Biddy v. Blue Bird Air Serv.

• Decision Date: 04 December 1940
• Docket Number: No. 25543.,25543.
• Parties: BIDDY v. BLUE BIRD AIR SERVICE et al.
• Court: Illinois Supreme Court

374 Ill. 506

30 N.E.2d 14

BIDDY

v.BLUE BIRD AIR SERVICE et al.

No. 25543.

Supreme Court of Illinois.

Oct. 11, 1940.

Rehearing Denied Dec. 4, 1940.

Action by Marie Shay Biddy, administratrix, against the Blue Bird Air Service and others to recover damages for the alleged wrongful death of plaintiff's intestate. From a judgment for plaintiff, defendants appeal.

Reversed.Appeal from Superior Court, Cook County; Peter H. Schwaba, judge.

Cassels, Potter & Bentley, of Chicago (Ralph F. Potter, Leslie H. Vogel, and Richard H. Merrick, all of Chicago, of counsel), for appellants.

Peabody, Westbrook, Watson & Stephenson, of Chicago, and Wiley, Streeter & Ford, of Detroit, Mich. (Charles H. Watson and Marcus R. Hart, both of Chicago, of counsel), for appellee.

MURPHY, Justice.

This action was instituted in the superior court of Cook county against the Blue Bird Air Service, a corporation, the Blue Bird Air Transport, Inc., and Michael A. Caffarello, defendants, to recover damages for the alleged wrongful death of Ralph L. Biddy, plaintiff's intestate. Defendants appealed from a judgment for plaintiff and brought the case direct to this court, a constitutional question being involved.

Biddy was a resident of Michigan and employed by the Wilding Pictures Productions, Inc. (referred to as the Picture Company), as a camera man taking motion pictures. The Picture Company is a Michigan corporation with its principal place of business in Detroit and a studio in Chicago. The defendant corporations are organized under the laws of Illinois with their places of business in Chicago. Defendant Caffarellois a resident of this State. The defendants own aeroplanes and are engaged in the business of hauling persons for hire. The Picture Company employed defendants to take Biddy in an aeroplane that he might take a picture of a fast-moving train. The aeroplane carrying Biddy started from an airport in Chicago and while engaged in the taking of pictures near Naperville, in this State, the aeroplane crashed and Biddy was killed. Marie Shay Biddy, the widow, was appointed administratrix by the probate court of Wayne county, Michigan. Plaintiff brings this action under the Injuries Act of this State (Ill.Rev.Stat. 1939, chap. 70) and alleges the negligence of the defendants in the operation of the aeroplane was the cause of the death of her intestate.

The real controversy and the one on which the constitutional question is raised is as to whether or not the plaintiff can maintain this action at law. The first contention of the defendants is that Biddy and the Picture Company were under the Workmen's Compensation Act of this State (Ill.Rev.Stat. 1939, chap. 48, par. 138, et seq.), and from this it is argued that the plaintiff's right of action at law for damages for wrongful death against them did, by virtue of section 29 of the act, pass to the Picture Company. In the alternative, it is urged that if Biddy and the Picture Company were not subject to the Workmen's Compensation Act, they were subject to the Workmen's Compensation Act of Michigan and that section 8454 of the Michigan Compiled Laws of 1929 passes the right of action at law for damages against the negligent third party causing the death, to the employer or its insurance carrier.

Defendants' answer contained allegations of fact as a basis for such contentions. On motion of plaintiff these special defenses were stricken and during the trial the court denied defendants' offer of proof to support such theories. Defendants assert that the court's refusal to permit them to plead and prove the provisions of the Michigan Workmen's Compensation Act is in violation of the full faith and credit clause of the Federal Constitution.

The contention that Biddy and the Picture Company were subject to the Workmen's Compensation Act of this State need not be given extended consideration. Plaintiff's motion to strike defendants' special defenses admitted the facts well pleaded, and by such pleading and the evidence it appears that Biddy and the Picture Company had a contract of hire which has been entered into in Michigan and that both had elected to be bound by the Workmen's Compensation Act of that State. After Biddy's death the Department of Labor and Industry, acting under the authority of the Michigan Workmen's Compensation Act, approved an award for the benefit of Biddy's dependents. The Picture Company or its insurance carrier paid the award. A state of facts involving the same principle of law was before this court in Cole v. Industrial Comm., 353 Ill. 415, 187 N.E. 520, 90 A.L.R. 116. There an employer and employee, both residents of Indiana and subject to its Workmen's Compensation Act, were operating under a contract made in Indiana. While the employee was engaged in work under the contract in this State, he sustained an accidental injury from which he died. Compensation under the Illinois act was claimed by the dependants. This court held that since the contract was made in Indiana, the parties were bound by the Workmen's Compensation Act of that State and that the Illinois act was not applicable. Under the admitted facts and the rule announced in the Cole case, the Picture Company and Biddy were not subject to the Workmen's Compensation Act of Illinois. Defendants were not prejudiced by the striking of the first part of their special defense.

Section 8454 of the Workmen's Compensation Act of Michigan, the allowance of an award in that State and its payment were alleged in the special defense pleaded in the alternative. The Workmen's Compensation Act of Michigan is elective as to private employers and their employees. If the employee declines to accept the provisions of the act and be bound thereby, section 8410 of the Michigan Compiled Laws of 1929 releases the liability of the employer to pay compensation under the act. Section 8454 provides that where the injury for which compensation is payable under the act was caused under circumstances creating a legal liability in some person other than the employer to pay damages, the employee may, at his option, proceed either at law against the person to recover damages or against the employer for compensation under the act, but not against both. If the employer, or his insurance carrier, pays compensation under the act, the employer may enforce the liability against the third person for his own benefit or that of the insurance carrier, as the case may be.

The option given the employee in section 8454 is distinguishable from the option an employee has to elect, in the first instance, whether he will be bound by the act. The employee exercises his option by electing to be bound by the act, and if he is subsequently injured by the wrongful act of a person other than the employer, under section 8454 he has a right to elect whether he will proceed under the provisions of the act or proceed in an action at law against the third person.

In City of Grand Rapids v. Crocker, 219 Mich. 178, 189 N.W. 221, a case where the employee was killed under circumstances creating a liability against the third person, it was held the right of election to proceed against the third party extended to the defendants of the deceased and such election, when so made, was a bar to an action at law brought by the administrator against the wrongdoer under either the Survival or Death Act of that State. To the same effect La Londe v. Jennison Hardware Co., 219 Mich. 194, 189 N.W. 226;Muehlenbeck v. J. W. Ederer & Co., 231 Mich. 1, 203 N.W. 879.

Section 8458 of the Michigan Code declares the statute shall extend to all injuries suffered without the territorial limits of the State, where the injured employee is a resident of Michigan at the time of the injury, and the contract of hire was made within the State. In the event the employee dies from such injuries the benefits of the act are extended to the dependents of the deceased.

In Crane v. Leonard, Crossette & Riley, 214 Mich. 218, 183 N.W. 204, 18 A.L.R. 285, the court was considering a claim for compensation where the employer and the employee had both elected to be bound by the act and were operating under a contract made in the State of Michigan. The employee was accidentally killed in Illinois while engaged under the contract and in the course of his employment. The court held that since the Workmen's Compensation Act was optional and the employer and the employee became bound only by election, the relation under it was contractual and an injury occurring to the employee outside the State while engaged in the scope of his employment was compensable under the act. To the same effect Hulswit v. Escanaba Mfg. Co., 218 Mich. 331, 188 N.W. 411.

From the foregoing it appears that if the injury causing the death of Biddy had occurred in Michigan, the election of the dependents to take compensation under the Workmen's Compensation Act would bar plaintiff from proceeding against the third party whose negligence or wrongful act caused the death. City of Grand Rapids v. Crocker, supra. By section 8454, the right of action would be in the Picture Company for its own use or that of the insurance carrier.

Plaintiff bases her right of action upon the rule that lex loci delicti controls as to all matters of substantive law, including not only the right to recover, the nature of the right and the party in whom it is vested, but defenses to the action, the measure and elements of damages and the amount of recovery. She contends that section 8454 of the Michigan Code giving the right of action against the third party to the one paying the compensation is limited to those cases where the accident occurred within the State, and that to extend it to accidents occurring beyond the boundaries of the State is to give the statute extra-territorial effect.

Section 1 of article 4 of the Federal constitution declares that full faith and credit shall be given in each State to the public acts of every other State and it is...