of Granite City Steel and that Bowman Steel Corporation was a contractor in charge of phases of the work; that the defendants negligently and carelessly carried out the work in such manner as to cause the plaintiff to fall from the roof of the building to the ground; that in the alternative, defendants, acting together or individually, wilfully violated the provisions of the Structural Work Act of the State of Illinois, and that as a proximate result plaintiff was caused to fall and sustained injury.

On June 6, 1963, plaintiff filed a second amended complaint against Granite City Steel Company and Bowman, alleging that the plaintiff was working on a steep roof of a building being erected under the control of Granite City; alleges the language of section 60 of the Structural Work Act; alleges that Bowman was in charge of the erection or building of the roof and that the defendants, jointly or severally, wilfully failed to furnish a scaffold or other mechanical contrivance to protect people working on the roof, and that as a result of the failure to furnish a scaffold, plaintiff fell from the roof sustaining injury.

On July 15, 1964, plaintiff filed a third amended complaint. After rulings by the court at the close of all of the evidence, the case went to the jury upon the Counts as follows:

Count I was directed against Bowman and alleged the provisions of section 60, chap 48 (Ill Rev Stats, 1965), the Structural Work Act; that Bowman was a general contractor for Granite City Steel for purposes of installing a roof on a certain building designated; that plaintiff was an employee of one Kroeger who had been hired by Bowman to lay the roof of the building with roofing material to be furnished by Bowman Steel according to plans and specifications supplied by Bowman and Granite City; that in the work of covering said building, it was necessary for persons employed thereon to use scaffolds, supports or other mechanical contrivances as a place to work while said work was progressing; that when the work commenced the roof of the “old building which was being extended” was used as a scaffold, support or other mechanical contrivance to work from and as the covering was placed on the extended building such covering was used as a scaffold or support for workmen to work on, and that the plaintiff was using such scaffold or support in the performance of his work; and that the defendant, Bowman Steel Company, failed to comply with the provisions of the Structural Work Act in one or more of the following aspects:

“A. By knowingly permitting the use, erection and construction of a scaffold, support or mechanical contrivance that was not erected and constructed in a safe, suitable and proper manner and was not so erected, constructed and placed as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon.
“B. By knowingly permitting the use, erection and construction on its premises of a scaffold, support or mechanical contrivance that was not erected and constructed in a safe, suitable and proper manner and was not so erected, constructed and placed as to give proper and adequate protection to the life and limb of any person employed or engaged thereon in that said scaffold was constructed so that the flooring on said scaffold was not level and in fact steep, making it highly likely that people working thereon would be likely to fall a great distance.”,

and that as a proximate result of defendant’s conduct, plaintiff fell from the roof, sustaining injuries.

Count III of the third amended complaint was directed against Granite City, alleging the provisions of the Structural Work Act and that Granite City was in joint charge of construction, repair or alteration of buildings as owner, that the plaintiff was employed by a subcontractor hired to cover the building and that in covering the building it was necessary for the persons employed thereon to use scaffolds or supports as a place to work while the work was progressing; and the Count continues to duplicate the allegations concerning the use of the roof of the old building and of the new building as the work progressed, and realleged the knowing failure to comply with the provisions of the Act in the language of the allegations against Bowman.

Defendant Bowman asserts in its brief and argument that the primary issue upon the pleadings is whether or not the completed portion of roof upon which plaintiff was working constitutes a scaffold under the Structural Work Act, (c 48, §§ 60-69, Ill Rev Stats, 1965); that such statute does not create a duty to furnish a scaffold; that the defendant Bowman had contracted away the erection of the roof and had no employee working thereon or supervising such work, so that it was not “in charge of” the construction.

The defendant, Granite City urges that the plaintiff failed to alleged or prove any cause of action against it under the provisions of the Act and that the trial court should have directed a verdict in its favor; that the roof on which plaintiff was working and from which he fell was not an instrumentality within the terms of the Act; that plaintiff’s injury was not caused by the insufficiency of any scaffold or support within the terms of the Act, and that under the evidence, it was not “in charge of” the erection of the roof on which plaintiff was employed.

This appeal directly raises the issue of whether or not the Structural Work Act applies to those circumstances where men work upon permanent structures. The pleading, as the case went to the jury, alleged that it was necessary to use scaffolds and that the roof of the building was so used. We understand that there is no controversy as to the fact that the sheets of roofing were permanently affixed and installed as a part of the building at the time the several workmen were upon the roof placing and fastening the next row of sheets.

If the allegations of the pleading that it was necessary to use a scaffold are taken to mean that there was a statutory duty to erect and construct a scaffold for the work being done upon this occasion, the recent authority of opinions of our courts are to the contrary. It has been held in Miller v. DeWitt, 59 Ill App2d 38, 208 NE2d 249, and Bradley v. Metropolitan Sanitary Dist., 56 Ill App2d 482, 206 NE2d 276, that section 1 of the Structural Work Act does not undertake to state or provide when or under what conditions a scaffold is required to be erected as a matter of statutory duty.

Upon the issue as to whether or not section 1 of the Structural Work Act operates or is applicable where men work upon a completed permanent structure, we must turn to and consider the language of the Act adopted in 1907. It appears that there has been no amendment of section 1 of the Act since the date of its adoption.

The operative words of section 1 specify scaffolds, hoists, cranes, stays, ladders, supports or other mechanical contrivances:

“. . . erected or constructed by any person . . . for the use in the erection, repairing, alteration, removal or painting of any house, building . . . shall be erected and constructed, in a safe, suitable and proper manner. . . .”

The Act does not undertake to define a scaffold or any of the other items referred to. The common meaning of “scaffold” as found in representative sources includes :

“A temporary platform, usually supported on poles, designed to hold workmen and materials employed in erection, repairing or decoration of a building.” (Shorter Oxford English Dictionary),

or

“A temporary wooden or metal framework for supporting workmen and materials during the erecting, repairing or painting of a building.” (Webster’s New World Dictionary of American Language.)

The connotation of the operative words, “. . . erected or constructed . . . for the use in the erection, repairing . . . ,” is that of a temporary erection for the express specific purpose of construction. The concept of the erection for such specific purpose is substantiated in the provisions of section 4 of the Act (c 48, § 63, Ill Rev Stats, 1965). It provides for inspection of scaffolding and the several items specified in the statute by the Director of Labor or the local authorities of municipalities charged with the duty of enforcing “Building Laws.” This section provides that if upon inspection such scaffolding or the companion items are found dangerous to life or limb, the authorities should notify the person responsible for the erection or maintenance, prohibit the use thereof, and the person responsible is required to remove the scaffolding or platform.

The latter section has not been amended by the Legislature in terms of its operative effect, the only amendment being to substitute the Director of Labor for an official formerly known as the Factory Inspector.

Having in mind the common meaning of the term “scaffold,” and the provision that upon notice the responsible person is required to remove the “scaffold” or “platform,” it is difficult to conclude that the intent or understanding of the Legislature was that the language of the Act applied to a fixed permanent structure, or that such a structure, or its parts, would be a scaffold or platform within the meaning of the Act.

No cases from our Supreme Court have been cited and we have found none which hold a permanent structure, or, as in this case, the roof of the building as permanently affixed is to be treated as a scaffold or as an item of the several categories set forth in section 1 of the Act. On the contrary, the several cases of our Appellate Courts cited and referred to, or developed through our own investigation, emphasize that the Act is applicable to the temporary structures erected for use as an incident to the construction work. In 1915, the Appellate Court, in Legowski v. Moreland & Co., 195 Ill App 377, appears to have decided that the Act was not applicable where a workman fell while working or walking upon certain uncovered joists, which was said to be a customary manner of working. Specifically, the court held that it was not error to give an instruction which “ignored” the Structural Work Act, and affirmed a verdict for the defendant. The opinion noted that the Act did not apply as the injury was not due to any defects of the “appliances” specified in the statute.

In the relatively current case of Thon v. Johnson, 30 Ill App2d 317, 174 NE2d 400, a certain wooden form had been prepared to be used in the pouring of a concrete floor. An electrician found it convenient to stand on the form, which gave way beneath him. The court held that the Structural Work Act was not applicable in that the context of the Act relates to structures erected for the support of workmen in the construction of the building.

It appears that the concept of a structural entity erected for use in the erection of the building is emphasized in the recent case of Miller v. DeWitt, 59 Ill App2d 38, 208 NE2d 249. In that case certain supports were constructed from tubular steel scaffolding and placed to support the trusses and roof of a building during the process of remodeling. These supports collapsed causing injury. It was the position of the defendant in that case that the supports were an integral part of the building and did not constitute a temporary structure designed and used in the construction of the building. The court held that the supporting structures were supports or stays as specified within the language of the Act and that the Act related to equipment used in the construction of the building. It further emphasized that the supports which collapsed were intended to be removed as soon as the permanent structure was completed and hence were not a permanent part of the building. The thrust of the opinion is that the Act applied because the supports described as shores were erected for use in the construction within the purview of the Act and were expressly distinguishable from “the integral and permanent part of the building.”

In its opinion the court stated that the statutory language is its best exposition and that absent a statutory definition, the usual meaning of words are to be employed. It would appear, therefore, that this opinion is authority for defining a scaffold in its common meaning as a temporary framework designed to be used in the course of construction of a building. This opinion notes Legowski v. Moreland & Company, and Thon v. Johnson, and distinguishes the facts in that opinion from those cases and to such extent approves them as authorities.

In Bradley v. Metropolitan Sanitary Dist., 56 Ill App 2d 482, 206 NE2d 276, plaintiff was injured while working in an excavation and was killed as a result of a cave-in. Plaintiff sought to recover under the Structural Work Act, it being the theory that the Act made it a duty to provide supports and sidings to prevent the cave-in. The court determined that the Act does not specify when supports or braces shall be used and that the injury did not result from the insufficiency of the supports because none had been used. The court said:

“Section 60 of the Illinois Structural Work Act only provides for protection when a scaffold or other contrivance is ‘erected or constructed.’ We cannot consider the mandatory requisites of the New York law in construing the provisions of the Illinois statute which apply only when a scaffold is used.”

The court’s understanding of the meaning of the Act is stated in the following language:

“From section 60 of the statute it would appear that its purpose is to give protection to persons employed on scaffolds or mechanical contrivances or passing under or by the same. The purpose may also be gleaned from other sections. Section 64 pertains to scaffolds on special types of structures such as water pipes, tanks and chimneys; it sets out requirements for a support or other suitable device below a scaffold to prevent injuries in the case of accidents to the working scaffold. The language of that section does not require that scaffolding be used on these projects; it merely requires that a safe subscaffolding be used if scaffolding in fact is utilized. Section 65 relates to flooring and beams and section 66 to elevating machines.”

It appears that the substance of the court’s opinion is that the statutory language is not to be broadened to include every place at or upon which a person may work.

In Bounougias v. Republic Steel Corp., 277 F2d 726, the court considered whether or not a crane affixed to rails suspended from the ceiling of a building was to be considered a scaffold when it was placed in position for use by workmen painting. The court emphasized that:

“It was positioned temporarily just as any scaffold would be constructed, or positioned temporarily to accomplish its purpose.”,

and determined that it had been literally erected and constructed for use in the painting.

Plaintiff strongly urges that the Bounougias v. Republic Steel Corporation constitutes authority which requires us to hold that the permanent roof was the equivalent of a scaffold or platform erected or constructed for use in the construction of the building. The opinion employs language which is considered to mean that “furnish” is synonymous with “erected and constructed,” and plaintiff argues that the roof was furnished as a scaffold or platform. The Bounougias opinion relies upon Schultz v. Ericsson Co., 264 Ill 156, 106 NE 236. The interpretation by the Federal Court in the opinion is not a precise statement of the holding of the Illinois Supreme Court in Schultz. That case was filed in the Municipal Court as a statement of claim alleging, “. . . failure to furnish him a proper, safe and sufficient scaffold upon which to work. . . .” It was contended that the allegations of the statement of claim were insufficient for failure to plead the Structural Work Act. The court pointed out that in the Municipal Court, claims of this class did not require written pleadings other than expressly prescribed and provided by rule; that the statement of claim need not set forth a cause of action with the particularity required of a complaint at law. Holding that there was a sufficient pleading of statement of claim under the Municipal Court Act, the court noted that the defendant was advised of the nature of the cause as the language “proper, safe and sufficient scaffold upon which to work” was almost in the language of the statute. It would thus appear that the authority for the language of the Federal Court is of doubtful relevance upon the issue at hand.

The plaintiff further urges that Oldham v. Kubinski, 37 Ill App2d 65, 185 NE2d 270, sustains his position. In that case the plaintiff workman was lifted some 12 feet in a bucket of a “loader” attached to a tractor. The thrust of that opinion is somewhat different from the issue here, for the amended complaint alleged use of a hoist, an item which is specifically included in the Act. The language of the pleading refers to the hoist being used as a scaffold or a working hoist, while the defendant denied that the machine was a scaffold or a hoist. There was an allegation of a duty to provide a safe and suitable hoist. The court determined that the defendant had knowledge of the fact that the machine was used to lift men to places where they might work. The opinion employed language noting that the machine was positioned temporarily as any scaffolding would be temporarily placed to accomplish its purpose, but explicitly noted, “It was not merely a part of the construction work itself.”

We have considered Skinner v. U. S., 209 F Supp 424, which plaintiff urges is persuasive in the instant case. Recovery under the Illinois Act was sought where ladders employed in painting were placed against large doors of a hangar which were electrically operated. It is noted that ladders are specifically included in section 1 of the Act. It appeared that under the arrangement in effect, representatives of the Government had the sole right to control the operation of the doors, and the mechanism used to control the doors. Despite evidence of certain precautions alleged to avoid the electrically operated movement of the doors, a door on which plaintiff was working was moved and, of course, such movement caused the ladder to fall. The court held essentially that while the United States was not technically in charge of the painting, it was in complete charge of the doors against which the ladders were placed, and the issue determined was, that for purposes of the Act it was in charge of the work being done. While there is language in the opinion describing the doors as an integral part of a scaffold, it does not seem that the opinion, in its entirety, can be said to be relevant to the issues in this case.

We have considered the opinion in Evans v. Portland Ry., Light & Power Co., 66 Ore 603, 135 P 206 (1913). It is urged that that case is conclusive upon the issue before us as there a man fell from a completed railroad trestle upon which he was working in connection with the construction of a power plant. The court used language to the effect that as long as the trestle was employed as a means of erecting the powerhouse, it was for that one occasion a scaffold or staging under the Oregon statute. That statute, however, has elements which are not included in the Illinois Act:

“All owners . . . engaged in the construction ... of any building . . . shall see that . . . scaffolding, staging or other structure more than 20 feet from the ground or floor shall be secured from swaying and provided with a strong and efficient safety rail or other contrivance so as to prevent a person from falling therefrom. . .

The plaintiff fell from the trestle which was some 20 or 22 feet above ground level. The issue before the court was the contention of the defendant that the language, “. . . other structure more than 20 feet from the ground . . .” should be interpreted only as applying to structures of the class of “scaffolding” and “staging.” It is in connection with such contention that the opinion equates the trestle, a permanent structure, with a scaffold, and the opinion actually holds that the trestle constituted a platform structure within the meaning of that statute. The Oregon statute, therefore, contains elements not present in the Illinois Act and the case is decided upon such elements.

To the same effect is Bridal Veil Lumbering Co. v. Pacific Coast Cas. Co., 75 Ore 57, 145 P 671 (1915). In that case the plaintiff fell from a flume which was more than 20 feet above the ground so that a handrail was required under the statute. We have also been referred to Koepp v. National Enameling & Stamping Co., 151 Wis 302, 139 NW 179 (1912). In that case the injuries resulted when plaintiff fell from an 11-foot ladder which had been placed upon a movable platform which itself extended some 20 feet above the floor. The court described the instrumentality as a scaffold and ladder combination. It appears that the opinion was actually undertaking to construe the scope and extent of the word “repairing” under the Wisconsin statute. It appears, therefore, that this opinion does not assist in the determination of the issues in this case.

It is urged strongly that this case should be viewed in the light of the fact that the plaintiff was engaged in an ultrahazardous form of work. As noted in Bradley v. Metropolitan Sanitary Dist., 56 Ill App2d 482, 206 NE2d 276, there is a distinction between a cause of action under the Structural Work Act and a cause of action for failure to provide a safe place to work. Here, Counts n, IV and VI contained allegations that plaintiff worked on a steep roof and that no scaffold was provided, while Count VII includes allegations that the work was ultrahazardous and that there was a duty to furnish a safe place to work, that there was a negligent breach of a duty, and that the plaintiff was free from contributory negligence. The trial court, however, at the close of all the evidence, withdrew these counts from the jury. There is no cross-appeal. This, together with the evidence, discloses that neither the plaintiff nor his associates at the time of the injury, made complaint of the working conditions, or requested safeguards of any sort. We do not hereby say that complaints of conditions or demands by workmen are essential to the determination of liability under the Act where its provisions are applicable. Here, however, the workmen were sophisticated and knowledgeable as to the work being done and plaintiff had been a member of the Iron Workers Union for 13 years and engaged in all forms of its work. These observations are limited solely to evaluating the contention that ultrahazardous work was engaged in as viewed by the trial court.

Plaintiff’s argument is that there should be a liberal construction of the statute to effectuate a legislative intent to provide for the protection of persons engaged in ultrahazardous work. The Illinois cases cited by plaintiff are not focused upon the problem at hand. Claffy v. Chicago Dock & Canal Co., 249 Ill 210, 94 NE 551, was an action resulting from the failure of a hoisting device and the issue was framed upon section 7 of the Structural Work Act. Schultz v. Ericsson Co., 264 Ill 156, 106 NE 236, and Kennerly v. Shell Oil Co., 13 Ill2d 431, 150 NE2d 134, are directly and explicitly concerned with a scaffold in the common definition. As stated in American Steel Foundries v. Gordon, 404 Ill 174, 88 NE2d 465, the rule of liberal construction does not permit either restriction or enlargement of the meaning of the terms of the statute, and it is not within the province of the court to take from, or enlarge, the meaning of a statute by reading into it language which will, in the opinion of the court, correct any supposed omission or defect. Rather, we must seek the construction of statutory language in the usual meaning attached to the words used. Blough v. Ekstrom, 14 Ill App2d 153, 144 NE2d 436, at p 162. In Larson v. Commonwealth Edison, 33 Ill2d 316, 211 NE2d 247, the Supreme Court spoke of liberal construction in its refusal to limit or restrict the meaning of the words “in charge of” by adding the connotation of exercising supervision and control. In distinction, we are here asked to add new connotations to the language of a statute which does not require that scaffold or comparable appliances be used, and which specifies the instrumentalities, each with its own use, and an apparent usual meaning, none of which suggest or connote a structure of the sort now at issue. As was said in Reed v. Johnson, 55 Ill App2d 67, 204 NE2d 136, at p 75, it is possible that the Structural Work Act, enacted as it was before the Workmens Compensation Act, is a proper subject for legislative review and clarification, but we, as a court, cannot perform the functions that properly fall within purview of the Legislature. For the reasons herein set forth, the judgment of the trial court is reversed.

SMITH, J., concurs.

CRAVEN, J.,

dissenting:

The Illinois Structural Work Act is an Act to provide “for the protection and safety of persons in and about construction, repairing, alteration or removal of buildings, bridges, viaducts, and other structures,” as indicated by its title. (Ill Rev Stats 1963, c 48, § 60 et seq.) It was stated in the first case interpreting the Act that an examination of the entire Act “will clearly show that it was the intention of the legislature to require owners and contractors constructing, repairing, altering or painting the buildings and structures mentioned in the act, to provide for the protection and safety of the men engaged in the work.” Claffy v. Chicago Dock & Canal Co., 249 Ill 210, 94 NE 551 (1911).

It is obvious that the legislature has recognized dangerous and extrahazardous occupations and has, by this legislation, attempted to reduce the hazard to the fullest extent possible (Schultz v. Henry Ericsson Co., 264 Ill 156, 106 NE 236 (1914); Kennerly v. Shell Oil Co., 13 Ill2d 431, 150 NE2d 134 (1958)). The language of the Act should be construed to give effect to this legislative intention, which is ascertainable not only from the language of the Act but from the evil to be remedied and the object to be obtained. Brackett v. Osborne, 44 Ill App2d 441,195 NE2d 8 (1963).

In view of this expression of legislative purpose and the previous decisions mandating a liberal construction of the Act, I am unable to agree with the majority opinion that the roof involved in this case is excluded from the Act by reason of the fact that it is a part of the permanent structure of the building. To so hold frustrates, rather than effectuates, the purpose of the statute.

The case of Thon v. Johnson, 30 Ill App2d 317, 174 NE2d 400 (1961), held that a form constructed to hold concrete for a landing at the top of a stairway from a garage to a basement, into which form the plywood bottom had not yet been placed and the concrete poured, was not a scaffold within the meaning of our Act. On the facts in Thon, the form was not furnished as a place to work. The plaintiff in that case, an electrician, made use of the form as a place to work and was injured. The court, in reversing a judgment for the plaintiff, observed that a contrary holding “would be the equivalent to holding that each and every place where a workman chooses to stand thereby becomes a scaffold within the meaning of the statute.”

Thon is substantially different from the facts in the instant case. Here the roof was furnished as a place to work and its temporary use as a place to work in the process of construction was obviously contemplated by all parties. The statutory language of “ ‘erected and constructed’ means furnished, and it was furnished.” Oldham v. Kubinski, 37 Ill App2d 65, 185 NE2d 270 (1962); Bounougias v. Republic Steel Corp., 277 F2d 726, CA 7th, Ill.

I would agree that a workman cannot, by the use of a permanent part of a building for scaffold purposes, convert the same into a scaffold or other contrivance, within the scope of the statute, merely by so using it, as was held in Thon. See also Broderick v. Cauldwell-Wingate Co., 301 NY 182, 93 NE2d 629. However, when a permanent portion of a building or structure is furnished as a place to work for work that would otherwise require construction of a temporary scaffold or other contrivance, within the purview of the statute, it should not be excluded from this safety statute merely because it is a part of a permanent building.

Thon is annotated at 87 ALR2d 973. At pages 983, 984 of that annotation, it is stated:

“It has sometimes been argued, usually with little success, that the defective apparatus responsible for the injury is not a scaffold because it is part of the permanent building or structure under construction rather than the temporary platforms contemplated by the statute.
“Where the defendant contended that an injury caused by a brick falling from a platform consisting of loose sheathing boards laid across the roof joists of a building to provide a working area for bricklayers could not provide a basis for recovery under the New York Scaffold Law because the platform was not a scaffold, since the loose boards forming it were intended to be a permanent part of the building and were to be ultimately nailed down by carpenters, it was held in Carpenter v. Burmeister (1925) 217 Mo App 104, 273 SW 418, that even though the boards were to be used permanently, they constituted a temporary scaffold for brick layers at the time of the accident.
“Planking intended to be ultimately nailed down as part of the flooring in a coal trestle being constructed by the defendant and which at the time of the accident was laid loosely over the floor joists to permit workmen to walk back and forth was a scaffold, held the Court in Ross v. Delaware, L. & W. R. Co. (1921) 231 NY 335, 132 NE 108, saying that the planks were not a permanent part of the flooring but were a temporary device to allow workmen to accomplish their jobs high above the ground.”

As stated in Thon, there is little authority in Illinois as to what is or is not a scaffold within the meaning of the statute. Each case must necessarily be determined upon its own set of facts. The authorities in the cited ALE annotation suggest that, in making this determination, consideration should be given to the elements of danger contemplated by the statute, as well as the nature and use of the device. The temporary or permanent nature of the device or contrivance should be only a factor in determining whether it is within the statutory language, which includes “scaffolds,” “hoists,” “cranes,” “stays," “ladders,” “supports,” or “other mechanical contrivances,” erected or constructed, i. e., furnished, for the use in the erection, alteration, or removal of any house or building.

Other issues presented by this appeal, relating to the question of whether or not the defendants were in charge of the work, were properly submitted to, and determined by, the jury under the authority of Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247 (1965).

For the reasons stated, I would affirm the judgment entered upon the verdict.


source: Caselaw Access Project

author: MORAN, J.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiffs-Appellees, v. Victor Lee Johndrow, Defendant-Appellant.
    Gen. No. 65-42.
    Fifth District.
    May 19, 1966.
    Edward D. Groshong, of East Alton, and Emerson Baetz, of Alton, for appellant.
    Joseph R Bartylak, State’s Attorney of Madison County, of Edwardsville (Leon G. Scroggins, Assistant State’s Attorney, of counsel), for appellees.
   MORAN, J.

Defendant-Appellant was found guilty of the crime of abortion in a jury trial in the Circuit Court of Madison County and sentenced to serve not less than three years nor more than six years penal confinement.

Ronald Stamper, an unmarried male, was responsible for the pregnancy of an unmarried eighteen-year-old girl. He testified that he went to the defendant’s home in Cottage Hills, Illinois, and purchased several capsules to prematurely terminate the girl’s pregnancy. When the capsules proved ineffective, he returned to the defendant who recommended surgical interruption of the pregnancy and told Stamper to rent a motel room and then “call me up and give me the number.” Stamper rented a room at the Two Brothers Motel, called the defendant and agreed that he and the girl would meet the defendant at the motel at 8:30 Sunday evening, June 7,1964.

Both Ronald Stamper and the girl testified they met the defendant at the prescribed time and place. The defendant, after describing the aftereffects of the “operation” to the couple, went to his car and returned carrying a clamp-on spotlight and a bag of instruments. Stamper then paid the defendant $150 for the “operation,” and, at the girl’s request, left the room during the “operation.”

The girl testified that the defendant took a chair and turned it with the back toward the bed. He then attached a lamp with a round face, like a spotlight, to the chair and put a towel on the end of the bed. He then went into the washroom and washed some shiny things that looked like surgical instruments.

The girl testified that the defendant seated himself astride the chair at the foot of the bed on which she was lying, with the spotlight clamped to the back of the chair. He then used “(w)ell, he used something like tongs with, you know, things with prongs on them— two ends to them, to open me up before he could put the tube in.” He then inserted the tube which was wrapped with toilet tissue into her vagina. He clipped off the end of this tube, leaving the remainder of the tube in the uterus.

Several days later the girl entered St. Joseph’s Hospital in Alton, Illinois, complaining of extreme discomfort ; she was suffering from loss of blood and peritonitis. Dr. Allen, one of the two gynecologists who attended the girl, testified she was suffering the aftereffects of an abortion. The fetus had been expelled as a result of the “operation,” but the unexpelled placenta caused infection, high fever and hemorrhaging.

When information of the abortion was communicated to the police, a search warrant was issued; a search conducted pursuant thereto uncovered a clamp-on spotlight and surgical instruments in the defendant’s car and home. Several of the surgical instruments were designed for use in vaginal surgery, including a bivalve speculum, and three different types of uterine dressing forceps. These were introduced into evidence over the objection of defendant.

Dr. Allen identified one of the instruments as being a bivalve speculum which is used in the medical profession to visualize the cervix of the uterus by insertion into the vagina; another instrument as a uterine dressing forceps; another as a uterine dressing forceps with a different curvature and another as a straight uterine dressing forceps. He also identified another object as a rubber catheter used to drain the bladder but which could be inserted into the uterus to act as a foreign body and produce abortion. The trial judge sustained defendant’s objection to the introduction of this exhibit into evidence. Dr. Allen also stated that there were two small puncture marks on the girl’s cervix which could only have been made by a tenaculum, an instrument used in vaginal surgery. The search, of defendant’s car and home failed to produce such an instrument.

Defendant testified he had never seen Ronald Stamper or talked with him on the phone. Ronald Stamper’s telephone bill shows two toll calls from Stamper’s Bridgeton, Missouri, number to the defendant’s Illinois number on June 9, 1964, and June 11, 1964. Defendant denied performing an abortion on the girl and denied ever seeing her. The girl, however, identified the defendant by his looks and voice in a “lineup” conducted in her hospital room.

Defendant first contends that it was prejudicial error to introduce the surgical instruments into evidence because the doctor testified that the marks on the girl’s cervix could only have been caused by a tenaculum.

The indictment charges the offense of abortion “in that he used an instrument, a further description of which is unknown to the grand jury.” Dr. Allen testified that in his expert opinion the marks upon her cervix could only have been made by a tenaculum; he did not testify a tenaculum had to be or was the only instrument that could have been used in the abortion. The girl testified that the defendant washed several glittering surgical instruments in the basin at the motel; that one of these instruments was “a thing like tongs with prongs on them” which was used to open her up before he could insert the tube.

In our opinion these instruments were admissible in evidence to show that the defendant could have used one or a combination of them to commit the abortion. Wharton, Criminal Evidence, 12th Edition, Volume I, page 298. Not every forty-year-old roofer possesses instruments commonly used by the medical profession for vaginal surgery. This evidence also corroborates the girl’s testimony concerning the type of instruments used upon her in the abortion. The relevancy of the evidence to the case is clear.

The defendant also contends that Ronald Stamper was an accomplice in the abortion and when the People’s case is based upon the testimony of an accomplice, a mandatory, cautionary instruction concerning the accomplice’s testimony must be given. Such an instruction was offered by the defendant’s counsel and refused by the trial judge.

Since this contention was not made or advanced in the defendant’s post-trial motion for a new trial, it is deemed waived. People v. Irwin, 32 Ill2d 441, 207 NE2d 76, and cases cited therein.

For the foregoing reasons the judgment of the Circuit Court of Madison County is affirmed.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


text:
    Charles Johnston and Kathleen T. Johnston, His Wife, Plaintiffs-Appellants, v. East St. Louis Illinois Homes, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 65-27.
    Fifth District.
    May 26, 1966.

      Jones, Ottesen & Fleming, of Belleville (Ralph J. Derango, Jr. and Patrick J. Fleming, of counsel), for appellants.
    John J. Hoban, of East St. Louis, for appellee.
   MORAN, J.

This is an appeal from the Circuit Court of St. Clair County, Blinois, from the dismissal of the appellants’ complaint in an action to construe certain Bond for Deed contracts and payments thereunder as equitable mortgages.

The principal issue on appeal concerns the extent to which a judgment of a court of limited jurisdiction must be pleaded in order that it may act as a bar to a subsequent action under the principles of res judicata.

The appellants, Charles and Kathleen Johnston, entered into three separate Bond for Deed contracts with the appellee, East St. Louis Homes, Inc., for the installment purchase of three parcels of real estate, the purchase prices of which were $17,950, $23,517.50 and $5,950. Subsequently, the appellants fell behind in their payments and on June 1, 1964, after a period of default on each contract, the appellee filed a forcible entry and detainer action against them. The down payments and principal payments on each piece of property amounted to $2,020.53, $5,608.84 and $1,510.94, respectively. A judgment for possession was entered against the appellants on June 22,1964. However, the appellants remained in possession of two of the pieces of property and made additional payments totaling $725 which the appellee accepted.

Eighty-one days later, the appellee received a writ of restitution. Eight days later, on September 16, 1964, the appellants initiated the present action to have the Bond for Deed contracts construed as equitable mortgages, and an injunction was granted restraining the appellee from taking any additional action to repossess the two pieces of property under the control of the appellants. Thereafter, the appellee moved to strike the complaint, stating the date of entry, cause number, and general nature of the forcible entry and detainer action and alleging that service was obtained, that Charles Johnston was present at the trial of the action before a magistrate, that he admitted that the appellants were in default, that a judgment for possession was entered in favor of the appellee, that, after waiting for eighty-one days within which the appellants neither filed a motion for a new trial nor filed a notice of appeal, the appellee obtained a writ of restitution, and that the judgment in the forcible entry and detainer action is a final judgment and constitutes a bar to the present action.

On December 4, 1964, the court granted the appellee’s motion to strike the complaint and dissolved the injunction. The appellants’ motion to vacate the order dismissing their complaint was denied by the trial court because “they failed to pursue their remedies and allowed a judgment for possession to be entered against them and because they requested the lower court to re-open a case which had been reduced to final judgment without any attempt to appeal or to perfect an appeal on their part.” An appeal was then taken to this court.

Appellee relies upon S. H. A., chapter 57, section 13 (which became effective on August 14, 1961). In substance, section 13 provides that, in a forcible entry and detainer action involving contracts for the sale of land, a stay of at least sixty days shall be granted. Where more than twenty-five percent of the contract price has been paid, a stay of one hundred and eighty days shall be granted unless the court grants a shorter period due to special circumstances. It also provides that, if any action at law or in equity is brought, it must be brought within the period of the stay. Otherwise, all rights in and to the property in the purchase shall cease.

The appellee has relied upon the statute as a defense to the present action, but has not made reference to the whole statute, especially the section dealing with a stay when twenty-five percent of the contract price has been paid. Therefore, the real issue on this appeal is whether appellee has properly pleaded the aforesaid judgment in the forcible entry and detainer action as a bar to the present action. S. H. A., chapter 57, section 13, for example, provides that a stay of sixty days be granted in cases involving a breach of a contract for the purchase of land. In addition, if more than twenty-five percent of the contract price has been paid, a stay of one hundred and eighty days shall be granted unless reduced (not below sixty days) by the court for good cause. In this case, the first two pieces of land were less than twenty-five percent paid. ($17,950/$2020.53; $23,517.50/$5,608.84; $5,950/$1510.94.) However, in the appellee’s motion to strike the appellants’ complaint, there was no mention that any stay was issued at any time. There was merely the statement that the appellee waited eighty-one days before obtaining a writ of restitution. Indeed, if no reduction in the one hundred and eighty day stay had been granted with regard to the third piece of property, the appellee’s obtaining a writ of restitution would have been premature.

As has been the law in Illinois for some time, there are no presumptions in favor of the jurisdiction of courts of limited jurisdiction. In Illinois Cent. R. Co. v. Hasenwinkle, 232 Ill 224, 83 NE 815 (1908), a proceeding of ejectment wherein the plaintiff pleaded a former judgment as a proof of his title, the court held:

The law presumes nothing in favor of the jurisdiction of a court exercising special statutory powers . . . and the record must affirmatively show the facts necessary to give jurisdiction. The record must show that the statute was complied with and the land condemned in the mode thereby prescribed. . . . (232 Ill at 227.)

Similarly, in City of Chicago v. Hitt, 334 Ill 619, 166 NE 517 (1929), the court held:

Nothing is taken by intendment in favor of the jurisdiction of a court of limited jurisdiction, or of a court of general jurisdiction while exercising special or limited power. In the latter case, the record must show the facts which authorize the court to act. (334 Ill at 628.)

This principle has been affirmed in a recent adoption case, Oeth v. Erwin, 6 Ill App2d 18, 126 NE2d 526 (4th Dist 1955), and in a recent criminal case, People v. Nunes, 58 Ill App2d 55, 207 NE2d 143 (1965).

There is no doubt that a forcible entry and detainer action is a proceeding of special and limited jurisdiction. In City of Chicago v. Chicago S. S. Lines, Inc., 328 Ill 309, 159 NE 301 (1927), the court held:

It has been repeatedly decided by this court that an action of forcible entry and detainer is a special statutory proceeding summary in its nature and in derogation of the common law, and that our courts do not proceed thereon by virtue of their power as courts of general jurisdiction but derive their authority wholly from the statute, and in such a proceeding they are to be considered and treated as a court of special and limited jurisdiction . . .
The action being a special statutory proceeding in derogation of the common law, the statute must be strictly followed as to the remedy pursued. (159 NE at 303, 304.)

This principle and decision was affirmed in Robinson v. Robinson, 329 Ill App 515, 69 NE2d 904 (1946).

In Svalina v. Saravana, 341 Ill 236, 173 NE 281 (1930), the court held:

The burden of establishing estoppel is upon him who invokes it. In order that a judgment or decree shall operate as an estoppel it must either appear on the face of the record or be shown by extrinsic evidence that the precise question was raised and determined in the former suit.

Similarly, in Board of Directors of Chicago Theological Seminary v. People ex rel. Raymond, 189 Ill 439, 59 NE 977 (1901), the court stated the general rule that:

The burden of proof is always upon the defendant, who pleads res judicata because of a former judgment, to set up that judgment, and show what was determined by it, and what is common to the subsequent action. The proof must be clear, certain, and convincing. (59 NE at 979.)

This principle finds support in White v. White, 28 Ill App2d 19, 169 NE2d 839; Brown v. Brown, 286 Ill App 471, 3 NE2d 945 (1936) and in Ramsay v. Ramsay, 10 Ill App2d 459, 125 NE2d 172 (1956).

The appellee in this case has the burden of proving that the judgment in the forcible entry and detainer action was duly given and made; that the statute which gave the prior court jurisdiction was fully complied with, and that the judgment decided the question raised before the court in the subsequent action, thereby acting as a bar. Appellee has not sustained his burden.

For the foregoing reasons the judgment of the Circuit Court of St. Clair County is reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

EBERSPACHER and WRIGHT, JJ., concur.

       The new amendments have been interpreted to be a statutory quiet title action. Writing in 53 Ill BJ 196, 197, Robert Kratovil, General Counsel of the Chicago Title Insurance Company, has said that:
      It allows the court to give the buyer a grace period before the writ of restitution issues and reinstates the contract if full payment is made during the grace period. . . . The philosophy appears to be that the swift and summary eviction procedure available in forcible entry and detainer actions may be necessary to assist landlords against defaulting tenants but should be tempered where a contract purchaser is involved. The law goes on to say that if defaults are not cured during the grace period the contract shall cease and determine. To this extent the law seems to be a statutory quiet title action.


author: STOUDER, J.

text:
    William R. Eberle and Marie C. Eberle, Plaintiffs and Counterdefendants-Appellees, v. William J. Greene and Onetta Mae Greene, Defendants and Counterclaimants-Appellants.
    Gen. No. 65-53.
    Third District.
    May 19, 1966.
    Rehearing denied June 10, 1966.

      Harry B. Hoffman and Hollis W. Benjamin, of Peoria, for appellants.
    F. B. Brian and Donald D. Rumley, of Toulon, and Harry C. Heyl, of Peoria, for appellees.
   STOUDER, J.

This is an appeal from an order of the Circuit Court of Stark County finding Defendant Greene, guilty of contempt of court and finding Plaintiff Eberle, not guilty of contempt. The parties will be referred to as Plaintiff and Defendant although a counterclaim in which the Defendant is counterplaintiff and Plaintiff counterdefendant is also involved in this appeal. Defendant was committed to jail until he purges himself of contempt, and ordered to pay $6,257.81 to Plaintiff as damages.

This litigation originated as a controversy over the drainage of surface water over and across the abutting farms of the parties. On January 16, 1959, the Circuit Court of Stark County entered a decree in which it found that each party had improperly interfered with the surface water drainage. The decree directed that the Defendant restore the elevation and conditions existing along the division fence to those which existed in 1947, particularly describing removal and restoration of a dam near the mid point of the division fence. Defendant was ordered to maintain such 1947 conditions excepting modifications from natural causes. Plaintiff was ordered to discontinue discharging subsurface water into the surface drainage system and also to remove obstructions which interfered with the natural flow of surface drainage into an adjacent roadside ditch.

On appeal to the Supreme Court the 1959 decision of the Circuit Court was affirmed in Eberle v. Greene, 18 Ill2d 322, 163 NE2d 822. The facts giving rise to the controversy are set forth in the aforementioned Supreme Court opinion and do not need restatement in this opinion. After the Supreme Court had affirmed its decree, the Circuit Court, in September 1960, ordered writs of injunction against each party in the same terms as the decretal portion of the 1959 decree. In November 1960, Plaintiff commenced this proceeding for contempt, alleging that Defendant had failed to comply with the injunction. Defendant filed his answer denying Plaintiff’s petition and counterclaimed that Plaintiff had failed to comply with the injunction against him. Hearing on the contempt matters was referred to a Special Master. The Master’s report was set aside but no question of the propriety of such order is presented by either party in this appeal.

In October and November of 1963, upon application therefore, the court ordered that each party permit inspection of his property by the other. In December 1963, Defendant filed a petition alleging that Plaintiff had failed to comply with the inspection order. The petition requested that Plaintiff be cited for contempt of the inspection order, or, in the alternative that the evidence which Plaintiff had obtained in the inspection of Defendant’s premises be suppressed. Plaintiff filed no responsive pleading to this petition.

In March 1964, Plaintiff filed his motion asking that the reference to a Special Master be vacated and that the matter be set for hearing before the court. Defendant filed an answer and countermotion asking that hearing be stayed pending hearings on his petition to suppress evidence and also on a pending collateral title action. The collateral title action referred to and described in the countermotion, was an action commenced by Defendant in October 1963, against Plaintiff. In said action Defendant alleged that Plaintiff had rebuilt the east half of the division fence in 1948 and that the Defendant had discovered in 1963 that such portion of the fence was located as much as 12% feet north of the common north-south boundary of the parties. No responsive pleading was filed to the answer and countermotion. On April 29, 1964, the court denied Defendant’s motion for stay of hearing, revoked the reference to a Special Master, and set the contempt petitions for hearing on May 24,1964, before the court.

Defendant’s first two assignments of error are based on the court’s order of April 29, 1964, which, in denying Defendant’s countermotion, refused to stay the hearing on the main contempt actions as requested by Defendant. Defendant argues that since responsive pleadings were not filed either to his petition for suppression of evidence or to his countermotion for a stay of the hearing, the allegations of the countermotion are deemed admitted and the court’s disregard thereof was error. In support of this contention Defendant relies on Illinois Revised Statutes 1963, chapter 110, paragraph 40(2) which provides, “Every allegation, except allegations of damages, not explicitly denied is admitted, unless the party states in his pleading that he has no knowledge thereof sufficient to form a belief, . . . .” In the application of this principle Laegeler v. Bartlett, 10 Ill2d 478, 140 NE2d 702, holds that if the affirmative defense of payment is not denied in a responsive pleading it is error for the court to disregard such affirmative defense.

The legal effect of undisputed allegations must be determined by the court. The petition for the suppression of evidence which Defendant filed in December 1961, alleged factually, violations by Plaintiff of the inspection order. Without necessarily determining the veracity of such allegations, we believe they were sufficient to require a determination by the Trial Court of their effect. As a pending preliminary matter, we believe Defendant was entitled to a consideration of and a ruling on his petition prior to a hearing on the main actions. We find no support in the record as argued by Plaintiff that Defendant had waived such determination. On the contrary the matter was brought to the attention of the Trial Court at an appropriate time and regardless of the ultimate merits of his petition, some disposition should have been made of the matter.

With respect to the second portion of Defendant’s answer and countermotion, namely that dealing with the pendency of a collateral title action, we believe that other considerations are involved. Defendant argues, based on the uncontradicted allegations in his answer and counter-motion, that if the division fence is not located on the legally described boundary as found in the decree of 1959 then a latent ambiguity exists in said decree. It follows, according to Defendant, that the issue of latent ambiguity should be resolved by hearing his pending collateral action first, or, in the alternative, that such latent ambiguity, making compliance with the decree impossible, could and should be deemed a def ense in the contempt action.

Even though we assume the truth of Defendant’s allegations, namely that the east half of the division fence was improperly located, we do not find that the Trial Court committed any error in its rulings on Defendant’s assertions. In the first place the decree of 1959 did not require any particular conduct by Defendant in relation to the east half of the division line fence. In the second place Defendant, by his own testimony as well as the evidence of others, claims full compliance with the court’s decree. In this connection it is clear from the evidence that Defendant claimed full and complete compliance with the decree of 1959 long before his discovery of the apparent improper location of the eastern portion of the fence. Under such circumstances we can only conclude that the improper location of the east half of the division line fence in fact did not have and could not have any effect on Defendant’s conduct and hence the issue of latent ambiguity was immaterial.

Defendant next contends that the court erred in admitting and excluding evidence and that therefore its order finding Defendant guilty of contempt and Plaintiff not guilty of contempt was erroneous. In its decree of 1959 the Trial Court in its findings determined the dominant and servient surface water drainage relationships between the properties of the parties as it existed in 1947. The significant findings of said decree are, that in times of moderate or heavy rain, surface water from Plaintiff’s property flowed under and through the division fence at various points of the west 90 rods thereof. Also at times of moderate or heavy rainfall, surface water from Plaintiff’s property flowed under the division fence at the 90 rod point in a depression having width and depth, and further that the obstruction of said channel by a dam constructed by Defendant was improper. The decretal portion of the decree of 1959 and the injunction issued thereafter, ordered restoration of the conditions and elevations along the division fence line to those existing in 1947 and in particular directed removal of the dam as an incident to such restoration. Defendant was also permanently ordered to maintain such conditions along the division fence, excluding changes resulting from natural causes.

Where resort is had to contempt proceedings to secure obedience to the decree of a court, the merits of the original controversy cannot be relitigated. The court’s inquiry is limited to a consideration of whether or not there has been obedience or compliance with its decree. The decree itself furnished the basis for the conduct required and only evidence relevant to such required conduct that is evidence of compliance or noncompliance is properly admitted and considered by the court. The determination of conditions along the division fence as they existed in 1947 was the issue decided by the court in its decree of 1959 as set forth in the findings of the decree. Accordingly Defendant’s obligation of restoration was limited to and measured by the conditions as found in the decree. Since reconsideration of the conditions existing in 1947 was not an appropriate issue in the contempt action we believe that the court properly excluded evidence offered by Defendant dealing with 1947 conditions along the division line. By the same token if evidence of 1947 conditions offered by Defendant was properly excluded like evidence offered and introduced by Plaintiff should have been excluded. From an examination of the record it appears that the court by permitting the interjection of considerable evidence of 1947 conditions failed to consistently adhere to the limited issue involved, namely compliance with its decree.

That the court appears to have been unduly and improperly preoccupied with evidence as it related to 1947 conditions is shown by its ruling on the testimony of witnesses Halvorson and VanLaningham. Halvorson, a licensed land surveyor, testified that he had made a survey of Defendant’s property in August of 1963 and had prepared a plat showing the elevations at points along and near the division line fence. Although Halvorson’s plats were admitted into evidence the court sustained objections to questions asking for his description based on visual observation of the conditions along the division fence. The court based its ruling on the fact that the witness had no knowledge of the conditions as they existed in 1947. We are unable to understand the Trial Court’s reasoning in excluding this witness’s testimony. Evidence from which Defendant’s conduct can be inferred subsequent to the decree of 1959 is material and relevant. What Defendant did or did not do in his efforts to comply with the 1959 decree is the issue. Likewise we believe that the court improperly sustained objections to the testimony of VanLaningham. Again the court considered the lack of knowledge or absence of an opinion of 1947 conditions a disqualification. In addition, although this witness was an expert on soils, erosion and the like, the court did not consider the issue of natural changes along the fence row material and declined to hear testimony on this point. Since the 1959 decree itself referred to changes by natural causes, the issue was material and we do not believe this testimony should have been excluded because the court feared it “might be plagued by experts.”

Lastly we consider Defendant’s contention that in a contempt action the award of damages to the Plaintiff is erroneous. In Nusbaum v. Retail Clerks’ International Protective Ass’n, 227 Ill App 206, the court holds that in a civil contempt proceeding, injury is presumed from a violation of the court’s decree and hence damages are not a proper issue. The enforcement of a court’s decree by civil contempt is not the enforcement of a private right but rather the process of the court to secure obedience to its decrees, the benefit to the party invoking the aid of the court being merely incidental. In A. R. Barnes Co. v. Chicago Typographical Union No. 16, 232 Ill 402, 83 NE 932, the court states “There is no statute in this State which authorizes the appropriation of a fine imposed for a contempt of court, to the party injured by the act constituting the contempt or who prosecutes the proceeding for contempt.” Our Supreme Court in Rothchild & Co. v. Stegar Piano Co., 256 Ill 196, 99 NE 920, reviewed the principles and rules governing civil contempt as applied by the Elinois Courts and rejected the applicability of federal law. The established rule in Elinois is that the court may imprison or fine for contempt of its orders but is without authority to recompense Plaintiff for his damages. Accordingly the award of damages in this case was erroneous.

Since we find error in the order of the Circuit Court of Stark County said order is reversed and the cause is remanded to said court with directions to proceed in accordance with the views herein expressed."

Reversed and remanded.

CORYN, P. J. and ALLOY, J., concur.