author: Mr. Justice Huffman

text:
    The People of the State of Illinois ex rel. Charles E. Gray, Appellant, v. Joseph McFadden, Appellee.
    Gen. No. 8,918.

      Heard in this court at the February term, 1935.
    Opinion filed May 1, 1935.
    ¡Rehearing denied June 26, 1935.
    Otto Keener, Attorney General, and Donovan, Bray & Gray, of Joliet, for appellant.
    William C. Mooney, of Joliet, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This is an appeal from a judgment in an action in the nature of a quo warranto upon an information filed in the circuit court of Will county. There was no evidence submitted in the case. The judgment was entered on the pleadings. A demurrer to a replication having been sustained, appellant elected to abide said pleading, whereupon judgment dismissing the information was entered by the trial court.

The controversy in this cause grows out of a dispute between appellant and appellee as to which one of them is entitled to hold the office of member of the board of review of Will county. A vacancy arose upon said board because of the death of one of its members, whose term did not expire until April 28, 1934. On February 15, 1933, the county judge of said county, pursuant to par. 341, eh. 120, Cahill’s St. 1933, appointed appellant a member of said board to fill the unexpired term of the deceased member. Subsequently, and on February 24, 1933, the appellant not having qualified as a member of said board, as provided by statute, nor having otherwise signified his acoeptanee of said office, the court did ou said date appoint appellee as a member of said board to fill such vacancy. Appellee proceeded to qualify on the 27th day of February, 1933, and subsequently thereto did enter upon the discharge of the duties of said office. According to appellant’s replication number two, which is the one before us in this appeal, appellant, for the purpose of qualifying as a member of said board, subscribed to the oath as provided by statute, on the 31st day of May, 1933, and upon the following day presented himself before said board, stating his willingness to assume the office and to enter upon the discharge of the duties incident thereto. Appellant was not permitted to so do because of the fact that appellee was then serving as a member of said board pursuant to his appointment as above set out. The deceased member, appellant, and appellee were all of the same political party.

Appellant takes the position that upon his designation to said office on February 15, 1933, he thereby became a legal member of said board, and that the existing vacancy became filled; urging that before appellee could be legally appointed thereto or serve as a member thereof, it was first necessary for appellant to be removed from such office. Appellant in this respect seeks to rely upon the rule that when the office is for a fixed term, the power of appointment does not carry with it the power of removal unless so provided, and that the appointing agency does not possess the power of removal as an incident to the power of appointment. Appellant then claims that the county court of said county had no power to remove him and that therefore the subsequent appointment of appellee was void, and that this is the controlling and decisive question. We are not disposed to take this view of the case. Before the appellant could claim the application of such rule, it must first appear that he was a legal member of said board. As stated, he takes the position that he became a fully qualified legal member of such board upon his appointment thereto, and therefore his removal was necessary before appellee could be legally appointed, and become a member of the board. Appellant denies the right of the county court to remove him in the manner claimed, and urges that such act was void, and that he is entitled to the office in question. We do not consider that the question of removal of appellant by the county court is involved herein, or that the determination of the question of the right of a county court to remove a member of the board of review during his term and appoint a successor, is necessary to the disposition of this case.

Frequently the appointment is all that is necessary to completely vest the appointee with the office in question, and nothing remains to be done except for him to assume the discharge of the duties thereof. Laws of various States often provide that before an officer shall enter upon the discharge of his official duties, he shall qualify in a manner provided by the statute. The common forms of qualification usually consist in such person taking a prescribed oath, or filing a bond, or both, before he shall be permitted to assume the office and the discharge of his official duties. Where an appointee is required by law to take an oath of office or give bond before entering upon the duties thereof, he cannot be considered as legally qualified unless and until he takes such oath or gives such bond.

When a qualification is required to be made on the part of a person appointed to office, then both the appointment and the qualification, while distinct and separate things, are necessary to constitute such person an officer de jure. If it be provided by law that an appointee to public office must do certain things by way of qualification before entering upon the duties of such office, then these acts upon his part become conditions precedent to the complete investiture of the office and before he can become an officer de jure. Appellant failed to qualify as a member of the board of review, and he did not become an officer de jure by virtue of his appointment alone. He never actually entered upon the discharge of the duties of said office, therefore he cannot be said to have become a de facto officer. Appellant on February 24, 1933, being neither an officer de jure nor a de facto officer, the question of his removal as an officer of the board of review was not incident to the appointment of appellee. The question here presented is not the power of the county judge to remove appellant and appoint appellee in his stead, but is the power of the county judge to fill a vacancy existing by law at the time.

While the act in question does not specify the particular number of days in which the officer designated as an appointee must qualify, yet there is nothing contained therein to compel the county court to permit a person who has been appointed to fill a vacancy, to cause such vacancy to continue by his silence and failure to accept such appointment, and qualify therefor in the manner provided by law. Such would render the court powerless to discharge its official duty. Appellant did not qualify by subscribing to the oath of office as required by the act, until May 31, 1933, which was three and one-half months after his appointment. He makes no proper showing to excuse his failure to qualify, and does not contend that the county court was guilty of any abuse of power in appointing appellee, but maintains that such court was wholly without power to make such appointment. The statute makes it the duty of the county court to fill all vacancies occurring upon the board of review by death, resignation, or removal. In the consideration of the act in question, we are of the opinion that on February 24, 1933, when appellee was appointed, and on the second day following, when appellee qualified, that a vacancy existed upon said board, and that the appellant in point of law was not an officer de jure nor a de facto officer thereof. It would be against public policy to permit a person appointed by a court to a public office to fill a vacancy, to cause such vacancy to continue by his silence and failure to qualify, or failure to otherwise signify his acceptance of same, and thus render the court powerless to perform its official duty. Under such circumstances, the court has ample power to perform its official duty and to make such appointment.

It is the intention and contemplation of the statute that the board of review shall consist of three members. The term of each member commences with the date of his appointment and not at some future time. It is not within the province of any person appointed to such board to cause a vacancy to exist thereon by his failure to qualify, and then be heard to complain upon the appointment and qualification of another in his stead, after he has had ample and reasonable time in which to have qualified, and makes no proper showing why he was prevented therefrom. It is not contemplated by the statute that an appointee to this office shall exercise his own discretion as to when he shall assume the office. The statute expressly provides that his tenure of office shall begin with the date of his appointment. The statute further provides ■ that in order to qualify, such person must take a subscribing oath. Such provision having to do with his qualification to assume the office relates to’ the date of his appointment thereto, and not to some future time resting within the determination of the appointee. If he be permitted to take three months, upon the same reasoning, he might take, six or twelve months. It must be said in order to carry out the purposes of this act, that it was the intention of the legislature that any appointee thereunder should proceed to qualify within a reasonable time after his appointment.

Appellant urges that the office became filled upon his appointment. In no case can an office be considered as filled until there is an acceptance of the appointment by the person chosen. Such acceptance need not be signified in expressed terms, but may be implied from subsequent conduct of the appointee, such as the taking of the oath of office, the filing of bond, or otherwise qualifying in the manner provided by law, or entering upon the actual discharge of the duties of such office. Appellant did none of these. On the other hand, the subsequent conduct of an appointee may demonstrate upon his part a nonacceptance of the office, such as his failure or refusal to qualify in the manner provided by law, within the time fixed, and if no time is fixed, then within a reasonable time. In this case a vacancy existed upon the board of review of Will county. Appellant, although having been appointed to fill such vacancy, did not comply with the law in qualifying. The statute expressly forbids his assuming the duties of this office without qualifying in the manner therein set out. Nothing appeared in appellant’s replication to indicate that he in any way signified to the county court his acceptance of said office, or his intention to qualify therefor. We are of the opinion that it cannot be said that the vacancy existing upon the board of review was legally filled by appellant under the circumstances as exist in this case. The statute refutes the presumption that a county is ever intended to be without a board of review, and it makes it the duty of the county court to see that such board shall be composed at all times of the proper number of persons. It is therefore manifest that it was the duty of the county court to see that the vacancy in this case was filled, and it is not unreasonable to say that the law intends that the court shall perform this part of his official duties with due dispatch. The county court was not chargeable with knowledge whether appellant intended to qualify and assume the duties of the office, or not. The only knowledge the court had in this respect was the fact that appellant had not qualified at the time appellee was appointed and qualified.

If the conclusion reached by a lower court is correct, the reasons which led it to such conclusion are not controlling. It is the judgment of such court and not its statement or theory, which is presented on review. A court of review will sustain the judgment of a lower court, if the law, and the facts as presented by the record, justify it, whether the reasons or theory upon which the case was decided, were good or not.

We are of the opinion that the judgment of the trial court in this case was correct, and the same is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Wolee

license: Public Domain

text:
    Florence Huntoon, Appellant, v. Dr. J. E. Pritchard, Appellee.
    Gen. No. 8,880.
    Heard in this court at the February term, 1935.
    Opinion filed May 17, 1935.
    Rehearing denied June 26, 1935.

      Shearer, O’Malley & Sears, of Aurora, for appellant ; Fred B. Shearer and Barnabas F. Sears, of counsel.
    Alschuler, Putnam & Johnson, of Aurora, for appellee; Edward F. Streit, of Aurora, of counsel.
   Mr. Presiding Justice Wolee

delivered the opinion of the court.

Florence Huntoon, the plaintiff appellant, brought her action in case against J. E. Pritchard, the defendant appellee, to recover damages on account of alleged malpractice on the part of said defendant. To this declaration the defendant interposed a plea to the effect that plaintiff’s sole remedy was under the Workmen’s Compensation Act, Cahill’s St. ch. 48, ¡I 201 et seq. The plaintiff interposed a demurrer to this plea which was overruled. Plaintiff elected to stand on said demurrer and a final judgment was entered against her, from which judgment appellant has prosecuted this appeal.

The declaration, after amendment, contained one count. It alleged that the defendant on, to wit: the 5th day of June, 1929, was a physician and surgeon. While he was so exercising said profession, the plaintiff employed and retained him for reward, to attend and treat her for the cure of a certain sickness and malady under which plaintiff was then and there suffering; that the defendant accepted such retainer and employment, and continued treatment for the following 21 days; that at all times she was in the exercise of due care and caution for her own safety, but that the defendant, not regarding his duty, negligently failed and omitted to examine and diagnose plaintiff’s condition, etc., and that as a result thereof plaintiff has suffered injury, and damage, etc.

To this declaration, the "defendant filed three pleas. The first plea was one of the general issue; the second plea that the plaintiff’s cause of action did not accrue within two years prior to the commencement of her suit. The third plea, which is the material one on this appeal, alleged that at the time of the supposed injuries, plaintiff was in "the employ of a certain laundry in Aurora, and that the injuries she received were in the course of her employment in said laundry; that the employer and plaintiff had, prior to June 5, 1929, elected to be bound and were bound by the Workmen’s Compensation Act of the State of Illinois; and that his attendance on the plaintiff was in an effort to cure her of her said injuries; that plaintiff thereafter made claim upon her employer for compensation and did recover and receive from her employer compensation for the same identical injuries, disability, and impairment of health complained of, in plaintiff’s declaration; that plaintiff recovered from her employer during a period of temporary total disability for four weeks and five days, the sum of $11 per week, and recovered for injuries to both hips and spine, a further sum of $1,500; that said recoveries of the plaintiff were pursuant to a settlement with her employer on the rate and basis for compensation allowable to her for her injuries by said Compensation Act; that the recovery of the plaintiff for said temporary total disability and for the said partial disability resulting from injuries to both hips and spine were pursuant to proceedings as provided by the Compensation Act, and pursuant to a settlement contract entered into between plaintiff and employer on or about April 24, 1930. This contract was approved by the industrial commission on said day, and accepted by the plaintiff. Said employer agreed to pay compensation for temporary total disability at the rate of $11 a week for four weeks and five days and for permanent partial disability the further sum of $5.50 for a period of 270 weeks plus $4, the said settlement contract bearing number 162597 and the lump sum settlement order bearing number 16597 in the files of the industrial commission; that the supposed injuries to the plaintiff in the declaration mentioned are supposed aggravations of the injuries so received by the plaintiff arising out of and in the course of her employment and that said supposed aggravations were merged in the original injuries, and that the payments had and received by the plaintiff pursuant to said proceedings for the industrial commission of Illinois are complete payment and satisfaction to the plaintiff for said injuries complained of, and that said supposed injuries, disabilities, and impairments of health of the plaintiff have been fully atoned for; and this the defendant is ready to verify, and so far as the matters alleged are a matter of record, defendant offers to verify by the record, wherefore plaintiff action is charged, etc.

The plaintiff filed a general demurrer to defendant’s third plea, and upon hearing said demurrer was overruled. Subsequently plaintiff made a motion that the court reconsider its previous order overruling plaintiff’s demurrer to defendant’s third plea, but the court denied said motion and ordered that its previous order stand. Subsequently, plaintiff replied double to said plea, but the replications were withdrawn and plaintiff elected to stand by her demurrer to said third plea. Judgment was then entered in bar of the action and for costs of suit, to which plaintiff excepted.

It is the contention of appellant that the court erred in overruling its demurrer to defendant’s third plea because the Compensation Act of Illinois was only intended to affect the relationship existing between employer and employee; that before a person can claim the benefit of said act in discharge of his liability to pay damages, he must be bound to pay compensation under the act; that a physician and surgeon has no liability to pay compensation under the act and therefore he is not a person bound by the act in the meaning of section 29 thereof; and that, therefore, this plaintiff has, unaltered, her common law right to sue said physician and surgeon for malpractice.

The only question involved in this case is the construction of section 29 of the Workmen’s Compensation Law of the State of Illinois, Cahill’s St. ch. 48, 1Í 229. Said section 29 is as follows: “Where an injury or death for which compensation is payable by the employer under this act, was not proximatelly 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 subrogated 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. Where the injury or death for which compensation is payable 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 on the part of some person other than the employer to pay damages, such other person having elected not to be bound by this act, then legal proceedings may be taken against such other-person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this act, but in such case if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative: Provided, that if the injured employee or his personal representative shall agree to receive compensation from the employer or to institute proceedings to recover the same or accept from the employer any payment on account of such compensation, such employer shall be subrogated to all the rights of such employee or personal representative and may maintain, or in case an action has already been instituted, may continue an action either in the name of the employee or personal representative or in his own name against such other person for the recovery of damages to which but for this section the said employee or personal representative would be entitled, but such employer shall nevertheless pay over to the injured employee or personal representative, all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this act and all costs, attorneys’ fees and reasonable expenses incurred by such employer in making such collection and enforcing such liability.” The facts are fully set forth in the pleadings. Our Supreme Court has not passed on the exact question that is raised in this case. Both appellant and appellee have cited numerous cases from the Supreme Courts of other States, and each contends that their cases cited show conclusively that the law is in their favor. All of the cases cited, both by appellant and appellee, are based on the statute of the particular State in which the litigation arose and most of the cases, therefore, are of little benefit to us in arriving at a proper construction of our own Compensation Act. Some of the cases, however, seem to he governed ' by laws similar to the Illinois law.

Our Supreme Court, while it has not passed upon the question now before us, has, in several cases, in construing this act, laid down principles of law that are beneficial to us in arriving at a decision of this case. In the case of Gones v. Fisher, 286 Ill. 606, 612, they use this language: “By the express provisions of section 29 above quoted, where the person by whose neglect the injury is caused has elected not to be bound by the act, as alleged in three of the pleas now under consideration,' the common law right of action is preserved against him in full. In such case the employee is riot put to his election between compensation under the Compensation Act and damages at common law. The common law action and the claim for statutory compensation may be prosecuted at the same time. Said section does not limit the damages which may be recovered in the action at law to the amount of compensation allowed to the employee, but does provide for the indemnification of the employer out of the amount recovered.”

In the case of O’Brien v. Chicago City Ry. Co. of Chicago, 305 Ill. 244, 252, the court says: “The Workmen’s Compensation Act effects a complete change in the rights and liabilities of an employer and his employee in regard to accidental injuries to the employee. The common law action for negligence can no longer be maintained but the statutory remedy, alone, is available. The act makes no reference and has no application to the rights and liabilities of third parties except as those rights and liabilities affect the relative rights of the employer and employee as between themselves. Section 29 deals with cases of this character and only with cases of this character, — cases in which the injury or death was caused under circumstances creating a leg*al liability for damages on the part of some person other than the employer. The language of the section assumes that the liability of a person other than the employer, which existed at common law, continues after the adoption of the act, for it is not where the injury or death was caused under circumstances which would have created a legal liability for damages on the part of some person other than the employer but for the passage of this act, but is ‘where an injury or death . . . was caused under circumstances creating a legal liability. ’ Under such circumstances other provisions of the act have imposed on the employer a liability to pay the fixed compensation regardless of the' fact that he is wholly guiltless of negligence or of any fault. The employee being entitled, in such case, to recover the full amount of his damages from the person causing the injury by his negligence, a complete equitable adjustment of the rights of the employer and employee, as between themselves, would require that out of the amount so received the employer, who was guiltless of any wrong, should receive indemnification for the compensation which he had advanced. The purpose of section 29 is to require this indemnification of the employer who has not been negligent, out of the recovery against the third person whose negligence caused the injury. It recognizes the division which the act established between employers and employees who are subject to the provisions of the act and those who are not, and establishes a different measure of liability for the negligent third party causing the injury where such third party was subject to the provisions of the act and where he was not. Where the negligent party was subject to the provisions of the act section 29 provided that the measure of his liability should be the damages sustained, not, however, exceeding the compensation payable under the act, and the employer of the injured employee should be subrogated to his employee’s right against the party causing the injury; but where the person causing the injury was not subject to the provisions of the act his liability as it existed before the act was not affected.”

Our Supreme Court in the case of Keller v. Industrial Commission, 350 Ill. 390, states: “That a proceeding to obtain an award under the Compensation Act, as provided in the act, is not an action at law, a suit in chancery or a judicial proceeding of any kind, and the liability of the employer instead of being a liability in tort, is a liability imposed by law and is rather in the nature of an implied contract by reason of the relation of the parties or the existence of an obligation or duty.”

We will now consider the cases relied upon by the appellee. The first one is Paine v. Wyatt, 217 Iowa 1147, 251 N. W. 78. In this case the defendant was a regular physician and surgeon, and was, at the time of the suit, engaged in the practice of his profession. The plaintiff sued him for damages for alleged malpractice, for treating certain injuries previously sustained by the plaintiff. The defendant filed a plea of accord and satisfaction, i. e., that the plaintiff received her injuries while employed by the Oliver Farm Equipment Sales Company and said company had, by reason of the Workmen’s Compensation law of the State of Iowa, fully compensated her for said injuries. We do not have before us a copy of the Workmen’s Compensation Law of the State of Iowa. That court in passing upon the sufficiency of the plea held that the plaintiff was required to elect to pursue one or the other of two remedies. One was to rely upon the compensation law, and hold the employer liable for all the damages for her injuries including any aggravation thereof caused by the treatment of attending physician and surgeon. The other was to sue the physician and surgeon for malpractice, but having elected to hold her employer liable under the Workmen’s Compensation Law, she was harred from maintaining a suit for malpractice.

In Vatalaro v. Thomas, 262 Mass. 383,160 N. E. 269, the plaintiff had received an injury in the course of his employment and had been compensated for the same because of the Workmen’s Compensation Law in the State of Massachusetts. After the settlement with the employer he brought suit against the attending physician for malpractice. The court, in passing upon the merits of the case, quote from the Workmen’s Compensation law, in which it says: “In section 23 it is expressly provided that if the employee accepts payment from the insurer on account of a personal injury, such action shall constitute a release to the insured of all claims and demands at law arising from such injuries.” The opinion ends with this statement: “In the opinion of a majority of the court, the acceptance by the plaintiff of compensation under the Workmen’s Compensation Act constituted a release to the insurer, all claims and damages at law arising from the injury. Such release bars recovery from the defendant.”

The case of Williams v. Dale, 139 Ore. 105, 8 P. (2d) 578, also is a suit against a physician for malpractice after the injured employee had accepted compensation from the employer. The court in stating the law applicable to this case used this language: “The aggravated injury caused by the medical or surgical treatment of the injured workman, whether such treatment was skillful or otherwise, became a part of the original injury and was taken into consideration in the arbitration of the Industrial Accident Commission, according to the provisions of the statute, in making; the final award, and when plaintiff accepted the amount of the award he accepted compensation for the whole injury, including the injury caused by the malpractice of defendants, alleged in. the complaint. In other words, the Industrial Accident Commission awarded compensation for the injuries of plaintiff as they existed at the time of the final award.”

The case of Revell v. McCaughan, 162 Tenn. 532, 39 S. W. (2d) 269, is of very little, if any value, in arriving at the construction of our own statute, as the evidence discloses that the petition filed for compensation was practically identical with the one that was filed against the attending surgeon to recover damages for malpractice. The court held that the plaintiff had recovered full payment for the damage he had sustained because of the injury.

In the case of Ross v. Erickson Const. Co., 89 Wash. 634, 155 Pac. 153, an examination of the Workmen’s Compensation Law of the State of Washington as quoted in this opinion discloses that the law in that State makes the remedy under the Workmen’s Compensation Law exclusive of further remedy or proceedings for compensation, and has abolished all other remedies that might have existed in favor of an injured party and against a physician or surgeon for malpractice.

In the case of Roman v. Smith, an Idaho case reported in 42 F. (2d) 931, the federal court, in discussing the Idaho statute, say that the injured employee was given his option of proceeding either against the employer, or against the doctor for malpractice, and having elected to pursue the remedy against the employer, the statute bars him from maintaining suit against the doctor for malpractice.

Markley v. White, 168 Okla. 244, 32 P. (2d) 716. This case also is a malpractice suit where the plaintiff had received compensation for injury from his employer under the Workmen’s Compensation Act and attempted to hold the attending physician liable for malpractice. The court in passing upon the contention of the appellant used this language: “An employer liable for the legitimate consequences of a compensable injury is liable therefor under the provisions of the Workmen’s Compensation Act, regardless of the fact that the effect of the injury has been aggravated by the negligence or carelessness of the physician selected by the employer. The employee need proceed no further than the State Industrial Commission to recover full compensation therefor. He is not required to institute an action at law against the physician to recover for the result of the negligence or carelessness of the physician. The jurisdiction of the State Industrial Commission in such cases is exclusive, except where the employer fails to secure the payment of compensation as required by law.” The opinion does not attempt to set out the law on which this decision is based, but from the language used by the court it indicates that the Workmen’s Compensation Law of the State of Oklahoma makes the remedy exclusive and bars any other action.

The case of Kirby Lumber Co. v. Ellison (Tex. Civ. App.), 270 S. W. 920, involves a different question from the one we are considering. In the Kirby case, the injured employee had received injuries which necessitated the amputation of his right leg. He was paid by the company under the Workmen’s Compensation Law for this injury. Afterwards his leg did not heal and the second operation was performed, and then he sued the employer for additional compensation on the theory that the doctors that had operated upon him were agents and servants of the employer. The court held that such an action could not be maintained against the employer because they had settled with him in full under the compensation law of the State of Texas.

In the case of Hooyman v. Reeve, 168 Wis. 420, 170 N. W. 282, the injured employee in his settlement with the employer for injuries that he had sustained signed a release which is in part as follows: “For the sole consideration of the sum of $3,000 . . . I do hereby acknowledge full satisfaction and discharge of all claims with the approval of the court in respect to the injuries or injurious results directly or indirectly arising from the accident sustained by me on the nineteenth day of June while in the employment of the above.” (The Employee.) The court held that the employee was bound by the terms of this receipt and could not maintain an action against the doctor for malpractice in the treatment of his injury.

In the case of Hennig v. Crested Butte Anthracite Mining Co., 92 Colo. 459, 462, 21 P. (2d) 1115, the injured employee sued the employer for the malpractice of the physician and surgeon who treated him for the injury he had received while working for the defendant company. One of the answers filed by the defendant and on which the court decided the case was that both parties were subject to the Workmen’s Compensation Act, and that the plaintiff filed with the industrial commission his claim for compensation thereunder for said injuries for full disability arising therefrom or connected therewith; that compensation had been, therefor, in full satisfaction and discharge of all liability of the defendant upon the cause of action attempted to be set up in the complaint. To this answer the defendant filed a general demurrer which was overruled by the court. The plaintiff defaulted. Judgment was rendered against him for costs. On appeal the court held that this was a good defense to his cause of action. It will be observed that the plea alleges in this case that both parties to the suit were under the compensation law of the State of Colorado. In the case that we are considering the defendant does not come under the Workmen’s Compensation Law.

In the case of McConnell v. Hames, 45 Ga. App. 307, 164 S. E. 476, McConnell, the injured employee, started suit against his employer, the insurance company, and the doctor for malpractice, alleging that the doctor had negligently treated an injury which he had sustained in the course of his employment, and that by the mistreatment of the doctor his injuries were aggravated and he was greatly damaged. A general demurrer was sustained to the declaration of the plaintiff. A part of the Workmen’s Compensation law of the State of Georgia provides as follows: “The employer shall not be liable in damages for malpractice by a physician or surgeon furnished by him pursuant to the provisions of this section, but the consequences of any such malpractice shall be deemed a part of the injury resulting from the accident and shall be compensated for as such.” The court decided this case purely upon this part of the statutory provision and held that the employee could not maintain his suit.

The Appellate Court of the First District in the case of Spelman v. Pirie, 233 Ill. App. 6, in passing upon a similar question of malpractice, stated that when the employee has accepted compensation for his injury from his employer, he is barred from maintaining such action against the surgeon who treated him at his employer’s request. The only authority cited to maintain this proposition of law is a Washington case. In O’Brien v. Chicago City Ry. Co., 305 Ill. 244, 260, the court use this language: “We know of no case in which an act not having substantially the provisions just mentioned has been held to deprive the employee of his common law action against the person, other than his employer, causing the injury, except in the State of Washington, the Supreme Court of which held that the Workmen’s Compensation Act of that State abolished all rights of action against every person to recover damages sustained by workmen injured in the course of their employment.” From the wording of this language it is clear that the Washington statute is different from ours, and the Washington decisions have little probative weight in arriving at the construction that we must give to our own statute.

Counsel for the appellee insists that the case of Wesley v. Allen, 235 Ill. App. 322, is precisely in point on the proposition of law that we have been discussing. The reading of that case discloses that the construction of section 29 of the Workmen’s Compensation Law was not discussed at all by the Appellate Court, but the court said this: ‘ ‘ The question suggested is interesting, but its determination is not necessary in a decision of this case.” The court then proceeds to state that the plea of payment is broad enough and definite enough to bar the action. The plea in the Wesley case and the one filed in the present case are very different.

In the case of White v. Matthews, 224 N. Y. S. 559, the facts are similar to the one we are considering and the court in discussing the law relative to the same use this language: “But the court below fell into the error of assuming that the proceeding to obtain compensation was an action for damages and that there were two tort-feasors here. Plaintiff’s claim for compensation under the Workmen’s Compensation Law was not based upon negligence, or any wrongful act or omission on the part of plaintiff’s employer. Compensation was sought and received by plaintiff upon the fact alone that, when she sustained her injuries, she was an employee of the Woman’s Hospital. There is no allegation, either in the complaint or in the answer, that plaintiff sustained her injuries as the result of any tort or negligent act. . . . The recent case of Hoehn v. Schenck, 221 App. Div. 371, 223 N. Y. S. 418, involved the same question as is presented by this appeal. There the Appellate Division, Second Department, unanimously held that an action against a physician to recover damages for malpractice is not barred by the award of compensation under the Workmen’s Compensation Law, though the award may cover, not only the original injuries, but the injury arising from the malpractice of the attending physician. We think the question was properly decided by the Second Department, and that the acceptance of compensation by plaintiff did not bar her recovering damages of the defendant as the result of malpractice.

The case of Greenstem v. Fornell, 257 N. Y. S. 673, is also a suit in which the employee had accepted compensation for an injury he received in the course of his employment and then sued the attending physician for malpractice. The court in their opinion say: “The plaintiff in this case received an award of some $1,700 under the Workmen’s Compensation Law. It is contended that the acceptance of this award precludes the plaintiff from instituting this action for malpractice; that she elected to proceed under the Workmen’s Compensation Law as her sole and exclusive remedy. There is no merit to this contention. The remedies under the Workmen’s Compensation Law and by way of suit for malpractice are in no way inconsistent. ’ ’

In Smith v. Golden State Hospital, 111 Cal. App. 667, 296 Pac. 127, the Supreme Court of California in discussing the right of an injured employee to sue the physician for malpractice when he accepted compensation for his injuries have this to say: “ ‘This would be true as well where the subsequent injury is occasioned by the negligence of the injured person, or of some third person, without accident, as where it is accidental, if the subsequent injury occurs after the employment has ceased, and is neither the natural nor the proximate result of the injury received in the course of the employment. ’ Without conceivable exception, it must occur that by the construction universally placed upon humane workmen’s compensation legislation, employees are so restricted with respect to relief for proximate injuries that their right to other recourse in the event of subsequent injury by independent third parties over whose discretion and actions neither employer nor employee has control, should be and is unfettered. ‘The lawmaking power has taken from him all of his common-law rights and all of his previous statutory rights, and has given him new rights. He does not, and cannot, have a hand in writing the insurance. . . . Before the enactment of these statutes the injured employee could sue for any sum designated in his complaint. Now he can apply for the statutory allowance which is secured by insurance.’ That independent professions by the fact of business contact with the employer should be absolved of responsibility for mistake, avoidable or unjustified neglect resulting in secondary affliction, seems obnoxious to the purpose and spirit of such a statute. To so hold might induce industry to encourage quackery, and place a premium upon negligence, inefficiency, and wanton disregard of the professional obligations of medical departments of industry, toward the artisan. Such is the view entertained by courts of last resort in other jurisdictions where the subject has required specific attention. In Ruth v. Witherspoon-Englar Co., 98 Kan. 179, 157 Pac. 403, an allowance under the Kansas form of procedure of compensation and damages emanating from improper medical treatment was reversed for the reasons herein stated, with the following comments: *. . . If it should be proved here, for instance, that the whole effects of the plaintiff’s injury would under proper treatment have disappeared within a year, that would obviously be the limit of the period for which he could recover compensation in this action. His judgment here could not be increased by the fact that through the incompetent or negligent handling of the case by physicians a disability which would otherwise have been merely temporary was rendered permanent.’ ” This case was cited and followed by the same court in the case of Steiner v. Goodyear Tire & Rubber Co., 115 Cal. App. 162, 300 Pac. 980.

In the case of Hoffman v. Houston Clinic (Tex. Civ. App.), 41 S. W. (2d) 134, the injured employee had accepted payment under the Workmen’s Compensation Law for injuries he had received in the course of his employment and had then sued his employer, together with the doctor who treated him, for malpractice. The court stated the law as follows: “The fact that the United States Fidelity and Guaranty Company, the insurer of appellant’s employer, had, under the provisions of the Workmen’s Compensation Law, paid appellant the full sum allowed by such law for the loss of his eye, would not bar him from a recovery for damages suffered by him in excess of the compensation allowed by law which were inflicted upon him by a third party, that is, a party who was neither his employer, nor an agent, servant or employee of such employer. That appellant would have a right of recovery for such excess injuries suffered by him by reason of the negligence of defendants, they being third parties as above defined, is, we think, well settled.”

In the case of Viita v. Fleming, 132 Minn. 128, 155 N. W. 1077, plaintiff’s employer had an arrangement with defendants’ physicians, who operated a hospital in Cloquet, by which the employer deducted a certain sum each month from the pay of each employee, and turned over the sums so deducted to defendants, who agreed, for such compensation, to care for and treat all injured employees which the employer should send to them. Plaintiff was injured, and was taken to defendants’ hospital and treated by them under this arrangement. The court held that the relation of patient and physician existed between plaintiff and defendants, and that the latter owed plaintiff the duty to exercise ordinary care and skill in treating him. After a discussion of the facts and law of other points in the case the opinion continues (p. 1080): “We need add little to what is said in the preceding paragraph in order to dispose of the argument that the settlement under the Workmen’s Compensation Act by which the employer was released from ‘all claims on account of said injury’ operated as a settlement and release of any claim the employee might have against the physicians for malpractice. The employer, as we have seen, was not liable to the employee for the negligence of the physicians. It was not required to compensate plaintiff for damages sustained by their malpractice, and the settlement did not purport to include any such element. This is not contrary to the well-known rule, existing before the Compensation Act, that where one is injured by the negligence of another, and uses due care in the selection of a physician or surgeon, the wrongdoer is liable for all the proximate results of his own act, although the injury has been aggravated by improper treatment by the physician. It by no means follows that the one whose negligence causes the original injury is liable for the negligence of the physician employed to treat it, and it is clearly not true that the physician is not liable to the patient for such negligence. When it appears, as it clearly does here, that there is a liability on the part of the physician to the patient, it is a strain to hold that a settlement between the injured man and the wrongdoer for the injury by the accident, whether made under the Compensation Act or outside of it, includes the claim that the injured man has against his physician for a separate and subsequent injury. ’ ’

Jordan v. Orcutt, 279 Mass. 413, 181 N. E. 661, a Massachusetts case. A reading of this case discloses that the action was based purely upon a statutory provision of the Workmen’s Compensation Law, of that State. It is of very little aid to us in this case. In the case of Lakeside Bridge & Steel Co. v. Pugh, a Wisconsin case, 206 Wis. 62, 238 N. W. 872, the action is based purely upon the Wisconsin statute, which is in part as follows; “Nothing in the Compensation Act shall prevent an employee from taking the compensation he may be entitled, to thereunder, and also maintain a civil action against any physician or surgeon for malpractice, and the measure of damage, if any be recovered, in such action, shall be the amount of the damage found by the jury less the compensation paid to the employee under the Workmen’s Compensation act.”

In the case of Cipperly v. Carmack, 258 Ill. App. 593, the opinion written by the then Presiding Justice Jett, of this court, in discussing whether an injury to an employee by reason of the acceptance of compensation under the Workmen’s Compensation Law of this State was barred from maintaining an action against a third party to recover for injuries which he had sustained because of the negligence of the third party states: “It will further be observed that it is averred in the amended special plea that the plaintiff had accepted compensation from Tolmie Bros., his employers, and that he had no right to bring this action, that it belonged to the said Tolmie Bros. An employee who has been injured by the negligent act of a third person can bring an action to recover therefor, notwithstanding he may have been paid compensation under the Compensation Act. Gross v. Cuneo Press, Inc., 251 Ill. App. 560.”

An analysis of the foregoing cases shows that many of them are based upon special statutes of the particular States — some of them on the theory that the employer and the doctor who had been sued for malpractice were joint tortfeasors, and therefore, the employee having elected to sue one of the joint feasors or accepted payment from him under the Workmen’s Compensation Act, would be barred from maintaining a suit. As before stated our Supreme Court has held that the Workmen’s Compensation Law is not based upon the negligence either of the employer or of the employee, but is as stated in the case of Keeran v. Peoria, Bloomington & Champaign Traction Co., 277 Ill. 413. A departure from the common law in regard to the master and servant, it does not rest on the theory of negligence hut on the theory that the injury of a workman and death caused by an accident in any business should be regarded as a part of the-expense of the business and should be borne by the business. There is no question but that the doctor in the present case was not working under the Workmen’s Compensation Law. Augustus v. Lewin, 224 Ill. App. 376. Section 29 of our Workmen’s Compensation Law provides that in case an injured employee sues a third party who is not under the Compensation Law, and recovers damages in á greater amount than he received as compensation from his employer, then the amount that has been paid to the employee shall be ieturned to the employer, It seems to us that the language used in the above section applies to the facts in the present case, and the plaintiff in this case should not be barred from maintaining her action against the doctor for malpractice. From an examination of the decisions of the Supreme Courts of other States that have passed upon this question, especially in those States that do not make the remedy under the Compensation Law exclusive, that the better reasoned cases and the weight of authority sustain th'e proposition, that by accepting compensation under the Workmen’s Compensation Law that the injured employee is not barred from maintaining an action against a physician and surgeon for malpractice in treating his injuries arising in the course of his employment.

The judgment of the. bity court of Aurora in overruling the demurrer to the defendant’s plea is hereby reversed and the cause remanded to said court, with directions to sustain the demurrer.

Reversed and remanded with directions.


author: Mr. Justice Dove

text:
    Helen Eckhart, by Lena Eckhart, her Next Friend, Appellee, v. United States Fidelity and Guaranty Company, Appellant.
    Gen. No. 8,887.
    Heard in this court at the February term, 1935.
    Opinion filed May 17, 1935.
    Rehearing denied June 26, 1935.
    Burns & Burns, of Kankakee, and McKenna, Harris & Schneider, of Chicago, for appellant; James J. MeKenna and Abraham W. Brussell, of Chicago, of counsel.
    Luther B.’ Bratton and Charles W. Kurtz, both of Kankakee, for appellee. .
   Mr. Justice Dove

delivered the opinion of the court.

At the October term, 1928, of the circuit court of Kankakee county, Helen Eckhart, by her next friend, instituted this proceeding in debt against the United States Fidelity and Guaranty Company. The declaration alleges that on March 22, 1927, the defendant was indebted to the plaintiff in the sum of $4,500 and after that date promised to pay the plaintiff said amount, with interest thereon. It was further alleged that the father of the plaintiff was Henry Eckhart, and that he, on April 18, 1925, was accidentally killed at Fort Dodge, Iowa, and that under the provisions of the Workmen’s Compensation Law of Iowa, the dependents of Henry Eckhart became entitled to receive the sum of $15 per week for 300 weeks and the defendant assumed and guaranteed said payments and being so liable paid Lillian Eckhart, the surviving widow of Henry Eckhart, deceased, the sum of $15 per week for 100 weeks; that on said March 22, 1927, the widow of Henry Eckhart remarried and said payments then became owing to the plaintiff, she then being the sole surviving dependent of said Henry Eckhart, deceased. The declaration also contained the consolidated common counts. Pleas and replications were filed and the issues having been made up, the cause was heard, by agreement of the parties, by the court, a jury being waived, and on March 21, 1934, a judgment was rendered in favor of the plaintiff and against the defendant for $3,518.55. At the time of the rendition of the judgment, the trial court filed a memorandum stating that there was “only one question presented in the case: Did the defendant promise to pay the plaintiff the sum of $4500.00 less the amount already paid by the Company to the former beneficiary? The Statute of Iowa is not involved. I am of the opinion that there is sufficient evidence in the record to sustain the contention of the plaintiff that the defendant promised to pay the sum to the plaintiff. It is not necessary that a consideration pass directly from the plaintiff to the defendant. A consideration that passes to the defendant from the third party is sufficient. There will be judgment in favor of plaintiff for '$3518.55, which includes $2814.84 principal and five years interest at five per cent.” It is from this judgment that this appeal has been perfected.

It is the theory of the plaintiff below, appellee here, that a contract existed between the parties hereto, by the provisions of which defendant below, appellant here, promised appellee, in Illinois, to pay her the balance upon an award which had theretofore been made in Iowa, according to the provisions of the Workmen’s Compensation Law of that State, that A. K. Rossi was an adjuster and a representative of appellant and the promise to pay appellee was made by him. It is the contention of appellant that the competent, relevant evidence does not show that Rossi was the adjuster and representative of appellant, but if he was, neither he nor the defendant ever made any promise to pay appellee any sum whatever. It is further contended by appellant that assuming the promise to pay appellee was made by appellant, there was no consideration therefor, it was never accepted by appellee and is unenforceable because it would be in direct violation of the provisions of the Workmen’s Compensation Law of Iowa as in the final analysis of appellee’s case she is seeking to enforce rights which accrue to her solely and are enforceable only under the Iowa Compensation Act.

The evidence discloses that Henry Eckhart was the father of appellee and that on April 18, 1925, he was employed at the Wahkonsa hotel in Fort Dodge, Iowa, and on that day sustained accidental injuries which arose out of and in the course of his employment and from which he died. At the time of his injuries and death, he and his employer were subject to and under the provisions of the Workmen’s Compensation Act of the State of Iowa and appellant was the insurance carrier of Eckhart’s employer. Eckhart was survived by Lillian Eckhart, his second wife, who was remarried on March 22, 1927. Lena Eckhart was Henry Eckhart’s first wife, and they were divorced and appellee, who is the daughter of Henry Eckhart by his first wife, made her home with her mother, and they were living near Momence in this State at the time of Henry Eckhart’s death. Upon the death of Henry Eckhart, appellant, acting under the provisions of the Workmen’s Compensation Law of Iowa, paid Lillian Eckhart, his surviving wife, compensation for a period of 132 weeks, the amounts so paid aggregating $1,685.16. On March 22, 1927, Lillian Eckhart remarried and the parties hereto stipulated that under the Iowa law her marriage operated to discontinue any further compensation payments and that payments by appellant to her ceased at that time.

The evidence further discloses that on July 9, 1925, being less than three months after Henry Eckhart’s death, appellant wrote appellee, informing her of her father’s death and of the fact that it carried workmen’s compensation insurance for his employer and advising her that under the laws of Iowa the sum of approximately $4,500 in benefits was payable to his dependents. The letter further states that appellant had discovered appellee’s address and that it hesitated to accept the widow of the deceased by the second marriage as his sole dependent. The letter con-eluded by stating that it was writing her in order to give her an opportunity to set forth her claim, if she, appellee, is in fact actually a dependent and desires to make a claim. The letter also suggested that she refer the matter to an attorney for advice and counsel. This letter was taken by the mother of appellee to an attorney at Kankakee, who answered it on July 21, 1925, stating that appellee was bom on January 9, 1916, and that he, on behalf of appellee, made a claim upon the fund mentioned in appellant’s letter of July 9, 1925, as a dependent of Henry Eckhart, deceased. Appellant replied to this letter the next day, stating that the matter of dependency had been referred to the industrial commissioner of Iowa for an opinion, who ruled that the compensation was payable to Lillian Eckhart, the surviving widow of Henry Eckhart. The letter further advised appellee’s attorney that in the event the surviving widow should die or remarry, compensation will cease, provided there is no dependent child, and stated that appellant believed that whether or not appellee has a right to claim for support is a matter outside the rule of law provided for payment of compensation to the widow. Nothing further seems to have been done until December 28, 1927, when appellee’s attorney wrote appellant, stating that the surviving widow having remarried, the compensation payments as he understood the law should then go to appellee. Appellant answered this letter on January 3, 1928, stating that under the Iowa law appellee would be entitled to the remaining benefits and that as she was a minor, a guardian would have to be appointed and inquiring whether appellee would be interested in a lump sum settlement. On January 9,1928, appellee’s attorney replied and requested appellant to advise him how much was coming to appellee and what amount appellant would give her for a lump sum settlement. On January 11, 1928, appellant replied that before finally approving the balance due appellee, it would be necessary for appellant to be advised whether or not appellee’s mother had remarried. On January 19,1928, appellee’s attorney replied that appellee’s mother had not remarried. About this time or in late December, 1927, appellee’s attorney testified that a gentleman representing himself as A. K. Rossi and an adjuster for appellant called upon him and stated that he had had a talk with appellee and that “if appellee was the child of Henry Eckhart and that Lena Eckhart had not remarried, then the balance of this money or this compensation money was due Helen Eckhart and the Company did not care to contest that. However, he wanted a little while longer to make a further investigation as to the marital state of Lena Eckhart.” That thereafter appellee’s attorney wrote appellant directing his letter to the attention of A. K. Rossi, adjuster, and inquired whether he could come to Kankakee the following Tuesday with reference to appellee’s claim, and stated that if he could “we can arrange to see the necessary parties here. ’ ’ On the 26th of April following, appellant answered this letter through the superintendent of its claim department, stating that they were unable to make the necessary arrangements to be at the office of appellee’s attorney on the Tuesday suggested, but if appellee’s attorney would make arrangements for some later date and advise appellant, they would have a representative call. On April 27th, appellee’s attorney replied that he would be in a position to confer about the matter at one o’clock April 30th. Appellant did not reply to this letter and again on May 10, 1928, appellee’s attorney wrote appellant that he would be in a position to confer with appellant’s representative at one o’clock on May 14, 1928. There was no reply to this letter and nothing further appears to have been done until November 7, 1928, at which time appellee’s attorney again wrote appellant, in which he referred to the previous correspondence and in particular to the letter of January 3, 1928, and inquired how much appellant would be willing to pay for a lump sum settlement. On the following day, November 8, 1928, appellant replied, stating that some time previous the Des Moines office of appellant had requested the Chicago office to make some further investigation in connection with appellee’s case, that the investigation had not been completed, that appellant had information to the effect that Lena Eckhart had remarried and if this proved true, appellee would not be considered a dependent and that until something more definite developed appellant would not be in a position to consider settlement.

From the foregoing evidence it is apparent that the parties were simply negotiating and in the process of entering into a settlement. The first letter that was written after the death of Lillian Eckhart was simply a statement of appellee’s attorney to the effect that as he understood the Iowa law, further compensation payments should then go to his client. Appellant replied and wanted to know whether appellee would be interested in a lump sum settlement, to this appellee’s attorney wanted to know the amount that his client was entitled to and how much appellant would give in settlement thereof. Appellant studiously avoided this inquiry and never at any time ever stated how much had been paid Lillian Eckhart, how much was due appellee or ever-submitted a proposition for a lump sum settlement, but did state that before approving the balance due appellee, it would be necessary to know whether appellee’s mother had remarried. Appellant was advised by appellee that her mother had not remarried and this was the status of the negotiations when Mr. Rossi called and although he stated that if appellee was the child of Henry Eckhart and that her mother had not remarried, then the balance of the compensation money was due Helen, he never said what the balance amounted to, but advised appellee’s attorney that he wanted a while longer to make a further investigation as to the marital status of Lena Eekhart. Thereafter, counsel for appellee sought to have a representative of appellant come to Kankakee and make this investigation, but no one came and 17 days before this suit was instituted, appellee’s attorney again sought to open the previous negotiations and wrote appellant again and inquired how much appellant would be willing to pay for a lump sum settlement. Appellant replied and refused to negotiate any further and the instant suit resulted.

Upon the death of Henry Eekhart, in the course of his employment, his dependents could have instituted proceedings before the Iowa industrial commissioner to obtain compensation as provided by the Workmen’s Compensation Act of that State. Counsel for appellee in her argument says that the proceedings in Iowa were had without Helen Eekhart being a party, that those proceedings have been concluded and a judgment was rendered in Iowa and that the instant case is an action seeking to enforce a promise made in Illinois by appellant to appellee, based upon a judgment rendered in Iowa. The record in the instant case discloses that the industrial commissioner of Iowa made an award to Lillian Eekhart. Certainly this proceeding is not based upon that award because appellee was not a party thereto and no award was ever made to her and so far as the record in this case discloses there never was any judgment rendered upon that award. If there had been a judgment rendered in appellee’s favor in Iowa, suit upon that judgement could have been maintained in Illinois. 34 C. J. 1114. But the Iowa statute is like ours and makes void any agreement, written or oral, providing for the. payment tif compensation entered into between an employer and those entitled to compensation, unless approved by the Iowa industrial commissioner. Reeves v. Northwestern Mfg. Co., 202 Iowa 136; International Goal & Mining Co. v. Industrial Commission, 293 Ill. 524. In Hoover v. Central Iowa Fuel Co., 188 Iowa 943, the Supreme Court of Iowa construed the compensation law of that State to mean that where a child under 16 years of age was living with her mother, who is separated from her natural father and this mother had remarried so that the minor child had a stepfather, then such minor child was not entitled to compensation as a dependent for the death of the natural father. This construction of the Iowa law shows plainly why appellant was desirous of finding out the marital status of appellee’s mother, and which indicates to us that there was never any contract in fact made between the parties hereto whereby the appellant agreed to pay appellee any definite sum.

While the evidence in the instant case discloses that Lena Eckhart never remarried, it also discloses that no award or judgment was ever rendered in favor of appellee in Iowa and under the construction .which the Iowa courts have placed upon the provisions of the compensation act of that State, the fact that she had not remarried was a condition precedent to appellee obtaining an award. The evidence further discloses that appellant paid compensation to Lillian Eckhart for 132 weeks, leaying 168 weeks of the 300-week period. The negotiations between the parties covered a considerable period, yet when this action was begun, less than two-thirds of the 300-week period had elapsed. If there was a valid, enforceable contract entered into between the- parties hereto, it must have been that appellant would pay -appellee- $15 per week for a certain number of weeks, but nowhere in the negotiations is the number of weeks or amount stated. Appellee must have contemplated the amount was to be paid in instalments or she would not have inquired as to the amount appellant would be willing to pay for a lump sum settlement.

In 6 R. C. L., page 616, it is said that a contract is not closed while any mutual act between the parties remains to be done to give either a right to have it carried into effect, nor is a contract consummated so long as, in the contemplation of both parties thereto, something remains to be done to establish contract relations. The law does not make a contract when the parties intend none; nor does it regard an arrangement as completed which the parties thereto regard as incomplete. In 13 C. J., sec. 100, pages 289, 290, it is said: ‘ ‘ The preliminary negotiations leading up to the execution of a contract must be distinguished from the contract itself. There is no meeting of the minds of the parties while they are merely negotiating as to the terms of an agreement to be entered into.” It is clear that the parties hereto during all the time of their correspondence and negotiations had in mind the compensation liability of appellant to appellee under the Iowa statute, and we fail to find that appellant ever made any definite offer to pay which was ever accepted by appellee.

' Appellee insists, however, that the statement of Mr. Rossi to appellee’s attorney to the effect that if appellee was the daughter of Henry Eekhart and if Lena Eekhart had not remarried that then the balance of the compensation was due her and that the company did not care to contest that feature of the case is binding upon appellant and that it was not necessary for appellee’s attorney to accept this proposition because the contract entered into by the employer of .Henry Eekhart and appellant was for the benefit of appellee; that by that contract appellant, as the insurance carrier, became bound to pay the dependents of Henry Eekhart as provided by law, and that appellee is his sole dependent and therefore a contract to pay her was created by operation of law. If appellee is relying on a promise made by appellant in Illinois to pay appellee the balance due under its contract with her father’s employer, then appellee is relying upon an express contract and not a contract created by operation of law. If she is relying upon a contract created by operation of law for her benefit, then the only kind of liability imposed upon appellant was a liability under the Workmen’s Compensation Act of the State of Iowa. This liability under the Iowa law can only be fixed by following the procedure outlined in that act, as the act specifically provides that the rights and remedies thereby created are exclusive. Comingore v. Shenandoah Artificial Ice, Power, Heat & Light Co., 208 Iowa 430. And the method for determining that liability will not be enforced by the courts of this State.

In our opinion the judgment of the trial court was not warranted by the evidence and it is therefore reversed.

Judgment reversed.


text:
    Herbert Capelle, Appellant, v. Chicago and North Western Railway Company, Appellee.
    Gen. No. 8,883.

      Heard in this court at the February term, 1935.
    Opinion filed May 17, 1935.
    Rehearing denied June 26, 1935.
    Bows & Bows, of Chicago, and Hall & Hulse, of Waukegan, for appellant.
    Nelson J. Wilcox, of Chicago, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This was an action brought by appellant against appellee to recover damages for personal injuries claimed to have been sustained by appellant because of defendant’s negligence. Appellant was driver of a milk truck. On the morning of January 23, 1933, at about 6:40 a. m., the truck which he was driving was struck by one of appellee’s trains where its tracks intersected a public street in North Chicago, known as Second avenue. Appellee maintained no crossing gates at this crossing, but did have employed a crossing watchman for the purpose of warning traffic of the approach of its trains. In the daytime it was the habit and custom of appellee’s crossing watchman to station himself upon the crossing with a large “stop” sign held in his hand with which to warn traffic. At night the watchman used a lantern with which to warn traffic. Appellee maintained a double track system at this place. Its tracks crossed Second avenue ■ at right angles and ran north and south, while Second avenue ran east and west. On the west side of appellee’s tracks the Chicago, North Shore and Milwaukee railroad maintains its electric line which parallels appellee’s tracks and which electric line also is a double track system at this place. It was dark at the time the accident happened. The plaintiff sustained severe fractures and injuries on and about his head. The evidence shows that as a result of such injuries, he has been rendered unfit for any employment, suffering from a nervous disorder together with atrophy of muscles, loss of strength, deafness, and an impaired mental condition which is in a progressive state, gradually getting worse. There is no serious dispute regarding the result of the injuries and that the appellant presents a case of total permanent disability.

At the close of the plaintiff’s evidence, the defendant filed its motion requesting the court to instruct the jury to find in favor of the defendant. The court announced that he would reserve his ruling thereon until he had heard all of the evidence. The defendant at the close of all the evidence in the case again moved for an instructed verdict. The court again announced that he would reserve his ruling thereon until later. The cause was submitted to the jury and the jury returned a verdict in favor of the plaintiff below and assessed his damages at $35,000. This verdict was received by the court and recorded. After this, the defendant below filed its motion with the court stating that in accordance with subdivision 3 of sec. 68 of the Civil Practice Act, Cahill’s St. ch. 110, H196, it filed said motion requesting the court to enter a judgment in favor of said defendant notwithstanding the verdict. This motion was filed in the alternative. While it was primarily a motion for judgment non obstante veredicto, yet the defendant included therein its motion to the effect that if judgment notwithstanding the verdict was denied, then the defendant be granted a new trial. Upon the motion filed, the court entered judgment in favor of the defendant non obstante veredicto. The plaintiff below prosecutes this appeal from the judgment of the court entered upon the said motion of the defendant.

Subdivision 3(a) of sec. 68 of the Practice Act, Ca-hill’s St. ch. 110, if 196, purports to give either side the right to a judgment notwithstanding the verdict. At common law, a judgment non obstante veredicto could be entered only where the plea of the defendant confessed the plaintiff’s cause of action, and, in defense thereto, set up insufficient matters of avoidance, which, if found to he true, would not constitute a defense or bar to the action. In such a case the plaintiff was entitled to a judgment notwithstanding a verdict found in favor of the defendant. A motion for such a judgment was never permitted upon the part of the defendant. A motion for an instructed verdict is the method universally recognized for challenging the sufficiency of the evidence, while motions for judgment notwithstanding the verdict, have always been a challenge directed to the sufficiency of the pleadings, and limited to the plaintiff. The corresponding right on the part of a defendant under such circumstances was a motion in arrest of judgment. However, this rule has been somewhat relaxed in certain jurisdictions by legislative enactment, and in those States the common law motion for judgment non obstaAite veredicto has been, extended to cases where, on the evidence, either party is clearly entitled thereto. It would appear by the above section of the Practice Act of this State that it was the intention of the legislature to extend the right to either litigant to make motion for judgment notwithstanding the verdict.

The appellant complains of but one error, namely, that the trial court erred in granting appellee’s motion for judgment non obstante veredicto, and in entering its judgment accordingly. Appellee maintains that the court was correct in this respect, urging that before the appellant was entitled to recover damages against appellee, that the burden rested upon him to show that the appellee in the transaction involved, was engaged in interstate commerce; that appellant was in the exercise of due care at the time; and that his injuries resulted because of defendant’s negligence.

Appellant was working for a dairy company and at the time of the accident was subject to the Workmen’s Compensation Act of Illinois, Cahill’s St. ch. 48, 1J 201 et seq. The particular train that collided with appellant’s truck was a suburban train running from Waukegan to Chicago. As stated above, appellee urges that it must appear that in the transaction involved, it was subject to interstate commerce and not within the rule applicable to intrastate commerce. It has been definitely settled that an employee of a railroad company in the capacity of a flagman at a public crossing, where the tracks are used in both interstate and intrastate commerce, is an employee within the scope of the Federal Employers’ Liability Act, and his duties are considered as an incident of interstate commerce. Chicago & A. R. Co. v. Industrial Commission, 288 Ill. 603; Pittsburgh, C., C. & St. L. R. Co. v. Industrial Commission, 291 Ill. 396. It has been said, “The service of a flagman concerns the safety of both commerces, and to separate his duties by moments of time or peculiar incidents to its exertion, would be to destroy its unity and to commit it to confusing controversies.” Wheelock v. Industrial Commission, 318 Ill. 537, 542. It appears that appellee transported interstate as well as intrastate commerce, over the tracks in question, and that its crossing watchman was employed to warn traffic both as to interstate commerce and intrastate commerce. It was his duty to warn the public of the approach of all trains during the hours which he worked. The crossing watchman being an employee of appellee engaged in interstate commerce, appellee is therefore barred from claiming the benefit of sec. 29 of the Workmen’s Compensation Act of this State, Cahill’s St. ch. 48, Ü229. O’Brien v. Chicago City Ry. Co., 305 Ill. 224; Goldsmith v. Payne, 300 Ill. 119; Brown v. Illinois Terminal Co., 319 Ill. 326.

Appellant testified that on the morning in question, he was driving the milk truck along Second avenue at about 6:30 o’clock; that it was dark; that he had his headlights burning; that when he reached the intersection of said Second avenue and the North Shore Electric Line, he stopped his truck and waited for a North Shore electric train to pass; that he then looked and saw no watchman, whereupon he proceeded over the railway tracks in second gear at about 10 miles per hour. He states that he remembers nothing after this, until he regained consciousness in the hospital.

Appellant based his right of recovery upon the failure of appellee’s servant to perform his duty, by giving appellant warning of the approach of the train. Appellant was 40 years old. He traveled this milk route every day at about the same time. He began this work in March, 1932, and the accident occurred in January, 1933. Edward Thompson, a machinist, was driving his car just behind the truck of appellant at the time of the accident. He saw the accident. He states there was nothing between his car and appellant’s truck to obstruct his view. He further states that he saw someone running from the direction of the watchman’s cabin toward the crossing, carrying a lantern ; that such person was from 25 to 50 feet north of the crossing at the time the witness first saw him, and that such person arrived at the crossing just as the truck of appellant was struck by the train. The witness further states that he saw no one standing on the crossing, nor any light there at the time appellant drove his truck upon the tracks. The witness immediately got out of his car and went to the scene of the accident. He states that no one was there other than the appellant, the witness, and the crossing watchman who had a lantern in his hand. A policeman later came to the scene of the accident, whom the witness knew and to whom he talked. The witness’ daughter was riding in the car with him, and her testimony is substantially the same as that of her father. The witness states that he is familiar with the crossing in question. The watchman’s cabin was west of appellee’s tracks and north of the public highway. The North Shore electric tracks are west of appellee’s tracks, and the watchman’s cabin is about 40 feet west of the North Shore tracks. It was from this cabin that the witness, Thompson, and his daughter state they saw a man running toward the crossing, carrying a lantern.

Carmino De Santo was the crossing watchman for appellee, on the morning in question. He states that the cabin in which he stayed was equipped with a system of electric bells to warn the watchman of approaching trains, and that upon receiving such warning, it was his custom, in the night, to take his lantern and stop sign and go out upon the middle of the crossing to warn traffic. On this morning he went to work at 5:30 o’clock. He insists that at the time of the accident he was out upon the “cross,” which is his term for the crossing, trying to warn appellant, and that he waved his lantern at appellant and called to him to stop, but that he could not stop him. Appellee had other evidence tending to show that its watchman was at his post of duty at the time of the accident, but the probative force of their testimony and that of appellant’s witnesses, was a question of fact resting within the province of the jury.

A motion to instruct the jury to find for the defendant is in the nature of a demurrer to the evidence, and the testimony so demurred to, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff. McCune v. Reynolds, 288 Ill. 188. On considering a motion for an instructed verdict, the trial court has nothing to do with any question as to the preponderance of the evidence or the credibility of the witnesses. The only question which the court has to determine is whether there is in the record any evidence which, if true, fairly tends to prove the allegations of the declaration. The question of the weight to be given the testimony is a question for the jury. The court cannot weigh the evidence of the plaintiff and defendant in order to determine where in its opinion the preponderance lies. Controverted questions of fact are to be submitted to the jury for its consideration and determination. McFarlane v. Chicago City Ry. Co., 288 Ill. 476. Appellee defendant filed its motion at the close of plaintiff’s evidence, and again at the close of all the evidence, asking the court to give a peremptory instruction directing a verdict in favor of said defendant. The court refused to grant the motions, but reserved his ruling upon the motion last submitted. No distinction can be drawn between a case where a peremptory instruction is asked at the close of the plaintiff’s evidence, and where the. instruction is again asked at the close of all the evidence. Chicago City Ry. Co. v. Martensen, 198 Ill. 511. In the above case with reference to this question, it is stated on page 512 of the opinion, “It is never a question of the weight of the testimony.” The court further commenting upon the distinction sometimes sought by litigants to be drawn between the disposition of such a motion by the trial court at the close of all the evidence, and at the close of the plaintiff’s evidence, makes the following statement: “If, as contended by counsel for appellant, the trial court may, at the close of all the evidence, take a case from the jury merely because he regards the clear preponderance of the evidence, or the overwhelming preponderance of the evidence, as being in favor of the defendant, then the right of trial by jury is left to the judgment and discretion of the court; and no one would seriously insist upon such a rule. ’ ’

We are not of the opinion that the present Practice Act in allowing a trial court to give judgment notwithstanding the verdict, in favor of a defendant, has in any way abrogated or modified the above rules of law. The trial court has no more power to weigh and determine controverted questions of fact under the present Practice Act, than it had prior thereto. In furtherance of the general principle that it is preferable that cases involving questions of fact should be disposed of on their merits by a jury, rather than upon formal motions, a trial court after denying a motion for an instructed verdict for defendant, at the close of plaintiff’s evidence and again at the close of all the evidence, should not render nugatory the verdict of a jury returned on disputed questions of fact, by rendering a judgment non obstante veredicto in favor of such defendant; but if the court is dissatisfied with the verdict under the evidence, he should grant a new trial instead.

The judgment of the trial court is reversed and this cause is remanded for another trial.

Reversed and remanded.


author: Mr. Presiding Justice O’Connor

text:
    Atchison, Topeka and Santa Fe Railway Company, Appellant, v. Samuel H. Kirby and J. O. Kirby, Trading as Kirby Brothers, Appellees.

    Gen. No. 37,795.
    Heard in the first division of this court for the first district at the October term, 1934.
    Opinion filed February 25, 1935.
    Emmet Trainor and F. W. Miller, both of Chicago, for appellant.

      Brodkin & Bieber, of Chicago, for appellees; Irving W. Eiserman, of Chicago, of counsel.

       This case which was formerly ordered published as an abstract is now directed by the court to be published in full.

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendants to recover $192.15 freight charges for the shipment of a carload of baled alfalfa hay from Colorado to Chicago. There was a trial before the court without a jury and a finding and judgment in defendants’ favor, and plaintiff appeals.

The facts, as stipulated, show that a carload of baled alfalfa hay was delivered to the plaintiff railroad company at Hartman, Colorado, and billed to C. F. Arnold & Company at Kansas City, Missouri. At Kansas City it was reconsigned to the order of Ennis Hay Company at Chicago, “notify E. Gr. Randall.” The car was transported to Chicago and upon its arrival the order bill of lading was presented by Randall to plaintiff railroad company, together with a written order signed by Randall directing plaintiff to deliver the car to Kirby Brothers, “And thereafter plaintiff Company caused said car to be delivered to defendants” (Kirby Brothers).

Defendants accepted delivery of the car, unloaded the hay and released the car, but the freight charges were not paid and it was stipulated that the charges were $192.15. From the stipulation it further appears that defendants were on plaintiff’s “credit list,” and that persons and companies on this list were allowed 48 hours after delivery of shipment within which to pay freight charges. It was further stipulated that defendants would testify that under a general usage and the custom of trade dealing in hay in Chicago, it was understood among dealers and brokers that when hay was bought from a broker the broker would pay the freight charges and that defendants bought the car of hay in reliance upon such custom; that defendants would testify they paid Randall the full price of the hay, no deductions being made on account of freight charges; that they did not know Randall had not paid the freight charges when they accepted delivery. Plaintiff objected to this evidence, the objection was overruled and it excepted. The stipulation further shows that plaintiff was not aware of the custom or practice just referred to.

In an interstate shipment such as the one involved in the instant case, the local custom above mentioned was in no way binding .on the plaintiff. The cases cited by counsel for defendants, such as National Importing & Trading Co., Inc. v. E. A. Bear & Co., 324 Ill. 346, and others, which hold that where a person deals in a particular market he must be taken to deal according to the known, general or uniform custom or usage of that market, do not involve the payment of freight in interstate shipment which is regulated by the Act of Congress, and the courts have uniformly held that the consignee who accepts the goods is liable for the freight in the absence of some agreement to the contrary by which some other person is to pay the freight charges. Western & Atlantic R. Co. v. Underwood, 281 Fed. 891.

Under the Act of Congress to Regulate Commerce, the carrier has a claim for its lawful charges against the consignee who accepts the goods. Pittsburgh, C., C. & St. L. Ry. Co. v. Fink, 250 U. S. 577; Pere Marquette R. Co. v. American Coal & Supply Co., 239 Ill. App. 139; New York Cent. R. Co. v. Platt & Brahm Coal Co., 236 Ill. App. 150; Western & Atlantic R. Co. v. Underwood, 281 Fed. 891.

Randall, the Chicago consignee who ordered the goods diverted to the defendants, testified that he was liable for the freight to plaintiff and still owed the bill. The fact that he was liable did not, under the law, relieve the defendants.

The judgment of the municipal court of Chicago is reversed, and since there is no dispute as to the facts the cause will not be remanded but judgment will be entered in this court in favor of plaintiff for $192.15, against the defendants.

Judgment reversed and judgment entered in this court.

McSurely and Hatchett, JJ., concur.