Reynolds v. Chicago City Ry. Co.

• Decision Date: 20 February 1919
• Docket Number: No. 12337.,12337.
• Citation: 122 N.E. 371,287 Ill. 124
• Parties: REYNOLDS v. CHICAGO CITY RY. CO.
• Court: Illinois Supreme Court

287 Ill. 124

122 N.E. 371

REYNOLDS

v.CHICAGO CITY RY. CO.

No. 12337.

Supreme Court of Illinois.

Feb. 20, 1919.

Error to Appellate Court, First District, on Appeal from Superior Court, Cook County; M. L. McKinley, Judge.

Action by Patrick Reynolds against the Chicago City Railway Company. A judgment for plaintiff was reversed by the Appellate Court (210 Ill. App. 379), and plaintiff petitions for certiorari. Affirmed.

Farmer, J., dissenting.

James C. McShane, of Chicago, for plaintiff in error.

Charles Le Roy Brown, of Chicago (Franklin B. Hussey, of Chicago, of counsel); for defendant in error.

DUNN, J.

Patrick Reynolds was a motorman in the employ of the Chicago City Railway Company, and on December 21, 1914, in the course of his employment, was injured by the collision of two cars. He brought suit against his employer in the superior court of Cook county and recovered a judgment, which the Appellate Court for the First District on appeal reversed. 210 Ill. App. 379. The judgment included an order remanding the cause to the superior court, but upon the motion of the appellee, and on his showing that he could not on any future trial make out any better case than he had proved on the previous trial, the Appellate Court struck out the order of remandment. Reynolds then filed a petition for a writ of certiorari to bring up the record for review, and it was allowed.

The defendant in error insists that the judgment of the Appellate Court was entered against plaintiff in error on his own motion and that he therefore cannot insist on its reversal. This is not in accordance with the record. The judgment was reversed, as shown by the opinion of the Appellate Court, for the errors assigned by the defendant in error, and those assigned by the plaintiff in error were not considered. From the nature of the error found, the remandment of the cause followed as a matter of course. The plaintiff in error had a right to another trial of the cause, but because he could not prevail on such a trial he requested the court to strike out the order of remandment. This would not amount to a confession of error or a consent to the judgment, which had been rendered against him over his objection; but it was a waiver only of his right to have a new trial in the superior court, or to complain that the cause was not remanded. The judgment of reversal was then final against him, but it cannot be said to be a judgment by consent or on his own motion.

The declaration alleged that the defendant was operating a street railway line on the streets of the city of Chicago and street cars thereon for the carrying of passengers for hire, that the plaintiff's injury occurred through the negligence of the defendant, that the defendant and plaintiff were both employed in a business to which the Workmen's Compensation Act applied, and that the defendant had elected not to provide or pay compensation according to the provisions of that act for accidental injuries sustained by its employés. The Appellate Court reversed the judgment, because the plaintiff failed to prove the filing of notice with the Industrial Board by the defendant of its election not to provide and pay compensation under the Workmen's Compensation Act (Laws 1913, p. 335) within the time required by that act, and therefore the court erred in denying the defendant's motion to find a verdict for it.

The workmen's Compensation Act has divided employers and employés who come within its terms into two classes, those who have accepted the provisions of the act and those who have not. The rights and liabilities of the two classes are different, and are secured and enforced by entirely different processes. The case alleged in the plaintiff's declaration is one of an employer and employé who have not accepted the provisions of the act. It was essential to the statement of a cause of action that it should appear that the defendant had elected not to comply with the provisions of the Workmen's Compensation Act, and equally essential to a recovery that this fact should be shown by the evidence. Beveridge v. Illinois Fuel Co., 283 Ill. 31, 119 N. E. 46;Barnes v. Illinois Fuel Co., 283 Ill. 173, 119 N. E. 48. The Workmen's Compensation Act of 1913 took effect on July 1, 1913. There is no evidence that defendant in error ever elected not to comply with the provisions of the act for the year 1913, and it is therefore conceded that it was subject to the provisions of the act until the end of that year. It is shown that Chemical Works v. Industrial Board, 274 Ill. on November 4, 1913, of its intention not to provide and pay compensation to its employés according to the terms of the act on and after January 1, 1914. We held in Victor Chemical Works v. Industrial Board, 274 Ill. 11, 113 N. E. 173, Ann. Cas. 1918B, 627, that under the Workmen's Compensation Act of 1913 employers who did not give notice of their intention to comply or not to comply with the act were bound by it until they gave notice of an intention not to provide and pay compensation according to its provisions, and that they had the right to give such notice at any time after the act took effect until 60 days before the succeeding first day of January, but that after that date the provisions of the act providing for yearly terms would operate upon all employers and require them to give 60 days' notice of withdrawal from the act prior to the 1st of January, 1914, or any year thereafter, or remain bound by the provisions of the act for the following calendar year. The defendant in error therefore was subject to the provisions of the act in 1913, and if it desired to elect not to comply with its provisions after the first of January, 1914, it was necessary to file its notice with the Industrial Board 60 days before that date. Since the notice was not filed until less than 60 days before that date the defendant in error continued subject to the provisions of the Workmen's Compensation Act throughout the year 1914.

The plaintiff in error argues that it was not necessary to the decision of the Victor Chemical Works Case that any limit should be placed on the time in which employers could reject the act, and that it was more reasonable and more consistent with the provisions of the act referring to the calendar year to construe it as fixing December 31 as the last date under which the act could be rejected than November 1. Section 1 of the act provided that the election to provide and pay compensation according to the provisions of the act should be made by the employer's filing notice of such election with the Industrial Board. Section 2 provided that every employer enumerated in paragraph (b) of section 3 (which includes the defendant in error) should be conclusively presumed to have filed notice of his election as provided in section 1, and to have elected to provide and pay compensation according to the provisions of the act unless and until notice in writing of his election to the contrary was filed with the Industrial Board. Therefore, under these two sections the defendant in error was conclusively presumed to have filed the notice of its election to provide and pay compensation under the act and to have elected to provide and pay compensation according to the act. Then, by the further provision of paragraph (b) of section 1, having elected to provide and pay compensation according to the provisions of the act, as it was conclusively presumed to have done, the defendant in error was bound, as to all its employés covered by the act, until January 1, 1914, and...