Brauer Mach. & Supply Co. ex rel. Bituminous Cas. Corp. v. Parkhill Truck Co.

• Decision Date: 21 September 1943
• Docket Number: No. 27226.,27226.
• Citation: 50 N.E.2d 836,383 Ill. 569
• Court: Illinois Supreme Court
• Parties: BRAUER MACHINE & SUPPLY CO., for Use of BITUMINOUS CASUALTY CORPORATION, v. PARKHILL TRUCK CO.

383 Ill. 569

50 N.E.2d 836

BRAUER MACHINE & SUPPLY CO., for Use of BITUMINOUS CASUALTY CORPORATION,

v.PARKHILL TRUCK CO.

No. 27226.

Supreme Court of Illinois.

Sept. 21, 1943.

Action under the Workmen's Compensation Act by the Brauer Machine & Supply Company, for the use of the Bituminous Casualty Corporation, plaintiff's insurance carrier, against the Parkhill Truck Company, a foreign corporation, to recover the amount of compensation and expenses paid by the insurance carrier to and for Emil Lars Lindstrom, and injured employee of plaintiff. From a judgment of the Appellate Court, 318 Ill.App. 56, 47 N.E.2d 521, affirming an order of the circuit court quashing service of summons on the Secretary of State, plaintiff appeals.

Affirmed.Appeal from Appellate Court, Fourth District, on Appeal from Circuit Court, Clay County; James G. Burnside, Judge.

Smith, McCollom & Riggle, of Flora, for appellant.

Harvey D. McCollom, of Louisville, and Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellee.

SMITH, Chief Justice.

This case is here on appeal from the Appellate Court, Fourth District. That court granted the appeal in accordance with section 75(2)(a) of the Civil Practice Act, Ill.Rev.Stat.1941, chap. 110, par. 199. The grounds for granting the appeal, as certified by the Appellate Court are, that the cause involves a construction of section 20a of an act entitled ‘An Act in relation to motor vehicles and to repeal a certain act therein named’ Ill.Rev.Stat.1941, chap. 95 1/2, par. 23; that the construction of said section of the statute is one of such general public interest as to warrant the determination, by this court, of the questions involved.

It appears from the complaint that on December 20, 1938, appellant, Brauer Machine and Supply Company, was engaged in the business of selling supplies and equipment used in and about the drilling of oil wells and the repair and maintenance of equipment used in connection therewith; that the place of business of appellant was located on Illinois State Highway No. 12, in Clay county, Illinois. This highway is also known as U.S. Highway No. 50. It is an improved highway, extending from East St. Louis, Illinois, to Vincennes, Indiana.

It was further alleged that appellant was engaged in an extra-hazardous occupation and was subject to the provisions of the Workmen's Compensation Act of this State, Ill.Rev.Stat.1941, chap. 48, par. 138 et seq.; that it had in its employ at that time one Emil Lars Lindstrom, who, as such employee, was also comprehended within, and subject to the provisions of, said Workmen's Compensation Act. It was alleged that appellee was an Oklahoma corporation, not licensed to do business in the State of Illinois; that it was engaged, as a general contractor, in the business of transporting and hauling oil-well equipment and materials, by motor-driven vehicles; that it was also subject to the provisions of said Workmen's Compensation Act; that it had in its employ at that time one J. L. Caskie; that Caskie, as such employee, was also subject to the provisions of said act.

It was further alleged that on the day in question, appellee by and through Caskie, employed by it as a truck driver, delivered to the premises and place of business of appellant, a certain steel structure; that said structure was transported by appellee from Tulsa, Oklahoma, by means of a certain motor truck over said highway in the State of Illinois, to the place of business of appellant; that Lindstrom, the employee of appellant, acting in the course of his employment, while assisting in unloading the steel structure from the truck, was injured through the neglignece of Caskie, the employee of appellee; that appellant was liable to pay compensation to Lindstrom for such injuries, together with certain medical and hospital services rendered to him; that such compensation and medical and hospital expenses were paid by Bituminous Casualty Corporation, its insurance carrier, for whose use the suit was brought, in accordance with the order and approval of the Industrial Commission.

It further appears that the premises occupied by appellant were located immediately south of, and adjacent to, the improvedhighway; that at the time the truck was being unloaded, it had reached the destination of the load which it carried. Both the truck and the load transported were, at the time the process of unloading was commenced, and at the time of the injury, entirely off the highway and on the private premises of appellant. Its journey had been wholly completed.

It was further alleged that said injuries were not caused by the negligence of appellant or its employees, or of Lindstrom, but were caused under circumstances creating a legal liability for damages in appellee; that the negligence of Caskie, appellee's servant and employee, caused said injuries. This suit was brought under section 29 of the Workmen's Compensation Act, Ill.Rev.Stat.1941, chap. 48, par. 166, to recover the amount of compensation and expenses paid to and for Lindstrom.

The record shows that upon the filing of the complaint, a summons was duly issued for appellee, as defendant in the suit. This summons was returned by the sheriff of Clay county with his return endorsed thereon, showing that the defendant named therein was not found in his county. Thereafter, the summons was served on the Secretary of State, and notice thereof duly given to appellee, as required by said section 20a of the Motor Vehicle Act.

Appellee appeared under a special and limited appearance and filed a verified motion to quash the service of the summons. By its motion, it alleged that service of process could not be made in accordance with said section 20a of the Motor Vehicle Act, for the reason that the injury to Lindstrom, upon which the cause of action was based, did not result from the use or operation of a motor vehicle over the highways of the State of Illinois, or occur in the course of such use and operation; that said injury occurred while appellee and Lindstrom, the employee of appellant, were unloading said structure from the motor vehicle of appellee, upon the premises of appellant; that at the time of the injury, said motor vehicle was not being used or operated on any public highway in this State; that the injury did not occur on any public highway and did not arise out of the use or operation of said motor vehicle over a public highway. The facts set out and relied upon in the motion to quash the service differed only in some minor details from the facts alleged in the complaint.

Upon a hearing, the trial court sustained the motion and quashed the service of summons on appellee. The order entered quashing the service, in so far as material, is as follows: ‘Motion to quash service of summons is sustained and it is ordered that service of such summons be quashed.’ Appellant prosecuted an appeal from that order to the Appellate Court for the Fourth District, where the order of the circuit court was affirmed.

At the threshold of the inquiry we are met with the question raised by appellee that the order appealed from was not a final appealable order. This question was not raised in the Appellate Court. Nevertheless, it being a question going to the jurisdiction of the court, it was not waived by the failure to urge it in that court. The parties could not, either by failing to raise the question, or by consent, confer jurisdiction on the Appellate Court to review the order of the circuit court if, in fact, the order appealed from was not one from which an appeal would lie. Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200, 75 N.E. 473.

The question of whether the order of the circuit court was one from which an appeal could be taken is a novel one. No authorities are cited by either of the parties, and we have found none, which are directly in point on this question. It seems to be a question of first impression, which this court has never before been called upon to consider. It must be conceded that appeals will lie only from final judgments, orders or decrees, except in the few instances where the statute expressly provides for appeals from interlocutory orders.

It is settled that the right of appeal is purely statutory. People ex rel. Dombroski v. O'Connell, 378 Ill. 346, 38 N.E.2d 40;Durkin v. Hey, 376 Ill. 292, 33 N.E.2d 463;Johnson v. Cook County, 368 Ill. 160, 13 N.E.2d 169;People ex rel. Bender v. Davis, 365 Ill. 389, 6 N.E.2d 643;Hall v. First National Bank, 330 Ill. 234, 161 N.E. 311. Section 77 of the Civil Practice Act limits the right of appeal to appeals from ‘final judgments, orders or decrees.’ Ill. Rev.Stat. 1941, chap. 110, par. 201. Other provisions of the statute allowing appeals from certain interlocutory orders are not material here.

It being definitely settled that appeals lie only from final orders or judgments, the decisive question here is: Was the order entered by the circuit court, quashing the service of summons, a final order or judgment? The term ‘final judgment,’ as ordinarily used, has a definite and fixed meaning. To be final and appealable a judgment must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court has only to proceed with the execution of the judgment. Rogers v. Barton, 375 Ill. 611, 32 N.E.2d 135;Rosenthal v. Board of Education, 239 Ill. 29, 87 N.E. 878;Brodhead v. Minges, 198 Ill. 513, 64 N.E. 998. While this general definition is well settled, and ordinarily applicable, as expressing the meaning of those words, nevertheless they are not always used in this restricted sense. The final decision from which an appeal lies does not necessarily mean such decision or decree, only, which finally determines all the issues presented by the pleadings. It may, with equal propriety, refer to the final determination of a collateral matter, distinct from the general subject of the litigation, but which, as between ...