Bauer v. Rusetos & Co.

Decision Date21 February 1923
Docket NumberNo. 14839.,14839.
Citation306 Ill. 602,138 N.E. 206
CourtIllinois Supreme Court
PartiesBAUER et al. v. RUSETOS & CO.

OPINION TEXT STARTS HERE

Action by Jacob Bauer and another against Rusetos & Co., a corporation. Judgment for plaintiffs was reversed by the Appellate Court, and plaintiffs appeal on a certificate of importance.

Judgment of the Appellate Court reversed, and judgment of the superior court affirmed.

Appeal from First Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Marcus Kavanagh, Judge.

Alfred Roy Hulbert, of Chicago, for appellants.

Frank M. Cox and Harry Simons, both of Chicago, for appellee.

FARMER, J.

This is another action under the provisions of section 29 of the Workmen's Compensation Act (Hurd's Rev. St. 1919, c. 48, § 152b), which discloses the difficulties and complications that arise under that section. John Haupt was an employee of Jacob Bauer and Charles Bauer, doing business as Jacob Bauer & Son. Employer and employee were subject to the Compensation Act. October29, 1919, Haupt, while engaged in the line of his employment, was injured by a motor truck driven by a servant of Rusetos & Co., a corporation, which was also subject to the act. The Bauers brought this action under the first clause of section 29 against Rusetos & Co. to recover damages not exceeding the amount of compensation payable under the act. The declaration was in appropriate form and its averments need not be set out. Defendant pleaded the general issue. That all the parties were subject to the Compensation Act is conceded. That the injury was not proximately caused by the negligence of the employer or employee, but was caused under circumstances which created a legal liability for damages against the defendant, is not questioned. Haupt was a painter and was employed in painting a canopy extending over the sidewalk in front of a building. While doing the work he stood on a plank approximately 10 feet above the sidewalk, which was supported by two ‘horses.’ Defendant's servant drove his truck in such a manner as to strike the plank and throw Haupt to the sidewalk, causing serious injury. The suit was commenced by plaintiffs before the award was fixed and determined, but no point is raised on that account. The compensation awarded Haupt against plaintiffs by the Industrial Commission was $12 a week for 291 weeks, one week at $8, and thereafter a pension for life of $23.33 per month. Plaintiffs recovered a judgment in the superior court of Chicago against the defendant for $6,299.60. Defendant appealed to the Appellate Court. That court held plaintiffs could not recover more than the amount actually paid on the award up to the time of the trial, which was $1,051. The judgment of the superior court was reversed and the cause remanded. Plaintiffs filed a motion, supported by affidavit, that no controversy of fact remained, that no other or different proof could be made on a retrial, and the Appellate Court thereupon entered a judgment of reversal only. That court granted a certificate of importance, and plaintiffs have prosecuted an appeal to this court.

The award of $8 for one week and $12 for 291 weeks aggregates $3,500. The award was received in evidence without objection. Plaintiffs then sought to prove by the Northampton and Carlyle tables of mortality the expectancy of life of the employee. Objections of defendant to that evidence were sustained. The employee was 52 years old, and by the Northampton table the expectancy of one of that age is 17 years and by the Carlyle table 19 years. Plaintiffs then proved by physicians, without objection, that the expectancy of the employee in his injured condition was 15 years. The verdict and judgment in the superior court represent the aggregate of $3,500 payable in weekly installments, and $2,799.60 payable as a pension for the remainder of his expectancy of life.

Section 29 authorized a recovery by plaintiffs of the ‘damages sustained in an amount not exceeding the aggregate amount of compensation payable under this act, by reason of the injury or death of such employee.’ The recovery is limited to the damages sustained, which in no event can exceed the aggregate amount of compensation payable under the act. Necessarily, the damage plaintiffs sustained could not exceed the amount of compensation payable. It is argued by plaintiffs (hereafter called appellants) that when the award is fixed and is made payable in installments extending over a period of years, the recovery should be for the damages not exceeding the aggregate amount of the installments, and that the recovery may be had when the compensation payable is fixed, without regard to whether or not it has been paid when the action was begun. Appellee contends the question here presented was decided in City of Taylorville v. Central Illinois Public Service Co., 301 Ill. 157, 133 N. E. 720. In that case the award was commuted to a lump sum, which the employer paid, and then sued the public service company, whose negligence, it was alleged, caused the injury to the employee. The plaintiff claimed the award was the amount it should recover, and the trial court so held. This court reversed the judgment, and held proof of the award was competent not to fix the amount to be recovered by the employer but to establish a limit to the recovery; that the plaintiff was required to prove the facts creating the liability of the defendant for damages, just as the injured employee would have had to do if his right of action had not been transferred to the plaintiff. That case held the award fixed is the limit of the recovery, but to entitle plaintiff to recover the amount of the award it must be proved the damages sustained by the employee were as much as the compensation awarded. If the proof shows the damages the employee sustained were less than the award, then the recovery cannot be for the full amount of the award. The court said:

‘The language of the act is that the amount recovered shall not exceed the aggregate amount of compensation payable under the act; and necessarily that would be so, because the amount paid by the employer is the limit of the damages suffered by him, regardless of the amount of the actual damage, which may greatly exceed such sum.’

Much importance is attached by appellee to the use of the word ‘paid’ in that sentence, and it is claimed that was an adjudication that in no case of this character can the plaintiff recover more than he has paid at the time of the trial, without regard to the damages proved and the amount of the award. What was said in that case was strictly correct as applied to the facts there existing. The award commuted to a lump sum had been paid, and in no event was the plaintiff entitled to recover more than it had paid, but the recovery, depending on the proof, might be for a less amount. That case does not determine the question here presented.

The statute fixes the limit of the recovery at the damages sustained, not exceeding the aggregate amount of compensation under the act. When the award of compensation, as here, is made payable in installments extending over a period of several years, does the statute authorize the recovery of the ‘aggregate amount of compensation payable under this act as soon as the award is made? Does section 29 contemplate that when the award is fixed and determined the employer has suffered damages to the ‘aggregate amount of compensation’ which he is required to pay in installments extending over a period of years, and that the ‘aggregate amount’ of the compensation awarded fixes the limit of the recovery? Appellee contends if that construction is given the statute it would be possible for the employer to recover more than the damages he sustained where the compensation is payable in installments, because the death of the employee, leaving no dependents,...

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9 cases
  • Grasse v. Dealer's Transport Co.
    • United States
    • Illinois Supreme Court
    • 20 March 1952
    ...of damage sustained by the employee, and that such damages were at least as much as the compensation award; and in Bauer v. Rusetos & Co., 306 Ill. 602, 138 N.E. 206, the court specifically stated that the validity of section 29 was not In 1917 the Workmen's Compensation Act was amended whe......
  • State v. Starr
    • United States
    • Washington Supreme Court
    • 19 December 1935
    ... ... City of ... Taylorville v. Central Illinois Pub. Serv. Co., 301 Ill ... 157, 133 N.E. 720; Bauer v. Rusetos & Co., 306 Ill ... 602, 138 N.E. 206; Blumberg v. Abbott, 159 Tenn ... 586, 21 S.W.2d 396; American Mutual Liability Ins ... ...
  • Fleming v. O'Donohue
    • United States
    • Illinois Supreme Court
    • 21 February 1923
  • Petrazelli v. Propper
    • United States
    • Illinois Supreme Court
    • 24 May 1951
    ...Ill. 606, 122 N.E. 95; 19 A.L.R. 760; City of Taylorville v. Illinois Public Service Co., 301 Ill. 157, 133 N.E. 720; Bauer v. Rusetos & Co., 306 Ill. 602, 138 N.E. 206. We have gone over this record carefully and are of the opinion the judgment of the trial court is correct, therefore it i......
  • Request a trial to view additional results

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