Carmack v. Great American Indem. Co.
| Decision Date | 18 March 1948 |
| Docket Number | No. 30487.,30487. |
| Citation | 400 Ill. 93,78 N.E.2d 507 |
| Parties | CARMACK et al. v. GREAT AMERICAN INDEMNITY CO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Appellate Court for Third District, on Appeal from Circuit Court, Fulton County; Riley E. Stevens, Judge.
Action by Fred Carmack and Junior Carmack, partners, doing business as Carmack's Super Market, against the Great American Indemnity Company, plaintiff's insurance carrier, to recover an amount paid under the Workmen's Compensation Act by the plaintiffs to an injured employee. From a judgment, 332 Ill.App. 354, 75 N.E.2d 521, affirming judgment for plaintiffs, defendant appeals.
Judgment affirmed.
Clarence W. Heyl, of Peoria, for appellant.
Chiperfield & Chiperfield, of Canton, for appellees.
Plaintiffs, Fred Carmack and Junior Carmack, partners, doing business as Carmack's Super Market, brought suit in the circuit court of Fulton County against the Great American Indemnity Company, plaintiffs' insurance carrier, to recover an amount paid under the Workmen's Compensation Act by the plaintiffs to an injured employee. The plaintiffs recovered judgment, which was affirmed in the Appellate Court for the Third District, and a certificate of importance was granted for appeal to this court.
The plaintiffs are engaged in operating a supermarket, and had employed one Glenn E. Jarrett, under sixteen years of age, who, while in the course of his employment, sustained an injury from which he died on April 30, 1943. The mother, who was partially dependent upon his earnings, made claim under section 7(c) of the Workmen's Compensation Act (Ill.Rev.Stat. 1947, chap. 48, par. 144), which provides for additional compensation awards in case of the injury or death of minors. After negotiation it was agreed a lump-sum settlement should be paid the mother, which for an adult would be $1200, but by reason of the provisions of the statute amounted to $1800. The plaintiffs and the insurance company discussed their respective liabilities, and the latter claimed it was required to pay only $1200 of the amount, and that the remainder, being a penalty, should be sustanined by the employer. In order to dispose of the matter promptly, the insurance company paid $1200, and the employer $600, and stipulated that neither party waived any rights by the payment or the acceptance of the $600.
The complaint sets forth these facts in apt language, the insurance policy is attached as an exhibit, and the allegation is made that the insurance company had agreed to pay promptly to any person entitled thereto the entire amount of any sum due such person, because of the obligation of the plaintiffs to pay compensation to injured employees, as provided by law; and that by virtue of said policy the insurance company was indebted to the plaintiffs in the sum of $600, so paid by them. The insurance company filed a motion to dismiss, which was overruled, and then filed an answer in which the provisions of the policy are admitted, but the claim is made that under a proper construction of same the defendant was required to pay only ordinary compensation, and was not required to pay the additional amount where the employee was illegally employed, and that such additional amount was to be paid solely by the employer, and therefore denied that it is liable to pay the $600 excess compensation.
The pertinent provisions of the insurance policy are as follows:
‘The Company Does Hereby Agree * * *
I. (a) To Pay Promptly to any person entitled thereto, under the Workmen's Compensation Law and in the manner therein provided, the entire amount of any sum due, and all installments thereof as they become due, (1) To such person because of the obligation for compensation for any such injury imposed upon or accepted by this Employer under such of certain statutes, as may be applicable thereto, cited and described in an endorsement attached to this Policy, each of which statutes is herein referred to as the Workmen's Compensation Law, and
(2) For the benefit of such person the proper cost of whatever medical, * * * services, * * *.
I. (b) To Indemnify this Employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed wherever such injuries may be sustained within the territorial limits of the United States of America,' etc.
The policy also contains this further provision: ‘It is agreed that all of the provisions of each Workmen's Compensation Law covered hereby shall be and remain a part of this contract as fully and completely as if written herein.’
The allegations of the complaint would seem to indicate that the plaintiffs' claim is under I(a)(1), but appellant's theory is that recovery can be claimed only under I(b), and recovery thereunder is barred because the employee was illegally employed. The complaint is somewhat indefinite and does not specify the particular provision of the policy upon which it relies, and neither did the motion to dismiss specify the particular insufficiency of the complaint, as required by section 45 of the Civil Practice Act. Ill.Rev.Stat. 1947, chap. 110, par. 169. Hence, under the provisions of section 42(3) of the Civil Practice Act (par. 166), all defects of form or substance in the pleading are waived by parties.
It appears quite clearly from the stipulation that the disagreement between the parties was as to the liability for $600, being the fifty-per-cent excess compensation provided in case of minors. The pleading indicate, and it is not disputed, that the insurance company declined to pay this amount, and, to expedite the settlement approved by the Industrial Commission, $1200 was paid by the insurance company and $600 by the plaintiffs, and all rights of the parties reserved to determine the actual liability.
The Workmen's Compensation Act is a part of the insurance contract, and its provisions must be examined to ascertain its meaning. Section 5 (Ill.Rev.Stat. 1947, chap. 48, par. 142) provides that minors are within its terms, by specifying they come within the term ‘employee,’ in the following language: ‘and minors who, for the purpose of this Act shall be considered the same and have the same power to contract, receive payments and give quittances therefor,’ etc. Section 7 provides: ‘(i) In case the injures employee is under sixteen years of age at the time of the accident and is illegally employed, the amount of compensation payable * * * shall be increased fifty per centum.’ Section 11 provides that the compensation required by law shall be the responsibility of the employer, and section 26 requires that all policies of insurance insuring the payment of compensation ‘shall cover all the employees and the entire compensation liability of the insured, and any provision in such policy, or in any endorsement attached thereto, attempting to limit or modify in any way, the liability of the insurance carriers issuing the same shall be wholly void.’
Considering the construction claimed for paragraph I(b) of the policy, the question is raised as to what effect the alleged illegality of the employment has upon the employer's right of recovery from the insurance company, where the latter has failed to pay the additional compensation. The Workmen's Compensation Act is a part of the insurance carrier's contract, and in this case the policy expressly so provides. The act provides that a minor may be an employee. (par. 142.) It provides he shall receive fifty per centum excess compensation in case of an injury. (par. 144.) The statute provides the employer may have his risk covered by an insurance carrier. (par. 163.) The insurance must cover the employer's entire liability. (par. 163(a)(3). Anything in the policy which limits this liability is void. (par. 163.) From the foregoing it is evident the right of the injured minor, or his representative, to increased compensation may not be limited in the carrier's policy.
The Workmen's Compensation Act also provides (par. 143) that the injured minor need not rely upon compensation, but may within six months elect to sue at law, thus giving him an option of two remedies. However, when...
To continue reading
Request your trial
-
Cisco Sys., Inc. v. Innovatio IP Ventures, LLC (In re Innovatio Ip Ventures, LLC)
...third-party-beneficiary contract may bring suit for a breach of that contract and recover damages therefor.” Carmack v. Great Am. Indem. Co., 400 Ill. 93, 78 N.E.2d 507, 511 (1948); accord Restatement (Second) of Contracts § 305(1) (1981) (“A promise in a contract creates a duty in the prom......
-
Gulf, M. & O. R. Co. v. Arthur Dixon Transfer Co.
...Loan Association, 294 Ill.App. 206, 13 N.E.2d 652; Aaron v. Dausch, 313 Ill.App. 524, 40 N.E.2d 805; Carmack v. Great American Indemnity Co., 400 Ill. 93, 96, 78 N.E.2d 507, 1 A.L.R.2d 402; People for Use of Pope County v. Shetler, 318 Ill.App. 279, 47 N.E.2d 732. Defendant argues, however,......
-
Gustafson v. Consumers Sales Agency
...has been applied in other cases to preclude objections to pleadings for the first time on appeal. In Carmack v. Great American Indemnity Co., 400 Ill. 93, 78 N.E.2d 507, 1 A.L.R.2d 402, where the complaint did not specify the particular provision of the policy relied upon for recovery, the ......
-
Segall v. Berkson
...court).) Failure to posit objections to pleadings in this manner results in waiver of the objections. See Carmack v. Great American Indemnity Co. (1948), 400 Ill. 93, 78 N.E.2d 507. The above rules are grounded in principles of sound judicial administration. Response to and evaluation of no......