Landreth v. Wabash R. Co., 8889.

• Decision Date: 07 February 1946
• Docket Number: No. 8889.,8889.
• Citation: 153 F.2d 98
• Parties: LANDRETH v. WABASH R. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

153 F.2d 98 (1946)

LANDRETH v. WABASH R. CO.

No. 8889.

Circuit Court of Appeals, Seventh Circuit.

January 18, 1946.

Rehearing Denied February 7, 1946.

Royal W. Irwin, of Chicago, Ill., for appellant.

Elmer W. Freytag and Kenneth B. Hawkins, both of Chicago, Ill., for appellee.

Before SPARKS, MAJOR, and KERNER, Circuit Judges.

SPARKS, Circuit Judge.

This action was brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for personal injuries resulting from alleged negligence of the defendant on August 18, 1942. The complaint was filed February 16, 1943, and alleged that both parties were engaged in interstate commerce at the time of the event.

The only error assigned is the court's overruling of plaintiff's motion to strike defendant's sixth defense. The plaintiff chose to stand upon his exceptions to that ruling and declined to plead further, whereupon the court rendered judgment dismissing the complaint at plaintiff's cost. The appeal is from that judgment.

The sixth defense in substance contains the following allegations: On November 12, 1943, defendant filed with the Industrial Commission of Illinois its application for adjustment of plaintiff's claim here sued upon, alleging that on August 18, 1942, plaintiff, while working in the course and scope of his employment with the company, sustained the injury here complained of as the result of an accident at Bement, Illinois, by reason of certain steel sheets falling over, striking and knocking him to the ground. Defendant requested the Commission to appoint an arbitrator for inquiry and investigation, and to set a time and place for hearing proper evidence which the parties might submit, and that an award and decision be made in conformity with the Workmen's Compensation Act of Illinois. Ill.R.S.1945, Chap. 48, § 138 et seq.

At the time and place of the accident defendant was engaged in carriage by land and employed more than two employees in its business, and the provisions of Section 3 of that Act automatically and without election applied to defendant and plaintiff.

Thereafter both parties were duly notified of the hearing to be had on defendant's application before the arbitrator, on January 19, 1944, at which hearing testimony was heard and evidence introduced. On January 20, 1944, the arbitrator rendered and filed with the Commission his decision to the effect that defendant and plaintiff, on August 18, 1942, were not operating under and subject to the provisions of the Workmen's Compensation Act of Illinois, and he ordered the application dismissed for lack of jurisdiction.

On February 1, 1944, within the time provided by the Act, and in all respects in compliance therewith, defendant petitioned the Commission for a review of the arbitrator's decision on the grounds that it was contrary to the law and the evidence, and that the arbitrator erred in dismissing the action for lack of jurisdiction. Due notice was given of defendant's petition for review, and it was argued by the parties before a majority of the members of the Commission on May 24, 1944.

On June 1, 1944, the Commission held the decision of the arbitrator erroneous and set it aside. It found also that the parties, at the time of plaintiff's injuries, were operating under and subject to the provisions of the Workmen's Compensation Act of Illinois; that such injuries arose out of and in the course of plaintiff's employment with defendant; that notice of such injury was given and claim for compensation therefor was made within the time required by that Act; that plaintiff's average weekly wage was in excess of $30 per week; that he had no children under sixteen years of age; that first-aid medical, surgical and hospital services were provided by defendant; that plaintiff was thereby permanently disabled, and was entitled to compensation therefor under paragraphs (e) and (f) of section 8 of the Act.

The Commission ordered defendant to pay plaintiff compensation, commencing on the day of the accident, at the rate of $16.50 per week for a period of 266 weeks, and one week at $11.00, and thereafter a pension during his life payable at the rate of $44 per month. Defendant was further ordered to furnish such medical, surgical and hospital services as might be required on account of such injury, but was allowed credit for all compensation previously paid to plaintiff on account of such injury.

Thereafter, through writs of certiorari and scire facias, from the clerk of the Superior Court of Cook County, Illinois, plaintiff appealed from the order of the Commission to that court, and the Commission in compliance with the order certified to that court a transcript of the decision, award and other proceedings in this case, all pursuant to the provisions of the Act. Due notice, as required by the Act, was served upon defendant to show cause, if any, why such decision or award should not be reversed and set aside.

Thereupon, the defendant filed its special and limited appearance for the sole purposes of questioning the jurisdiction of the court over the subject matter and the parties thereto, and of moving to quash the writs of certiorari and scire facias issued therein, and to dismiss the proceedings for want of jurisdiction.

These motions were filed and argued by both parties, and on October 26, 1944, the court entered its order quashing the writs and dismissing the action. Under the Workmen's Compensation Act of Illinois, that order was a final one and was reviewable only by the Supreme Court of Illinois upon a...