Illinois Indem. Exch. v. Indus. Comm'n

• Decision Date: 27 October 1919
• Docket Number: No. 12655.,12655.
• Citation: 289 Ill. 233,124 N.E. 665
• Parties: ILLINOIS INDEMNITY EXCHANGE v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

289 Ill. 233

124 N.E. 665

ILLINOIS INDEMNITY EXCHANGE

v.INDUSTRIAL COMMISSION et al.

No. 12655.

Supreme Court of Illinois.

Oct. 27, 1919.

Error to Circuit Court, Cook County; Oscar M. Torrison, Judge.

Proceeding under the Workmen's Compensation Act by Knut Hannibal for compensation for injuries, opposed by Harry Edlund, the employer, and the Illinois Indemnity Exchange. An award of the Industrial Commission in favor of applicant was confirmed in the Circuit Court, and the Illinois Indemnity Exchange brings error. Affirmed.William McKinley and L. F. Binkley, both of Chicago, for plaintiff in error.

Bowe & Bowe and John E. Erickson, all of Chicago (Augustine J. Bowe, of Chicago, of counsel), for defendant in error.

CARTER, J.

This was a proceeding before the Industrial Commission for recovery under the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, §§ 126-152i). Knut Hannibal, the applicant, was injured December 16, 1913, while in the employ of Harry Edlund who was doing business in repairing and manufacturing wagons in Chicago under the name of the North Side Carriage & Wagon Company. While he was planing a board Hannibal's right hand was torn in such a way as to cause the loss of the thumb and index finger. The cause was referred to an arbitrator, who dismissed the proceedings on the ground that the Industrial Commission was without jurisdiction as to plaintiff in error. The Industrial Commission reversed the decision of the arbitrator, and entered an award against the plaintiff in error for $1,010. The circuit court of Cook county reversed the decision of the Industrial Commission and remanded the cause, on the ground that there was no evidence in the record justifying the award. The Industrial Commission on a second hearing again entered an award for $1,010, and on a hearing in the circuit court on writ of certiorari the finding of the Industrial Commission was confirmed, the circuit judge certifying that in his opinion the cause was one proper to be reviewed in this court, and it has been brought here by writ of error.

We find very little dispute in the record as to the main facts concerning the cause and extent of the accident. It is conceded that the employer and employé were operating under the Workmen's Compensation Act. The only controversy in the record is as to whether the Industrial Commission had jurisdiction to fix any liability as to plaintiff in error, the insurance company. Edlund was formerly in partnership with Harry Dennison. While so associated they were insured October 15, 1913, by plaintiff in error. This contract of insurance indemnified Edlund and Dennison up to an amount not exceeding $10,000 in respect of any one accident, provided that in no event should the company be liable to exceed $5,000 for damages or injuries to any one person, and providing further that no action for mdemnity under said insurance contract ‘shall be against the exchange except for reimbursement of the amount of loss actually sustained and paid in money by the assured in full satisfaction of a judgment duly recovered against the assured after final determination of the litigation.’ Attached to this contract of insurance was a rider dated October 15, 1913, reading as follows:

‘The assured under this contract having elected to operate under the so-called Workmen's Compensation Act [of 1913] * * * in consideration for the premium for which this contract is issued, this contract is hereby intended to cover such legal liability of the assured as is imposed by the aforesaid law, including any amendments thereto made after this date. This indorsement is subject to all conditions, agreements and limitations of the contract as stated herein.’

Dennison withdrew from the partnership about the first week in November, 1913, Edlund having bought out his interest. On December 31, 1913, plaintiff in error paid Edlund $250 on account of the injury to Hannibal, and Edlund gave plaintiff in error a release stating, among other things, that it was ‘in full payment and satisfaction of indemnity of every name, nature, and description whatsoever which has accrued in my favor against the said Illinois Indemnity Exchange, and more especially on account of a certain contract dated on the 15th day of October, 1913, whereby the Illinois Indemnity Exchange agreed to indemnify me against accidents not to exceed $5,000 for any one accident. It is understood by and between the parties that this release is given to cover only the case of Knut Hannibal, injured on December 16, 1913, and that I hereby covenant and agree to hold the said Illinois Indemnity Exchange harmless and to reimburse them in full for any money that they may be compelled hereafter to pay by reason of the said injury to Knut Hannibal on December 16.’ Edlund cashed the check for the $250 so received, and gave the proceeds to Hannibal, the money apparently being used to apply on the hospital expenses. Hannibal at the time he received this payment of $250 signed a general release to the North Side Carriage & Wagon Company for the accident in question.

Section 28 of the Workmen's Compensation Act provides:

‘Any person, who shall become entitled to compensation under the provisions of this act, shall, in the event of his inability to recover such compensation from the employer on account of his insolvency, be subrogated to all the rights of such employer against any insurance company, association or insurer which may have insured such employer against loss growing out of the compensation required by the provisions of this act to be paid by such employer, and, in such event only, the said insurance company, association or insurer shall become primarily liable to pay to the employé or his personal representative the compensation required by the provisions of this act to be paid by such employer.’

The act also makes provision for the employer insuring payments to employés in accordance with the act, section 26 of the act providing in some detail as to the method of insurance, apparently with the object of securing the payments to the employé in such manner and at such times as the compensation is provided for by the act.

It is argued by counsel for plaintiff in error that the Industrial Commission can only determine questions arising between employer and employé or their personal representatives; that in construing grants of power to inferior courts or bodies of limited jurisdiction nothing is held to be granted by implication which is not necessary to the full exercise of the powers expressly granted. School Inspectors v. People, 20 Ill. 526;County of Hardin v. McFarlan, 82 Ill, 138; 12 Ency. of Pl. & Pr. 155. They argue that as section 28 contains no provision as to procedure when a claim is subrogated, therefore the procedure would apply that would ordinarily be followed where one party is subrogated to the rights of another, and that a judgment would first have to be procured by the injured workman, and an independent proceeding then had in court against plaintiff in error before the claim would be enforceable; that the rights of the employer against an insurance company are those of insurance and not of compensation, and the rights of the injured workman as to the employer are those of compensation and not of insurance.

In the latter part of section 28 it is provided that--

‘Said insurance company, association or insurer shall become primarily liable to pay to the employé or his personal representative the compensation required by the provisions of this act to be paid by such employer.’

While the question is not entirely free from doubt, it would appear to be a fair construction of section 28 that the Legislature intended, under certain conditions, to charge the liability directly to the insurer, and it is not an unreasonable construction to hold it also intended to include the method of collection in compensation cases within the meaning of the words ‘primarily liable to pay * * * by the provisions...