Appeal by plaintiff from the Circuit Court of Du Page county;
the Hon. WIN G. KNOCH, Judge, presiding. Heard in this court at
the October term, 1950. Judgment affirmed. Opinion filed July 12,
1951. Rehearing denied October 4, 1951. Released for publication
October 4, 1951.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT.
Rehearing denied October 4, 1951
Plaintiff, Ivar F. Melohn, doing business as Elmdale Farm, is appealing from an order of the circuit court of Du Page county dismissing his complaint against defendant, Eugene Ganley, in which plaintiff sought to recover, for the use of the Employers' Liability Assurance Corp., Ltd., the amount of workmen's compensation and medical expenses paid to an employee for injuries allegedly caused by defendant's negligence.
In adjudging whether the circuit court erred in dismissing plaintiff's complaint, the sole issue before this court is whether an employer, who has paid workmen's compensation to an employee, allegedly injured by a third party, who is not under the Workmen's Compensation Act, is barred from instituting a proceeding against the third party to recover the amount of compensation paid to the employee, by the fact that the third party has paid damages to the employer and the injured employee, pursuant to a judgment entered on their respective counterclaims, in a prior common-law proceeding.
The facts material to the determination of this issue are uncontroverted. On October 10, 1946, on U.S. Highway No. 20, about 18 miles east of Galena, Illinois, a collision occurred between the motor truck owned by the plaintiff, Ivar F. Melohn, doing business as Elmdale Farm, and driven by his employee, Henry Mensing, Jr., and a Chevrolet sedan owned and operated by the defendant herein, Eugene Ganley. On September 25, 1946, Eugene Ganley commenced a negligence action against both the plaintiff herein, and his employee, in which proceeding both the employer and the employee filed counterclaims, each alleging, in substance, that he was in the exercise of ordinary care for his own safety; that Eugene Ganley negligently drove his vehicle at an excessive speed and in the wrong lane, in violation of Illinois statutes, and neglected to keep a look out ahead for approaching vehicles; and that as a proximate result of this negligence Eugene Ganley collided into the truck owned by the plaintiff herein, causing certain enumerated damages.
That proceeding was tried before a jury, which was instructed, in assessing damages on the counterclaim, to consider "such future bodily suffering and loss of health, if any, as you may believe from the evidence the defendant (employee Henry Mensing) will sustain, as well as such sum as . . . will be a fair compensation for the injuries sustained." A verdict was entered on the counterclaim, awarding the employee, Henry Mensing, $64, and the employer, $390, on which judgment was entered on June 6, 1947.
The employee, Henry Mensing, Jr., filed a claim for compensation against his employer, Ivar F. Melohn, doing business as Elmdale Farm, and under an award entered by the Industrial Commission on June 28, 1948, the employer was required to pay $1046.08 for compensation and medical bills. The employer thereafter, on August 10, 1948, filed the complaint herein against the defendant, Eugene Ganley, to recover this sum for the use of his insurance carrier, the Employers' Liability Assurance Corp., Ltd.
In this complaint, the plaintiff employer alleges the collision on August 10, 1946, between the vehicle operated by its employee, and that operated by defendant, Eugene Ganley; plaintiff's exercise of due care; and the same negligent acts of defendant, as were alleged in the aforementioned counterclaim, as approximate result of which, the employee sustained certain injuries. Plaintiff further alleges that the employee filed a claim under the Workmen's Compensation Act, that the Industrial Commission entered an award in favor of the employee, which plaintiff paid, and that under the Act he is entitled to recover such sums from the third party allegedly causing the injuries.
Defendant, Eugene Ganley, filed a motion to dismiss the complaint, supported by affidavits, alleging that the employee, and the plaintiff employer had filed counterclaims for their injuries and damages, arising out of the collision, in the common-law action, which defendant had instituted, and had recovered therein a judgment, which constituted a bar to the proceedings herein.
Plaintiff thereafter filed an affidavit in opposition to the motion, alleging that the claim presented before the Industrial Commission was different from that presented in the counterclaim, in that a hernia operation had occurred, for which the employee received compensation and the payment of his medical bills, under an award by the Industrial Commission.
On the basis of these allegations, and the affidavits in support thereof, the circuit court below held that the judgment in favor of the employee, Henry Mensing, on his counterclaim, was a bar to the instant case, and granted defendant's motion to dismiss the complaint.
From this order plaintiff has prosecuted this appeal, urging that neither the doctrines of res judicata, nor estoppel by verdict, are applicable, since there is a lack of identity in the subject matter of the suit, in the parties, in the quality of the persons, and in the cause of action, presented in the complaint herein and in the prior counterclaim.
In determining whether the circuit court erred in dismissing the complaint, it is apparent from the terms of the complaint that plaintiff's rights, if any, must be predicated upon the second and fifth paragraphs of sec. 29 of the Workmen's Compensation Act of Illinois, (ch. 48, par. 166, Ill. Rev. Stat. 1949) [Jones Ill. Stats. Ann. 143.44] notwithstanding the fact that no reference is made in plaintiff's brief to sec. 29, or to the basis of the rights asserted by plaintiff.
It is, therefore, incumbent upon this court to determine first, the nature of the rights granted under sec. 29, and then ascertain whether they are barred by the operations of the doctrines of res judicata or estoppel by verdict, as urged by the defendant herein.
The interpretation of this "hydra-headed" section of the Workmen's Compensation Act has challenged the legal ingenuity of jurists and legal scholars. (Schlitz Brewing Co. v. Chicago Rys. Co., 307 Ill. 322, 327; Botthof v. Fenske, 280 Ill. App. 362; 19 Chi.-Kent L. ...