Gones v. Fisher
Decision Date | 20 February 1919 |
Docket Number | No. 11956.,11956. |
Citation | 122 N.E. 95,286 Ill. 606 |
Parties | GONES v. FISHER. |
Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Vermilion County; Walter Brewer, Judge.
Action by C. B. Gones against J. G. Fisher on the case. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.
Walter T. Gunn and Thomas A. Graham, both of Danville, for appellant.
Ralph M. Jinkins, of Fairmount, and Lindley, Penwell & Lindley, of Danville (Walter C. Lindley, of Danville, of counsel), for appellee.
Appellant, C. B. Gones, began this action on the case in the circuit court of Vermillion county against appellee, J. G. Fisher, the Illinois Printing Company, and Newton Shields for damages for personal injuries, charging in his declaration that while he was in the exercise of reasonable care for his own safety he was injured by the negligence of the defendants in operating an automobile. A verdict of $5,000 was recovered by appellant, upon which judgment was entered. On appeal to the Appellate Court for the Third District the judgment was reversed; the court holding that there was no liability against the Illinois Printing Company and Newton Shields, and the cause was remanded for further proceedings against appellee. Upon reinstatement in the circuit court the suit was dismissed as to the defendants the Illinois Printing Company and Newton Shields, and an amended declaration containing practically the same averments against appellee as were in the original declaration was filed against him alone. Appellee filed pleas of the general issue, the statute of limitations, and five special pleas. Afterward he withdrew the plea of the statute of limitations, and thereupon the court overruled appellant's demurrer to the five special pleas. Appellant elected to stand by his demurrer. The court entered judgment in bar of the action, and the appellant has appealed directly to this court on the ground that the constitutionality of section 29 of the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, § 152b) is involved.
Three of the special pleas alleged, in substance, that appellant at the time of his alleged injuries was employed by a copartnership, Schmitt & Leachman; that both appellant and his employers had elected to be bound by the Workmen's Compensation Act and were within its provisions, and that appellee had elected not to be bound by that act; that appellant's injuries occurred in the course of and arose out of his employment, and were not proximately caused by the negligence of his employers or their employés; that appellant had agreed to accept, and had accepted from his employers for his injuries, the sum of $1,000 under the Workmen's Compensation Act; that this action is not maintained in appellant's name by his employers, wherefore no cause of action arose against appellee in favor of appellant, and he could not maintain the action, but any action for his alleged injuries could be maintained or continued only by his employers in their name or in the name of the appellant. The other special pleas contained substantially the same averments as the first three special pleas, except that they contained no averments that appellee had or had not elected to come under the Workmen's Compensation Act.
The pleas were based on sections 6 and 29 of the Workmen's Compensation Act (sections 132, 152b), the first of which provides that no common-law or statutory right to recover damages for injury or death sustained by an employé while engaged in the line of his duty as such employé, other than the compensation provided in the act, shall be available to any employé who is covered by the provisions of the act. That section is qualified by section 29, which, so far as is material to this case, reads as follows:
‘Where the injury or death for which compensation is payable under this act, was not proximately caused by the negligence of the employer or his employés and was caused under circumstances creating a legal liability for damages on the part of some person other than the employer to pay damages, such other person having elected not to be bound by this act, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer's payment of or liability to pay compensation under this act, but in such case if the action against such other person is brought by the injured employé or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employé or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employé or his personal representative: Provided, that if the injured employé or his personal representative shall agree to receive compensation from the employer or to institute proceedings to recover the same or accept from the employer any payment on account of such compensation such employer shall be subrogated to all the rights of such employé of personal representative and may maintain, or in case an action has already been instituted, may continue an action either in the name of the employé or personal representative or in his own name against such other person for the recovery of damages to which but for this section the said employé or personal representative would be entitled, but such employer shall nevertheless pay over to the injured employé or personal representative, all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this act, and all costs, attorneys' fees and reasonable expenses incurred by such employer in making such collection and enforcing such liability.’ Hurd's Stat. 1917, p. 1466.
It is contended by the appellant that, if section 29 deprives employés of their right to recover from third parties who are not under the act for injuries caused by their negligence, such a provision is not within the title of the act, as required by section...
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... ... an action by an injured employee, or his dependents, to ... recover damages against a third party. We refer the ... interested reader to [ Gones v. Fisher , 286 Ill. 606, ... 122 N.E. 95], 19 A. L. R. 766; [ O'Brien v. Chicago ... City R. Co. , 305 Ill. 244, 137 N.E. 214], 27 A. L. R ... ...
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