Gannon v. Chicago, M., St. P. & P. Ry. Co., 34602

• Citation: 150 N.E.2d 141,13 Ill.2d 460
• Decision Date: 20 March 1958
• Docket Number: No. 34602,34602
• Parties: John B. GANNON, Appellant, v. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILWAY CO. et al. (E. H. Marhoefer, Jr., Co., Appellee.)
• Court: Supreme Court of Illinois

Page 141

150 N.E.2d 141

13 Ill.2d 460

John B. GANNON, Appellant, v. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILWAY CO. et al.

(E. H. Marhoefer, Jr., Co., Appellee.)

No. 34602.

Supreme Court of Illinois.

March 20, 1958.

Rehearing Denied May 23, 1958.

Leonard M. Ring, Chicago, for appellant.

Hinshaw, Culbertson, Moelmann & Hoban, Chicago (Oswell G. Treadway, Chicago, of counsel), for appellee.

SCHAEFER, Justice.

Like Kennerly v. Shell Oil Co., No. 34523, 13 Ill.2d 431, 150 N.E.2d 134, this case involves the relationship between the Workmen's Compensation Act and the Scaffold Act. The plaintiff in this case was employed as a bricklayer by E. A. Marhoefer, Jr., Co. That company, (hereafter defendant) was engaged in the construction of a freight terminal for the Chicago, Milwaukee, St. Paul and Pacific Railway Co. The Plaintiff was injured when he fell from a ladder while climbing to a scaffold. He sued the defendant and the railroad under the Scaffold Act. The railroad answered, but the defendant filed a motion to dismiss on the ground that the Workmen's Compensation Act barred the action against it. The trial court sustained the motion, dismissed the action against the defendant, and indicated that its judgment was appealable under section 50(2) of the Civil Practice Act. (Ill.Rev.Stat.1957, chap. 110, par. 50.) The plaintiff appeals directly on the ground that the statutes, construed as the trial court construed them, are unconstitutional.

The provision primarily involved is section 5(a) of the Workmen's Compensation Act. It provides: 'No common law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employee 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.' (Ill.Rev.Stat.1957, chap. 48, par. 138.5.) Section 5(b) of the act, the provision involved in the Kennerly case, authorizes the employee to maintain an action against a third party.

Section 5(a) bars a common-law action by an employee against his employer for injuries received in the course of his employment, and it also bars a statutory action against his employer for his wrongful death. See O'Brien v. Chicago City Railway Co., 305 Ill. 244, 137 N.E. 214, 27 A.L.R. 479; Faber v. Industrial Comm., 352 Ill. 115, 185 N.E. 255. The language of the section, read alone, leaves no room for construction. It bars any 'statutory right to recover damages for injury.' Plaintiff argues, however, that to fail to regard the Scaffold Act as excepted from the bar of section 5(a) 'has the practical effect of completely nullifying' it. He points out that the Scaffold Act is designed to prevent injuries, and that its violation is made a penal offense, and he concludes that the civil action it authorizes is therefore only an additional sanction to secure compliance. He also emphasizes that the common-law doctrines of assumed risk and the fellowservant rule, which in part at least were responsible for the enactment of the Workmen's Compensation Act, are not applicable to an action under the Scaffold Act. See, Fetterman v. Production Steel Co., 4 Ill.App.2d 403, 124 N.E.2d 637; Rimmke v. Gierich, 335 Ill.App. 125, 81 N.E.2d 221.

We do not agree that these considerations warrant the conclusion that the Scaffold Act should be excluded from the broad sweep of the prohibition in section 5(a). Despite plaintiff's argument to the contrary, the Scaffold Act remains an effective enactment if the language of section 5(a) is given its natural scope. Its provisions for enforcement by State and local officials remain unaltered. A third person injured by a failure to comply with the act still has his action under it, and as we hold in Kennerly v. Shell Oil Company, 13 Ill.2d 431, 150 N.E.2d 134, one who is employed on the job can maintain an action under it against the owner of the premises.

As originally adopted in 1907, the Scaffold Act authorized actions under it by an employee against an employer. Schultz v. Henry Ericsson Co., 264 Ill. 156, 106 N.E. 236, was such a case. But when the General Assembly subsequently adopted the Workmen's Compensation Act, it undertook to deal comprehensively with the rights of an injured employee and his employer. To that end it established a system of liability without fault,...