Johnson v. Turner

• Decision Date: 23 June 1943
• Docket Number: Gen. No. 9835.
• Citation: 319 Ill.App. 265,49 N.E.2d 297
• Parties: JOHNSON v. TURNER ET AL.
• Court: United States Appellate Court of Illinois

319 Ill.App. 265

49 N.E.2d 297

JOHNSON

v.TURNER ET AL.

Gen. No. 9835.

Appellate Court of Illinois, Second District.

April 28, 1943.

As Modified on Denial of Rehearing June 23, 1943.

Appeal from Circuit Court, Lee County; Harry E. Wheat, Judge.

Action by William Johnson against Harri Turner and others to recover damages for personal injuries. Judgment for plaintiff, and defendants appeal.

Affirmed in part and reversed in part. Dixon, Devine, Bracken & Dixon, of Dixon, for appellants.

Warner & Warner and Mark C. Keller, all of Dixon, for appellee.

DOVE, Justice.

This case involves the construction of section 29 of the Workmen's Compensation Act (Ill.Rev.Stat.1941, ch. 48, par. 166 [Jones Ill.Stats.Ann. 143.44]). The issues are presented by an appeal from a judgment of the circuit court of Lee County for $5,000 in favor of appellee against appellants in a personal injury suit.

Appellants invoke the provisions of the second paragraph of the above-mentioned section 29, on the ground that appellee's employer was bound by the Workmen's Compensation Act, and that appellants were not so bound. The pertinent portions of section 29 are the first two paragraphs thereof, which provide:

“Where an injury or death for which compensation is payable by the employer under this Act was not proximately caused by the negligence of the employer or his employees, and was caused under circumstances creating a legal liability for damages in some person other than the employer to pay damages, such other person having also elected to be bound by this Act, or being bound thereby under section three (3) of this Act, then the right of the employee or personal representative to recover against such other person shall be transferred to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained, in an amount not exceeding the aggregate amount of compensation payable under this Act, by reason of the injury or death of such employee.

“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 employees 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. In such case, however, if the action against such other person is brought by the injured employee 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 employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative.”

Appellee, a carpenter, was employed by Mark D. Smith, a contractor. On October 4, 1939, shortly after 4 o'clock p. m., in company with Joseph Fagan, another carpenter employed by Smith, they were riding west on a public highway in Lee County, returning home in Smith's automobile from work on the Bunnell farm, located about three and one-half miles south and nine and one-half miles east of Ashton. Smith was driving the car. Fagan was on the front seat with him, and Johnson sat on the right-hand side of the rear seat. At the intersection of the highway mentioned with a north and south public highway, there was a collision between Smith's car and a truck coming from the south, driven by Robert Greenfield. Fagan and Greenfield were knocked unconscious, Smith was killed, and Johnson was severely injured.

Appellee's complaint named Robert Greenfield, Harri Turner, Florence Turner, Robert Turner and Charles R. Rice, as defendants. The complaint consisted of five counts. The first count charges general negligence in the operation of the truck. The second, third and fourth counts respectively charge separate violations of paragraphs (b) and (c) of section 49, and section 68 of the Motor Vehicles Act (Ill.Rev.Stat.1939, ch. 95 1/2, pars. 146 and 165 [Jones Ill.Stats.Ann. 85.178, 85.197]). These charges are respectively that the truck was driven at a speed greater than was then and there reasonable and safe, having regard to the traffic and the use of the way; approaching and attempting to cross the intersection without decreasing the speed of the truck; and a failure to give the right of way to Smith's car, approaching from the right. The fifth count, charging wilful and wanton misconduct, was later stricken on appellee's motion.

The first count of the complaint alleges, among other things, that the plaintiff was a passenger in a certain passenger automobile owned and driven by Smith in a westerly direction along the public highway approaching the intersection above mentioned; that Smith was then and there and at all times thereinafter mentioned in the exercise of due care for his own safety and for the safety of the plaintiff and for the safety of all persons and property lawfully then and there upon and using said public highway; that Greenfield was then and there driving a truck registered in the name of Robert Turner; that the truck was owned by the defendants Harri Turner, Florence Turner and Robert Turner, or one or more of them, and was then and there being driven by Greenfield as an employee in the course and conduct of a business enterprise or partnership then being conducted by and on behalf of Harri Turner, Charles R. Rice, Florence Turner and Robert Turner, or by one or more of them, in the business of buying and selling livestock and lending money for the purchase thereof; that said truck was then and there being driven in a northerly direction upon the highway running north and south, and approaching the intersection mentioned from a southerly direction; and that Greenfield was then and there the employee and agent of the partners aforesaid in the operation of the truck. Each count realleges these allegations, which will be hereinafter further noticed.

The defendants answered the complaint, denying each allegation of each count. Robert Turner being a minor, the court entered an order appointing a guardian ad litem for him, with leave to adopt the answer of the other defendants.

An amendment to the answer was filed, setting out that at the time and place of the alleged injuries the plaintiff was an employee of Smith, who was a general contractor subject to the terms of the Workmen's Compensation Act, being sections 17 to 39.9 both inclusive, thereof; that plaintiff was then and there in and about his duties as such employee, and was subject to and chargeable with any negligence on the part of Smith, which in any way contributed to the alleged injuries; and that should there be any recovery in this case, Smith is entitled to be first paid for any sums paid to the plaintiff or on his behalf, pursuant to the terms of the statute mentioned.

The suit was dismissed as to Florence Turner and Charles R. Rice on appellee's motion, and the cause was tried by a jury, which disagreed and was discharged. Thereafter, the above-mentioned amendment to the answer was stricken on appellee's motion, and subsequently, further amendments to the answer were successively filed. They embrace the same allegations as the stricken amendment, with additional allegations that at the time and place of the alleged injuries the plaintiff was subject to the orders and directions of Smith, and was in and about his duties in the course of his employment as such employee; that the defendants or either of them were not subject to the terms and provisions of the Workmen's Compensation Act, and are not persons contemplated by section 29 thereof, against whom a cause of action may be maintained for injuries received by workmen whose employers are subject to the terms of the act; that the plaintiff is subject to and chargeable with any negligence on the part of Smith, and that it is provided by section 29 of the act that before the plaintiff can effect a recovery in this case he must affirmatively establish that his injuries were not proximately caused by the negligence of his employer; that pursuant to the terms of the act, Smith paid the plaintiff workmen's compensation for his alleged injuries in the amount of $412.50, having procured workmen's compensation insurance from the Maryland Casualty Company, who has made demand in writing on the defendants for the amount of compensation paid to the plaintiff, out of any moneys that might be recovered in this cause. These amendments were stricken in the order of their filing, on appellee's successive motions, and the cause was tried on the complaint and the original answer.

In addition to striking the amendments, the court instructed the jury that the negligence, if any, of appellee's employer, could not be attributed to appellee. The case, therefore, was tried on the theory that section 29 of the act does not apply which was in accord with appellee's contention. Appellants claim that the rights of the parties are governed by section 29; that appellee is chargeable with the negligence, if any, of his employer, and that he cannot recover without establishing that his injuries were not proximately caused by his employer's negligence; and that by the striking of the amendments appellee was relieved of complying with that requirement, and appellants were deprived of the right to offer any proof on that question. The action of the trial court in striking the amendments is the only ground urged for reversal.

Counsel for appellee argue that appellants are not within either of the classes of other persons mentioned in section 29, as persons bound by the act or persons who have elected not to be bound thereby, and are not, therefore, entitled to invoke its provisions. Our ...