Munch v. United Air Lines, 10123.

• Citation: 184 F.2d 630
• Decision Date: 09 October 1950
• Docket Number: No. 10123.,10123.
• Parties: MUNCH v. UNITED AIR LINES Inc. et al. (AMERICAN AUTOMOBILE INS. CO., Intervenor).
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

184 F.2d 630 (1950)

MUNCH v. UNITED AIR LINES Inc. et al. (AMERICAN AUTOMOBILE INS. CO., Intervenor).

No. 10123.

United States Court of Appeals Seventh Circuit.

October 9, 1950.

Thomas J. Finnegan, Chicago, Ill., for appellant.

William H. Schrader, Paul H. Heineke, Clarence R. Conklin, David Jacker, Charles M. Rush, and John M. O'Connor, Jr., all of Chicago, Ill., William H. Symmes, Chicago, Ill., of counsel, for appellees.

Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

This is an action to recover damages for the allegedly wrongful death of plaintiff's decedent, Fred O. Munch, who died October 24, 1947, as the result of injuries sustained that day in the crash, near Bryce Canyon, Utah, of an airplane owned and operated by defendant, United Air Lines. The complaint averred that defendant Douglas Aircraft Company had negligently manufactured the plane, and that United had been guilty of certain acts of negligence in its operation of the plane on which decedent, while proceeding within the scope of his employment by Air Line Pilots Association, was travelling as a passenger at the time of the fatal accident. The American Automobile Insurance Company, permitted to intervene as an additional party plaintiff, sought to recover the amount of workmen's compensation which had been paid by it to the original plaintiff.

Douglas appeared specially for the limited purpose of filing its motion to quash the summons with which it had been served, averring that, at the time of service, it was not doing business in Illinois and was not, therefore, amenable to process in that state. Plaintiff, opposing this motion, asserted that Douglas, which, in 1942, had applied for and received a certificate of authority to do business in Illinois, had never applied for or obtained a certificate of withdrawal in accord with the provisions of the Business Corporation Act of Illinois, Ill.Rev.Stat. Ch. 32, Sec. 157.1 et seq., and had, therefore, been served properly by service on its registered agent. The District Court, however, granted the motion to quash and dismissed the action as to Douglas.

United filed an answer setting up four separate defenses. The second of these alleged that, by virtue of the provisions of Section 29 of the Illinois Workmen's Compensation Act, Ill.Rev.Stat. Ch. 48, Sec. 166, the cause of action asserted by plaintiff had been transferred to the decedent's employer, the Air Line Pilots Association, which had settled the claim filed against it before the Industrial Commission of Illinois, on behalf of plaintiff administratrix and her son, by agreeing to pay to the claimants the sum of $5,785.00. United's third defense was that, since Munch's death had occurred outside Illinois, in a state where a right of action for wrongful death exists and in which it (United) is amenable to service of process, Section 2 of the Illinois Wrongful Death Act, Ill.Rev.Stat. Ch. 70, Sec. 2, operates as a bar to the maintenance, in Illinois, of a wrongful death action based thereon, and that, for this reason, the District Court was without authority to entertain the cause of action.

Plaintiff, contending that Section 29 of the Illinois Workmen's Compensation Act is not applicable in the instant case and that the jurisdictional limitation in Section 2 of the Illinois Wrongful Death Act is not controlling in the case of a wrongful death action filed in a federal court in Illinois, moved to strike United's second and third defenses. This motion, in which the intervening plaintiff joined, was denied by the District Court, and, plaintiffs having elected to stand on their motion, judgment was entered dismissing the action as to United. From that judgment, and from the order quashing the service on Douglas and dismissing the action as to it, plaintiffs have prosecuted this appeal.

In the light of this court's recent decision in Trust Company of Chicago v. Pennsylvania Railroad Company, 7 Cir., 183 F.2d 640, plaintiffs' contention that the lower court erred in refusing to strike the defense based on the limitation in Section 2 of the Illinois Wrongful Death Act must be rejected, for, in that case, confronted with the very question raised on this appeal, we concluded that the provisions of Section 2 of the Illinois Act were binding on the federal courts in Illinois, sitting in diversity cases, and constituted a bar to maintenance of an action for damages for wrongful death in a case where, as here, a right of action for such death exists under the laws of the state where the death occurred and service of process in such action may be had in that state. Consequently, irrespective of the propriety of the District Court's ruling on the validity of the second defense asserted by United — i. e., the applicability of Section 29 of the Illinois Workmen's Compensation Act, its dismissal of the action as to United was correct and must be affirmed.

With respect to the order quashing the service of summons on Douglas Aircraft, plaintiffs contend that, since Douglas had not withdrawn from Illinois in the manner prescribed by Section 120 of the Business Corporation Act and had never revoked the authority of its registered agent in accordance with the provisions of that section, Douglas was subject...