delivered the opinion of the court.
Plаintiff appeals from a summary judgment, entered for defendants, in his suit under the Structural Work Act (Ill Rev Stats 1959, c 48, §§ 60-69), commonly referred to as the Scaffold Act. Rеcovery was sought for injuries sustained by plaintiff on August 30, 1960, when he fell from a scaffold while painting a sign on a building owned by defendants.
Defendant George R. Thomрson is a mortician. His mortuary was located in a three-story building owned by Thompson and his wife, the other defendant. Shortly before August 30, 1960, Thompson orally engaged Jesse Stringer to retrace the mortuary signs on the east and west walls of the building. Stringer had painted the original signs some years before. About twо days before the occurrence, William Woodward came to the mortuary to arrange for doing the work. He told Thompson that he was Stringеr’s partner and that Stringer was in the hospital. On the evening of August 29, 1960, Woodward and plaintiff rigged a scaffold belonging to Stringer on the east wall of defendants’ building, and the next morning they commenced work. Plaintiff fell from the scaffold about 9:30 a. m.
After answering the complaint, defendants moved for summary judgment, attaching as exhibits to their motion the discovery depositions of plaintiff and of defendant George R. Thompson. Plaintiff filed the counteraffivadit of Williаm Woodward in opposition to the motion. On the issues thus presented, the trial court granted defendants’ motion, holding that there was no genuine issue аs to any material fact and that defendants were entitled to judgment as a matter of law.
Before civil liability may be imposed on these defendant owners under the Scaffold Act, it must appear that they “had charge” of the painting operations involved in the violation. (Gannon v. Chicаgo, M. St. P. & Pac. Ry. Co., 22 Ill2d 305, 323,
Plaintiff relies principally on Woodward’s counter-affidavit, which, shows that: Thompson informed Woodward that he was dissatisfied with the prior painting job and intended to “watch this job extra carefully” and if he “was not satisfied with the workmanship or quality of work as the samе progressed, he would stop the painting immediately and no payment would be made”; Thompson went into detail with respect to what was to bе done, the type of paint to be used, the time at which the work was to be commenced; on the evening of August 29,1960, Thompson furnished Woodward with a lаdder to gain access to the roof from which the scaffolding was then hung; Thompson inspected the paint which was to be used, examined the scaffolding rope, and told Woodward that it did not appear to be very sturdy; Thompson jerked the rope violently to test its strength, and then stated, “I guеss it is all right, it looks as if it will hold”; while the work was in progress, Thompson instructed Woodward to move in various directions and to scrape off most of the оld paint, and pointed out to Woodward various locations where insufficient paint was being used; Thompson said that the paint appeаred to be too thick and instructed that it be thinned out; after plaintiff’s fall, Thompson instructed Woodward to clean up the debris.
Plaintiff’s deposition shоws that: he and Woodward rigged the scaffold, which came from Stringer’s truck the evening before the accident; they tested the scaffold, pulled it uр close to the top of the Avail, and then left it hanging there overnight; plaintiff was familiar with rigging scaffolds of this type; the folloAVing morning, plaintiff and Woodward mounted the scaffold and proceeded to work; while they were painting, the scaffold began “cracking and popping” and Woodward hollered “hit it, grab ahold of something”; Woodward succeeded in grabbing a safety rope, but plaintiff failed to do so; the scaffold broke and plaintiff fell some forty feet to the pavement below, being severely injured.
Plaintiff further testified in his deposition that he had no conversation with defеndants, knew nothing about the painting contract, and did not know what Thompson looked like; he stated that while he and Woodward were painting, a mаn “came out” and told them to “be sure and scrape it good.” This was the only thing he heard anyone say concerning the painting job.
The answers of the defendants admit ownership of the building and contracting for painting of the signs. They deny any duty to plaintiff and allege that defendants did not “have chаrge” of the painting work. In his deposition, defendant Thompson admits.telling the painters to “do a good job. ... I did not give Woodward any instructions other than to do a good job. I did not suggest any choice of paints. He was just to redo the existing sign.” Thompson testified that he owned no sign painting equipment. He further said, “I had nothing to do with the job at all, other than the contract. He was to do the job, the sign, and retrace it as he formerly did, and I was to pay him.”
It is not disputed that Woodward was an independent contractor and that plaintiff was his employee. Nor is it disputed that the scaffold and rigging and all painting equipment belonged to Stringer, the person with whom defendants had initially contracted. Defendants had no control over the hiring or firing of рlaintiff. Plaintiff was not a party to the contract and defendants were not required to pay him his wages.
At most, the activities of defendant Thompson can be considered as an effort to require compliance with the contract and to ensure that the quality of work done was as аgreed; he inspected the painting as it progressed and threatened to terminate the work if the job was not being done satisfactorily. In so dоing, he conld not be considered by reasonable men to have been “in charge” of the work, as required for owner-liability under the terms of the Sсaffold Act. We therefore conclude that, taken in the aspect most favorable to plaintiff, the pleadings, depositions, and cоunteraffidavit do not raise a genuine factual issue with respect to control by defendants of the painting operation. It follows that summary judgmеnt for defendants was proper.
We find no merit in plaintiff’s contention that the trial court erred in denying his motion to file an amended counteraffidavit, an amendment to the complaint, and to vacate the summary judgment. Plaintiff admits that the proposed amended counter-affidavit is “the samе in substance” as Woodward’s affidavit which already appears in the record. The proposed amendment to the complaint would mеrely allege that defendant Thompson was “in charge” of the painting job without alleging any additional facts to justify this conclusion. Even if so amendеd, plaintiff’s complaint would not state a good cause of action here. While we believe that discretion should be liberally exercisеd in favor of allowing such new pleadings as are essential to the presentation of a party’s cause of action or defense (Martin v. Kozjak, 5 Ill App2d 390, 393,
For the reasons given, we conclude that the summary judgment in favor of defendants should be affirmed.
Affirmed.