City of Taylorville v. Cent. Illinois Pub. Serv. Co.

• Decision Date: 10 February 1922
• Docket Number: No. 14291.,14291.
• Citation: 133 N.E. 720,301 Ill. 157
• Parties: CITY OF TAYLORVILLE v. CENTRAL ILLINOIS PUBLIC SERVICE CO.
• Court: Illinois Supreme Court

301 Ill. 157

133 N.E. 720

CITY OF TAYLORVILLE

v.CENTRAL ILLINOIS PUBLIC SERVICE CO.

No. 14291.

Supreme Court of Illinois.

Dec. 22, 1921.

Rehearing Denied Feb. 10, 1922.

Action by the City of Taylorville against the Central Illinois Public Service Company. From Judgment for plaintiff, defendant appeals.

Reversed and remanded.

Appeal from Circuit Court, Christian County; William B. Wright, judge.

Vause & Kiger, of Mattoon (Hogan & Reese, of Taylorville, of counsel), for appellant.

C. A. Prater, City Atty., and Leslie J. Taylor, both of Taylorville, for appellee.

CARTWRIGHT, J.

The appellee, the city of Taylorville, recovered a judgment in the circuit court of Christian county against the appellant, the Central Illinois Public Service Company, for $1,115.16, which the appellee had paid to its employee, John O'Brien, under the Workmen's Compensation Act (Hurd's Rev. St. c. 48, §§ 126-152i), for an injury which arose out of and in the course of his employment by the appellee, which injury was alleged to have been caused by negligence of appellant. An appeal was prayed to this court and was allowed for the reason that the validity of a statute is involved.

The suit was brought under the following provision of section 29 of the Workmen's Compensation Act:

‘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, or being bound thereby under section three (3) of 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.’ Laws of 1917, p. 509.

The declaration alleged that on July 10, 1919, John O'Brien was employed by the plaintiff in the street department, under the general direction or the superintendent of streets; that the defendant was engaged in the business of generating and distributing electric currents in the city and occupied streets and alleys for that purpose and for the support and maintenance of electric wires; that, through negligence of the defendant in failing to remove from the street a broken wire charged with electricity, O'Brien, while engaged in his duties and in the exercise of due care and caution for his own safety, came in contact with the wire and became shocked, burned, and blistered to such an extent that he lost the use of two fingers of his right hand; that O'Brien filed an application with the Industrial Commission for compensation under the Workmen's Compensation Act; that the plaintiff contested the application, and the Industrial Commission made an award to O'Brien of $12.05 per week for 93 weeks and 4 days, in addition to $339.25 previously paid by plaintiff, as compensation; that afterward, on petition of O'Brien, the Industrial Commission entered an order commuting the award to $777.51 in addition to the $339.25 already paid; that the plaintiff, the defendant, and O'Brien were all operating under the Workmen's Compensation Act; and that plaintiff paid the award.

On the trial evidence was given tending to prove each allegation of the declaration, and the question arose whether the amount paid by the plaintiff to O'Brien was the measure of damages for which the defendant was liable in consequence of its negligent act. The court held that it was, and that, if the plaintiff was entitled to recover, the statute fixed the amount of recovery. The validity of section 29 was challenged as a violation of section 2 of the Bill of Rights of the Constitution, which provides:

‘No person shall be deprived of life, liberty or property, without due process of law.’

The defendant attempted to raise a question of the amount of damages resulting from the alleged negligent act by cross-examination and by evidence on that subject, but the court sustained objections in each case. The court gave four instructions, in one of them reciting the portion of section 29 above quoted, and in all of them advising the jury that, if they found O'Brien was injured and suffered damages while in the exercise of due care and caution for his own safety and engaged in his duties as an employee of the plaintiff, and the proximate cause of his injury was negligence of the defendant, the plaintiff was entitled to recover the amount of compensation fixed by the Workmen's Compensation Act, and the jury should assess damages in the amount which the plaintiff had paid to O'Brien.

Counsel for both parties interpret section 29 as authorizing an action for the amount of an...