Petrazelli v. Propper

• Decision Date: 24 May 1951
• Docket Number: No. 31882,31882
• Citation: 409 Ill. 365,99 N.E.2d 140
• Parties: PETRAZELLI v. PROPPER.
• Court: Illinois Supreme Court

Page 140

99 N.E.2d 140

409 Ill. 365

PETRAZELLI v. PROPPER.

No. 31882.

Supreme Court of Illinois.

May 24, 1951.

Rosenbaum & Rosenbaum and Lester E. Williams, all of Chicago, for appellant.

Ross, Berchem & Schwantes, of Chicago, for appellee.

THOMPSON, Justice.

A complaint was filed in the superior court of Cook County, alleging that on June 6, 1946, the defendant, Arthur Proper, was the owner and operator of a motor truck which he was operating in front of 19 South Water Market, Chicago, and that the plaintiff, Guy Petrazelli, was invited by the defendant to sell vegetable produce from the opened tail-gate of said truck; that while plaintiff was in the exercise of ordinary care and caution for his own safety, the defendant suddenly moved his truck, causing plaintiff to fall to the street pavement from the tail-gate of said truck, injuring him severely.

Defendant answered, denying the allegations and setting up as a special defense that at the time of the accident the plaintiff, plaintiff's employer and the defendant were all operating under, and bound by, the terms of the Workmen's Compensation Act, and that the injuries arose out of and in the course of plaintiff's employment; that plaintiff claimed and received from his employer the benefits due from his employer under the act and therefore is barred from bringing this action against defendant. The answer further avers that whatever rights plaintiff might have had against defendant are transferred to plaintiff's employer under section 29 of the Workmen's Compensation Act.

Plaintiff replied admitting that he and his employer were operating under the act at the time of the accident, but that defendant was not, and that plaintiff has a cause of action against the defendant, and that under section 29 of the act he will reimburse his employer from any recovery obtained in the instant suit. Plaintiff further replied alleging the unconstitutionality of section 29 of the act under both the State and Federal constitutions.

On the trial the jury was waived and the cause was submitted on a stipulation of facts. The stipulation sets forth that plaintiff was the employee of R. H. Dietz & Company on the date of the accident, and that they were operating under the Workmen's Compensation Act; that the accident arose out of, and in the course of, that employment; that defendant Propper was operating a cartage business employing three or four employees and that he was operating as an employer under the act; that the accident occurred in connection with and in the course and scope of the defendant's business by the operation by the defendant of one of his trucks.

The court heard argument on the question presented by the facts stipulated and held that both defendant and plaintiff, as well as plaintiff's employer, were operating under, and were bound by, the Workmen's Compensation Act; that, under section 29 of said act, plaintiff's cause of action is barred.

Plaintiff urges error in the holding below that this action is barred by section 29 of the Workmen's Compensation Act and in holding that section 29 of the act does not violate the State and Federal constitutions. The questions then presented are, (1) does section 29 of the Workmen's Compensation Act constitute a bar to plaintiff's cause of action, and, (2) is section 29 of the act invalid as violating the State or Federal constitutions?

Plaintiff contends that his cause of action is not barred by section 29 of the act. (Ill.Rev.Stat.1949, chap. 48, par. 166.) By his stipulation he admits he was in the employ of R. H. Dietz & Company, and that his injuries arose out of and in the course of that employment. He also admits that defendant was an employer and operating under the act at the time of the accident. Plaintiff concedes that if the truck had been driven by one of defendant's employees at the time of the accident this cause of action would be barred by section 29 of the act. The narrow ground upon which plaintiff stands is that because the truck upon which the injury occurred was being driven at the time by defendant, who was an employer and not an employee, section 29 does not apply. It is stipulated that the truck at the time of the injury was being operated by defendant in the course and within the scope of his business.

Appellant argues that defendant cannot be both an employer and employee; that if the injury had occurred to him he could have sued no one; that there was no contractual relationship between defendant as an employer and defendant as an employee. To support this argument plaintiff cites Wilhelm v. Industrial Comm., 399 Ill. 80, 77 N.E.2d 174. The question presented in that case was whether a husband could be the employee of his wife so as to make her liable under the Workmen's Compensation Act for injuries sustained by the husband in the course of his wife's business. This court held the husband-wife relationship precluded the right to compensation from her under the act. It is clear this case has no application here for the reason that the plaintiff here concededly was not the employee of the defendant and the defense raised is based on the absence of that relationship between plaintiff and defendant. Crepps v. Industrial Comm., 402 Ill. 606, 85 N.E.2d 5, and Kijowski v. Times Publishing Corp., 372 Ill. 311, 23 N.E.2d 703, are inapplicable for the same reasons. City of West Frankfort v. Industrial Comm., 406 Ill. 452, 94 N.E.2d 413, involves the question whether a policeman was an officer or an employee of the respondent city. In each of these cases the question was whether the injured person was the employee of the employer in whose services the injury occurred. The present record presents no such question. The question presented by the record in the instant case is whether an employer who operates a...