Nordland v. Poor Sisters of St. Francis Seraph of Perpetual Devotion

• Court: Appellate Court of Illinois
• Writing for the Court: McCORMICK; SCHWARTZ, P. J., and ROBSON
• Citation: Nordland v. Poor Sisters of St. Francis Seraph of Perpetual Devotion, 123 N.E.2d 121, 4 Ill.App.2d 48 (Ill. App. 1954)
• Decision Date: 14 December 1954
• Docket Number: Gen. No. 46367
• Parties: James J. NORDLAND, M.D., Appellant, v. POOR SISTERS OF ST. FRANCIS SERAPH OF PERPETUAL DEVOTION, d/b/a St. Francis Hospital et al., Defendants below. Poor Sisters of St. Francis Seraph of Perpetual Devotion, d/b/a St. Francis Hospital, Appellee.

Page 121

123 N.E.2d 121

4 Ill.App.2d 48

James J. NORDLAND, M.D., Appellant, v. POOR SISTERS OF ST. FRANCIS SERAPH OF PERPETUAL DEVOTION d/b/a St. Francis Hospital et al., Defendants below. Poor Sisters of St. Francis Seraph of Perpetual Devotion, d/b/a St. Francis Hospital, Appellee.

Gen. No. 46367.

Appellate Court of Illinois, First District, Second Division.

Dec. 14, 1954.

Norman Peters and John G. Phillips, Chicago, Charles Wolff, Charles T. Shanner, Chicago, of counsel, for appellant.

Albert M. Howard, Chicago, Charles D. Snewind, Chicago, of counsel, for appellee.

McCORMICK, Justice.

This appeal is taken from the judgment of the trial court dismissing the suit of James J. Nordland, M.D., plaintiff, against the Poor Sisters of St. Francis Seraph of Perpetual Devotion, doing business as St. Francis Hospital (hereafter referred to as 'hospital').

The plaintiff had brought suit against the hospital and others for injuries received by him while he was an intern assisting surgeons in an operation conducted in the operating room at the hospital. The defendant's motion to dismiss, with affidavits attached, was brought under Section 48 of the Practice Act (Ill.Rev.Stat. ch. 110, par. 172), and was predicated on the grounds that the plaintiff did not have legal capacity to sue and that the court did not have jurisdiction of the subject matter of the action, in that the plaintiff and defendant hospital at the time and place complained of were operating under and subject to the provisions of the Illinois Workmen's Compensation Act, Ill.Rev.St.1953, ch. 48, § 138.1 et seq., and the alleged accident arose out of and in the course of plaintiff's employment with the said defendant.

The questions presented to this court are: Was such a motion properly brought under Section 48 of the Practice Act; and, if so, was the trial court correct in sustaining such motion?

From the affidavits of the defendant, the counter-affidavits of the plaintiff and the exhibits therein filed, the following uncontroverted facts appear: The plaintiff was an intern at the hospital under a contract of internship, by which the hospital agreed to supply maintenance to the plaintiff and to pay him each month the sum of $125. Plaintiff agreed to abide by the rules and regulations of the hospital and to perform faithfully to the best of his ability the duties assigned to him for his period of service. The agreement also provided that the connection of the plaintiff with the hospital may be terminated at any time by action of the Sister Superior and the Intern Committee of the hospital for any dereliction of duty, improper conduct, unsatisfactory service or other sufficient cause. The rules of the hospital provided that interns agree to devote their entire professional service to the hospital and not to engage in private practice or in any other occupation apart from the hospital duties, or to accept any compensation whatsoever. Interns were required to visit all patients on their service at least twice a day and fulfill orders for treatment given by attending physicians, and they were prohibited from giving any orders in conflict with those of the attending physician. At the time of the occurrence in question the plaintiff was working in general surgery, and while he was engaged in assisting surgeons in an operation in the operating room of the hospital the anesthetic machine exploded and plaintiff was injured. The hospital and the plaintiff were both qualified to come under the Workmen's Compensation Act of Illinois.

Section 48 of the Practice Act provides:

'Defendant may, within the time for pleading, file a motion to dismiss the action or suit, * * * supported by affidavits where any of the said following defects exist but do not appear upon the face of the complaint:

* * *

* * *

'(b) That the court has not jurisdiction of the subject matter of the action or suit, provided the defect cannot be removed by a transfer of the case to a court having jurisdiction.

'(c) That the plaintiff has not legal capacity to sue.'

We will first discuss the jurisdictional question.

The object of the Workmen's Compensation Act was to provide prompt, sure and definite compensation for injuries or death suffered by employees in the course of their employment. The theory of the common law on which rests the liability of the employer for accidental injuries to his workmen upon his fault or neglect is set aside, and such accidental injuries are regarded as a charge on the industry or business involved, to be paid for as a part of operating the business, without regard to the question of whether the employer or employee was guilty of any fault. Where both parties are under the Act, an employee has no common law right of action against his employer for negligently injuring him in the course of his employment. The Illinois Supreme Court has said in Thornton v. Herman, 380 Ill. 341, 43 N.E.2d 934, 936:

'The many cases where section 29 has been construed were analyzed in O'Brien v. Chicago City R. Co., supra, and a summary of the holdings of the several cases is stated in the following language (305 Ill. 244, 137 N.E.2d 218, 27 A.L.R. 479): 'From these cases it appears that we have held (1) that the common-law right of action of an employee against his employer for negligently injuring him in the course of his employment is abolished * * *.' See also Faber v. Industrial Commission, 352 Ill. 115, 185 N.E. 255.

In McFarlin v. McFarlin, 384 Ill. 428, 51 N.E.2d 520, 521, the court says concerning jurisdiction:

'Jurisdiction of the subject matter is the power of a court to hear and determine causes of the general class to which the proceeding in question belongs, and such jurisdiction is always conferred by law. In its application to a certain controversy, jurisdiction means the power and authority to hear and determine the issues involved in the cause. Woodward v. Ruel, 355 Ill. 163, 188 N.E. 911; People [ex rel.] v. Ford, 289 Ill. 550, 124 N.E. 549; Oakman v. Small, 282 Ill. 360, 118 N.E. 775.' See also People ex rel. v. Brewer, 328 Ill. 472, 160 N.E. 76.

Section 48 of the Practice Act provides that the question as to whether or not the court has jurisdiction of the 'subject matter of the action or suit' may be raised by a motion supported by affidavit. Since the common law right of action of an employee against his employer for negligently injuring him in the course of his employment is abolished, it would seem evident that the court has no jurisdiction to hear and determine such an action or suit, and, therefore, the motion to dismiss was properly brought under Section 48 on the ground that the court had no jurisdiction. Hayes v. Marshall Field & Co., 351 Ill.App. 329, 115 N.E.2d 99.

Also included in the motion is subsection (c) of Section 48, which permits a party to move to dismiss on the ground of lack of capacity to sue. In Duvardo v. Moore, 343 Ill.App. 304, 98 N.E.2d 855, 856, the ruling of the trial court on a motion under Section 48 of the Practice Act was involved. There the defendant moved to dismiss the action under Section 48 of the Civil Practice Act on the ground that the plaintiff did not have legal capacity to sue because both the plaintiff and his employer, and the defendant, were under and subject to the Illinois Workmen's Compensation Act. Affidavits in support of the motion were filed indicating that the plaintiff was injured by his employer in the course of his employment, which injury was aggravated by the malpractice of the defendant, a physician. The court says:

'It is apparent that the action of the Court below in dismissing the complaint on the ground that plaintiff did not have legal capacity to sue under Section 29 of the Illinois Workmen's Compensation Act was proper. There were no disputed questions of fact which would require the determination of such facts by the intervention of a jury.

'The filing of the amended motion, supported by affidavits, under Section 48 of the Civil Practice Act was a proper means of raising the question of legal capacity to sue, in view of the provisions of the Workmen's Compensation Act. Classen v. Heil, 330 Ill.App. 433, 71 N.E.2d 537; Parker v. Alton R. Co., 295 Ill.App. 60, 14 N.E.2d 665.'

We are of the opinion that the motion to dismiss on the ground of lack of capacity to sue was properly brought under Section 48.

The plaintiff relies upon the case of Rehula v. Bessert, 322 Ill.App. 146, 54 N.E.2d 71, to support his contention that such motion was improperly brought under Section 48 of the Practice Act. A careful reading of the case indicates that such was not the holding. In that case, order of dismissal of the suit was entered on defendant's motion, on the ground that plaintiff's cause of action had been released and transferred to the decedent's employer by plaintiff's acceptance of compensation benefits. In support of the motion copies of the records of the Industrial Commission were filed showing that the employer was insured against liability under the Workmen's Compensation Act at the time of the accident; that the plaintiff had filed an application for adjustment of compensation for the death of her husband; that compensation had been awarded; that pending a review of the award plaintiff's application was dismissed on a motion of the defendant setting up a settlement contract approved by the Industrial Commission and disaffirming liability on the part of the defendant company, and stating that the settlement was made solely to avoid litigation. No evidence was heard, nor were any affidavits filed. The motion was determined solely upon matters presented by the records of the Industrial Commission. It was objected that while it was admitted all parties were under the Workmen's Compensation Act, the Act has no application unless the accident resulting in decedent's death arose out of and in the course of his employment, and that that was a question of fact which should be decided...