Walsh v. Cent. Cold Storage Co.

• Decision Date: 13 December 1944
• Docket Number: Gen. Nos. 42525,42442.
• Citation: 324 Ill.App. 402,58 N.E.2d 325
• Parties: WALSH v. CENTRAL COLD STORAGE CO.
• Court: United States Appellate Court of Illinois

324 Ill.App. 402

58 N.E.2d 325

WALSH

v.CENTRAL COLD STORAGE CO.

Gen. Nos. 42525, 42442.

Appellate Court of Illinois, First District, Third Division.

Dec. 13, 1944.

Appeal from Circuit Court, Cook County; John Prystalski, Judge.

Action by Anthony A. Walsh against Central Cold Storage Company for personal injuries allegedly caused by defendant's negligence, wherein the Borden Sales Company, plaintiff's employer, was given leave to interplead as a party plaintiff in accordance with provisions of the Workmen's Compensation Act. From an order dismissing its complaint, the Borden Sales Company appeals, and from an order dismissing his suit, plaintiff appeals.

Order dismissing the cause as to plaintiff Borden Sales Company affirmed, and order dismissing the cause as to plaintiff Walsh reversed and remanded.C. J. Morgan, of Chicago, for appellant Borden Sales Co.

Miller, Gorham, Wescott & Adams, of Chicago (Herbert C. De Young, of Chicago, of counsel), for appellee.

LUPE, Justice.

The appeal in cause 42525 was consolidated with that in 42442. We will by this opinion dispose of both appeals.

This is an action at law against the defendant Central Cold Storage Company for damages resulting from personal injuries sustained by the plaintiff by reason of alleged negligence of the defendant. The complaint was filed on April 16, 1935, alleging in substance that on October 12, 1934 defendant was operating a cold storage plant and warehouse business in Chicago, Illinois, and that by reason of the negligence and carelessness of the defendant in its possession and maintenance of said plant, and while the plaintiff was upon a public sidewalk at or near the plant, in the exercise of due care for his own safety, a series of violent explosions occurred in the plant, which caused its walls to collapse, and plaintiff was thrown into space and thereby seriously injured.

Defendant filed its answer, admitting ownership and operation, denied carelessness, and alleged that at the time the plaintiff sustained the injury he was engaged in the employment of his master, and as such was operating under and subject to the provisions of the Workmen's Compensation Act of Illinois; that defendant was under and subject to the Act; that the accidental injuries which he sustained arose out of and in the course of his employment; and that in accordance with section 29 of the Act, Ill.Rev.Stat.1943, c. 48, § 166, plaintiff had no right of action against the defendant.

On March 19, 1942 leave was given Borden Sales Company (whom we will term appellant) to file its appearance and an amended complaint. It interpleaded in the cause with Anthony A. Walsh, as party plaintiff, and filed its amended complaint wherein it re-alleged the allegations of the original complaint and added that the plaintiff was in its employ and that it and the plaintiff and the defendant were subject to the provisions of the Workmen's Compensation Act of the State of Illinois and, as the result of an award regularly entered by the Industrial Commission of Illinois, Borden Sales Company was obliged to pay and did pay to the plaintiff as compensation, and for hospital and medical expenses the sum of $4,817.95, and joined as plaintiff in the action in accordance with section 29 of the Workmen's Compensation Act.

Defendant moved to strike the amended complaint and dismiss the action of Borden Sales Company on the ground that its cause of action was barred by the statute of limitations. The motion was sustained, from which order the appellant appealed. Leave was given defendant to withdraw its answer filed to the original complaint of plaintiff and to file its motion to dismiss plaintiff's suit under section 48 of the Civil Practice Act, Ill.Rev.Stat.1943, c. 110, § 172, wherein it alleged plaintiff lacked legal capacity to sue and that at the time of the accident as alleged in plaintiff's complaint, the plaintiff, his employer, and the defendant were operating under the Compensation Act of Illinois and that, pursuant to sections 5 and 6 thereof, the plaintiff was deprived of any action he might have had against the defendant, he having applied for and received compensation pursuant to the orders of the Industrial Commission of Illinois; and that the claim set forth in plaintiff's complaint had been released by operation of law.

Defendant's motion was supported by affidavit of one William Simon, wherein he recited that he was familiar with the cause of action of the plaintiff and the proceedings before the Industrial Commission wherein plaintiff made claim against the appellant as appears from documents and pleadings on file with the Industrial Commission; that defendant is engaged in the operation of a cold storage business in Chicago, Illinois, maintaining refrigerator equipment, etc.; that defendant is engaged in a business within the Workmen's Compensation Act, and is under its provisions; that on October 12, 1934, and prior thereto, the plaintiff was employed by appellant; that appellant had elected to be bound by the Workmen's Compensation Act, and had secured insurance covering it under said act. Affiant further alleged that the injury described in the plaintiff's complaint occurred while the plaintiff was in the course of his employment and while he and his employer were under the provisions of the Workmen's Compensation Act of Illinois; that on December 27, 1934 the plaintiff filed an application for adjustment of claim with the Industrial Commission, against appellant; that in said application it was stated that on October 12, 1934 plaintiff was injured by reason of an accident arising out of and in the course of his employment by Borden Sales Company, Inc.; that in response to the question requiring the nature of work in which plaintiff was engaged at the time of the accident, he answered, ‘While in the course of employment an explosion occurred, severely injuring my legs and my head’; that on April 4, 1935 the plaintiff filed a petition for a lump-sum settlement with the Industrial Commission, in satisfaction for his claims for compensation; that in the petition the plaintiff asked there be allowed him by the Commission an amount equivalent to the total sum of probable future payments in accordance with the provisions of the Workmen's Compensation Act, and on April 4, 1935 there was filed with the Commission a settlement contract between the plaintiff and the General Accident, Fire and Life Assurance corporation (insurance carrier of appellant), for the payment of a lump sum to the plaintiff on account of compensation payable to him as provided by law. The contract recited that plaintiff was injured in an accident that arose out of and while in the employment of appellant; and that on said date the Industrial Commission entered an order approving the lump-sum settlement to plaintiff of $3,135 in addition to which he had already received $275 for temporary total disability, making a total of $3,410; that a settlement receipt for said sum of $3,410 was executed by the plaintiff and filed with the Commission, in full settlement of compensation under the provisions of the Act.

Plaintiff filed an answer to defendant's motion, wherein he denied: that he lacked legal capacity to sue; that at the time of the accident described in plaintiff's complaint he was under and within the provisions of the Workmen's Compensation Act of the State of Illinois; that pursuant to sections 6 and 29 of the Act plaintiff was deprived of any action against the defendant; that by virtue of said sections of the Act he did not have the legal capacity to bring this action; that he applied for and was awarded compensation pursuant to an order of the Industrial Commission of Illinois; that the claim or demand set forth in his complaint has been released by operation of law; and, further, denied the material allegations of the affidavit of William Simon which was attached to and in support of the motion to dismiss.

In support of plaintiff's answer, he filed the affidavit of one Norman Peters, one of Plaintiff's attorneys in the present action. In Peters' affidavit he alleged that he was familiar with plaintiff's cause of action against the defendant herein, and with the proceedings in the Industrial Commission by plaintiff against his employer (appellant); that he believed that the defendant is engaged in an extra hazardous business which comes within and is subject to the provisions of the Workmen's Compensation Act; that plaintiff was employed by appellant prior to October 12, 1934, and that appellant has elected to be bound by the Workmen's Compensation Act; that at the time of the occurrence of the injury described in plaintiff's complaint, plaintiff was not engaged in any employment, that he was not then in the course of his employment, that the injuries which he sustained did not arise out of and in the course of his employment, and that he was not then an employee and was not subject to the provisions of the Workmen's Compensation Act of the State of Illinois; that plaintiff received a voluntary payment from the General Accident Fire and Life Assurance corporation, which was evidenced by a settlement contract and lump-sum petition filed with the Commission; that plaintiff accepted said payment from his employer through its insurance carrier with the full knowledge of the fact that in the State of Illinois such an acceptance of compensation did not constitute an estoppel or waiver of his right to proceed at common law and that it did not constitute an election of remedies.

The court sustained defendant's motion and dismissed the suit at plaintiff's costs, from which order plaintiff appealed.

Appellant contends the court erred in striking the amended complaint and dismissing the suit as to it. Plaintiff's contention is that the court erred in dismissing his cause of action, because the injury sustained by him was due to the negligence of the defendant and did not arise out of and in...