# Carruthers v. B. C. Christopher & Co.

> Illinois Supreme Court · May 29, 1974 · 57 Ill. 2d 376

URL: https://www.frixlaw.com/law-library/cases/9706766

## Case

- **Full name:** RAY CARRUTHERS, Appellee, v. B. C. CHRISTOPHER & COMPANY Et Al., Appellants
- **Court:** Illinois Supreme Court
- **Decided:** May 29, 1974
- **Citations:** 57 Ill. 2d 376; 313 N.E.2d 457; 1974 Ill. LEXIS 410
- **Precedential status:** Published
- **Opinion:** Dissent by Goldenhersh
- **Judges:** Davis, Goldenhersh
- **Cited by:** 254 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9706766

## Opinion text

MR. JUSTICE GOLDENHERSH, dissenting:
I dissent. The affidavit filed in support of the motion for summary judgment failed to comply with Rule 191, which provides that “Affidavits in support of and in opposition to a motion for summary judgment under section 57 of the Civil Practice Act *** shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto. If all of the facts to be shown are not within the personal knowledge of one person, two or more affidavits shall be used.” (50 Ill.2d R. 191.) The affidavit contains the following “factual” statements:
“7. Neither he nor any other employee, agent or officer of B. C. Christopher and Company gave any directions to the plaintiff or to Kenneth Compton concerning the performance of the work, gave no orders to them, furnished no equipment to them, exercised no control over the doing of said work and they were not in charge of the work.
8. The persons who were in charge of the work were Okaw Valley Construction Company and its foreman Kenneth Compton.
9. Some time after the work was performed Okaw Valley Construction Company submitted a bill to B. C. Christopher and Company for performing this work in the amount of $708.65 which bill was subsequently paid by B. C. Christopher and Company.
10. Inasmuch as this affiant and B. C. Christopher and Company gave no orders or directions concerning the performance of this work or any aspect of the work, they were not persons in charge of the work and they exercise no control over the work.”
These statements are clearly conclusional and argumentative, and are not statements of fact. Nowhere in the affidavit is it stated that the affiant if sworn as a witness can testify to the “facts” contained therein.
The discovery deposition of Johnny Shanks, whose affidavit was filed in support of the motion, shows that the plaintiff and Kenneth Compton, employees of Okaw Valley Construction, were sent to defendant’s premises for the purpose of turning the spouts on defendant’s grain bins. There was no written order or agreement covering the work to be done, but the objective was to turn the spouts approximately 180 degrees to stop leakage of the grain stored in the bins. As Shanks put it, “They were worn out. You turn them over, put the hole on top, and that keeps them from grain leaking out on the ground.”
The effect of the majority opinion is to hold that because the defendant did not supervise the work, it could not, as required by the Structural Work Act, be a person “having charge” thereof. This is clearly contrary to our prior holdings. In Larson v. Commonwealth Edison Co., 33 Ill.2d 316, at 321 , the court said: “While it may be conceded that some of the decisions in this jurisdiction involving the Scaffold Act appear to have equated ‘having charge’ with ‘supervision and control’ in varying degrees, it is our opinion the language of the statute, and the legislative intent it reflects, do not permit the conclusion that the terms are the inflexible and unbending legal equivalent of the other. The term ‘having charge of’ is a generic term of broad import, and although it may include supervision and control, it is not confined to it. As was said of the word ‘charge’ in People v. Gould, 345 Ill. 288 , 323: ‘The word does not necessarily include custody, control or restraint, and its meaning must be determined by the associations and circumstances surrounding its use. “To have charge of” does not necessarily imply more than to care for or to have the care of.’ Thus, while the actual exercise of supervision and control over the work and the persons doing it, or the retention of the right to so supervise and control, may be factors bearing on the ultimate factual question of whether an owner is ‘in charge,’ they are not necessary or conclusive factors, nor is either made a sine qua non for liability under the statute. Rather, consistent with its beneficient purpose of preventing injury to persons employed in the extra-hazardous occupation of structural work, the thrust of the statute is not confined to those who perform, or supervise, or control, or who retain the right to supervise and control, the actual work from which the injury arises, but, to insure maximum protection, is made to extend to owners and others who have charge of the erection or alteration of any building or structure.”
In Miller v. DeWitt, 37 Ill.2d 273 , defendant architects, not concerned with overseeing or inspecting the work involved, were held liable for the reason that they had the right to stop the work. In this case, no mention is made whether defendant had the right to stop the work and certainly no one would question an owner’s legal right to terminate, for cause, the work being done, at any time.
In Fooden v. Board of Governors, 48 Ill.2d 580 , and Barnes v. Washington, 56 Ill. 2d 22 , this court has adopted a concept concerning summary judgment which is contrary to the intent of the statute and the purpose which its enactment was intended to achieve. The majority, in effect, would hold that in response to a motion for summary judgment the party against whom the motion is directed must introduce, by affidavit, his entire case. This is clearly not the law. Counter affidavits are required only if the affidavits filed in support of the motion, if uncontravened, would entitle the movant to judgment. Assuming defendant’s affidavit met the requirement of Rule 191, which it does not, plaintiff would be required to file a counteraffidavit only if the motion and supporting affidavit precluded any possibility that defendant was a person “having charge” of the work.
In Warren v. Meeker, 55 Ill.2d 108 , this court said: “We have not specifically defined the term ‘having charge of’ or delimited the factors to be considered in its definition and we do not now do so.” ( 55 Ill.2d 108, at 111 .) It is difficult for me to perceive how, when we have under consideration a statutory term admittedly not specifically defined, the majority can hold that on this record the movant’s affidavit and the discovery depositions preclude any possibility that the defendant had charge of the work. I would affirm the judgment of the appellate court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9706766. Public record. Not legal advice.