O'Brien v. Chicago City Ry. Co., 14653.

Decision Date08 December 1922
Docket NumberNo. 14653.,14653.
Citation305 Ill. 244,137 N.E. 214
PartiesO'BRIEN v. CHICAGO CITY RY. CO. et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Action by Owen O'Brien against the Chicago City Railway Company and another. From a judgment of the Appellate Court, affirming a judgment for defendants, plaintiff appeals.

Reversed and remanded.

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

James C. McShane, of Chicago, for appellant.

Charles Le Roy Brown, of Chicago (John R. Guilliams, Frank S. Kriete, and John E. Kehoe, all of Chicago, of counsel), for appellees.

DUNN, J.

On April 27, 1917, Owen O'Brien began an action on the case against the Chicago City Railway Company and the Chicago Railways Company for injuries alleged to have been received through the negligenceof the defendants in running a street car at a high and dangerous rate of speed, without warning, along South Ashland avenue, in the city of Chicago, and striking and knocking down the plaintiff, who was an employee of the city, engaged in its work, and was on the street. There were two counts in the declaration, each of which charged that both the defendants had elected not to be bound by the provisions of the Workmen's Compensation Act. The trial resulted in a judgment against the defendants for $12,500. The record was reviewed by the Appellate Court for the First District and by this court, and the opinions rendered are found in their chronological order in 216 Ill. App. 115, in 293 Ill. 140, 127 N. E. 389, and in 220 Ill. App. 107. The judgment was reversed, and the cause was remanded. The appellant filed four additional counts in the circuit court, and dismissed the original counts. The defendant demurred to the first two additional counts, and the demurrer was sustained. They filed pleas of the statute of limitations to the third and fourth additional counts, to which the plaintiff demurred, and the demurrers were overruled. The plaintiff electing not to amend the counts to which demurrers had been sustained, and to abide by this demurrer to the pleas of the statute of limitations (Hurd's Rev. St. 1921, c. 83), judgment was rendered against him in bar of the action and for costs. The judgment was affirmed in the Appellate Court, and, a certificate of importance having been granted, the plaintiff appealed from the judgment of affirmance.

The original declaration was held on the former appeal to state a good cause of action for negligence at common law. 293 Ill. 140, 127 N. E. 389. The averment that the plaintiff was employed by the city was immaterial to that cause of action. It did not show that the plaintiff or the city was bound by the Workmen's Compensation Act (Hurd's Rev. St. 1921, c. 48, §§ 126-152i), and therefore the averment that the defendants had elected not to be so bound did not bring the case stated under the act, but was surplusage, and, disregarding both averments, each count of the declaration contained a sufficient charge of common-law negligence.

The first two additional counts differed from the two original counts only in that each count contains the additional allegation that the work of the city in which the plaintiff was engaged was the extrahazardous work of excavating in and maintaining the highway. The effect of this additional averment was to show that the plaintiff and the city were bound by the terms of the Workmen's Compensation Act. The third and fourth additional counts differed from the first and second additional counts only in containing the allegation that the plaintiff's injuries were not proximately caused by the negligence of the city or any of its employees. The demurrer to the first and second additional counts is based upon the absence of the allegation, which is contained in the third and fourth additional counts, that the plaintiff's injuries were not proximately caused by the negligence of the city or any of its employees.

The plaintiff's injury is alleged to have occurred on March 23, 1917. At that time the Workmen's Compensation Act of 1913 (Laws 1913, p. 335), was in force. It is claimed by the appellees that that act took away from every employee who was covered by its provisions every common-law or statutory right to recover damages for injury or death sustained while engaged in the line of his duty as such employee, other than the compensation provided by the act; that the only action available to such employee against a person through whose negligence he may have been injured in the course of his employment is found under the provisions of section 29 of that act. This claim is founded on the general proposition that the Workmen's Compensation Act substitutes a new system of redress for injuries received by employees in the course of their employment; that an employee who has a right to compensation under the act from his employer has no common-law right of action for negligence against the person causing the injury, whether his employer or a third person; that the common-law action for negligence is entirely abolished, and the only remedies which exist are those which are found in the statute. This result is supposed to follow from the general scope of the statute as well as the particular provisions contained in sections 6, 11, and 29 of the act, which are as follows:

Sec. 6. No common-law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee other than the compensation herein provided shall be available to any employee who is covered by the provisions of this act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.’

Sec. 11. The compensation herein provided, together with the provisions of this act, shall be the measure of the responsibility which the employer has assumed for injuries or death that may occur to employees in his employment subject to the provisions of this act.’

Sec. 29. Where an injury or death for which compensation is payable by the employer under this act was not proximately caused by the negligence of the employer or his employees, and was caused under circumstances creating a legal liability for damages in some person other than the employer to pay damages, such other person having also elected to be bound by this act, then the right of the employee or personal representative to recover against such other person shall be subrogated to his employer and such employer may bring legal proceedings against such other person to recover 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. Where the injury or death for which compensation is payable under this act was not employer or caused by the negligence of the employer or his employees and was caused under circumstances creating a legal liability for damages on the part of some person other than the employer to pay damages, such other person having elected not to be bound by this act, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer's payment of or liability to pay compensation under this act, but in such case if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative: Provided, that if the injured employee or his personal representative shall agree to receive compensation from the employer or to institute procedings to recover the same or accept from the employer any payment on account of such compensation, such employer shall be subrogated to all the rights of such employee or personal representative and may maintain, or in case an action has already been instituted, may continue an action either in the name of the employee or personal representative or in his own name against such other person for a recovery of damages to which but for this section the said employee or personal representative would be entitled, but such employer shall nevertheless pay over to the injured employee or personal representative all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this act and all costs, attorney's fees and reasonable expenses incurred by such employer in making such collection and enforcing such liability.’

These sections have received the consideration of the court in several cases, but we have failed to make sufficiently clear our interpretation of their meaning, for counsel on either side of this case, citing the same cases, claim that the opinions of the court are conclusive in favor of their opposite views. The title of the Workmen's Compensation Act of 1913 is:

‘An act to promote the general welfare of the people of this state by providing compensation for accidental injuries or death suffered in the course of employment within ths state; providing for the enforcement and administering thereof, and a penalty for its violation, and repealing’ the act of 1911.

Its main object was to provide a prompt, sure, and definite compensation, with a quick, cheap, and efficient remedy for injuries or death suffered by employees in the course of their employment, and its first section provided that any employer in this state might elect to provide and pay compensation for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of the act and thereby relieve himself from any liability...

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