Beveridge v. Illinois Fuel Co.
| Decision Date | 04 April 1918 |
| Docket Number | No. 11692.,11692. |
| Parties | BEVERIDGE v. ILLINOIS FUEL CO. |
| Court | Illinois Supreme Court |
Error to Appellate Court, Fourth District, on Appeal from the Circuit Court, Randolph County; George A. Crow, Judge.
Action by Hector Beveridge against the Illinois Fuel Company. There was a judgment of the Appellate Court, affirming a judgment for plaintiff, and defendant brings certiorari. Reversed and remanded.
R. J. Goddard, of Sparta, and H. Clay Horner, of Chester, for plaintiff in error.
A. E. Crisler, of Chester, for defendant in error.
The Appellate Court for the Fourth District affirmed a judgment for $7,500 recovered by Hector Beveridge in the circuit court of Randolph county in an action on the case for personal injuries, against the Illinois Fuel Company, and the record has been certified to this court as a return to a writ of certiorari issued on the petition of the Illinois Fuel Company.
The declaration in four counts charged the plaintiff's injuries to have been received as the result of the defendant's willful failure to observe the requirements of the Mining Act in the operation of its mine in which the plaintiff was employed. In each count it was alleged that the defendant had elected not to comply with or be bound by the Workmen's Compensation Act and was not operating under that act. This was a material allegation. The Workmen's Compensation Act of 1913, which was in force when the plaintiff was injured, provides that no common-law or statutory right to recover damages for an injury sustained by an employé while in the line of his duty, other than the compensation provided in the act, shall be available to any employé who is covered by the provisions of the act. It was essential, therefore, to the statement of a cause of action for a negligent injury by an employé against his employer, that it should appear that the employé was not covered by the provisions of the act. A declaration which fails to state a fact whose existence is necessary to entitle the plaintiff to recover does not state a cause of action. Walters v. City of Ottawa, 240 Ill. 259, 88 N. E. 651. The act further provides that every employer engaged in mining shall be conclusively presumed to have elected to provide and pay compensation according to the provisions of the act unless and until notice in writing of his election to the contrary is filed with the Industrial Board, and unless and until such employer shall either furnish to his employé personally or post at a conspicuous place in the place where the employé is to be employed a copy of such notice of election not to provide and pay compensation according to the provisions of the act. It is unnecessary to allege a fact which the law presumes to exist. The contrary averment must be made, if the fact is to be put in issue. Warner v. Flack, 278 Ill. 303, 116 N. E. 197.
No objection was made to the sufficiency of the allegation, but it is insisted that it was not proved. The only plea was the general issue, the effect of which is to traverse every material allegation in the declaration. Curtiss v. Martin, 20 Ill. 557;Van Dusen v. Pomeroy, 24 Ill. 289. To sustain this allegation the plaintiff introduced in evidence a notice signed by the president and secretary of the defendant, addressed to the Industrial Board, stating that it was given in conformity with the provisions of section 2 of the act, and that notice was thereby given that the defendant had elected not to accept the provisions of nor to pay compensation according to the provisions of the act, the title of which was set out. No evidence was offered to show that a copy of such notice was either furnished to the plaintiff or posted at the place where he was to be employed. There was therefore a failure to prove the allegation that the defendant was not operating under the Workmen's Compensation Act, and the defendant's motions for a peremptory instruction for a verdict in its favor, asked at the close of the plaintiff's evidence and at the close of all the evidence, should have been given.
The defendant in error argues that the statement filed with the Industrial Board that ‘notice is hereby given that the undersigned have elected not to accept the provisions of or pay compensation according to the provisions of’ the Workmen's Compensation Act should be given effect as an admission of the plaintiff in error that it has also complied with the provisions of the act in regard to giving notice to its employés personally or...
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