McManaman v. Johns-Manville Prods. Corp.

• Court: Illinois Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: McManaman v. Johns-Manville Prods. Corp., 400 Ill. 423, 81 N.E.2d 137 (Ill. 1948)
• Decision Date: 15 September 1948
• Docket Number: No. 30256.,30256.
• Parties: McMANAMAN v. JOHNS-MANVILLE PRODUCTS CORPORATION.

400 Ill. 423

81 N.E.2d 137

McMANAMAN

v.JOHNS-MANVILLE PRODUCTS CORPORATION.

No. 30256.

Supreme Court of Illinois.

May 20, 1948.

Rehearing Denied Sept. 15, 1948.

Appeal from First Division Appellate Court, First District, on Appeal from Superior Court, Cook County; John M. Tuohy, Judge.

Action by Henry J. McManaman against Johns-Manville Products Corporation for injuries sustained when plaintiff was engaged in his duties as railroad conductor. From a judgment of the Appellate Court, 331 Ill.App. 178, 72 N.E.2d 741, affirming judgment for plaintiff, defendant appeals.

Judgment of the Appellate Court affirmed.

James A. Dooley, of Chicago, for appellant.

Joseph D. Ryan and Louis P. Miller, both of Chicago, for appellee.

PER CURIAM.

The plaintiff, Henry J. McManaman, brought an action in the superior court of Cook County against the defendant, Johns-Manville Products Corporation, to recover damages for personal injuries sustained on May 6, 1944, while he was engaged in his duties as freight conductor for the Elgin, Joliet and Eastern Railway Company. A jury returned a verdict awarding plaintiff $25,000 damages and judgment was entered thereon. The jury also returned a special finding that plaintiff was not guilty of contributory negligence. The Appellate Court for the First District affirmed the judgment and the cause is now here on leave to appeal granted. $The complaint alleged that at the time of the accident, and prior thereto, both plaintiff and his employer were engaged in interstate commerce; that plaintiff, when injured, was engaged in moving, distributing and classifying certain railroad cars, and in making and breaking up trains that were moving in interstate commerce. It was further alleged that, in performance of his duties, plaintiff was riding on the south side of the lead car of a cut of freight cars which was being switched onto track 7 at defendant's premises, which track was immediately north of a building known as the ‘roofing building;’ that in the north wall of said building was an entrance and roadway which extended across the railroad track; that while plaintiff was exercising due care, he was injured by negligent acts of defendant when a truck being driven out of the roofing building and across the tracks, struck and crushed the plaintiff against the side of the railroad car. Defendant's answer was in the nature of a general denial, and by way of additional defense alleged that at the time of the accident, the plaintiff, his employer, and the defendant, were all operating under and subject to the terms of the Workmen's Compensation Act of the State of Illinois, and by section 29 of said act (Ill.Rev.Stat. 1943, chap. 48, par. 166) plaintiff's only remedy was against his employer for benefits according to the terms of the act.

At the close of the evidence the plaintiff. filed a motion to strike this special defense on the ground that the undisputed evidence showed that all parties were engaged in interstate commerce at the time of the accident. The motion was allowed and the special defense stricken from the answer. Defendant assigns this ruling as error, contending, first, that as a matter of pleading the motion to strike admitted the facts of the special defense as well pleaded, and, second, that from the facts the issue of whether the parties were engaged interstate commerce was an issue of fact to be determined by the jury.

The only proof offered by defendant in support of its special defense was a stipulation of the parties that plaintiff, his railroad employer, and defendant were all operating under the Workmen's Compensation Act, ‘Except when operating in interstate commerce * * *.’ Such a stipulation cannot be deemed to be proof of the special defense, but is rather merely as restatement of the issue as raised by the pleadings and introduces no facts upon which the jury or the court could determine the issue. Since no proof in support of the special defense was given, the issue had no place in the case and the trial court properly allowed the motion to strike the special defense. Mueller v. Elm Park Hotel Co., 391 Ill. 391, 63 N.E.2d 365. Further we are of the opinion that there is no merit to defendant's contention that the motion to strike should be treated as a demurrer. The motion to strike was not based on the issues as formed by the pleadings, alone, but came after the proofs is support of the pleadings had been made, and was based on a failure of proof rather than the adequacy or inadequacy of the pleadings.

Relying on Avance v. Thompson, 387 Ill. 77, 55 N.E.2d 57, defendant next contends that the question whether or not the plaintiff was engaged in interestate commerce at the time of the accident was an issue of fact to be determined by the jury, which function was denied the jury when the trial court allowed the motion to strike the special defense. In the Avance case we held that where the facts are in dispute, or more than one inference can be drawn from them, the question whether the injured employee was, at the time, engaged in interstate commerce is a question for the jury. Conversely, however, we have held that where the facts are not in dispute, and no conflicting inferences may be drawn therefrom, it is a question of law for the court whether the parties were engaged in interstate commerce. Day v. Chicago and Northwestern Railway Co., 354 Ill. 469, 188 N.E. 540.

The facts in the record, insofar as they relate to the issue of interstate commerce, were all introduced in evidence by the plaintiff and show that the defendant on May 6, 1944, telephoned the railroad and ordered five 80-ton boxcars from the railroad's freight yards at Waukegan, Illinois. Directions were given that these cars were to be spotted on track 7 of defendant's premises, before doors 4, 5, 7, 8 and 10. Fred Hoff, freight agent for the railroad, entered the order on a drill sheet or switching list, and, in turn, the switching crew, of which plaintiff was conductor, picked up the cars from the freight yards and took them to the defendant's plant. At the entrance of the factory the switching crew was given a complete drill sheet by defendant, which contained a list of the empty cars to be brought in, and also gave information of four loaded cars which were to be switched out of the factory's grounds to the railroad yards in Waukegan. The loaded cars were sitting on track 7, thus it was for the dual purpose of spotting the empty cars and picking up the loaded ones that the train, of which plaintiff was conductor, was proceeding at the time the accident occurred. It also appears that at the time plaintiff sustained his injuries the railroad had no recorded out-of-State destination for either the empty or loaded cars. The proof shows that, a few hours subsequent to the accident, bills of lading were received which showed the destination of the loaded cars to be to points outside the State, while four of the empty cars were ultimately loaded and dispatched into interstate commerce, the fifth being withheld because of the accident.

The foregoing facts are undisputed and in our opinion are not susceptible to conflicting inferences; the nature of the employment is, therefore, a question of law. The plaintiff contends that all of the cars, both empty and loaded, were consigned to and became a part of interstate commerce before the accident occurred, since the shipper must necessarily have determined the content, consignee and destination of the cars when it ordered specific type cars adapted to its immediate needs. Defendanton the other hand, contends that the movement of the empty cars was merely an intrastate movement from the railroad yards to defendant's factory. As to the loaded cars it is contended that they did not enter interstate commerce until the bills of lading were delivered and waybills issued, after the time of the accident.

With respect to both the empty and loaded cars, the fact that bills of lading or waybills had not been issued is not...