Ernhart v. Elgin, Joliet & Eastern Ry. Co.

• Decision Date: 18 March 1948
• Docket Number: No. 30383.,30383.
• Citation: 78 N.E.2d 257,399 Ill. 512
• Court: Illinois Supreme Court
• Parties: ERNHART v. ELGIN, JOLIET & EASTERN RY. CO.

399 Ill. 512

78 N.E.2d 257

ERNHART

v.ELGIN, JOLIET & EASTERN RY. CO.

No. 30383.

Supreme Court of Illinois.

March 18, 1948.

Appeal from Superior Court, Cook County; John F. Bolton, judge.

Suit by Kenneth S. Ernhart against Elgin, Joliet & Eastern Railway Company to recover under the Federal Employers' Liability Act for injuries allegedly sustained by plaintiff in fall from defendant's train because of a defect in equipment in violation of the Federal Safety Appliance Act. From a judgment for the plaintiff, the defendant appeals, and the plaintiff moves to transfer the case to the appellate court.

Cause transferred to the appellate court for the first district.

Knapp, Cushing, Hershberger & Stevenson, of Chicago (Harlan L. Hackbert, of Chicago, of counsel), for appellant.

Joseph D. Ryan, and Louis P. Miller, both of Chicago, for appellee.

GUNN, Justice.

Appellee, Kenneth S. Ernhart, brought his suit for damages against the Elgin, Joliet and Eastern Railway Company, for personal injuries claimed to have been caused by falling from a train in the yards at Gary, Indiana, because of a defect in the equipment on a car of said train. The amended declaration charges that he was in furtherance of interstate commerce at the time he was injured, and that the Federal Safety Appliance Act was violated by having upon one of appellant's cars a broken foot stirrup, which caused him to fall and to be severely injured, during the course of his employment. The answer of the defendant admits the employment, but denies that at the precise moment of the injury the plaintiff was in furtherance of interstate commerce, and denies there was any defect in the stirrup, or that the injury of the plaintiff was as severe as he claimed. The case was tried before a jury and a verdict returned in favor of the plaintiff. A motion was made at the close of the evidence of the plaintiff, and at the close of all of the evidence, to exclude the evidence and direct a verdict for the defendant. A motion has been made to transfer this case to the Appellate Court because there is no constitutional question involved giving us jurisdiction of a direct appeal, and also a motion to strike the report of proceedings because not filed within the time required by the rules of court, and to affirm the judgment.

We will consider first the question of whether we have jurisdiction to entertain this cause on direct appeal, because if we should not have such jurisdiction we would not have the right to poss upon the motion to affirm on the grounds claimed by appellee.

The particular ground upon which appellant claims we have jurisdiction arises upon the motion for judgment notwithstanding the verdict, and upon the motion for new trial, where the same grounds are urged. It appeared during the course of the trial that there was a disagreement between counsel for plaintiff and defendant, as to whether the plaintiff came within the provisions of the 1939 amendment to the Federal Employers' Liability Act. The contention of the defendant was that at the particular moment of the injury plaintiff must be shown to have been in interstate commerce, while the plaintiff contended that it was sufficient if the work in which the plaintiff was engaged was in furtherance of interstate commerce, in other words, it was sufficient if the whole movement of the train was one which would eventually result in cars going into interstate commerce. Appellee claims that at the particular time he was engaged in helping to move empty cars which, later, when loaded, would go into interstate commerce.

In ruling upon the evidence, and later in passing upon the motion for judgment notwithstanding the verdict, and the motion for new trial, the court refused to enter judgment notwithstanding the verdict, and refused to grant a new trial, and, hence, the claim of appellant to a direct appeal to this court grows out of his contention that the ruling of the court gave the Federal Employers' Liability statute an unconstitutional effect, entitling him to a direct appeal to this court.

Section 75 of the Civil Practice Act (Ill. Rev.Stat.1947, chap. 110, par. 199) provides ‘Appeals shall be taken directly to the Supreme Court in all cases in which a franchise or freehold or the validity of a statute or a construction of the constitution is involved, * * *.’ It is to be remarked that to give this court jurisdiction the validity of a statute, or the construction of the constitution must be involved. The appellant contends in its first point that the question presented is ‘the constitutional validity of the 1939 amendment to the Federal Employers' Liability Act (45 U.S.C.A. sec. 51, as amended) as construed by the trial court.’

No construction of the constitution of the United States or of Illinois is mentioned in the briefs, and neither does the appellant claim that the court passed upon the validity of the 1939 amendment of the Federal Employers' Liability Act. What it is really urging at the present time is that the ruling of the court was contrary to the provisions of the 1939 amendment, and hence, as he contends, gives the statute an unconstitutional effect. It appears from the statement of its position that appellant is not claiming that the court held the 1939 amendment invalid, and that the court did not construe any section of either the State or the Federal constitutions. It is clear that the contention of the defendant is that the court erred in holding that the evidence of plaintiff was sufficient to bring him within the provisions of that act.

Clearly, no question authorizing a direct appeal to this court is involved. We have passed upon how to raise a constitutional question many times, and perhaps a review of this subject might be useful. In Paul v. Paul, 278 Ill. 196, 115 N.E. 860, 861, a party was ordered to pay alimony, and upon refusal so to do was committed to the county jail. He contended he was denied due process of law under the constitution. In denying this contention and transferring the cause, the court said: ‘The contention of appellant seems to be that, as he was the unsuccessful party in the suit he has been deprived of liberty and property without due process of law. It is not a denial of due process of law to enter an order, after a hearing, disposing of any matter regularly at issue, although the order entered may be distasteful to the losing party. There is no constitutional question involved in this case, and we have no jurisdiction.’

In Cooper v. Palais Royal Theatre Co. 320 Ill. 44, 150 N.E. 401, 402, the question of mechanic's lien was involved, and after a hearing the case was decided against the appellant, the owner of the property, and a decree for the amount due entered. He then appealed directly to the Supreme Court upon the theory that his constitutional rights had been denied. In holding we had no jurisdiction we said: ‘He did not present to the circuit court in any manner any contention that any part of the Mechanic's Lien Act was invalid, and has not assigned any error in this court on that ground. Where a judgment or decree is attacked on the ground that its enforcement will deprive the one against whom it is sought to be enforced of some constitutional right, as the taking of property without due process of law, etc., no constitutional question is presented to authorize a direct appeal or writ of error to this court. The question involved in such a case is the validity of the judgment or decree and not a constitutional question within the meaning of the statute authorizing appeals or writs of error direct to the Supreme Court.’

In Albrecht v. Omphgent Township, 324 Ill. 200, 154 N.E. 898, the plaintiff brought a suit against the highway commissioner before a justice of the peace and recovered judgment. In the circuit court, upon appeal, the defendant proved there had been a former trial in which he had been held not liable for the same damages, and the circuit court thereupon dismissed the suit. The plaintiff attempted to appeal directly to this court. In rendering its opinion the court repeated what was said in the Cooper case, and transferred the cause to the Appellate Court.

In Will v. Voliva, 344 Ill. 510, 176 N.E. 766, the question arose as to the refusal of the court to set aside a decree because appellants claimed they were not bound by the decree because of insufficient service of process, and sought to open it up under section 19 of the Chancery Act. In that case we held the only question involved was the right of the appellants to appeal under such act, and that therefore only the construction and not the validity of a staute was involved, and the cause was therefore transferred.

In Standard Motors Securities Corp. v. Yates Co., 337 Ill. 250, 169 N.E. 164, 165, it was claimed that the...