Davis v. St. Paul Coal Co.

• Decision Date: 18 December 1918
• Docket Number: No. 12423.,12423.
• Citation: 286 Ill. 64,121 N.E. 181
• Parties: DAVIS v. ST. PAUL COAL CO.
• Court: Illinois Supreme Court

286 Ill. 64

121 N.E. 181

DAVIS

v.ST. PAUL COAL CO.

No. 12423.

Supreme Court of Illinois.

Dec. 18, 1918.

Appeal from Appellate Court, Second District, on Error to Circuit Court, La Salle County; Edgar Eldredge, Judge.

Action by John Davis against the St. Paul Coal Company. Judgment for defendant, which was affirmed by the Appellate Court, and plaintiff appeals. Affirmed.

Browne & Wiley and Butters & Clark, all of Ottawa, for appellant.

Duncan & O'Conor, of Ottawa, for appellee.

FARMER, J.

Appellant (hereafter called plaintiff) brought an action against the appellee (hereafter referred to as defendant), plaintiff's employer, in the circuit court of La Salle county, to recover damages for a personal injury to plaintiff, alleged to have resulted from the negligence of defendant. The declaration contained two counts and stated a case for a recovery in an action at common law. It contained no allegation that the parties had elected not to operate under the Workmen's Compensation Act (Hurd's Rev. St. 1916, c. 48, §§ 126-152h). Defendant demurred to the declaration, the court sustained the demurrer, and plaintiff asked and was granted leave to amend the declaration. The amendment consisted of inserting in each court an allegation that before plaintiff was injured defendant had elected to not operate under the Workmen's Compensation Act. The injury to the plaintiff was received November 8, 1913. The amendment was filed November 14, 1917. To the amended declaration defendant pleaded the statute of limitations. Plaintiff demurred to that plea, but the court overruled the demurrer. Plaintiff elected to stand by his demurrer, and the court rendered judgment in favor of defendant and against plaintiff for costs. Plaintiff prosecuted an appeal to the Appellate Court for the Second District, where the judgment was affirmed. The Appellate Court granted a certificate of importance and an appeal to this court, and the case is brought here to review the judgment of the Appellate Court.

The original declaration stated a cause of action for damages at common law for a personal injury. Defendant was engaged in coal mining, and plaintiff was employed by it in that business. There was no averment in the original declaration that the parties had elected not to be bound by the Workmen's Compensation Act. By section 1 (section 126) of that act an employer who elects to provide and pay compensation for accidental injuries to employés is relieved of any liability for damages except as provided in the act. Section 2 (section 127) provides that every employer enumerated in paragraph (b) of section 3 shall be conclusively presumed to be subject to the act, unless he has given notice of his election otherwise, in the manner therein provided. Persons or corporations engaged in ‘mining, surface mining or quarrying’ are engaged in employments which are by said section 3 conclusively presumed to be subject to the act, unless they have elected to the contrary, and section 6 (section 131) provides:

‘No common law or statutory right to recover damages for injury or death sustained by any employé while engaged in the line of his duty as such employé other than the compensation herein provided shall be available to any employé 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.’

The action was brought against an employer whom the law conclusively presumes is subject to the Workmen's Compensation Act and who was not liable in a common-law action to an employé for damages for any injury...