Appeal by plaintiff from the Superior Court of Cook county;
the Hon. WILBERT F. CROWLEY, Judge, presiding. Heard in the
MR. JUSTICE SCANLAN DELIVERED THE OPINION OF THE COURT.
This is an action under the Federal Employers' Liability Act. The trial court sustained defendant's motion to strike plaintiff's second amended complaint, plaintiff elected to stand by the pleading, and the trial court entered an order sustaining the motion to strike and entered judgment for defendant with costs. Plaintiff appeals.
The second amended complaint alleges that on December 7, 1945, defendant railroad was engaged in interstate commerce, that plaintiff was employed by it in interstate commerce in the capacity "of gang foreman in the defendant's shop," and that both plaintiff and defendant were subject to the Federal Employers' Liability Act. The complaint further alleges:
"4. The defendant then and there had in its employ a certain co-servant engaged as a pipe fitter helper, who had been employed and maintained by the defendant in said defendant's shop for a long time prior to said occurrence, and said co-servant was and always had been, with the knowledge of the defendant, a vicious, contentious and ill-tempered person, who was quarrelsome and frequently engaged in physical combats, and the defendant had notice that the employment and maintenance of said co-servant in said shop created an unreasonable danger to the plaintiff and other employees of the defendant; and the said co-servant was then and there engaged in putting asbestos lagging on a certain boiler, and thereupon the plaintiff, in the performance of his duties, requested said pipe fitter helper, then and there engaged in performing his duties as a servant of the defendant, to desist in the work then and there being done by him, whereupon said co-servant of the defendant forcibly struck, hit and beat the plaintiff, and thereby the plaintiff was greatly cut, injured and damaged.
"5. The defendant was then and there guilty of one or more of the following acts of negligence which directly caused injury to the plaintiff:
"(a) The defendant, by and through its servant, then and there carelessly and negligently struck, beat and injured the plaintiff.
"(b) The defendant carelessly and negligently employed said pipe fitter helper knowing him to be habitually quarrelsome, contentious and pugnacious.
"(c) The defendant carelessly and negligently failed to guard the plaintiff against assault by its said co-servant, who was known to be vicious, quarrelsome, ill-tempered and pugnacious.
"(d) The defendant carelessly and negligently employed said co-servant from whose conduct there was danger of physical harm.
"(e) The defendant carelessly and negligently created an unreasonable danger to the plaintiff by the employment of a vicious, ill-tempered, quarrelsome and pugnacious co-servant."
The complaint alleges that plaintiff sustained serious and permanent injuries as a direct and proximate consequence of the alleged assault.
Defendant filed a motion to strike the second amended complaint and to dismiss the suit because the said complaint was substantially insufficient in law. The reasons assigned by defendant in support of its motion were "that there was no liability under the Federal Employers' Liability Act on a railroad employer for the acts of its employees outside the scope of their employment and not in furtherance of their employer's business; that an employer was under no duty to protect an employee from assault by a co-employee acting outside the scope of his employment and not in furtherance of his employer's business; that an employer was not liable for taking and retaining in its employ a person known to be habitually abusive, quarrelsome, contentious, vicious, ill-tempered and pugnacious and from whose conduct there was danger of physical harm, where such danger existed only as the result of, and while such employee was pursuing a course of conduct not within the scope of his employment and not in furtherance of the business of the employer, and that as a matter of law the second amended complaint failed to state a cause of action upon which relief could be granted." Defendant filed a request on plaintiff to admit certain facts (filed under Section 58 of the Civil Practice Act and Rule 18 (2) of the Supreme Court of Illinois). Plaintiff filed an answer to said request in which he admitted certain facts and refused to admit certain others. The admissions that defendant claims are pertinent are: That plaintiff was a supervising gang foreman in a locomotive repair shop at Decatur, Illinois; that he was in charge of repairs on engine 2736 and was in charge of Davis, who was a sheet metal worker assigned to work on the engine; that Davis had been ordered by plaintiff to remove a portion of lagging, which Davis refused to do, and that plaintiff thereupon left the presence of Davis to search for the shop superintendent; that when plaintiff returned to the presence of Davis he found that Davis had ceased lagging the boiler of engine 2736 and was standing on the shop floor at the side of engine 2736; that immediately prior to the attack upon plaintiff Davis had ceased lagging.
Plaintiff contends that the trial court erred in sustaining the motion of defendant to strike the second amended complaint and in dismissing the suit and entering judgment for defendant.
The trial court gave careful consideration to the motion. After hearing oral arguments he caused written briefs to be submitted. Defendant, in support of its motion, submitted the following cases: Davis v. Green, 260 U.S. 349; Atl. Coast Line R.R. v. Southwell, 275 U.S. 64; St. Louis-San Francisco R. Co. v. Mills, 271 U.S. 344; Sheaf v. Minneapolis, St. P. & S.S.M.R. Co., 162 F.2d 110. Plaintiff, in opposition to the motion, cited Lillie v. Thompson, 332 U.S. 459, and contended that that case overruled the ruling made in Davis v. Green, supra, and "governed" the decision of the motion. The trial court, in his opinion, stated that his decision was compelled by the four cases cited by defendant; that "the Supreme Court reconsidered these earlier cases in deciding `Lillie', and not only did not expressly overrule but impliedly reaffirmed them, and distinguished the `Lillie' case." After a careful examination of the question involved upon this appeal we are satisfied that the order entered by the trial court was warranted under the pleading and the law bearing upon the motion.
The following is "Plaintiff's Theory of the Case":
"The plaintiff's theory of the case is that the Lillie case, being the latest enunciation of the United States Supreme Court and being so completely `on all fours' with this situation, must control, and further that, as we shall hereinafter point out, the cases relied upon by the trial court are readily distinguishable. Plaintiff further contends, as the Lillie case demonstrates, that unless the amended complaint were held to state a cause of action, defendant's ...