Friebel v. Chicago City Ry. Co.

• Decision Date: 23 October 1917
• Docket Number: No. 11501.,11501.
• Parties: FRIEBEL v. CHICAGO CITY RY. CO. et al.
• Court: Illinois Supreme Court

280 Ill. 76

117 N.E. 467

FRIEBEL

v.CHICAGO CITY RY. CO. et al.

No. 11501.

Supreme Court of Illinois.

Oct. 23, 1917.

Appeal from Circuit Court, Cook County; Kickham Scanlan, Judge.

Action by Karl Friebel against the Chicago City Railway Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

C. W. Greenfield, of Chicago, for appellant.

Harry P. Weber, George W. Miller, and Arthur J. Donovan, all of Chicago (John R. Guilliams and Franklin B. Hussey, both of Chicago, of counsel), for appellees.

DUNCAN, J.

Appellant brought this suit against the Chicago City Railway Company, the Calumet & South Chicago Railway Company, and the Hammond, Whiting & East Chicago Railway Company, appellees, to recover damages for personal injuries received by him November 13, 1913, in a collision of a street railway car and an automobile truck. The original declaration was filed February 6, 1914, an amended declaration was filed November 13, 1915, and three additional counts were filed October 21, 1916, all counts in the amended declaration being finally withdrawn except the first amended count and the first additional count. Said two counts of the amended declaration charged that appellant was injured by the negligence of appellees in operating a street car in the city of Chicago on a certain street railway, and that appellees were jointly and severally possessed of and operating the street car at the time of the collision. There was a plea of not guilty and a plea denying ownership of the car, with a stipulation that any competent evidence might be introduced in support of the defense that appellant and appellees were all governed and controlled by section 29 of the Workmen's Compensation Act that would be admissible under a proper plea in bar of said action based on the provisions of said section. Appellant offered evidence tending to prove the allegations of the declaration. Appellees offered no evidence as to the accident or injury to appellant, but introduced proof tending to show that at the time of appellant's injury he and his employer, the Hartman Furniture & Carpet Company, and the appellees, were all operating under the provisions of the Workmen's Compensation Act, to support their contention that by reason thereof appellant's suit is barred by section 29 of that act. At the close of all the evidence appellees requested the court to instruct the jury to find them not guilty, and the court so instructed the jury. A verdict of not guilty was accordingly returned, and judgment was entered on the verdict in favor of appellees and against appellant. From that judgment of the circuit court of Cook county this appeal was prosecuted direct to this court, on the ground that the constitutionality of section 29 of the Workmen's Compensation Act is involved.

The facts, so far as they are material to the questions presented on this appeal, are not in dispute. They were established by stipulations and by testimony which was not contradicted. It appears from the record that on November 13, 1913, the appellant was in the employ of the Hartman Furniture & Carpet Company, which company at that time was in the business of operating some five or six retail furniture stores located in different parts of Chicago, and in connection with said stores it also operated a large seven-story warehouse at Thirty-Ninth street and Wentworth avenue. Many of the articles sold in the retail stores were sold from samples, and deliveries thereof were made from the warehouse by means of automobile trucks and horses and wagons. No goods were stored in said warehouse except those belonging to the Hartman Furniture & Carpet Company. On the main floor of this warehouse, in a space about 30 feet square, there was a small repair shop inclosed and separated from the rest of the building, which shop was equipped with various machinery for rebuilding such furniture as became broken or damaged in handling. The warehouse also contained three or four elevators operated by electric motors, and two power-driven pumps and low-pressure boilers were located in the basement. Guards had been placed on certain parts of the machinery for the protection of the men operating the same. Appellant on the day of his injury had nothing to do with the operation of the repair shop or the machinery or any of the elevators connected with the warehouse. His duties were confined solely to the loading of trucks from the platform of said warehouse with furniture taken therefrom and making deliveries thereof. He was receiving a regular salary of $15 a week, and overtime amounting at times to $7 a week. On said date appellant and one other man had loaded furniture from said warehouse upon an automobile truck in charge of a chauffeur, and had gone with the truck from the warehouse to deliver and unload the furniture into the houses of the customers of his employer, the Hartman Furniture & Carpet Company. Their last delivery was made at Hagewisch at about 7 o'clock in the evening. When they started home they proceeded to South Chicago and then up Chicago avenue towards the city, having still one or two pieces of furniture on the truck. When they had about reached the intersection of East End avenue with South Chicago avenue the steering gear of the truck became disarranged and the chauffeur stopped the truck. While endeavoring to ascertain the cause of the trouble appellant and the two persons with him undertook to remove the disabled truck from the street car track to allow a north-bound car to pass, which had come up behind them and stopped. Appellant took hold of one of the front wheels with his hands and the other helper took hold of the other front wheel to guide the truck. The Chauffeur, thus assisted, by the use of the power was able to move the truck from the north-bound track over to the south-bound track and permit the north-bound car to pass. On account of the roadway at the side of the street being full of holes and several inches lower than the street car tracks it was impossible for the appellant and the other helper to guide the truck by their hands so as to move it except on the paved street car tracks. A south-bound car having come up to that point it became necessary to move the truck back to the north-bound track in order to allow the south-bound car to pass. When the truck had been moved by these operations far enough north so that it was about at the south line of East End avenue, in order to prevent further blocking of the traffic on the street car track the chauffeur undertook to run the truck off the track into East End avenue, where necessary repairs might be made. In order to do this the same process was resorted to as before. After the truck had been removed from the north-bound track, except about 2 or 3 feet of the rear left-hand corner and possibly one hind wheel, a north-bound car, without any warning or signal, struck the rear of the truck and drove it ahead a distance of about 75 feet against a tree, with such force that the chauffeur was thrown through the plate glass wind-shield and several feet ahead of the truck. Appellant was caught under the truck in such a manner that his right ear was completely torn off, three or four of his ribs broken, a severe gash cut in his scalp, his scalp torn back, his body badly bruised, the sight of his right eye destroyed, and the hearing of his right ear totally impaired. He also suffered an impacted fracture of the spine, and by reason of the injuries was permanently and totally disabled.

It appears from the record that prior to appellant's injury his employer had taken no affirmative action to bring itself within the provisions of the Workmen's Compensation Act, and that neither appellant nor his employer had taken any action to reject that act. It is conceded that the record shows that appellees at the time of the injury were operating under the Workmen's Compensation Act. After the injury appellant's employer paid to him, and he accepted, compensation under said act up to the time of the trial, amounting to the sum of $1,148.89, in addition to $200 for surgical and hospital bills.

The contentions of appellant are: That the work in which he was engaged was not extrahazardous, and that he was therefore not bound by the Workmen's Compensation Act. That the injury sustained by him did not arise out of and in the course of his employment. That even if appellant and his employer were operating under that act, this suit can be maintained by him under the subrogation provision of section 29 of the act to the amount of the compensation allowed by said act. That section 29 is unconstitutional: (1) Because the act is broader than its title, and therefore contravenes section 13 of article 4 of the Constitution of this state; (2) it is special legislation, in contravention of section 22 of article 4 of the Constitution; (3) it gives one class of employés an election to bring an action against a third party tort-feasor, and denies that right to other employés of the same class; (4) it deprives the immediate employer of all defenses, but does not deprive the third party tort-feasor of his common-law defenses when sued under section 29 by the employer of an injured employé; and (5) it violates section 2 of article 2 of the Constitution in that it deprives citizens of property without due process of law, etc., and for the same reason violates the Fourth and Fifth Amendments of the Constitution of the United States.

If the work or employment in which appellant was engaged was not extrahazardous within the meaning of section 3 of the Workmen's Compensation Act, that act can have no application in this case, as neither appellant nor his employer has done any act showing an election to be bound thereby. Under the holding of this court in Armour & Co. v. Industrial Board, 275 Ill. 328, 114 N. E. 173, appellant's employer, the Hartman Furniture & Carpet Company, in maintaining its warehouse for the...