The opinion
Mr. JUSTICE GEORGE J. MORAN, dissenting:
I do not agree that plaintiff is an employee of Bell & Zoller so as to preclude him from suing under the Structural Work Act (Ill. Rev. Stat., ch. 48, par. 60 ets eq.). In the recent case of M & M Electric Co. v. Industrial Com., 57 Ill.2d 113 , our supreme court reiterated the established principle of law that a contract of employment cannot exist without the consent of both parties, saying at page 119:
“It is not possible for a contract of employment to exist without the consent of the parties, and as pointed out by this court in McHugh-Brighton v. Industrial Com. (1969), 42 I11.2d 52, 56, an employee cannot be deemed to have accepted a change in employment if he does not know that it has been offered.”
The McHugh-Brighton case stated this principle even more clearly at 42 Ill.2d 52 , 56:
“The definition of ‘employee’ in the Workmen’s Compensation Act makes it clear that the basis of the relationship is a ‘contract for Mre, express or implied, oral or written, # (See Ill. Rev. Stat. 1963, ch, 48, pars. 138.1(a)2, (b)2.) The existence of such a relationship is determined by an application of the principles that govern other contracts. (Crepps v. Industrial Com. (1949), 402 Ill. 606, 614 .) One does not enter the employ of another without at least an implied acquiescence in the relationship. As has been pointed out, ‘to thrust upon a worker an employee status to which he has never consented * # * might well deprive him of valuable rights under the compensation act, notably the right to sue his own employer for common-law damages.’ 1A Larson, Workmen’s Compensation Law § 47.10, pp. 753-54. See also id. § 48.10, pp. 812-16.”
In Crepps v. Industrial Com., 402 Ill. 606 , our supreme court said at page 614:
“The relationship of employer and employee is a contractual relationship, the requisites to the formation of such relationship being determined by an application of the principles governing the formation of other contracts. The relationship is a product of mutual assent, that is, of a meeting of minds expressed by some offer on the part of one to employ or to work for the other and an acceptance on the part of the other.”
The majority opinion reads into the Workmen’s Compensation Act language that is not there, when it makes Laffoon an employee of Bell & Zoller without his consent, so as to deprive him of his right to sue under the Illinois Structural Work Act. The United States Supreme Court used just the opposite approach in the case of Industrial Commission of Wisconsin v. McCartin, 330 U.S. 622, 628 , 91 L.Ed, 1140, 1144, 67 S.Ct. 886 , 889:
“And in light of the rule that workmen’s compensation laws are to be liberally construed in furtherance of the purpose for which they were enacted [citation], we should not readily interpret such a statute so as to cut off an employee’s right to sue under other legislation passed for his benefit. Only some unmistakable language by a state legislature or judiciary would warrant our accepting such a construction.”
To support its conclusion, the majority cites only one Illinois decision, Baker & Conrad, Inc. v. Chicago Heights Construction Co., 364 Ill. 386 , 4 N.E.2d 953 . That case holds that a “statutory employer” was an “employer” for purposes of the employer’s right under the Act (then in force) to be subrogated to the insured employee’s claim against some other person legally obligated to pay damages. On this flimsy basis the majority concludes that the so-called “statutory employer” should enjoy the im-' munities of section 5(a), heretofore uniformly interpreted to apply only to the actual employer.
It does so while conceding that the defendant (or “statutory employer,” as one is commonly called when by statute he is compelled to pay workmen’s compensation benefits to the employees of another), is not the employer. The majority rests its case on the narrow ground that in “accepting” workmen’s compensation benefits, the plaintiff has “accepted” the status of “statutory employee” and reads into this creation of legal fiction a voluntary waiver by an employee of his common law rights. This is grave error.
By broadening section 5(a) to include “statutory employers,” the majority is creating an impermissible classification violative of the equal protection and due process guarantees of the Federal and State constitutions (U.S. Const. amend. XIV, § 1; Ill. Const. art. I, § 2), as well as the “certain remedies” provision of the Illinois Constitution (art. I, § 12).
Indeed, this unwarranted interpretation of section 5(a), would thrust the posture of the law back to the days preceding Grasse v. Dealer’s Transport Co., 412 Ill. 179 , 106 N.E.2d 124 , cert. denied, 344 U.S. 837 , 97 L.Ed. 651 , 73 S.Ct. 47 . The Workmen’s Compensation Act at that time permitted a common law action by an injured workman aaginst a third-party defendant who was not bound by the Workmen’s Compensation Act, but barred such an action where a third-party defendant was bound by the Act, notwithstanding no contractual relationship existed between the parties. The Grasse court held this unconstitutional.
In the case at bar, the majority would permit an injured person employed by a subcontractor who had provided himself with workmen’s compensation insurance to sue a third-party contractor on the job. Yet it would deny the same right of action under the same circumstances to an employee of a subcontractor who did not provide himself with such insurance.
I fail to perceive a rational basis for distinguishing the Act as interpreted by the majority with the interpretation placed by the court on the Act as struck down in Grasse.
Addressing itself to what I consider a closely similar factual circumstance, the court said in Grasse:
“* * * it is evident that the classification of injured employees provided therein is arbitrary and in no way promotes any of the objectives of the act. All employees entitled to compensation for injuries sustained in the course of their employment and caused by third persons are not treated alike. Those injured by third party tort-feasors bound by the act are not entitled to common-law damages from such persons, whereas those injured by third party tort-feasors not bound by the act are allowed to institute actions for damages. Both classes.of injured employees may be entitled to compensation from their own employers, so that the amount of compensation, if any, received by the injured employee is not the basis for differentiation between the classes. Nor is there any basis for differentiation from the nature of the injuries sustained, or from the activity of the employee at the time of the injury, or from any other factor ordinarily related to an injured party’s right to recover damages. The sole basis for differentiation, as far as the injured employee is concerned, is a fortuitous circumstance— whether the third party tort-feasor happens to be under the act. 412 Ill. 179, 195-96 .
The majority opinion in the case at bar would base the distinction on the fortuitous circumstance of whether the employer carried insurance. This is an even.less durable foundation than the one rejected in Grasse.
. The inequities inherent in the impermissible classification created by the majority are glaring. If two workmen, employed by two different subcontractors, were killed on the same jobsite by a falling beam, the family of the man whose employer carried workmen’s compensation insurance could sue the general contractor under the Structural Work Act. But the family of the workman who was employed by a subcontractor with no such insurance (or whose policy had lapsed for nonpayment of premiums) would be limited to workmen’s compensation benefits from the same general contractor.
The distinction becomes even less tenuous when we consider that the plaintiff’s employer would remain liable to pay such benefits to the employee under Section 3 of the Act, whether insured or not. And there is no showing on this record that Refieuna was not financially able to do so. Moreover, the Act permits a so-called “statutory employer” to recover from the uninsured subcontractor (direct employer) engaged by him any amounts paid to such subcontractor’s employees. Without belaboring the point, the present statute, as did the one struck down in Grasse, also places an obligation on the plaintiff’s employer to provide the workmen’s compensation benefits, and section 1(a)(3) does not alter this obligation. The requirement imposed by that section on the “statutory employer” is an addition to, not a substitute for, the obligation imposed on the plaintiff’s direct employer. Nor is it dependent on the insolvency of plaintiff’s employer or on any other circumstance that might render him incapable of carrying out his statutory duty.
It should be evident that those engaged in structural work could easily subvert the purposes of the Structural Work Act by making the general contractor the paymaster of workmen’s compensation benefits for all the trades “having any direct connection” with the construction activities (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 22 Ill.2d 305 , 175 N.E.2d 785 ; Larson v. Commonwealth Edison Co., 33 Ill.2d 316 , 211 N.E.2d 247 ), thereby shielding every contractor on the jobsite from third-party liability under the Structural Work Act. The majority opinion thus charts the path for those employers who desire to evade the Structural Work Act.
In addition to these fatal constitutional infirmities, granting immunity to “statutory employers” violates the underlying purposes of both the Workmen’s Compensation Act and the Structural Work Act.
Both the Structural Work Act and the Workmen’s Compensation Act are intended to provide a measure of protection to workmen and their dependents. The former is intended to provide for the safety of the men engaged in the work (Schultz v. Henry Ericsson Co., 264 Ill. 156, 164 , 106 N.E. 236 , 239; Gannon v. Chicago, Milwaukee, St. Paul and Pacific Ry. Co., 22 Ill.2d 305 , 175 N.E.2d 785,792 ),whereas the latter is intended to provide financial security for the workmen and their dependents in the event of injury or death (Baker & Conrad, Inc. v. Chicago Heights Construction Co., 364 Ill. 386 , 4 N.E.2d 953 ; Wangler Boiler & Sheet Metal Works Co. v. Industrial Com., 287 Ill. 118 ).
To give maximum effect to the two provisions — which it is our function to do — it seems clear that section 1(a)(3) was intended to insure recovery of workmen’s compensation benefits to workmen and their dependents in the event the employer is uninsured for such benefits. To carry out this laudatory objective, the legislature placed the burden on “anyone” employing a contractor or subcontractor to make sure that such contractor or subcontractor carries workmen’s compensation insurance, at the risk of becoming personally liable to pay the same to injured employees of the latter. This is too clear to permit any other construction. We stop here.
The majority’s needless tampering with section 5(a) construes the Act to reward “anyone” hiring a contractor who is without workmen’s compensation insurance by immunizing “anyone” so doing from third-party liability. I find this incredible.
Clearly, the legislature did not intend to give “statutory employers” a bonus by virtue of section 1(a)(3) as the majority holds. The interpretation invites total emasculation of the Structural Work Act. Industrious, indéed clever, employers or their insurers could simply see to it that the only contractor on the construction project carrying workmen’s compensation insurance would be the general contractor, thus in effect shielding the entire phalanx of other contractors from third-party liability. For all we know, this was the scheme adopted by Bell & Zoller Coal Company in this case.
This is much the same problem our supreme court wrestled with in Gannon, which heretofore preserved the workman’s rights under the Structural Work Act against anyone but his “employer.” The Gannon court said:
“Any employee or other person injured by a wilful violation of the act by any of the enumerated persons having charge of the structural work still has an action against such party. This is a very real remedy, when we consider that structural work frequently involves the operations of several contracts or subcontractors who are each in charge of a phase of the work, and the injured person has a right of action against any one of them, other than his employer, who may wilfully violate or fail to comply with the act. [Citations.]” ( 22 Ill.2d 305 , 322.)
With this I agree. But it is no longer a “very real remedy” if plaintiff’s “right of action against any one of [the several contractors or subcontractors], other than his employer” is also eradicated by reason of his employer’s failure to purchase workmens compensation insurance, either through negligence or by acting in concert with the general and other contracts on the job.
Moreover, such a construction constitutes an amendment by implication of the salutory and beneficient provisions of the Structural Work Act. Such statutory construction is not favored. (Dugan v. Berning, 11 Ill.2d 353 , 143 N.E.2d 547 (1957); Buffum v. Chase National Bank (7th Cir. 1951), 192 F.2d 58, 61 ; Wilhelm v. Industrial Com., 399 Ill. 80 , 77 N.E.2d 174, 177 .) Nor is it constitutional. Ill. Const. art. I, § 2 (1970).
If the legislature intended to abolish the common law rights of employees fortuitously caught up in this quagmire, it would have specifically so provided by a suitable and proper amendment to section 5(a). As previously noted, that section, first appearing in the Act following Grasse as a replacement to section 29 (held unconstitutional in Grasse), has consistently been applied to employers and employees in their traditional sense. Such a drastic change as the majority’s opinion would bring about, even if it were possible to do it constitutionally, should be made by the legislature, not by the courts.
The majority's broad statement that “there is no question that an injured employee can recover workmen’s compensation benefits and also recover under the Scaffolding Act, but under the law as we perceive it he may not recover both from the same person or entity,” also finds no support either in the language of section 5(a) or the cases.
In a more enlightened opinion, this court, recently held that a plaintiff, who “accepted” workmen’s compensation benefits from his employer, could subsequently sue his employer for Structural Work Act violations where the employer was the sole owner of the building under construction (as was defendant here) and also was one of the members of the two-man partnership erecting the building. (Marcus v. Green, 13 Ill. App.3d 699 , 300 N.E.2d 512 .) As this court said in Marcus:
“We see no reason to suppose that the Workmen’s Compensation Act has in any way limited the duty of an owner in charge to assure that scaffolds on construction property be kept safe. [Citation.]” 13 Ill.App.3d 699, 707 .
“Therefore # * since the Workmen’s Compensation Act provides for recovery by an employee against a third party tortfeasor, (Ill. Rev. Stat., ch. 48, §138.5), he should be allowed to bring an action against the appellant who in a different legal capacity than that of an employer has placed himself vulnerable to liability under the Scaffold Act.” 13 Ill.App.3d 699, 708 .
In distinguishing the first Gannon case where the supreme court refused to permit an action under the Scaffold Act against the plaintiff’s employer, we correctly said in Marcus:
“* * * Gannon * * * involved an employer who was being sued under the Structural Work Act as an employer. The suit was properly dismissed, but the action in the instant case is not against the employer as employer. It is against an employer who is also an owner.” ( 13 Ill.App.3d 699, 707 .)
See also Reed v. The Taka, 373 U.S. 410 , 10 L.Ed.2d 448 , 83 S.Ct. 1349 , (1963), where a shipowner was held liable for the ship’s unseaworthiness notwithstanding the fact that it was also liable to plaintiff under the Longshoremen’s and Harbor Workers’ Compensation Act.
Here, the one sought to be held liable is not even an “employer” in any sense, but merely one who by statute is at most a guarantor for the payment of workmen’s compensation benefits to the injured workmen of subcontractors, to guard against default by the plaintiff’s employer.
Furthermore, the majority’s absorbance with the plaintiff’s “acceptance” of the benefits paid by his “statutory employer” is not warranted. In the first place, the realities of Workmen’s Compensation render any so-called “acceptance” illusory under settled doctrines of contract law. In the second place, to hold that such an illusory “acceptance” irrevocably binds plaintiff to an election of remedies is untenable.
The common practice in the industry is for the employer or his workmen’s compensation carrier to pay health-care providers directly. Until or unless a check for disability benefits is received by the employee, he never knows whether his employer was insured or not. Yet by force of the majority opinion, an injured workman whose medical treatment bills were paid, without his knowledge of insurance, but who received no other benefits to provide him with a clue as to whether his employer was insured, would nevertheless be barred from a third-party action. And even assuming the employee, through receipt of disability benefit checks, is aware that the payment is made by someone other than his employer it is unrealistic to hold that he voluntarily “accepted” such benefits in lieu of his third-party rights. As the supreme court recognized in Streeter v. Western Wheeled Scraper Co., (1912), 254 Ill. 244 , 257:
“Notwithstanding the theoretical liberty of every person to contract for his labor or services and his legal right to abandon his employment if the conditions of service are not satisfactory, practically, by stress of circumstances, poverty, the dependence of his family, scarcity of employment, competition or other conditions, the laborer frequently has no choice but to accept employment upon such terms and under such conditions as are offered.”
Against this backdrop, the majority implies that plaintiff, as a matter of law, accepted defendant’s offer of Workmens Compensation payments, and more surprisingly, that such “acceptance” evinced an objective manifestation that plaintiff “accepted” the legal consequences indulged in by the majority. As succinctly stated by the Illinois Appellate Court in Toto v. Durand & Raspar Co., 214 Ill.App. 449 , 453:
“It is, undoubtedly true, that acceptance of an offer may be by acts or conduct, as well as by words written or spoken. One who, with knowledge, takes the benefits of a contract is obligated thereby, but there must be an apparent, if not an actual, meeting of the minds of the parties on a precise and certain proposition.”
No such “meeting of the minds” is supported by a scintilla of evidence in the record before us.
The majority further indicates that by “accepting” payments from the “statutory employer,” the “statutory employee” has in effect elected between workmen’s compensation benefits and common law damages. This too is untenable.
“It is implicit in the doctrine of election of remedies, that a plaintiff knows he has a choice of remedies. In furtherance of this it has often been held that there can be no election when the plaintiff is ignorant as to the true facts. [Citations.]” (Household Finance Corporation v. Suhr, 44 Ill.App.2d 292, 302 . See also Eichhorst v. Eichhorst, 338 Ill. 185, 193 .)
It is pure sophistry to hold that the plaintiff here made a choice between two known remedies.
The authorities I have quoted clearly and unequivocally hold that an employee cannot have an employer thrust upon him against his wiU or without his knowledge. Any employee loses certain rights when he strikes up a new employment relationship. By thrusting an employer on plaintiff whom plaintiff had not contracted, to work for, the majority is depriving plaintiff of a valuable right under, the Illinois Structural Work Act. The Structural Work Act is a safety statute designed to protect workmen such as plaintiff who engage in extrahazardous occupations in and around buildings. The courts have always held that it is entitled to a very liberal construction. I would not deprive one of his right to sue under this statute in the absence of clear language from the legislature.