Bishop v. Chicago Rys. Co.
| Decision Date | 03 December 1919 |
| Docket Number | No. 12338.,12338. |
| Citation | 290 Ill. 194,124 N.E. 837 |
| Parties | BISHOP v. CHICAGO RYS. CO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Appellate Court, First District, on Appeal from Superior Court, Cook County; Joseph Sabath, Judge.
Action by James F. Bishop, administrator, against the Chicago Railways Company. Judgment for plaintiff was reversed by the Appellate Court (210 Ill. App. 397), and plaintiff brings error. Affirmed.
James C. McShane, of Chicago, for plaintiff in error.
Charles Le Roy Brown, of Chicago (P. L. McArdle, of Chicago, of counsel), for defendant in error.
December 19, 1913, plaintiff in error brought suit in the superior court against defendant in error to recover damages on account of the death of William E. Ford, who was killed November 12, 1913. The declaration alleged that the death resulted from the negligence of defendant in error, and contained averments showing the parties to be subject to the Workmen's Compensation Act (Laws 1913, p. 335) unless they had elected to the contrary, but it contained no allegation that the parties had elected not to operate under the act. March 30, 1915, an amendment was filed to the declaration, alleging that before Ford was killed defendant in error had elected not to comply with or be bound by the Workmen's Compensation Act. Defendant in error pleaded the statute of limitations. The court sustained a demurrer to the plea interposed by plaintiff in error. After verdict for plaintiff in error the defendant in error entered a motion in arrest of judgment, which was denied by the court. On appeal to the Appellate Court for the First District the judgment of the superior court was reversed, and the record has been certified to this court as a return to a writ of certiorari issued on the petition of plaintiff in error.
The Workmen's Compensation Act of 1913, which was in force when William E. Ford was killed, provides that no commonlaw 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 governed 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 or his personal representative against the employer that it should appear that either the employer or employé, or both, were not governed by the provisions of the act. The declaration filed in this case, therefore, did not state a...
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... ... 139, 141, 142, 143, ... 148; Chap. 48, Smith-Hurd Ill. Ann. Stat.; O'Brien v ... Chicago City Ry. Co., 305 Ill. 244, 137 N.E. 214; ... Stevens v. Ill. Cent. Railroad, 306 Ill. 370, 137 ... [O'Brien v. Chicago City Ry. Co., 305 Ill. 244, ... 137 N.E. 214; see, also, Bishop v. Chicago Rys. Co., ... 290 Ill. 194, 124 N.E. 837; Stevens v. Illinois Central ... Railroad, ... ...
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...and it must be held that the suit was not begun until the amended bill was filed. Story's Eq. Pl. (6th Ed.) § 904; Bishop v. Chicago Railways Co., 290 Ill. 194 124 N. E. 837. This being true, appellee failed to bring suit within the four-months period required by the statute, and it therefo......