Hays v. Illinois Terminal Transp. Co.

• Decision Date: 03 June 1936
• Docket Number: No. 23411.,23411.
• Citation: 363 Ill. 397,2 N.E.2d 309
• Parties: HAYS et al. v. ILLINOIS TERMINAL TRANSP. CO.
• Court: Illinois Supreme Court

363 Ill. 397

2 N.E.2d 309

HAYS et al.

v.ILLINOIS TERMINAL TRANSP. CO.

No. 23411.

Supreme Court of Illinois.

April 24, 1936.

Rehearing Denied June 3, 1936.

Action by Elijah F. Hays and others against the Illinois Terminal Transportation Company, wherein the people, on the relation of Edward J. Barrett, Auditor of Public Accounts, sought to intervene. From a judgment denying leave to intervene, the People appeal.

Affirmed.Appeal from Circuit Court, Piatt County; J. L. McLaughlin, judge.

Otto Kerner, Atty. Gen. (W. F. Gray, of Clinton, of counsel), for appellant.

R. E. Smith, of Benton, for appellees.

Hugh J. Graham, of Springfield, for Illinois Terminal Transp. Co.

JONES, Justice.

The issue in this case is whether an enlisted man in the Illinois National Guard who is injured while in active service is entitled to an award under the Workmen's Compensation Act (Smith-Hurd Ann.St. c. 48, § 138 et seq.). The question is presented to this court by an appeal from the circuit court of Piatt county, which denied leave to the state of Illinois to intervene in a personal injury suit brought by plaintiffs against the Illinois Terminal Transportation Company. The circuit court held that the guardsmen are not entitled to the benefits of the Compensation Act. The people have appealed.

Plaintiffs were members of the National Guard and had been assigned to active duty in Christian county to suppress riots. In returning to their homes in Jefferson county they traveled by motor bus. An explosion and fire occurred in the bus and several guardsmen were injured. Two of them died as a result. The state paid $32,183.85 for nurse hire, doctor bills, hospital expenses, and awards made by the court of claims on account of such injuries. It filed a suit in the circuit court of Sangamon county against the transportation company, claiming a right to subrogation under section 29 of the Workmen's Compensation Act (Smith-Hurd Ann.St. c. 48, § 166). Plaintiffs filed the instant common-law action in the circuit court of Piatt county against the transportation company to recover damages for their injuries. The state's petition to intervene prays that this suit be dismissed, or, in the alternative, that the intervener be substituted as plaintiff, and that the cause be transferred to Sangamon county, to be consolidated with the suit pending there. A motion by defendant to dismiss this suit was also denied.

The state and the transportation company take the position that an enlistment is a voluntary contract of hire, and that members of the National Guard, when in active service, are under the Workmen's Compensation Act. Plaintiffs contend they are not under the act and that the award made to them was by virtue of the State Military Code (Smith-Hurd Ann.St. c. 129, § 1 et seq.; Ill.Rev.Stat.1935, c. 129, par. 1 et seq.). They therefore claim the state is not entitled to subrogation and that they have a right to maintain their suit against defendant for damages.

It is conceded by all parties that the state, and each municipal corporation therein, are included within the term ‘employer’ whenever the nature of the employment is sufficient to bring it within the act. An ‘employee’ includes every person (with a few specified exceptions) who is under appointment or contract of hire by the state in such an employment. It is claimed by the state and by the transportation company that because the Military Code provides pay on a per diem basis for active service of guardsmen they are under a contract of hire and hence within the provisions of the Workmen's Compensation Act. In support of this contention reliance is placed upon State v. Long, 136 La. 1, 66 So. 377, L.R.A.1915E, 235, Ann.Cas.1917B, 240; Ex parte Blackington (D.C.) 245 F. 801, 803;Nebraska National Guard v. Morgan, 112 Neb. 432, 199 N.W. 557;Baker v. State, 200 N.C. 232, 156 S.E. 917. The Long Case and the Blackington Case did not involve claims under compensation acts. In the Long Case an enlisted man was convicted in a court martial proceeding for the violation of a regulation which became effective after his enlistment. It was held that his enlistment constituted a voluntary contract, and that the state had no power to impose upon him additional conditions and obligations to which he had not given his assent. In the Blackington Case an enlisted man in the United States army endeavored by habeas corpus proceedings to be discharged from service. The court held that his enlistment was a contract which bound him to military service for a specified length of time and that he was not entitled to discharge. Neither of these cases is persuasive in the determination of the question here involved. In the Nebraska case a carpenter by the name of Morgan was employed by the National Guard to erect sheds on an encampment field. He was not a member of the militia. He fell over an obstruction and was injured. He sought compensation. The defense was that the National Guard was not an agency of the state, but the Supreme Court of Nebraska held otherwise and compensation was awarded. It is quite obvious that the question for decision in that case is foreign to anything here involved. The North Carolina case above cited is more nearly in point. There an enlisted man was injured while cranking a tractor. The court held he was entitled to compensation because he was not included in any of the classes of persons expressly excepted from the provisions of the act. At the time the award was made to him there was no other provision of law in North Carolina entitling him to compensation for his injuries. This fact marks an important distinction on this subject between the laws of North Carolina and Illinois.

The act relating to the militia (Smith-Hurd Ann.St. c. 129, § 1 et seq.; Ill.Rev.Stat.1935, c. 129, par. 1 et seq.) is a complete Code for the military and naval affairs of the state. Section 10 of article 16 of the Code (Smith-Hurd Ann.St. c. 129, § 142) provides that any officer or enlisted man who may be wounded or disabled in any way, while on duty and lawfully performing the same, so as to prevent his working at his profession, trade, or other occupation from which he gains his living, shall be...