O'Brien v. Rautenbush, 34147

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

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.

[10 Ill.2d 168]

Page 223

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

Page 224

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 [10 Ill.2d 169] 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, [10 Ill.2d 170] 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...