Wintersteen v. Nat'l Cooperage & Woodenware Co.

• Citation: 197 N.E. 578,361 Ill. 95
• Decision Date: 02 October 1935
• Docket Number: No. 22629.,22629.
• Court: Supreme Court of Illinois
• Parties: WINTERSTEEN v. NATIONAL COOPERAGE & WOODENWARE CO.

361 Ill. 95

197 N.E. 578

WINTERSTEEN

v.NATIONAL COOPERAGE & WOODENWARE CO.

No. 22629.

Supreme Court of Illinois.

June 18, 1935.

Rehearing Denied Oct. 2, 1935.

Action by Ralph Wintersteen against the National Cooperage and Woodenware Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

HERRICK, J., dissenting in part.Appeal from Circuit Court, Peoria County; Joseph E. Daily, judge.

Miller, Elliott & Westervelt, Henry Kneller, and George W. Hunt, all of Peoria (John D. Thomason, of Peoria, of counsel), for appellant.

Todd, Morgan, Pendarvis & Arber, of Peoria and John C. Youngman, of Williamsport, Pa., for appellee.

JONES, Justice.

The appellee, Ralph Wintersteen (hereinafter called the plaintiff), brought an action on the case against the appellant, the National Cooperage & Woodenware Company (hereinafter called the defendant), in the circuit court of Peoria county, to recover damages for personal injuries alleged to have been sustained by him at Dewart, Pa. He recovered a judgment for $18,200 and costs.

The declaration consisted of two counts. The first count charged that on June 23, 1930, at Peoria, Illinois, the defendant loaded a railway boxcar with barrels and shipped the same by rail, consigned to the Dewart Milk Products Company at Dewart, Pa.; that the defendant negligently and improperly loaded such car, and by reason of such negligence the plaintiff, while in the exercise of due care, upon opening the car at its destination for the purpose of unloading the freight from the car for his employer was struck by one of the barrels falling out of the car doorway upon him and thereby sustained serious and permanent injuries. So far as material here, the allegations of negligence made by the second count charged that the movement of the car was at the carload rating, and that at the time of the loading and the movement of the car of freight certain rules and regulations of the Interstate Commerce Commission governing the loading and movement of freight shipments at the carload freight rate were in full force and effect. The rules were pleaded in haec verba. Such regulations as applied to the carload ratings require the owner to load freight into cars for forwarding and to unload shipments received. Freight shipped by the owner is to be by him securely blocked or braced, and when in closed cars must be away from the car doors. All temporary blocking, flooring, bracing, dunnaging, or supports not constituting part of the car, when required to protect and make carload freight secure for shipment, must be furnished and installed by the shipper at his expense. Freight in closed cars must be so loaded as to prevent any contact with car doors while in trainsit. Shippers are required to observe the rules regulating safe loading of freight and protection of equipment. This count charged that the defendant did not, as required by such Interstate Commerce Commission rules, block or brace, dunnage or support such barrels so that they were kept away from the doors in transit, and the plaintiff was injured by reason of the defendant's negligence in the behalf by one of the barrels which fell upon him while he was engaged in opening the car door. The defendant filed its plea of not guilty.

The evidence shows that the defendant loaded the box-car with 250 empty oak barrels weighing between 70 and 80 pounds each; that the defendant dunnaged the car by nailing four boards across each door horizontally and one board vertically; that the lumber used for such dunnaging was 1x4 No. 2 yellow pine, and that the car and lumber were inspected by an employee of the defendant and a railraod inspector before shipment. When the car arrived at its destination it was placed on the siding of the consignee. The plaintiff, then an employee of the consignee, was painting one of its buildings. The president and general manager of the milk products company superintended the opening of the car. He called a foreman and the plaintiff to assist him. The car door was difficult to move. In its ordinary movement a door slides along a sill parallel with the side of the car. The three men were engaged in pulling and shoving the car door in an attempt to open the same. As the door opened one of the barrels instantly fell and struck the plaintiff on the head and he was seriously and permanently injured. An examination of the car was made immediately after the accident. It was discovered that the top strip of dunnaging was broken at a knot. This knot was from two to two and one-half inches in diameter.

The errors urged for the reversal of the judgment of the trial court may be grouped as follows: (1) The common-law remedy of the plaintiff is contrary to the public policy of this state and ought not to be enforced as a matter of comity; (2) the trial court admitted improper evidence and (3) refused to give certain instructions; (4) the court erred in denying the defendant's motion, at the close of all the evidence, to direct a verdict for the defendant; and (5) the allowance of the sum paid by the plaintiff for a certified copy of the Interstate Commerce Commission rules and the allowance of attorney's fees for services in connection with the procurement of such rules were each unauthorized by law, and, if within rule 18 of this court such rule is unconstitutional. By rason of this last assignment of error the appeal has been brought directly to this court.

It is urged by the defendant that the plaintiff ought not to be permitted, under the doctrine of comity between the states, to maintain his case in the courts of this state, as the place of making of the contract of employment of the plaintiff, his residence, and his employment and the place of his injury were all without the state of Illinois; that the plaintiff and his employer were both under and subject to the Workmen's Compensation Act of Pennsylvania (77 PS Pa. § 1 et seq.), and the plaintiff should be limited to his right of recovery under that act against his employer. The defendant company states, in support of its contention, that it is within the provisions of the Workmen's Compensation Act of Illinois (Smith-Hurd Ann. St. c. 48, § 138 et seq.), and that if the injury to the plaintiff had been sustained in Illinois, his right of action would have confined him to the remedy afforded by the Illinois Workmen's Compensation Act, and argues that if the common-law remedy is contrary to the public policy of the state where the suit is brought, such remedy is then never enforced under any circumstances; that had the cause of action for which redress is here sought arisen in our own state between citizens similarly situated, it would be nonenforceable. The Workmen's Compensation Act of Illinois does not wholly deprive the workman of the right of recovering damages for personal injuries received by him, but only goes to the abolishment of his common-law right to recover against his employer for injuries received by the employee in the course of his employment. Where the injury is occasioned by the negligence of a third party not under the provisions of the act, the cause of action may be brought by the employee in his own name and recovery had as at common law, with the right of the employer to be subrogated in the recovery to the extent of any compensation payment made by him by reason of such injuries to the employee. O'Brien v. Chicago City Railway Co., 305 Ill. 244, 137 N. E. 214, 27 A. L. R. 479;Goldsmith v. Payne, 300 Ill. 119, 133 N. E. 52. Pennsylvania recognizes the principle that the common-law action is open to an employee where his cause of action is against a third person not within the provisions of the Compensation Act. Scalise v. F. M. Venzie, Inc., 301 Pa. 315, 152 A. 90;Smith v. Yellow Cab Co., 288 Pa. 85, 135 A. 858;Mayhugh v. Somerset Tel. Co., 265 Pa. 496, 109 A. 213. The action here is in tort for injuries to the person of the plaintiff. Such action is not prohibited by any statute of this state, nor is the maintenance of the action against public morals, natural justice, or the general interest of the citizens of this state. In that situation the doctrine of comity applies, and the cause of action may be pursued in such courts of our state as have jurisdiction of the subject-matter and the person of the defendant. Opp v. Pryor, 294 Ill. 538, 128 N. E. 580;Dennick v. Railroad Co., 103 U. S. 11, 26 L. Ed. 439;Reynolds v. Day, 79 Wash. 499, 140 P. 681, L. R. A. 1916A, 432. Neither does the fact that the plaintiff is a nonresident deprive him of his remedy in the courts of this state. There is no statute in this state denying redress of grievances by reason of nonresidence. The policy of our state has always been to permit persons, regardless of residence, to bring suits in our courts. Citizenship has never been a condition precedent to the right of an individual to sue in our courts. Opp v. Pryor, supra; Kellyville Coal Co. v. Petraytis, 195 Ill. 215, 63 N. E. 94,88 Am.St. Rep. 191. The Legislature contemplated that resort might be had to our courts by nonresidents and enacted a statute requiring such nonresidents to give security for costs. Smith-Hurd Ann. St. c. 33, § 1; Cahill's Rev. St. 1933, p. 830, c. 33, par. 1.

It is argued by the defendant that the second count of the declaration did not state a cause of action and that the trial court erred in admitting the rules of the Interstate Commerce Commission in evidence. To sustain its position the defendant urges that such rules do not have the force of law. Congress has committed to the Interstate Commerce Commission the regulation of interstate commerce and transportation and conferred upon such commission the power to promulgate rules for the administration of such duties. The commission is an administrative and executive body and within its statutory realm it is a legislative body, and its rules and regulations duly adopted by it have the force of law. Davis v. Keystone Steel Co., 317 Ill....