North Pier Terminal Co. ex rel. Liberty Mut. Ins. Co. v. Hoskins Coal & Dock Corp.

• Decision Date: 17 February 1948
• Docket Number: Gen. No. 43931.
• Citation: 333 Ill.App. 440,77 N.E.2d 546
• Court: United States Appellate Court of Illinois
• Parties: NORTH PIER TERMINAL CO., for Use of LIBERTY MUT. INS. CO. v. HOSKINS COAL & DOCK CORPORATION.

333 Ill.App. 440

77 N.E.2d 546

NORTH PIER TERMINAL CO., for Use of LIBERTY MUT. INS. CO.

v.HOSKINS COAL & DOCK CORPORATION.

Gen. No. 43931.

Appellate Court of Illinois, First District, Second Division.

Feb. 17, 1948.

Appeal form Superior Court, Cook County; John E. Pavlik, Special Judge.

Action by North Pier Terminal Company, a corporation, for the use of Liberty Mutual Insurance Company, a corporation, against Hoskins Coal & Dock Corporation, to recover death benefits paid by Terminal Company under Longshoremen's and Harbor Workers' Compensation Act, section 1 et seq., 33 U.S.C.A. section 901 et seq., when an employee of terminal company was killed allegedly as result of defendant's negligence. From an adverse judgment, defendant appeals.

Judgment reversed and cause remanded with directions.Miller, Gorham, Wescott & Adams, of Chicago (Edward R. Adams, of Chicago, of counsel), for appellant.

D'Isa & Arpaia, of Chicago (Ezra L. D'Isa, of Chicago, of counsel), for appellee.

FRIEND, Presiding Justice.

Defendant appeals from an adverse judgment for $2408.22 entered upon the verdict of the jury.

The complaint alleged that on June 22, 1941 North Pier Terminal Company (hereinafter referred to as the terminal company) was engaged in the business of warehousing and stevedoring in Chicago and vicinity; that it had in its employ as a longshoreman one Robert Dunkel; that about 9:30 P.M. on the day in question the defendant, Hoskins Coal and Dock Corporation, had one of its barges stationed and working alongside the scene of operations in which Dunkel was engaged; and that throughout all the occurrences alleged, Dunkel and the terminal company were in the exercise of due care and caution for the safety of all concerned. It is further alleged that defendant was operating a crane on its barge and was engaged in lifting silica sand out of the barge and swinging it over and loading it on an adjoining ship; that the crane and barge were under the exclusive control of the defendant, which maintained, operated and controlled the crane; and that suddenly and without warning, through the negligence and carelessness of the defendant, the crane was caused to and did topple over backwards, thereby proximately causing Dunkel's injury and resulting death.

It is further alleged that there was then in full force and effect a Federal statute known as the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. ch. 18; that both Dunkel and the terminal company were operating under and subject to the terms and provisions of that act; that by virtue thereof the terminal company became liable for payment of death benefits under the terms of the act; that prior thereto and effective at the time of the accident the Liberty Mutual Insurance Company had issued its policy of insurance to the terminal company covering the latter's liability under the act; that in pursuance of said policy and in accordance with the act the terminal company was compelled to and did expend large sums of money in payment of death benefits; that by virtue of its policy of insurance and under title 33 of the act the Liberty Mutual Insurance Company has become subrogated to all the rights of the terminal company; that the Liberty Mutual Insurance Company was in the exercise of all due care and caution for the safety of all concerned; and that in addition to the death benefits other expenses in the nature of attorneys' fees and costs had been expended in the matter. A motion to dismiss the complaint on the ground that no cause of action against defendant was shown, was overruled, and after the verdict motions of defendant for judgment notwithstanding the verdict and for a new trial were likewise overruled.

The accident occurred upon the navigable waters of the Chicago River. Only two witnesses testified to the occurrence itself. At the time of the accident three sand barges were lashed alongside a dock on the north side of the river. Lashed to the south side of one of these was a crane barge which had been brought there by the defendant. Next to this barge, on its south, there was lashed to it, or to the dock, a ship. The crane on the barge was being used to load sand from the sand barges to the ship. The only employee of the defendant present was the operator of the crane. Decedent was an employee of the terminal company who signaled the crane operator in his work. The crane was placed on the barge in the usual and customary manner. It was on a caterpillar tractor base and the tractor had been run onto the barge, its tractors blocked and locked. This was the usual and customary manner of placing cranes on crane barges. Shortly before the decedent was discovered dead, the arm of the bucket attached to the crane had broken. The crane operator had stopped the crane while it was in the air at about a 65 degree angle. The bucket was on the deck of the barge, some 15 feet away from the caterpillar tractor. The crane operator jumped out of his cab to fix the arm of the bucket. The barge began to rock from the waves of a passing boat and the crane tipped over backwards, sliding the bucket along the deck toward the base of the crane tractor. At some time before the crane tipped over, the decedent had been standing near the bucket. None of the witnesses saw the decedent for two or three minutes after the crane tipped over, at which time he was discovered wedged in between the ship and the crane barge, with his hands and head on the barge. He was killed almost instantly.

The case proceeded to trial on the theory that the facts were sufficient to invoke the doctrine of res ipsa loquitur. Under that doctrine ‘whenever a thing which produced an injury is shown to have been under the control and management of the defendant and the occurrance is such as in the ordinary course of events does not happen if due care has been exercised, the fact of injury itself will be deemed to afford prima facie evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care.’ Bollenbach v. Bloomenthal, 341 Ill. 539, 173 N.E. 670, 671. Defendant introduced no evidence whatever, nor did it make any attempt to overcome or rebut the presumption or inference of negligence raised by the application of this doctrine. In the absence of an explanation by the party charged, it therefore became a question of fact for the jury to determine whether the accident was proximately caused through the negligence of defendant. Bollenbach v. Bloomenthal, supra, and Styburski v. Riverview Park Co., 298 Ill.App. 1, 18 N.E.2d 92.

The principal legal question presented is whether payment of death compensation under the Longshoremen's and Harbor Workers' Compensation Act transferred to the employer the right to sue the negligent third party under the Illinois Wrongful Death statute, Ill.Rev.Stat. 1947, ch. 70, secs. 1 and 2. Plaintiffs paid compensation to the widow of the decedent pursuant to the provisions of the Longshoremen's Act, and they claim that by virtue of that act they are entitled to recover from the defendant the compensation paid. The salient provisions of section 33 of the act, 33 U.S.C.A. § 933, are as follows:

‘(a) If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect, by giving notice to the deputy commissioner in such manner as the commission may provide, to receive such compensation or to recover damages against such third person.

‘(b) Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person.

‘(c) The payment of such compensation into the fund established in section 944 of this chapter shall operate as an assignment to the employer of all right of the legal representative of the deceased (hereinafter referred to as ‘representative’) to recover damages against such third person, whether or not the representative has notified the deputy commissioner of his election.

‘(d) Such employer on account of such assignment may either institute proceedings for the recovery of such damages or may compromise with such third person either without or after instituting such proceeding.

‘(e) Any amount recovered by such employer on account of such assignment, whether or not as the result of a compromise, shall be distributed as follows: [setting forth the amount to be retained by the employer for expenses, attorneys' fees, cost of benefits actually furnished to the employee and the amounts of compensation paid].’

Plaintiffs contend that the provisions of section 33 of the Longshoremen's Act transferred to the employer who has paid compensation thereunder all rights of action possessed by the personal representative of the deceased to the extent of the compensation paid, and they rely principally on Aetna Life Ins. Ci. v. Moses, 287 U.S. 530, ...