Von Boeckmann v. Corn Prods. Ref. Co.

• Decision Date: 24 October 1916
• Docket Number: No. 10464.,10464.
• Citation: 274 Ill. 605,113 N.E. 902
• Parties: VON BOECKMANN v. CORN PRODUCTS REFINING CO.
• Court: Illinois Supreme Court

274 Ill. 605

113 N.E. 902

VON BOECKMANN

v.CORN PRODUCTS REFINING CO.

No. 10464.

Supreme Court of Illinois.

Oct. 24, 1916.

Appeal from Circuit Court, Tazewell County; John M. Niehaus, Judge.

Action by William Von Boeckmann against the Corn Products Refining Company. Demurrer to replications overruled, and judgment in the circuit court for plaintiff, and defendant appeals to the Appellate Court, which transferred the cause to the Supreme Court. Judgment of circuit court reversed, and cause remanded, with directions.Page, Hunter, Page & Dallwig, of Peoria, and Calhoun, Lyford & Sheean, of Chicago, for appellant.

Jesse Black, Jr., and James P. St. Cerny, both of Pekin, for appellee.

DUNCAN, J.

William Von Boeckmann sued appellant in case in the circuit court of Tazewell county to recover damages for a personal injury received by him while employed by appellant. In every count of the five-count declaration it is alleged that on May 11, 1913, appellant was operating at Pekin, Ill., a factory for the manufacture of glucose, starch, and other products, and that in the wet-starch house or mill house of said factory were certain revolving reels driven by electric power transmitted to them from a line-shaft through bevel gearings at the head of every reel; that it was appellee's duty to watch said reels and when any of certain pipes carrying a wet product to the reels chocked up, to loosen the product in the pipes by striking on them with a hammer or iron rod; that that was the usual method by which that work was done; that on the day mentioned the pipe leading to one of the reels choked and appellee went to it, and while striking on it to move the product his clothing became caught in the bevel gear at the head of the reel; that it was necessary for appellee to go close to said gear and extend his arm over the same in order to strike the pipe; that appellee was in the exercise of due care and caution for his own safety. In each of the five counts is contained some one of the allegations: (1) That said gears were dangerous to employés working on said reels; (2) that said gears were so located as to be dangerous to employés; (3) that the gearings constituted a place of danger, and that appellee, in performing his work, was compelled to pass and be near them. In all the counts it is charged that it was practicable to properly inclose, fence, guard, or otherwise protect the bevel gearings, and that it was appellant's duty to do so, as provided by statute. In the first count it is further averred that appellant, in violation of the statute, willfully and intentionally neglected to inclose, fence, guard, or otherwise protect said bevel gearings, and by reason thereof plaintiff was caught and drawn between said gears and injured. In the first additional count the averment is that appellant, in violation of the statute, negligently failed to inclose, fence, guard or otherwise protect said gearings, in consequence of which negligence plaintiff was drawn between said gearings and injured. In the second, third, and fourth additional counts the allegations are that appellant, in violation of the statute, willfully, carelessly, recklessly, and negligently omitted to properly inclose, fence, guard, or otherwise protect said gearings, and in consequence of such negligence appellee was drawn between said bevel gear and injured. Appellant filed a plea of general issue and to all the counts two special pleas, averring, in substance, that appellee and appellant were at the time of such injuries under the bound by the provisions of the Workmen's Compensation Act of 1911. Appellee filed three special replications, setting forth, in substance, in all of them, that the Workmen's Compensation Act of 1911 was invalid because the bill or act, with all its amendments, was not printed before the vote was taken on its final passage in the House and Senate, as provided by the Constitution. Appellant demurred to said replications. The court, on motion of appellee, heard evidence on the question whether or not the bill or said act of 1911 was printed before its final passage in the two branches of the Legislature and overruled the demurrer-that is, held that said act was invalid for the reasons set forth in the replications. On a trial of the other issues a verdict for $10,000 damages was returned by the jury and the court entered judgment on the verdict. On appeal the Appellate Court for the Third District transferred the cause to this court on the ground that the constitutionality of the Workmen's Compensation Act of 1911 is involved.

Appellant contends that inasmuch as the constitutionality of the Workmen's Compensation Act of 1911 had been passed on adversely to appellee's contention by this court in three or more decisions prior to the trial of the instant case, that question is no longer an open one in this state, and that the Appellate Court should have so treated it and have passed on the merits of the cause instead of transferring it to this court for decision. It is a sufficient answer to that contention to say that at the time this case was being appealed the constitutionality of said act had not been passed on by this court upon the grounds on which it is attacked by appellee in this case, and while its validity on the grounds assigned by appellee has been recently determined by this court, appellee is entitled to now have this cause reviewed in this court.

By the provisions of section 3 of the Workmen's Compensation Act of 1911, if the employer has elected to be bound by the act, no common-law or statutory right to recover damages for injury or death sustained by any employé while engaged in the line of his duty as such employé, other than the compensation provided in said act, shall be available to any such employé who has accepted the provisions of the act:

‘Provided, that when the injury to the employé was caused by the intentional omission of the employer, to comply with statutory safety regulations, nothing in this act shall affect the civil liability of the employer. If the employer is a partnership, such omission must be that of one of the partners thereof, and if a corporation, that of any elective officer thereof.’

The act was passed in the manner provided by the Constitution, and the circuit court erred in holding the act invalid. Dragovich v. Iroquois Iron Co., 269 Ill....