O'Brien v. Rautenbush

• Decision Date: 26 November 1956
• Docket Number: No. 34147,34147
• Citation: 10 Ill.2d 167,139 N.E.2d 222
• Parties: Raymond E. O'BRIEN, Appellant, v. David F. RAUTENBUSH, Appellee.
• Court: Illinois Supreme Court

Page 222

139 N.E.2d 222

10 Ill.2d 167

Raymond E. O'BRIEN, Appellant, v. David F. RAUTENBUSH, Appellee.

No. 34147.

Supreme Court of Illinois.

Nov. 26, 1956.

Rehearing Denied Jan. 23, 1957.

Hubbard, Hubbard & Dorgan, Chicago (A. G. Hubbard, Reese Hubbard, John T. Burke, Chicago, of counsel), for appellant.

John A. Hutchings, Chicago (John A. Hutchings, Thomas E. Deacy, Jr., Edgar E. Lungren, Jr., Chicago, of counsel), for appellee.

DAILY, Justice.

On October 21, 1953, suit was filed in the circuit court of Cook County by Raymond E. O'Brien, hereinafter referred to as plaintiff, to recover money damages for personal injuries sustained by him in an automobile collision which allegedly occurred some nine months before in Washington County, Wisconsin, as a result of the negligent operation by the defendant, David F. Rautenbush, of the motor vehicle in which they were both riding. Defendant's answer, in addition to denying the negligence allegations, set forth an affirmative defense showing that he and the plaintiff were traveling together at the time of the accident as coemployees of the Meyercord Company, that they and their employer were bound by the Illinois Workmen's Compensation Act, that the occurrence complained of arose out of and in the course of their employment, and that plaintiff had subsequently filed a claim with the Illinois Industrial Commission and had received the sum of $1600 from his employer as full settlement of all amounts due under the provisions of the Workmen's Compensation Act. Thereafter, defendant moved for summary judgment on the grounds that plaintiff, being bound by the Workmen's Compensation Act, was barred from asserting any common-law right of action which he might otherwise have had against his coemployee, and the circuit court so held in entering judgment for the defendant. This appeal, on constitutional grounds, has followed.

While the plaintiff does not deny the facts contained in the affirmative defense, he insists, as he pleaded below, (1) that the present Illinois statute does not preclude an action against a coemployee, and (2) that if it does, such act is unconstitutional and void. In addition, he contends that Wisconsin, not Illinois, law must be applied to the present factual situation. The only reference in the complaint to the State of Wisconsin is that the collision occurred in that State. There is no allegation therein that the plaintiff is suing under the laws of Wisconsin, nor is there a statement as to the provisions of that State's laws relating to an action of this nature. When a litigant relies upon the laws of another State as the basis for his claim, he must plead and prove such laws, for the broad rule prevails that, in the absence of a showing to the contrary, such laws will be presumed to be the same as the laws of the forum. Petersen v. Chicago, Great Western R. Co., 8 Cir., 138 F.2d 304, 149 A.L.R. 759; 20 Am.Jur. 182; Lloyd v. Mattews, 155 U.S. 222, 15 S.Ct. 70, 39 L.Ed. 128. This point of application of Wisconsin law to the case, therefore, not having been raised in the trial court, will not now be considered upon review. Zimmerman v. Kennedy, 405 Ill. 306, 90 N.E.2d 756; Union Drainage Dist. No. 5 v. Hamilton, 390 Ill. 487, 61 N.E.2d 343; Chicago Title & Trust Co. v. De Lasaux, 336 Ill. 522, 168 N.E. 640.

Although of initial impression to this court, the question raised by plaintiff's first contention has been considered on at least five occasions by appellate tribunals of our State. The problem was first presented in Cunningham v. Metzger, 2d Dist. 1930, 258 Ill.App. 150, where the court held that sections 6 and 29 of the Workmen's Compensation Act (now section 5(a) and (b), Ill.Rev.Stat.1955, chap. 48, par. 138.5) prevented an injured employee from recovering against a negligent coworker. Four years later a similar result was reached by the Appellate Court for the First District in Bentley v. Lippert, 277 Ill.App. 615. However, in 1935, the same court reversed itself and held that an employee's action was abolished only as against the employer, and not against a coemployee. Botthof v. Fenske, 280 Ill.App. 362. The problem was next considered in Biggs v. Farnsworth, 336 Ill.App. 417, 84 N.E.2d 330, where an employee of the Perry Coal Co. was injured by a fellow worker, and the Fourth District reviewing court there held in accordance with the Cunningham and Bentley decisions. Finally, in the most recent case of Hayes v. Marshall Field & Co., 351 Ill.App. 329, 115 N.E.2d 99, the Appellate Court for the First District was again called upon to decide whether a worker under the Workmen's Compensation Act could sue a negligent coworker for injuries sustained in the course of his employment. In that case, a dust particle had lodged in the employee's eye and, during the treatment thereof by the company doctor, the eye was pierced by the latter's negligence. The injured employee, although recognizing the prior decisions on this subject, strenuously contended that our decision in Grasse v. Dealer's Transport Co., 412 Ill. 179, 106 N.E.2d 124, had completely altered the situation and was controlling. The Appellate Court rejected this argument and, in holding for the defendant, went on to say (351 Ill.App. 329, 115 N.E.2d 102): 'We think the language of the Workmen's Compensation Act treats both employer and employee upon common grounds insofar as any liability exists to answer for damages in an action by a fellow employee.'

Section 5(a) of the Workmen's Compensation Act (Ill.Rev.Stat.1955, chap. 48, par. 138.5) provides: '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.' (Italics supplied.) Compensation which an injured employee may receive is not limited to the statutory awards specified in sections 7 and 8 (Ill.Rev.Stat.1955, chap. 48, par. 138.7 and 138.8) but may, in the proper case, be augmented by common-law recoveries allowed under section 5(b) of the act which states: 'Where the injury or death for which compensation is payable 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 on the part of some person other than the employer to pay damages, 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.' This section goes on to say that if such action is brought by the injured employee and recovery is obtained, then the employer is to be reimbursed for all amounts paid by him under the act.

Thus, the common-law action is preserved only if the injury was not proximately caused by the employer or his employees and created a legal liability for damages upon the part of some person other than the employer. If these conditions precedent are not met, no such remedy exists. Ketler Co. v. Industrial Comm., 392 Ill. 564, 65 N.E.2d 359; Keeran v. Peoria, Bloomington & Champaign Traction Co., 277 Ill. 413, 115 N.E. 636. This construction is supported by the fact that if the legislature had intended that the action would be barred only by the negligence of the employer or the injured employee, it would have had no occasion to use the plural form of 'employees.' Clearly, the negligence of the employer and any of his employees would bar such a recovery. This view is further substantiated when we consider that although an employer cannot...