author: Mr. Justice Kilby

text:
    Daniel C. Briney, Minor, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 42,676.

      Opinion filed December 13, 1944.
    Released for publication January 4, 1945.
    John W. Freels and Herbert J. Deany, both of Chicago, for appellant; Vernon W. Foster and Charles A. Helsell, both of Chicago, of counsel.
    Joseph Barbera, of Chicago, for appellee; Harry G. Fins, of Chicago, of counsel.
   Mr. Justice Kilby

delivered the opinion of the court.

This is a personal injury action arising out of an accident in which plaintiff on July 7, 1937, when he was 8 years and 9 months old, suffered injuries as a result of which his left leg was amputated a few inches below the hip. This appeal is taken by defendant from a judgment upon a verdict in plaintiff’s favor for $40,000.

The accident happened in . Kiverdale, Illinois, through which defendant’s- right of way, carrying 7 ■ sets of track, passes. At about 140th Street the right of way of the Indiana Harbor Belt extends east and west at grade. The defendant’s right of way overpasses the Belt right of way at this point. All streets between 138th and 144th are dead end streets on both sides of defendant’s right of way. Vehicular and pedestrian viaducts carry traffic underneath its right of way at 138th Street and 144th Street. Upon this right of way, counting from the west, tracks No. 1 and No. 2 carry suburban trains; tracks No. 3 and No. 4 passenger trains; tracks No. 5 and No. 6 freight trains; and track No. 7, known as the interchange track also carries freight. The trains for this latter track are made up in the Markham Yard at 157th Street and are carried north to about 141st Street, where the interchange track curves northeast and downward toward the Belt tracks. At grade the train is switched onto the Belt right of way and moved west. At about 142nd Street there is a signal tower supported by two upright posts — one on the east, located between tracks 6 and 7 and one on the west between 1 and 2. The day of the accident plaintiff had spent the forenoon in River-dale Park, adjoining the defendant’s right of way on the west between 137th and 138th Streets, with Russell Reichert, then 12, and Bobby and Billy Sutton then, respectively, 14 and 12. He lunched at Reicherts, then, with the others, shot off firecrackers in the Belt underpass, after which they emerged on the east and climbed by a footpath up to defendant’s right of way, walked south and sat next to the eastern post of the signal tower, awaiting the freight train which came north on track 7 daily at 1:30 p. m. Several minutes later the train consisting of 45 freight cars with a caboose at the north end, all being pushed by the engine at the south end of the train, passed the boys on its way upon the curve to the northeast. After several cars had passed, one of the Sutton boys “jumped on.” A few more cars passed and the other Sutton boy did likewise. Plaintiff tried to board the same car as the latter boy, who tried to help him, reach a bar to swing onto the stirrup. Plaintiff reached and missed the bar, the Sutton boy lost hold of him and the accident followed. No signal of any kind was given of the approach of the train. The conductor of the train was riding in the caboose, but on the east side at a window where he could communicate signals to the engineer. With him was the flagman who was seated facing north just inside the open door at the north end of the caboose. The brakeman was seated on the- east side of a tank car; None of these men and neither of the two in the engine cab had any knowledge of the accident until after it occurred.

The issues made by the pleadings and submitted to the jury were whether defendant was negligent in failing to anticipate plaintiff’s presence, since it knew that footpaths in continual use by the public led across its tracks; whether it was negligent in failing to fence in its right of way, as a result of which plaintiff was able to enter thereon; and whether it was negligent in failing to use ordinary care for plaintiff’s safety after its servants had permitted companions of plaintiff previously to board the moving interchange train and throw switches, for reward, thereby inducing plaintiff into danger.

The last issue referred to embraces three elements: The accident and injury, which are shown; defendant’s negligence proximately causing the injury; and plaintiff’s care. Defendant urges us to determine as a matter of law that it owed plaintiff only the duty of not wilfully and wantonly injuring him because he was a trespasser and was himself negligent. There was no charge of wilfulness and wantonness. Defendant cites many cases where small boys trespassing upon railroad rights of way and tracks were injured but precluded from recovery on the basis urged by it here. These cases beg the question. - In Louisville & N. R. Co. v. Webb, 35 S. W. 1117 (Kentucky 1896), cited by defendant and not distinguished by plaintiff, similar in facts, the court held that a coal pile properly placed by the railroad between sets of tracks was the intervening and proximate cause of the hoy’s injury. It is therefore not pertinent. It is true that the evidence shows plaintiff had never boarded the train or thrown switches as the other boys were permitted to do, and that the trip the day of his injury with the others was his first; that he was not on the tracks proper, hut 8 feet from the train as it passed; that he had seen the train approaching for more than a mile to the south; that there were no switches at or near the point of the injury and none unlocked either on the day of the accident nor previously, except far away down the curve; and that plaintiff was reared in a railroad atmosphere, since he lived near and played on the Belt tracks,- his father was a railroad man and plaintiff had been “chased” from the Belt right of way on previous occasions. There is evidence in the record that defendant’s servants permitted for two years or so, previous to the day of the accident, plaintiff’s companions on that day and other small boys to board the moving, interchange freight train and other switches leading to ■its movement on the Belt right of way. In view of this evidence, the jury might have believed that defendant should have foreseen that knowledge of that permission would be communicated to other small boys such as plaintiff who would be induced, according to common experience, to imitate the other, especially older, boys; that although plaintiff was 8 feet from the train, in view of the permission, defendant’s servants should have anticipated, even had they seen the boys, that the latter would attempt to board the train; that while whistles- and bells signaling the approach of the train may have been unnecessary, sounding them and the presence of trainmen actually giving warnings may have deterred plaintiff from his attempt to board the moving train; that assuming the permission, defendant should have anticipated the presence of the boys not only at the points of switching, but in places of reasonable proximity; that the flagman’s duty to observe under the circumstances was not limited to the track proper; that the permission embraced dangerous activities especially for small boys and should have been ended before or on that day, and that revoking the permission required more stringent treatment than simple warnings; that having extended the permission defendants’ servants should have anticipated that small boys would be present and would attempt to board the train and that not only those actually permitted previously, but others, even younger, might be present and make the attempt; that plaintiff was not a trespasser at the time of his injury; and that the defendant was negligent. We cannot say that determining this question was not the province of the jury, for we cannot say as a matter of law that defendant should not have foreseen that plaintiff’s injury would follow as a proximate result of the permission granted, unless ordinary care was used in anticipating his presence and in trying to prevent his “jumping on” the train.

Defendant argues that plaintiff’s action in attempting to board the train was the sole, proximate cause of the injury. The evidence of the long standing permission, included the boarding of a moving train. The question of plaintiff’s contributory negligence was for the jury. Maskaliunas v. C. W. I. R. R. Co., 318 Ill. 142. The case of Heimann v. Kinnare, 190 Ill. 156 is not applicable though its general language on the question of contributory negligence of a child is helpful. Gemmill v. Grand Trunk & Western Ry., 211 Ill. App. 246 does not bind us here because of the wide difference of facts. The jury may have believed that plaintiff here was not, because of his age, as adept as his companions at “jumping” on, but that he was not, under the circumstances, negligent. We cannot say that, assuming the standing permission, the failure of defendant to anticipate plaintiff’s presence and to warn him against boarding the train was not the proximate cause of the injury.

The case of Oatman v. St. Louis & Southwestern Ry. Co., 263 S. W. 139 (Mo.), cited by defendant on the question of lack of authority on the part of its servants to grant permission to the boys to aid in switching, is not applicable because the theory of plaintiff’s action in that case was entirely different from that here.

We believe that the trial court should have withheld from the jury the first issue recited above. The footpaths in themselves, and because of what we say of fencing hereinafter, and the use of them by the public to cross tracks, are not legally related to the accident in this case.

Defendant moved to strike the charge based on failure to fence. The motion was denied but defendant answered. It denied any duty to construct the fence. At the trial it objected to testimony that the right of way was not fenced between 138th and 144th Street. Its objections were overruled. In its motion for judgment notwithstanding the verdict, it denied such a duty. The court refused to give defendants’ instruction No. 4, stating that as a matter of law “under the facts in this case” it had no duty to fence its right of way. The refusal to give the instruction was reversible error. The City of Chicago has an ordinance which requires fencing of right of ways within its boundaries. So far as the record shows there is no such ordinance at Eiverdale. The fencing statute of this state imposes no duty to fence against children. Bischof v. Illinois Southern Ry. Co., 232 Ill. 446; Heiting v. C. R. I. & P. R. R. Co., 252 Ill. 466. There is no common law duty to do so. Elliott on Railroads, 3rd Ed., Vol. 3, section 1695; Colby v. Chicago Junction Ry. Co., 216 Ill. App. 315; Standard Steel Works v. C. A. & E. R. R. Co., 29 Fed. Supp. 297. Because of the error in admitting testimony with, reference to the lack of fencing and because of the refusal to give defendant instruction No. 4, the cause must be retried.

For the reasons given the judgment of the Circuit Court is reversed and the cause is remanded for a retrial according to the views herein expressed.

Reversed and remanded.

Burke, P. J., and Lupe, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    John Kelly, Appellant, v. City of Chicago, Appellee.
    Gen. No. 42,767.
    Opinion filed December 13, 1944.
    Released for publication January 4, 1945.
    Wind, Wind & Canan and Charles C. & Richard M. Spencer, all of Chicago, for appellant; Samuel H. Rosenberg, of Chicago, of counsel.

      Barnet Hodes, Corporation Counsel for appellee; J. Herzl Segal, L. Louis Karton and Harry Markin, Assistant Corporation Counsel, of counsel.
   Mr. Justice Kilby

delivered the opinion of the court.

This is an appeal by plaintiff who sued the City for damages for injuries sustained while a prisoner in the Chicago House of Correction. The trial court sustained the City’s successive motions to strike plaintiff’s original, amended and second amended complaints and plaintiff stood on the latter pleading.

The issue is whether the second amended complaint states a good cause of action against the City, and presents a question of law.

The complaint charges that plaintiff was injured as a result of a landslide in a clay pit wherein he was compelled by prison guards to shovel clay for the making .of bricks which were sold at a profit; that he was placed in dangerous working conditions by failure of the City to erect barricades and supports for his protection ; and the City should have foreseen that failure to provide the protection would inevitably cause the accident.

Plaintiff contends the City volunteered to create and maintain the House of Correction under a permissive statute and was engaged in business for profit and not in governmental functions and should be held liable. The City, on the other hand, contends that the main-. tenance and operation of the House of Correction is a governmental function from which no tort liability can arise.

The prison involved in the suit is maintained by virtue of the House of Correction Act, Chapter 67, Ill. Rev. Stats. [Jones Ill. Stats. Ann. 62.01 et seq.]. It is true that the Act is permissive, but Section I after authorizing the establishment of such institutions and the acquisition of the necessary land therefor, provides that when a City establishes the institution, the municipal authorities “. . . shall have full and complete police powers, for the purpose of control and management of the same and of the persons confined therein, over such lands . . .” and the surrounding territory and highways leading thereto from the City, etc. These express police powers to municipal authorities over the land and roads surrounding and leading to the prison for the purpose of controlling and managing the persons therein, presuppose police power over , those persons. We think the apprehension, conviction and incarceration of violators of law are clearly public, governmental functions (Culver v. City of Streator, 130 Ill. 238; Evans v. City of Kankakee, 231 Ill. 223), as opposed to local, proprietary functions. They are essential functions of government to promote the common good, not only of those in the local community in which the penal institution is located, but of all in the State. The permissive character of the House of Correction Act does not change the nature of the function.

The making of brick and its related activities are pursued by the prisoners under coercion and the bricks are later sold by the City at a profit. The essential characteristic of the House of Correction is penal and these additional facts do not alter that characteristic. The prisoners are credited with $2.00 per day on their fines for this labor, but the purpose is not purely mercenary, for they are kept occupied and the work, accordingly, has a humane side.

We deem it unnecessary to refer to cases of foreign jurisdictions cited in the briefs. Johnston v. City of Chicago, 258 Ill. 494, involving the negligence of a driver of a Chicago Public Library automobile; Roumbos v. City of Chicago, 332 Ill. 70, involving the negligence of a street cleaner; Wasilevitsky v. City of Chicago, 280 Ill. App. 531, involving the negligent operation of a garbage motor truck; McKeown v. City of Chicago, 319 Ill. App. 536, involving the negligence of City firemen engaged in flooding a private lot for use in ice skating; and other cases cited by plaintiff, pertain to proprietary functions and are not applicable.

It is our conclusion that the well-pleaded allegations of the complaint, considered as true, do not state a cause of action against the City of Chicago. The judgment is, accordingly, affirmed.

Judgment affirmed.

Burke, P. J., and Lupe, J., concur.


author: Mr. Justice Kiley

text:
    Arthur Hellstrom, Appellant, v. James McCollum, Appellee.
    Gen. No. 42,805.
    Opinion filed December 13, 1944.
    Released for publication January 4, 1945.
    Braun & Brodie, of Chicago, for appellant; William C. Clausen, of Chicago, of counsel.
    Donald J. Rizzio, of Chicago, for appellee; William Friedman, of Chicago, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an appeal by Plaintiff Hellstrom from a judgment “as in the case of nonsuit” for Defendant McCollum upon the latter’s motion to dismiss.

Plaintiff sued December 24, 1942 for damages to Ms automobile. McCollum filed Ms motion to dismiss, both parties through their attorneys filed counter affidavits and, after judgment, Hellstrom filed a motion, and affidavit, to vacate the judgment. From these pleadings it appears that on March 28, 1941 McCollum filed suit for damages to his car arising out of the same accident; that after McCollum’s deposition was taken and Hellstrom’s appearance and answer filed, the suit was compromised; and that a stipulation to dismiss was filed by the parties through their attorneys, and on November 7, 1941, the suit was dismissed pursuant to the stipulation. As a result of the compromise Mc-Collum received $125 and executed a release.

The motion to dismiss was on the ground that the stipulation and dismissal in the prior case constituted a full and complete adjudication and an estoppel of record precluding Hellstrom’s instant suit.

The question is whether the judgment dismissing McCollum’s prior suit bars Hellstrom’s instant suit.

Dismissal of a suit by agreement of the parties, making no decision on the merits, leaves the situation as' though no suit had ever been brought. 27 C. J. S. 197. There was no adjudication of any issues between Mc-Collum and Hellstrom. The court’s judgment of dismissal in the prior case left the party resting upon their agreements. Whatever admissions are made or implied in the stipulation and release are proper for consideration by the court on a trial of the merits after issues are joined. There is no estoppel precluding plaintiff’s action, for there was no prior adjudication. Lucas v. Schwarts. 243 Ill. App. 418. In Ruehl Bros. Brewing Co. v. Atlas Brewing Co., 187 Ill. App. 392, relied on by McCollum, circumstances there justified the court’s finding that the prior litigation was terminated in favor of the party relying on the judgment of dismissal. Hnder the circumstances in the case before us, there could be no justification for any inference that the prior judgment of dismissal was a termination of McCollum’s suit in his favor. This conclusion disposes of all questions necessarily involved in this appeal.

The judgment is reversed and the cause is remanded with directions to deny the motion to dismiss and for further proceedings not inconsistent with the findings herein.

Reversed and remanded with directions.

Burke, P. J., and Lupe, J., concur.


text:
    Air Conditioning Training Corporation, Appellant, v. John Majer, Appellee.
    Gen. No. 42,815.
    Opinion filed December 13, 1944.
    Released for publication January 4, 1945.

      Otto A. Kralik and Sumner C. Palmer, both of Chicago, for appellant.
    Albert H. Werner, of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action by plaintiff to recover the tuition for a correspondence course in Refrigeration and Air Conditioning pursuant to a contract with defendant under which', in consideration of defendant’s paying-tuition fees, he was to receive a course of training and other benefits. The court gave judgment for defendant because “plaintiff had not made out a case under the law of this State. ’ ’

The defendant answered, admitting the contract but claiming it was void for lack of mutuality; alleging that when the contract was made in October 1941, plaintiff had not complied with Section I of the Professional Manual and Mechanical Schools Act (Chapter 144, Par. 17a, Ill. Rev. Stats. [Jones Ill. Stats. Ann. 138.044]), making unlawful after January 1, 1928, conduct of such schools without a certificate of the State Department of Registration and Education; alleging that plaintiff is a foreign corporation having no certificate of authority under Section 102 of the Corporation Act, (Chapter 32, Paragraph 157.102 [Jones Ill. Stats. Ann. 32.105]) to do business in this State; and that it is a foreign corporation without authority to maintain this action under Section 125 of the Corporation Act [Ill. Rev. Stat. ch. 32, par. 157.125; Jones Ill. Stats. Ann. 32.128]. Two questions are raised: First, whether plaintiff a foreign corporation, may maintain the action; and second, whether the contract is valid.

From its answers to interrogatories it appears that plaintiff had no certificate from the State Department of Registration and Education and no certificate under Section 102 of the Corporation Act. At the trial plaintiff contended that its relations with defendant were interstate commerce business because “we have no property in this State and we have no legal representative in this State, nor do we have our name in the telephone book.” It was stipulated that plaintiff is located in Youngstown, Ohio; that its course of instructions were sent to defendant in the form of mimeographed sheets; that defendant was examined by plaintiff by way of printed examination sheets on which defendant wrote the answers; and that the answers were sent to plaintiff by defendant, corrected by it, graded and returned to him. From the deposition of plaintiff’s secretary it appears that his duties were to pass on credits, prospective students and supervise correspondence from the students; that he approved defendant’s credit and contract; received a down payment and one further payment; that the contract was accepted in Youngstown, Ohio by plaintiff’s president; that the contract was received in duplicate by plaintiff and a copy returned to defendant; that defendant received lesson material, answered three examinations, receiving an average grade of 98.3; that plaintiff has no branch office or mailing address in Illinois and that all its correspondence is handled from Ohio; and that plaintiff has always been able and willing to fulfill its contract. Defendant’s case consisted of a number of exhibits, including text books and examination sheets, correspondence, notices, etc. Answers to interrogatories further disclosed that defendant’s credit under his contract was approved October 11, 1941, based on information given by plaintiff’s representative and the defendant and references; and that the contract was plaintiff’s usual printed form.

Defendant, having alleged that the plaintiff was “doing business in the State without authority,” had the burden of that proof. Edward Lyman Bill, Inc. v. Leech, 211 Ill. App. 578. Plaintiff’s testimony showed, however, that at the time of the making of the contract it was doing business in Illinois (International Text Book Co. v. Mueller, 149 Ill. App. 509; International Text Book Co. v. Pigg, 217 U. S. 91); but that its business, was interstate commerce. International Text Book Co. v. Pigg; and International Text Book v. Tone, 220 N. Y. 313. Our statute regulating foreign corporations transacting business in this Státe has no application to interstate commerce. Emcee Corporation v. H. K. George, 293 Ill. App. 240; International Text Book v. Pigg, 217 U. S. 91; London Guarantee & Accident Co. v. John E. Watte & Co., 234 Ill. App. 497. Defendant mainly relied on International Text Book v. Peterson, 133 Wis. 302, the holding in which is different than, but' is controlled by, the later holding in International Text Book v. Pigg. We believe, therefore, that since plaintiff was engaged in interstate commerce, its right to sue was not limited by the Illinois Corporation Act.

Defendant contends that the contract sued upon was invalid for want of mutuality, because “nowhere in the agreement does the plaintiff obligate itself to perform any act or promise to perform any act.” It appears from the evidence that plaintiff, pursuant to receipt of the contract and defendant’s down payment, proceeded to send defendant its mimeographed text book on air conditioning, various examination sheets which were later graded, returned to it and sent back to defendant, and has been “able and willing ’ ’ to continue the course of instruction which it began. The evidence further shows that defendant in writing plaintiff to advise it of his difficulty in making payments, said: “I am not trying to break my contract because I enjoy the course greatly as you can readily see by my first three examinations.” Under these circumstances, we believe that whatever the contract lacked in mutuality at its inception, was made up by plaintiff’s performance and defendant’s benefit thereafter. 17 C. J. S. 449.

For the reasons given the judgment of the trial court is reversed and the cause is remanded with directions to enter judgment for the plaintiff for $214.50 plus interest, in accordance with its claim.

Reversed and remanded with directions.

Burke, P. J., and Lupe, J., concur.


author: Mr. Justice Lupe

text:
    Jes Christensen, Appellant, v. Stillman M. Frankland, Individually and as Administrator of Estate of S. M. Frankland, Deceased, et al., Appellees.
    Gen. No. 42,476.

      Opinion filed December 13, 1944.
    Released for publication January 4, 1945.
    Guy C. Guerine, of Melrose Park, and McKinley & Price, of Chicago, for appellant; Guy C. Guerine, of Melrose Park, and Paul E. Price, of Chicago of counsel.
    Rawlins & Wright, of Chicago, for certain appellee; Chester D. Kern, of Chicago, of counsel.
    William A. Sammon, of Chicago, for certain other appellee.
   Mr. Justice Lupe

delivered the opinion of the court.

■ This is an action against Stillman M. Erankland individually and as administrator of the estate of S. M. Erankland, deceased, Donald O’Brien, Charles L. Gene-sen, and the Argo State Bank, a corporation, for actual and punitive damages for breaking into and entering plaintiff’s dwelling, evicting plaintiff from his home; destruction of his household goods and property, and for personal injuries sustained by reason of an assault upon him.

Count 1 of plaintiff’s complaint alleges in substance that on the 27th day of April 1940, he was in possession of certain goods and effects in his home at 6156 Archer avenue, Argo, Illinois; that the defendant Still-man M. Erankland, individually and as administrator of the estate of S. M. Erankland, deceased, while acting within the scope of his authority as such administrator, together with the defendants Charles L. Gene-sen, who was acting individually and as agent, servant and employee of the Argo State Bank, a corporation, and acting within the scope of his employment, and Donald O’Brien, with force and arms wilfully, maliciously and unlawfully broke into the dwelling of plaintiff, removed the said property and effects and destroyed and damaged the same.

Count 2 of the complaint charges defendants with having assaulted plaintiff and then and there threatened and placed him in bodily fear; that defendant pointed a gun at plaintiff and forced him out of his home without reasonable or proper cause, and that he thereby became sick, shocked, injured and suffered a stroke, etc., exposing plaintiff to public disgrace, and that the assault was wilful and wanton and against the dignity of the people of the State of Illinois, and claimed damage in the sum of $25,000.

Defendants answered, denying the material allegations of the complaint. The cause was tried by a jury which returned a general verdict on both counts of the complaint against all defendants and assessed plaintiff’s damages at $12,000. Judgment was entered on the verdict. Thereafter motions for new trial and judgment notwithstanding the verdict were filed by the defendants and upon hearing the court denied the motions for new trial and sustained the motions of the defendant Argo State Bank, a corporation, and the defendant Stillman M. Frankland individually and as administrator of the estate of S. M. Frankland, deceased, for judgment notwithstanding the verdict, and entered a judgment in their favor and against the plaintiff for costs. Plaintiff prosecutes this appeal.

No point is raised on the pleadings.

The question to be determined is whether or not the court committed error in granting the motions of defendants Stillman M. Frankland individually and as administrator, etc., and Argo State Bank for judgment notwithstanding the verdict. It therefore becomes necessary to review briefly the evidence introduced on the trial.

The record discloses that on April 27, 1940, Jes Christensen, plaintiff, was 69 years of age and resided with his wife on the second floor of the premises located at 6156 Archer avenue, Argo, Illinois. This was a two-story brick building and on the first floor thereof he and his son Harold conducted a sheet metal shop. Harold, prior to his marriage on November 22, 1936, resided on the premises with his parents. The title to the property was formerly in Harold’s name, he having received the same from his mother in 1929. Samuel M. Frankland held a mortgage on the premises upon which he instituted foreclosure proceedings in 1934 and in 1937 received title to the property by virtue of a master’s deed. In 1935 Martin Ferenkchak, a teller of defendant Argo State Bank, was appointed receiver in the foreclosure proceedings and as such receiver collected the rents which were paid to him and in his absence to other employees of the bank. All payments of rent were made at the bank in the manner hereinabove set forth. In 1935 the monthly rental was $35 for the entire premises, which rental was increased to $50 per month in 1937 by agreement between plaintiff and his son Harold and Samuel M. Frankland the then owner of the property. The receiver credited all rents collected to the receivership account and in December 1937 was duly discharged as receiver. After the rent was increased in 1937 to $50 per month, plaintiff contributed $20 per month for the use of the second floor of the premises where he and his wife resided, and Harold and plaintiff jointly paid the balance of $30 per month for the use of the shop on the first floor. Since Harold’s marriage in 1936 he continuously resided ■ away from the premises, having moved with his wife to La Grange, Illinois. Charles L. Genesen, a defendant herein, was cashier of' the Argo State Bank and on February 2,1940 filed a complaint in forcible detainer against Harold Christensen to recover possession of the property hereinabove described. Genesen was acting as agent for Samuel M. Frankland, the owner of the property, in the institution of said forcible detainer proceedings. The complaint .was signed “S. M. Frankland by C. L. Genesen, Agent.” The record further discloses that Genesen was not only cashier of the Argo State Bank at the time, but was engaged in the real estate business separate and apart from his duties at the bank, and that his real estate office was located away from the bank. After the forcible detainer suit was instituted and on February 20, 1940, Samuel M. Frankland died.

Genesen testified that he was acting for Samuel M. Frankland and for his estate in said proceedings, and that he was instructed by Samuel M. Frankland in his lifetime to secure possession of the premises, and after the death of Samuel, who died intestate, his son Still-man M. Frankland, also instructed him to secure possession of the premises, and that he, Genesen, was not acting on his own volition.

Stillman M. Frankland testified that he carried on the forcible detainer proceeding through his attorney and that he had given his attorney instructions to take all necessary steps to obtain possession of the property, and that he paid all the costs and expenses in connection therewith. The record further discloses that Genesen and Stillman M. Frankland knew that plaintiff Jes Christensen lived in the property, and that neither he nor Genesen at any time caused any notice or demand for possession to be served upon plaintiff. A judgment was entered in the forcible detainer proceeding for possession and a writ of restitution was duly issued and was delivered to Donald O’Brien, a constable, for service; that plaintiff'at no time had been served with any demand or summons or with any writ for possession. O’Brien testified that he never at any time had a writ to dispossess the plaintiff. On April 27, 1940, O’Brien took possession of the property. On that morning between the hours of 8:00 and 9:00 a. m. he went to the premises in question, rang the bell, and knocked on the door. Receiving no response, he then went to the Argo State Bank to see G-enesen, and together G-enesen and he went to see the chief of police and they then returned to the premises with the chief and another officer. Upon their arrival at the property G-enesen instructed O’Brien to break the window and gain admittance, which he did. G-enesen testified he gave O’Brien no instructions either to take possession of the property or otherwise and the 'reason that O’Brien came to him that morning at the bank was to ascertain whether or not he could get the chief of police and a uniformed police officer to go with him to the property; that Genesen advised Chief Herzog what O’Brien wanted, and went with the chief in his car to the premises. The evidence further shows that a door was broken in the premises; that about that time someone informed O’Brien that the plaintiff was around the corner, and that he and another man went to talk to plaintiff. This was after the place had been broken into by O ’Brien and those that were with him.

Two neighbors testified that O’Brien and another man brought the plaintiff in from an alley and that they were holding him by the arms, that he was attempting to pull away, and that he was requesting of O’Brien to wait until his son Harold had arrived; that it looked as though the plaintiff was trying to get away and that O’Brien and the man with him kept pulling the plaintiff and saying to him that they were not going to hurt him, and that they took plaintiff inside the premises; that at that time plaintiff was trembling, his voice was shaking, and his face was very red, and he looked as though he was sick; that O’Brien and the man with him got to the rear of the premises with plaintiff when O’Brien took a gun out and passed it to the other man and said, “watch him while I go make a phone call”; that after this occurrence the witness went over to the plaintiff and that plaintiff could not speak, that he appeared terribly nervous and excited. 0 ’Brien denied that he had laid hands upon the plaintiff or that he had in any way threatened the plaintiff with a gun and that no gun was displayed at the time.

Harold Christensen testified that he arrived at the premises around 10:30 of the morning of April 20, 1940, and that there was a great deal of confusion there, a lot of people were milling around, and the shop had been cleaned out and the door of the flat upstairs had been broken; that some of the windows were broken; that he told 0 ’Brien that he, Harold, had nothing to do with the ■ apartment upstairs, and that O’Brien responded that he was under orders to take everything out. Harold further testified that when he came upon his father, his father was in the kitchen, that he was in a dazed condition and that his eyes were watery and that he did not recognize his son, that saliva was running from his father’s mouth, and, that he was unable to speak; that he took his father to his home and placed him in bed, and that he has been ill from that time on. Harold further testified that many of the tools and much of the equipment of the sheet metal shop had been lost, and that much of his parents’ furniture had been damaged and broken.

Dr. Scott testified that in his opinion there was a direct causal connection between the excitation- of the hypothetical person (plaintiff) and the instances described in the hypothetical question and the onset of the cerebral hemorrhage; that plaintiff will be unable to do any gainful work; and that his condition will become progressively worse.

Chester J. Alger testified that he became president of Argo State Bank on March 4, 1940, that no one who was employed by the bank had any duty of whatever kind or nature to perform on behalf of the bank pertaining to the property, and that Genesen was not authorized to act for the Argo State Bank in any manner pertaining to the said property.

Plaintiff contends that the injury and damage sustained by him were occasioned by and through the wrongful conduct of defendant Stillman M. Frankland individually and as trustee of the estate of S. M. Frankland, deceased, and Argo State Bank, a corporation, acting by and through their agents and servants in the course of their employment; whereas Stillman M. Frankland individually and as administrator of the estate of S. M. Frankland, deceased, and the Argo State Bank, a corporation, contend that there is no evidence in the record, tending to sustain the charges made against them. .It is the contention of Stillman M. Frankland, sued individually and as administrator, that the record discloses absolutely no facts whatsoever to justify a verdict against him individually and, secondly, as a matter of law, that the evidence with reference to his connection as administrator with the tortious acts alleged does not justify the conclusion that the alleged perpetrator was his agent.

Counsel argues on behalf of Stillman M. Frankland that the record shows that he never saw the plaintiff, never knew of him, that he was not present at the time the constable executed the writ, and that his first knowledge of the events of April 27, 1940 was when he was served with process in the present-suit. The jury, on the finding of questions of fact did not agree wdth his contention. There was evidence in the record on behalf of Genesen that he was instructed not only by the father of Stillman to obtain possession of the premises but also by Stillman M. Frankland, and. that he was acting for them and not on his own volition. True the suit was originally instituted by his father, but after his father’s death, Stillman not only directed the prosecution of the suit but advanced the costs and necessary expenses in reference thereto. He also knew that plaintiff resided on the premises in question but never at any time instituted forcible detainer proceeding against plaintiff, nor did he serve or canse to he served on plaintiff any demand or notice of whatsoever kind or nature for possession. Samuel M. Frankland having died on February 2, 1940, intestate, Stillman and Stillman’s mother as heirs became the owner of the property in question. Stillman in seeking to acquire possession of the premises in question was acting in his own individual capacity and not in a representative capacity when he was prosecuting the forcible detainer proceeding. Although he was not present on April 27, 1940, at the premises in question when the acts complained of were committed, Genesen, his agent, had directed the constable to complete the eviction, and Stilhnan M. Frank-land prior thereto had directed Genesen to secure possession of the premises. It was not necessary that Frankland be present at the time of the commission of the trespass. It is sufficient to bind him if his agent or representative was present and had directed or taken part in the trespass complained of, and he would be held accountable under those circumstances as if he was actually present. It is the law that where an officer by his conduct in the execution of a writ becomes liable for damages as a trespasser, all who direct, request or aid or abet become joint trespassers with him and are .responsible for damages that result therefrom. (Wolf v. Boettcher, 64 Ill. 316.)

We must necessarily hold that the tortious acts complained of were not the acts of the executor or administrator. The tort committed by" an executor or administrator is ordinarily committed by him as an individual and does not render the estate liable. (33 C. J. (2) 1260.) The property in question became the property of Stillman M. Frankland and his mother at 'the time of the death of his father, and he was acting for himself and those interested in title in the property, and not in the capacity of an administrator.

We next turn to the contention of Argo State Bank, a corporation, which argues that there is no evidence in the record tending to sustain the charges made against it and none upon which the jury could reasonably find that the wrongs complained of by plaintiff were brought about by Charles L. Gfenesen while he was acting as agent, servant, or employee of the bank or within the scope of his employment. The record shows that Charles L. Gfenesen was cashier of the Argo State Bank; that he was also engaged in the real estate and insurance business, separate and apart from his duties at the bank; that the bank as a bank had no dealings with either the plaintiff or his son Harold in reference to the property in question; and that the property was owned by S. M. Frankland individually in his lifetime and that although he was president of the bank, the bank had no interest in the property whatsoever. It is true that the record shows (plaintiff’s exhibits 1 to 11 inclusive) receipts, issued in the name of the bank in the year 1935, except plaintiff’s exhibit 1, dated October 15, 1937, which were signed by some of the bank’s employees and given to plaintiff for rent of the premises and mention is made in the evidence of a certain letter which had been written on the stationery of the bank in 1937 and addressed to plaintiff, requesting him and his son Harold to call at the bank in reference to increasing the rent of the premises in question. The record further shows that Ferenkchak, who was at the time acting as receiver in the foreclosure proceedings wherein Samuel M. Frankland was plaintiff, received all of the money which had been paid to the bank as rent for the premises in question, that the bank turned it over to Ferenkchak as receiver, and that Ferenkchak as receiver duly accounted for it in the foreclosure proceedings.

The record is silent and we fail to find any evidence connecting the bank with the direction in any manner of the institution or prosecution of the forcible detainer proceedings; and there is no evidence which shows or tends to show that Genesen was acting for or on behalf of the bank, either expressly or impliedly, either prior to or at the time of the institution of said proceedings or of the prosecution thereof or the securing in any manner of the possession of said property. The mere fact that 0 ’Brien went to the bank and asked Genesen to get the police officer and that Genesen proceeded with the chief of police to the property could not in any manner bind the bank. It is clearly shown that Genesen was acting as the agent for and on behalf of Stillman M. Frankland at that time, and not for the bank. At the time of the institution of the proceedings in question the bank did not own or have any interest in the property, nor was it acting as agent for any one in connection therewith, nor were its employees either expressly or impliedly authorized or directed in any manner to participate in said proceedings, nor did it expressly or impliedly authorize or direct any of the acts to be committed of which complaint is made.

After careful consideration of all the evidence, we feel that the court was justified in entering judgment notwithstanding the verdict in favor of Argo State Bank, a corporation and Stillman M. Frankland as administrator of the estate of S. M. Frankland, deceased, but committed error in entering judgment notwithstanding the verdict in favor of Stillman M. Frankland individually. Under our practice a motion for judgment notwithstanding the verdict has the same effect as a motion for a directed verdict and raises same questions. Taking the evidence on behalf of plaintiff and considering the same as true with reference to defendant Argo State Bank, together with all legitimate inferences to be drawn therefrom it does not tend to make out a case against the Argo State Bank.

Donald O’Brien and Charles L. Cene sen have not appealed and they are not before this court.

Other points are raised but we deem it unnecessary to consider them in view of the conclusion we have reached.

For the reasons hereinabove given, the judgment entered notwithstanding the verdict in favor of Argo State Bank a corporation, and Stillman M. Frankland as administrator of the estate of S. M. Frankland, deceased, is affirmed. The judgment notwithstanding the verdict in favor of Stillman M. Frankland individually is reversed, and the cause is remanded with directions to enter an order vacating the judgment notwithstanding the verdict in favor of Stillman M. Frankland individually, and to enter a judgment on the verdict for plaintiff and against Stillman M. Frankland individually, said judgment to bear interest from the elate of the verdict.

Affirmed in part and reversed in part with directions.

Burke, P. J., and Kilby, J., concur.


text:
    Anthony A. Walsh, Appellant, v. Central Cold Storage Company, Appellee.
    Gen. Nos. 42,525, 42,442.

      Opinion filed December 13, 1944.
    Released for publication January 4, 1945.
    Norman Peters and Marion J. Hannigan, both of Chicago, for appellant; George W. Angerstein, of Chicago, of counsel.
    C. J. Morgan, of Chicago, for certain appellant.
    Miller, Gorham, Wescott & Adams, of Chicago, for appellee; Herbert C. De Young, of Chicago, of counsel.
   Mr. Justice Lupe

delivered the opinion of the court.

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

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

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

On March 19, 1942 leave was given Borden Sales Company (whom we will term appellant) to file its appearance and . an amended complaint. It interpleaded in the cause with Anthony A. Walsh, as party plaintiff, and filed its amended complaint wherein it realleged the allegations of the original complaint and added that the plaintiff was in its employ and that it and the plaintiff and the defendant were subject to the provisions of the Workmen’s Compensation Act of the State of Illinois and, as the result of an award regularly entered by the Industrial Commission of Illinois, Borden Sales Company was obliged to pay and did pay to the plaintiff as compensation, and for hospital and medical expenses the sum of $4,817.95, and joined as plaintiff in the action in accordance with section 29 of the Workmen’s Compensation Act [Ill. Rev. Stat. ch. 48, par. 166; Jones Ill. Stats. Ann. 143.44].

Defendant moved to strike the amended complaint and dismiss the action of Borden Sales Company on the ground that its cause of action was barred by the statute of limitations. The motion was sustained, from which order the appellant appealed.

Leave was given defendant to withdraw its answer filed to the original complaint of plaintiff and to file its motion to dismiss plaintiff’s suit under section 48 of the Civil Practice Act [Ill. Rev. Stat. ch. 110, par. 172; Jones Ill. Stats. Ann. 104.048], wherein it alleged plaintiff lacked legal capacity to sue and that at the time of the accident as alleged in plaintiff’s complaint, the plaintiff, his employer, and the defendant were operating under the Compensation Act of Illinois and that, pursuant to sections 5 and 6 [Ill. Rev. Stat. ch. 48, pars. 142,143; Jones Ill. Stats. Ann. 143.20,143.21] thereof, the plaintiff was deprived of any action he might have had against the defendant, he having applied for and received compensation pursuant to the orders of the Industrial Commission of Illinois; and that the claim set forth in plaintiff’s complaint had been released by operation of law.

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

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

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

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

Appellant contends the court erred in striking the amended complaint and dismissing the suit as to it. Plaintiff’s contention is that the court erred in dismissing his cause of action, because the injury sustained by him was due to the negligence of the defendant and did not arise out of and in the course of his employment, and that, even though he (the plaintiff), his employer (appellant); and the defendant were operating under and were subject to the provisions of the compensation act at the time of plaintiff’s injury, the act provides no bar to plaintiff’s action; that the Industrial Commission had no jurisdiction of the subject-matter; that neither by his appearance and the appearance of his employer before it, nor by their acts before said commission, could they confer jurisdiction on said commission ; and that the question of jurisdiction of the commission could be raised at any time.

As to the cause of action of Walsh against the defendant, defendant contends that the trial judge properly dismissed plaintiff’s case on the undisputed facts presented; that it is against the public policy of the State to permit plaintiff to avail himself of the relief which the Workmen’s Compensation Act gave him and then seek his remedy at common law, where the third party (defendant herein) was also operating under said act; that by approval of the lump-sum settlement of plaintiff’s claim by the Industrial Commission it became binding on plaintiff and is not open to collateral attack by him in the absence of any showing of fraud or collusion in procuring the jurisdiction of the Industrial Commission.

The defendant contends that the essential facts in the affidavits of Simon and Peters are undisputed. With this assumption we cannot agree. The motion to dismiss, supported by affidavit, was not sufficient to dismiss the Cause of the plaintiff, as the plaintiff had denied in his counter affidavit the material allegations as alleged in defendant’s motion and affidavit, and plaintiff clearly and succinctly alleges that at the time of the occurrence he was not engaged in any employment; that he was not then engaged in the course of his employment ; that the injuries which he sustained did not arise out of and in the course of his employment; and that he was not then an employee or subject to the provisions of the Workmen’s Compensation Act of Illinois.

Counsel next argues that Peters’ affidavit consists only of conclusions and therefore should be disregarded. On the contrary, both the affidavit of Simon and Peters allege facts that were material to the issues then before the court.

Had plaintiff admitted the facts as alleged in the affidavit of Simon filed on behalf of defendant or had there not been a counter affidavit filed on behalf of plaintiff denying the material facts as alleged in the Simon affidavit, an entirely different proposition of law would have been presented.

There were conflicting issues raised by the affidavit in support of the motion and the counter affidavit filed by the plaintiff, which raised questions of fact which the plaintiff was entitled to have submitted to a jury, and if it was then shown by a preponderance of the evidence that the accident arose out of and in the course of plaintiff’s employment, the defendant would be entitled to a judgment in its favor against the plaintiff.

We feel that the court erred in dismissing plaintiff’s cause of action on defendant’s motion, as the plaintiff was entitled to present his evidence to a jury to determine whether or not the accident arose out of and in the course of his employment.

Complaint is made that plaintiff had availed himself of the relief which the act gave him and he is now seeking a remedy at common law against the defendant; and as plaintiff, his employer, and the defendant were operating under the act at the time of the alleged injury, the public policy of Illinois forbade the bringing of the present action. With this contention we agree, provided, all of the parties were operating under the act and, provided further, that the accidental injuries arose out of and in the course of plaintiff’s employment. If the injuries did not arise out of and in the course of plaintiff’s employment, plaintiff would have a right to maintain his action against the defendant. If the injuries resulted from an accident- arising out of and in the course of plaintiff’s employment, the act would control; the parties being bound by it the plaintiff would have no right of action against the defendant. (O’Brien v. Chicago City Ry. Co., 305 Ill. 244; Thornton v. Herman, 380 Ill. 341; Rehula v. Bessert, 322 Ill. App. 146.)

It is the defendant’s contention that appellant Borden Sales Company, Inc. was barred by the statute of limitations and that it could not invoke section 46 of the Civil Practice Act in order to have any cause of action as set forth in -the amended complaint, nor could the same relate back to the time of the institution of the original action because under the facts of the case no right existed for Walsh to bring such action.

Appellant contends the court misconceived the purport and effect of section 29 of the Workmen’s Compensation Act [Cahill’s Ill. Rev. Stats. 1933, ch. 48 (sec. 29)] and of section 46 of the Civil Practice Act (Ill. Rev. Stats, ch. 110, par. 170 [Jones Ill. Stats. Ann. 104.046]) and that the court erred in striking the amended complaint and dismissing the appellant’s cause of action on the ground that the same was barred by the statute of limitations. Prior to 1935, section 29 of the Compensation act provided that where an injury or death for which compensation is payable by an employer under the act was caused under circumstances creating a legal liability in damages in some person 'other than the employer to pay damages, and such other person is bound by the 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 the act, by reason of the injury or death of such employee. The word “subrogated” as used in this section has been construed as having the meaning of “transferred.” (Joseph Schlitz Brewing Co. v. Chicago Rys. Co., 307 Ill. 322; Friebel v. Chicago City Ry. Co., 280 Ill. 76; Cones v. Fisher, 286 Ill. 606.) It has been settled by a number of decisions that the Compensation act abolishes the common-law right of action of an employee against a third party for an injury when the employer, employee and the third party, are subject to the provisions of the act. (O’Brien v. Chicago City Ry. Co., 305 Ill. 244, and cases therein cited.) The case of City of Taylorville v. Central Illinois Public Service Co., 301 Ill. 157, holds the right which the employer had by virtue of section 29 of the Compensation act is the same which the employee would have had but for the prohibition of section 6 of the act, and as was said in the Joseph Schlitz Brewing Co. case, supra, at page 329, “We think it must be regarded as settled by our decisions that the right of action conferred on the employer by section 29 is the same right of action the employee- had before the adoption of the act, transferred to the employer.” There was no provision in the Compensation act as to a statute or the period of limitation within which such an action must be brought by an employer against a third party who is also under the act. That matter was necessarily of great importance because if the employer has had to pay or has become liable to pay compensation for accidental injury or death caused by the negligence of such third party who was also under the act, he may recover damages not to exceed the aggregate amount of such compensation, provided his action is begun within proper time, otherwise a recovery would be barred. The essential question was whether the period of limitation for personal injuries or wrongful death in cases at law and not under the compensation act would apply, or whether the right of action under the first part of section 29 should be considered as a new cause of action so that the five-year period of limitation would be applicable. In the case of Joseph Schlitz Brewing Co. v. Chicago Rys. Co., 307 Ill. 322, it was held that the statute of limitations as to personal injuries and wrongful death is applicable in actions against such third party in the same manner as it would have been applicable to the employee or his personal representative if they had had an action against such third party. In other words, where the employer has paid or become liable to pay compensation for an injury to an employee his action against the third party must be commenced within two years, and in death cases the action must be begun within one year, from the time of the injury or death, respectively. Prior to the Joseph Schlitz Brewing Co. decision, the Appellate Court in Elaborated Ready Roofing Co. v. Chicago & W. I. R. Co., 222 Ill. App. 181, and the United States Circuit Court of Appeals, Seventh Circuit, in the case of Star Brewing Co. v. Cleveland, C. C. & St. L. R. Co., 275 Fed. 330, held that the right of action by the employer against a third party was a new right of action and that the period of limitations was five years. We feel, however, that the rule laid down in Joseph Schlitz Brewing Co. v. Chicago Rys. Co., supra, is applicable and that the two-year statute of limitations applies. Appellant, however, contends that by virtue of section 46 of the Civil Practice act it had a right to join in the present action, and argues that as Walsh, the plaintiff, had instituted his suit against the defendant within the time allowed by the statute, and as Walsh’s cause of action was transferred to appellant by virtue of section 29 of the Compensation act, the statute of limitations is not applicable to appellant’s cause of action. Section 46 of the Civil Practice act permits the amendment of a pleading, filed in apt time, after the time limited for commencing suit, to set up a cause of action on any claim which was intended to be brought by the original pleading, provided, only, that it grew out of the same transaction or occurrence, and it is not necessary that the original pleading technically state a cause of action, or that a cause of action set out in the amendment be substantially the same as any cause of action stated in the original pleading. The term “same transaction or occurrence” so used in the statute means the same suit. (Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222.) Conversely, if the amendment states a cause of action based on an entirely different transaction, or involving entirely different parties, the amendment is of no avail. (Fitzpatrick v. Pitcairn, 371 Ill. 203.)

Where an error does occur in the drafting of a complaint, amendments are allowed. While section 46 of the Civil Practice Act was enacted for the purpose of permitting a plaintiff to amend a complaint so as more correctly to state the cause of action intended to be asserted without being faced with the defense of the statute of limitations, yet an amendment should not be permitted after the running of the statute where an additional party so sought to be added was attempting to assert an independent, though related, claim to that set forth in the original complaint. Amendments are proper when filed to cure a defect or to substitute a proper party, but an assertion of a new and separate cause of action after the running of the statute of limitations should not be permitted. Appellant has attempted to inject a new cause of action by amendment under section 46 of the Civil Practice Act. While this section liberalizes the amendment of pleadings, it has not gone so far as to deprive a defendant of the defense of the statute of limitations against a cause of action not asserted in apt time. The cause of action asserted by plaintiff and the one asserted by appellant were separate, different, and distinct. There was no suit to enforce the claim of appellant pending until the trial court permitted the filing of the “amended” complaint on March 19, 1942. (Mann v. City of Chicago, 315 Ill. App. 179.) Appellant was not substituted in the place of Walsh but was impleaded as an additional party plaintiff. ■

Appellant relies upon the case of Lincoln Park Coal & Brick Co. v. Wabash Ry. Co., 338 Ill. 82. In that case the Lincoln Park Coal and Brick Company brought its action to recover compensation paid as the result of the death of one of its employees alleged to have been caused by the negligence of the Wabash Railway Company. The action was instituted within a year after the death of the employee, which occurred on January 14, 1925, almost two years thereafter. Leave was granted to substitute as party plaintiff the Lincoln Park Coal and Brick Company for the use of the United States Fidelity and Guaranty Company, in lieu, of Lincoln Park Coal and Brick Company, and leave was also granted to file an amended declaration. It further alleged that the Guaranty company had issued a policy to the Lincoln Park Coal and Brick Company which was' in force on January 14, 1925 and hy the terms of which the Guaranty company agreed to protect the Lincoln Park Coal and Brick Company from all loss that it might sustain under and by virtue of the "Workmen’s Compensation Act, and it also contained a subrogation provision subrogating all rights of the Lincoln Park Coal and Brick Company against any third party to the Guaranty company in the event that the Guaranty company became liable .and paid losses in the course of the operation of the Workmen’s Compensation Act, and that as a result of the policy the Guaranty company became secondarily liable and did pay the award described in the aforesaid declaration and that by reason thereof it became subrogated to the Lincoln Park Coal and Brick Company. This case seems to be similar to the one before us, but a careful examination shows it to be not controlling. In that case there was a substitution of party plaintiff, whereas in the present suit appellant sought to assert a separate, distinct, and independent cause of action. As was said in the Lincoln Park Coal & Brick Co. case, supra, at page 68 ;

‘The only difference was that the original declaration contained the name of the nominal plaintiff which was suing on behalf of the beneficial plaintiff, which had prior to the commencement of the suit become subrogated to the rights of the nominal plaintiff, while the amended declaration named as plaintiff the nominal plaintiff for the use of the subrogee to conform to section 18. ’ ’

In the present suit, could it be said that plaintiff was the nominal plaintiff for appellant? If plaintiff’s theory is right and he is able to prove the allegations of his complaint surely appellant would have no cause of action whatsoever, and the only right that it would have would be by virtue of a lien, if any, for the money that it had paid to plaintiff as compensation, medical expenses, etc. Appellant was not substituted for plaintiff in the instant suit, nor could it be substituted for plaintiff Walsh, as Walsh is attempting to hold defendant liable under defendant’s common-law liability for negligence. Appellant was made an additional plaintiff and it sought to recover by virtue of the provision of section 29 of the Compensation act. We therefore conclude that appellant could not invoke section 46 of the Civil Practice act in order to have its cause of action, if any, as set out in its “amended” complaint relate back to the time of the institution of the original action, as its right of action was independent, separate, distinct, and conflicting with that of Walsh. As appellant did not come into the present suit until seven years after the cause of action accrued, we must necessarily conclude that its claim was barred by the statute of limitations, and that the court correctly ruled, in reference thereto.

Defendant next contends that the approval of a lump-sum settlement of plaintiff’s claim by the Industrial Commission was valid and binding on plaintiff in the instant proceeding and is not open to collateral attack by him in the absence of any showing of fraud or collusion in procuring the jurisdiction of the Industrial Commission or showing of legal disability.

The Workmen’s Compensation Act provides compensation only for injuries resulting from accidents arising out of and in the course of the employment. (Edmonds v. Industrial Commission, 350 Ill. 197.) And if the injury did not arise out of and in the course of plaintiff’s employment the mere fact that he made application for and received money under the act could not affect his right to maintain this suit. The important factor to be determined is whether or not the injuries arose out of and in the course of the employment, and not whether he made application for compensation. (Anderson v. Chicago, B. & Q. R. Co., 250 Ill. App. 92.) The fact that money may be actually paid cannot affect the question whether the circumstances of the injury are such as to bring it within the terms of the act. (Kelly-Atkinson Const. Co. v. Foreman Bros. Banking Co., 218 Ill. App. 345.)

Counsel for defendant relies upon the cases of Biddy v. Blue Bird Air Service, 374 Ill. 506; Thornton v. Herman, 380 Ill. 341; and McInness v. Wilson Printing Co., 258 Ill. App. 161. The Biddy case was decided under the Michigan act, which differs from the Illinois act. The Workmen’s Compensation Act of Michigan is elective as to private employers and their employees. Under our act the employee must proceed under the compensation act unless the third person is not bound by the act, and if the third person is outside the act the employee is not put to an election between compensation under the act and damages at law for negligence. He may prosecute both remedies at the same time. (O’Brien v. Chicago City Ry. Co., 305 Ill. 244; Cones v. Fisher, 286 Ill. 606; Rehula v. Bessert, 322 Ill. App. 146.)

The case of Thornton v. Herman, 380 Ill. 341, fell within the provisions of the compensation act, and therefore has no application to the present case. In the case of McInness v. Wilson Printing Co., 258 Ill. App. 161, the court held that the action was not properly brought under the Workmen’s Compensation Act, ■as the employee was a minor under sixteen years of age, but that his remedy was one under the Child Labor Act. It has no application to the particular point raised by defendant. Defendant next urges that the jurisdiction of the Industrial Commission cannot be attacked in this proceeding. If it should develop at the time of the hearing that the injuries complained of did not arise out of and in the course of plaintiff’s employment, the provisions of the Workmen’s Compensation Act could not apply. (Edmonds v. Industrial Comm., 350 Ill. 197; Rehula v. Bessert, 322 Ill. App. 146.) The act applies only when compensation is legally payable for the injury in question, the test being whether the circumstances of the injury were such as to bring it within the terms of the act. (Kelly-Atkins on Const. Co. v. Foreman Bros. Banking Co., 218 Ill. App. 345.) The jurisdiction of the Industrial Commission is purely statutory and it is only an administrative body possessing no judicial functions. It cannot apply the compensation act to those who are not subject to its provisions. (Morris v. Central West Casualty Co., 351 Ill. 40.) The parties could not confer jurisdiction by their acts or conduct before the Industrial Commission unless it is clearly shown that the accident arose out of and in the course of the employment. It therefore follows that if the accident from which plaintiff sustained injuries did not arise out of and in the course of his employment the Industrial Commission had no jurisdiction of the subject-matter and its lack of such jurisdiction can be raised at any time. (Michelson v. Industrial Commission, 375 Ill. 462.)

In the case of Anderson v. Chicago, B. & Q. R. Co., 250 Ill. App. 92, a similar defense was made to plaintiff’s action for personal injuries. The evidence showed that plaintiff received compensation from his employer and signed receipts reciting that the payments were for compensation under the act. The reviewing court held that the injuries were not sustained in an accident arising out of and in the course of plaintiff’s employment and said, at pages 96 and 97: “The Compensation Act governs where the employee’s injury or death is the result of an occurrence, ‘for which compensation is payable by the employer.’ (Keeran v. Peoria, B. & C. Traction Co., 277 Ill. 413, 414.) Compensation is payable by the employer only when the injury or death arose out of and in the course of the employment. If the injury did not so arise, then the provisions of section 29 of the act are not applicable. ’ ’ (Citing cases.) “Whether Sampo’s injuries arose out of and in the course of his employment, and not whether he made application for compensation, is the important factor to be determined. It was said in the Foreman Bros, case, supra, that ‘the situation is not changed by reason of the fact that Cahill actually received some payments from his employer, in the form of compensation under the act. The act applies only when compensation is legally payable for the injury in question. The fact that it may actually be paid cannot affect the question of whether the circumstances of the injury are such as to bring it within the terms of the act.’ We think this doctrine is sound and is within the letter and spirit of the act.”

In the case of Wilson Garment Mfg. Co. v. Edmonds, 312 Ill. App. 317, an employee of the Wilson company was injured. He made claim against the owners of the building and effectuated a settlement. He released them from liability. He then made a claim against his employers under the compensation act and settled this claim. Under the settlement agreement approved by the Industrial Commission, reciting denial by the employer that the injuries of the employee arose out of and in the course of his employment and to avoid prolonged litigation the employer had agreed to pay the amount of settlement in full settlement of any and all claims. The employer then brought suit against the defendants under section 29 of the Workmen’s Compensation Act to recover the amount paid by it to its employee. The court held it was necessary that the employee must have been injured in the course of his employment and that it appeared in the settlement agreement before the Industrial Commission that the employer took the position that the employee’s injuries did not arise out of and in the course of his employment, but that the question must be resolved from the admitted facts pertaining to the employee’s injury and the decisions of our courts construing the act. In affirming the judgment for the employer the court said at page 326: “We are therefore of opinion that, regardless of the provisions of the settlement agreement, the facts clearly indicate that the injuries to Sirota arose out of and in the course of his employment and that he was entitled to claim compensation therefor. The fact that it was a disputed claim does not alter the facts disclosed by the record; nor is it of controlling importance that the parties settled the disputed claim for the purpose of avoiding litigation. In all the decisions that we have had occasion to examine, the courts considered the facts and circumstances in each case to determine whether the injury was compensable under the act. . . .”

In the case of Olson Drilling Co. v. Industrial Comm., 386 Ill. 402, at page 406, the court said:

“In order for an accidental injury to come within the Workmen’s Compensation Act, it must be of such character that it may seem to have had its origin in the nature of the employment or have been incidental to the employment, or it must have been the result of a risk to which, by reason of the employment, the injured employee was exposed to a greater degree than if he had not been so employed. It is not enough that the presence of the injured person at the place he was injured was due to his employment, if the injury is sustained by reason of some cause having no relation to the nature of his employment. Klug v. Industrial Com., 381 Ill. 608; Sure Pure Ice Co. v. Industrial Com., 320 Ill. 332.”

We therefore feel that plaintiff should he permitted to show, if he can, that the accident did not arise out of and in the course of his employment, notwithstanding his claim to the contrary before the Industrial Commission. If it be shown when the matter is submitted to a jury that the accident arose out of and in the course of plaintiff’s employment, the defendant will then be entitled to a judgment in its favor, not because of the hearing had before the Industrial Commission, nor upon the grounds of res judicata, nor on the theory of a release by the plaintiff, or that plaintiff is estopped to bring the present action, but because under the provisions of the compensation act plaintiff’s claim against the defendant was abolished. [Rehula v. Bessert, 322 Ill. App. 146.)

We are of the opinion the court was correct in its ruling striking the amended complaint of Borden Sales Company, Inc., and in dismissing its claim. However, we feel the court erred in sustaining defendant’s motion to dismiss and in dismissing the cause at plaintiff’s costs. The judgment dismissing the cause as to appellant Borden Sales Company is therefore affirmed, and the judgment dismissing the cause as to plaintiff Walsh is reversed and the cause is remanded for further proceedings not inconsistent with the views herein expressed.

Affirmed in part; reversed in part, and remanded.

Burke, P. J., and' Kiley, J., concur.