Curran v. Wells Bros. Co.

• Decision Date: 19 December 1917
• Docket Number: No. 11490.,11490.
• Citation: 281 Ill. 615,117 N.E. 984
• Parties: CURRAN v. WELLS BROS. CO.
• Court: Illinois Supreme Court

281 Ill. 615

117 N.E. 984

CURRAN

v.WELLS BROS. CO.

No. 11490.

Supreme Court of Illinois.

Dec. 19, 1917.

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

Action by Martin Curran against the Wells Brothers Company. On certiorari to review the judgment affirming a judgment for plaintiff. Affirmed.Landon & Holt, of Chicago, for plaintiff in error.

Francis J. Woolley, of Chicago, for defendant in error.

DUNN, J.

This writ of certiorari brings before us for review the record of the Appellate Court by which a judgment of the superior court of Cook county against the plaintiff in error for personal injuries sustained by defendant in error through the negligence of the plaintiff in error was affirmed. The reasons urged for a reversal are that the plaintiff's only remedy was that provided by the Workmen's Compensation Act of 1911, and that the court erred in instructing the jury.

The plaintiff in error was engaged in the building business, and the defendant in error was a laborer in its employ on December 10, 1912, when he was injured while at work by a plank falling from a scaffold. The Workmen's Compensation Act of 1911 (Laws 1911, p. 315) was in force, and neither the plaintiff nor the defendant had filed with the state board of labor statistics a notice that he would not be bound by the act. The act provides that every employer is presumed to have elected to provide and pay the compensation according to the provisions of the act unless and until notice of his election to the contrary is filed with the state bureau of labor statistics. Clause (c) of paragraph 3 of section 1 of the act is as follows:

‘In the event any employer elects to provide and pay compensation provided in this act, then every employé of such employer, as a part of his contract of hiring or who may be employed at the time of the taking effect of this act and the acceptance of its provisions by the employer, shall be deemed to have accepted all the provisions of this act and shall be bound thereby unless within thirty days after such hiring and after the taking effect of this act, he shall file a notice to the contrary with the secretary of the state bureau of labor statistics, whose duty it shall be to immediately notify the employer, and if so notified, the employer shall not be deprived of any of his common-law or statutory defenses, and until such notice to the contrary is given to the employer, the measure of liability of the employerfor any injury shall be determined according to the compensation provisions of this act; Provided, however, that before any such employé shall be bound by the provisions of this act, his employer shall either furnish to such employé personally at the time of his hiring, or post in a conspicuous place at the plant or in the room or place where such employé is to be employed, a legible statement of the compensation provisions of this act.’

Thus all employers and employés within the enumerated employments when the act took effect became subject to the act at the expiration of thirty days without affirmative action on their part. As to those employed after the taking effect of the act and its acceptance by the employer, they also are deemed to have accepted the provisions of the act as a part of their contract of hiring unless they file notice to the contrary with the secretary of the state...