Kinnan v. Chas. B. Hurst Co.

• Decision Date: 22 February 1922
• Docket Number: No. 13958.,13958.
• Citation: 134 N.E. 72,301 Ill. 597
• Parties: KINNAN v. CHAS. B. HURST CO.
• Court: Illinois Supreme Court

301 Ill. 597

134 N.E. 72

KINNAN

v.CHAS. B. HURST CO.

No. 13958.

Supreme Court of Illinois.

Feb. 22, 1922.

Error to Appellate Court, First District, on error to Circuit Court, Cook County; Anton T. Zeman, Judge.

Action by John Kinnan against the Chas. B. Hurst Company. From a judgment of the Appellate Court (220 Ill. App. 651), affirming a judgment for plaintiff, defendant brings certiorari.

Affirmed.

John Early, of Chicago, for plaintiff in error.

S. P. Douthart, of Chicago, for defendant in error.

DUNN, J.

John Kinnan recovered a judgment for $12,625 against the Chas. B. Hurst Company, the Appellate Court affirmed the judgment, and the record has been brought here for review by certiorari.

The suit was begun in the municipal court of Chicago on August 13, 1913, for personal injuries received on September 4, 1912, by the plaintiff, who was a mason employed by the defendant in the construction of a silo near Polo, Ill. The cause was transferred to the circuit court of Cook county, and an amended declaration of two counts in trespass on the case was filed, the first of which alleged negligence of the employer in the erection, construction, and maintenance of a scaffold upon which the plaintiff was required to go in the course of his work, by reason of the insufficiency of which it broke, and the plaintiff fell and was injured. This count alleged the willful negligence of the defendant, contrary to the statute providing for the protection and safety of persons in and about the construction, repairing, alteration, or removal of buildings, bridges, viaducts, and other structures, approved June 3, 1907. Laws 1907, p. 312. The other count alleged, generally, the negligence of the defendant in the construction of the scaffold.

The proceedings on the trial have not been preserved, and no bill of exceptions appears in the record, which consists of the declaration, plea of the general issue, the order of the court overruling the defendant's motions for a new trial and in arrest of judgment, and entering judgment on the verdict. The question presented is as to the sumciency of the declaration to sustain the judgment.

At the time of the accident to the plaintiff the Workmen's Compensation Act of 1911 was in force. Laws 1911, p. 315. This act provided that any employer covered by its provisions might elect to provide and pay compensation for injuries sustained by any employee arising out of and in the course of the employment according to the provisions of the act, and thereby relieve himself from any liability for recovery of damages, except as in the act provided, and that every employer within the provisions of the act, failing to file notice in writing of his election to the contrary, should be bound by the provisions of the act, and in the event of an employer's electing to provide and pay compensation as provided in the act, then every employee of such employer should be deemed to have accepted all the provisions of the act as a part of his contract of hiring unless within 30 days after such hiring, and after the taking effect of the act, he should file notice to the contrary with the secretary of the state bureau of labor statistics: Provided that, before any such employee should be bound by the provisions of the act, his employer should either furnish to such employee personally at the time of his hiring, or post in a conspicuous place at the plant, or in the room or place where such employee was to be employed, a legible statement of the compensation provisions of the act. The act by its terms applied to employers in the business in which the defendant was engaged, and provided that 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 provided in the act should be available to any employee who had accepted the provisions of the act: Provided that, when the injury to the employee was caused by the intentional omission of the employer to comply with statutory safety regulations, nothing in the act should affect the civil liability of the employer.

In Beveridge v. Illinois Fuel Co., 283 Ill. 31, 119 N. E. 46, it was held that in an action on the case for personal injuries against an employer engaged in a business subject to the provisions of the Wokmen's Compensation Act it was necessary to allege in the declaration facts showing that the defendant was not subject to the provisions of the act, and this allegation must be proved by the plaintiff. This rule was declared, also, in Barnes v. Illinois Fuel Co., 283 Ill. 173, 119 N. E. 48,Davis v. St. Paul Coal Co., 286 Ill. 64, 121 N. E. 181,Reynolds v. Chicago City Railway Co., 287 Ill. 124, 122 N. E. 371, and Bishop v. Chicago Railways Co., 290 Ill. 194, 124 N. E. 837. The cases in which these decisions were made all arose under the act of 1913 (Laws 1913, p. 337), in which the proviso in the act of 1911 concerning the furnishing to the employee at the time of hiring, or posting in a conspicuous place at the plant, a legible statement of the compensation provisions of the act, is omitted, and it is therefore insisted that the decisions are not applicable to the act of 1911. The cases of Zukas v. Appleton Mfg. Co., 279 Ill. 171, 116 N. E. 610, and Curran v. Wells Bros. Co., 281 Ill. 615, 117 N....