Thornton v. Herman

• Decision Date: 21 September 1942
• Docket Number: No. 26563.,26563.
• Citation: 43 N.E.2d 934,380 Ill. 341
• Parties: THORNTON v. HERMAN.
• Court: Illinois Supreme Court

380 Ill. 341

43 N.E.2d 934

THORNTON

v.HERMAN.

No. 26563.

Supreme Court of Illinois.

Sept. 21, 1942.

Appeal from Appellate Court, First District, Third Division, on Appeal from Superior Court, Cook County; W. W. Damron, Judge.

Action by Katrina Thornton, as administratrix of the estate of William Pendley Thornton, deceased, against Hoover Herman to recover damages under the Injuries Act for the death of plaintiff's intestate, as a result of the alleged negligent act of defendant. From a judgment of the appellate court, 311 Ill.App. 513, 36 N.E.2d 840, affirming a judgment for plaintiff, defendant appeals.

Judgments reversed.Sonnenschein, Berkson, Lautmann, Levinson & Morse, of Chicago (Isaac E. Ferguson and Jack I. Levy, both of Chicago, of counsel), for appellant.

J. Hayden MacDonald and Andrew J. Farrell, both of Chicago, for appellee.

MURPHY, Justice.

A trial with a jury in the superior court of Cook county resulted in a verdict and judgment for plaintiff for $10,000. On defendant's appeal to the Appellate Court the judgment was affirmed. 311 Ill.App. 513, 36 N.E.2d 840. Leave to appeal to this court was granted.

There is but one question presented and the facts necessary to be considered in disposing of that question have been stipulated. Plaintiff's intestate, William Pendley Thornton, was an employee of Cassity-Richards, Inc., and while engaged in the line of his employment he received injuries which caused his death. The employment being subject to the Workmen's Compensation Act (Ill.Rev.Stat.1941, chap. 48, par. 138 et seq.) the Industrial Commission fixed an award aggregating $5,625.90 for the benefit of Thornton's widow and his four minor children. The conclusion to be drawn from the stipulation is that the negligent acts of defendant, Hoover Herman, caused Thornton's injuries and that they were committed while engaged in the line of his duties as an employee of R. R. Donnelley & Sons Company. It is stipulated that the Donnelley Company and defendant were, as to such employment, operating under the Workmen's Compensation Act.

Plaintiff, as the personal representative of the estate of Thornton, brought this action against Herman to recover damages under the Injuries Act. Ill.Rev.Stat.1941, chap. 70. Cassity-Richards, Inc., instituted an action in the circuit court of Cook county against R. R. Donnelley & Sons Company and Hoover Herman to recover the amount of the award allowed for the death of their employee. The Cassity-Richards cause is pending and undetermined.

The sole question presented is as to plaintiff's right to maintain her action for damages under the Injuries Act. Defendant contends that since Cassity-Richards Company and its employee Thornton, and R. R. Donnelley & Sons Company and its employee Hoover Herman were as to their respective employments under the Workmen's Compensation Act, plaintiff's right of action against defendant as a negligent third party is by virtue of section 29 of the act transferred to Cassity-Richards, Inc., and that plaintiff has no right to maintain any further action. Plaintiff concedes that any right of action she might have had under the Injuries Act against R. R. Donnelley & Sons Company is by virtue of section 29 transferred to Cassity-Richards, but contends that the defendant, an employee of the Donnelley Company, is not a ‘person bound’ in the meaning of section 29, and that therefore she can maintain this action.

Where employer and employee are subject to the act, section 6 directs that any employee who receives injuries while engaged in the line of duty is limited in recovery of compensation to the amount fixed by the Compensation Act and that any right of action he might have had at common law or the statute, is no longer available to him. In construing this section, it has been held that it applies only to the right of the employee as against the employer. O'Brien v. Chicago City Railway Co. 305 Ill. 244, 137 N.E. 214, 27 A. L.R. 479.

Section 29 deals with the right of an injured employee to maintain an action against a third party whose negligence caused the injury. The pertinent parts are: ‘Where an injury or death for which compensation is payable by the employer under this Act was not proximately caused by the negligence of the employer or his employees, and was caused under circumstances creating a legal liability for damages in some person other than the employer to pay damages, such other person having also elected to be bound by this Act, or being bound thereby under section three (3) of this Act, then the right of the employee or personal representative to recover against such other person shall be transferred to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained, in an amount not exceeding the aggregate amount of compensation payable under this Act, by reason of the injury or death of such employee.’

The second paragraph of section 29 makes provision for prosecuting an action against the negligent third person where such third person has elected ‘not to be bound by this Act.’ Under such circumstances, the injured employee may prosecute an action for damages against such negligent third party. Further provision is made for reimbursing the employer of the injured employee for any amount that he has been required to pay as compensation under the act.

Section 29 divides negligent third parties into two classes, namely: those that are bound by the act and those that are not. It is definitely settled by the various cases in which section 29 has been construed that an injured employee can not maintain a cause of action against a negligent...