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Grasse v. Dealer's Transport Co.





APPEAL from the Circuit Court of Cook County; the Hon. HARRY M. FISHER, Judge, presiding.


Rehearing denied May 20, 1952.

Plaintiff, Paul C. Grasse, and his employer, Swift & Company, instituted proceedings for damages against defendant, Dealer's Transport Company, for injuries sustained by plaintiff Grasse in the course of his employment, as a result of a motor vehicle collision caused by the alleged negligence of one of defendant's employees. The circuit court of Cook County, in a judgment entered on the pleadings, dismissed the claim of plaintiff Grasse, presented in count I of the complaint, on the ground that it was barred by paragraph I of section 29 of the Workmen's Compensation Act, which the court held to be constitutional. From this judgment plaintiff Grasse has prosecuted this appeal.

The sole issue presented by this appeal is the constitutionality of the first paragraph of section 29 of the Workmen's Compensation Act (Ill. Rev. Stat. 1947, chap. 48, par. 166,) which is: "Where an injury or death for which compensation is payable by the employer under this Act was not proximately caused by the negligence of the employer or his employees, and was caused under circumstances creating a legal liability for damages in some person other than the employer to pay damages, such other person having also elected to be bound by this Act, or being bound thereby under section three (3) of this Act, then the right of the employee or personal representative to recover against such other person shall be transferred to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained, in an amount not exceeding the aggregate amount of compensation payable under this Act, by reason of the injury or death of such employee."

The facts presented in the pleadings are uncontroverted. Plaintiff Grasse was driving a motor vehicle in an easterly direction on Seventy-ninth Street, near the intersection with Sayre Avenue, in Stickney Township, Cook County, allegedly in the exercise of due care for his own safety, and as a result of the alleged negligence of defendant's agent, who was driving a motor vehicle in a westerly direction on the same street, the vehicles collided, causing permanent injuries to plaintiff Grasse, who was required to spend and become liable for some $9000, for which he is now seeking damages against defendant in the amount of $100,000 in count I of the complaint.

Inasmuch as count II of the complaint is not involved on this appeal, it is sufficient to note that it presented the claim of Swift & Company, which realleged the circumstances of the collision, the negligence of defendant's agent, and the injuries and damages sustained by plaintiff Grasse as a result of the collision in the course of his employment for Swift & Company. This count further alleged that Swift & Company, pursuant to proper notice and claim, had made payments of compensation and medical expenses to Grasse, and that under section 29 defendant was required to reimburse Swift & Company for such expenditures in the amount of $12,000. Defendant denied the allegations with reference to the negligence and damages, but no further disposition of this count was made by the trial court.

With reference to count I, defendant admitted in its answer the occurrence of the collision in which plaintiff Grasse was injured, and the fact that the vehicle was driven by its agent, but denied all other allegations. Defendant submitted the further defense that, inasmuch as the alleged injuries to plaintiff arose out of and in the course of his employment for Swift & Company, which was automatically under the Workmen's Compensation Act and had been paying plaintiff Grasse compensation pursuant to his claim thereunder, and, further, since defendant was also under the act, both automatically and by election, under section 29 all rights which plaintiff Grasse might have against the defendant as a result of the injury were transferred by operation of law to Swift & Company, and, consequently, plaintiff Grasse was without legal capacity to maintain this action. Defendant's answer requested that an order be entered dismissing count I for want of jurisdiction.

Plaintiff Grasse filed a motion to strike those paragraphs of defendant's answer setting forth the defense predicated on section 29 of the act, on the ground that section 29, construed with section 3, (Ill. Rev. Stat. 1947, chap. 48, par. 139,) which provides that the act apply automatically to the employers and employees of designated hazardous employments, violates provisions of the Federal and Illinois constitutions, and is, therefore, void. The specific constitutional clauses allegedly violated by section 29 are section I of the fourteenth amendment, the commerce clause, and section 2 of article IV of the Federal constitution; and section 2 of article II, section 19 of article II, and section 22 of article IV of the Illinois constitution.

The trial court held that the first paragraph of section 29 was valid and that defendant's answer, predicated thereon, constituted a valid defense. Therefore the court denied plaintiff Grasse's motion to strike defendant's answer and dismissed count I of the complaint without prejudice to the pending cause of action of Swift & Company. This determination was predicated upon the reasoning in the recent case of Baim v. Fleck, 406 Ill. 193, which held that the legislature has wide latitude in making statutory classifications. It was considered that since section 29 was apparently a concession to employers as potential third party tort-feasors in the enactment of the Workmen's Compensation Act originally, it is conceivable that, but for this concession, the entire Workmen's Compensation Act might not have been enacted, hence the invalidity of this provision might render the entire act unconstitutional.

In determining whether the trial court erred in sustaining the constitutionality of the first paragraph of section 29, we shall consider first whether, as defendant insists, and plaintiff denies, the precise constitutional question has been adjudged by this court in a binding precedent; and then analyze the terms and construction of the statute and ascertain whether the classifications provided therein violate any of the guarantees of the Federal and State constitutions.

It is established that a decision sustaining the constitutionality of a statute is not decisive of its validity against subsequent attacks upon different grounds, and does not preclude the court from subsequently declaring the statute unconstitutional where it is assailed upon other constitutional grounds. Parks v. Libby-Owens-Ford Glass Co. 360 Ill. 130; Sturges v. City of Chicago, 237 Ill. 46, 50.

Although stated in the recent case of Petrazelli v. Propper, 409 Ill. 365, at page 370, that section 29 has been held constitutional, the court did not consider or pass upon any specific constitutional questions therein, but merely stated that plaintiff's assertion of the unconstitutionality of the section, which apparently was not seriously pressed, was without merit. The grounds urged by plaintiff herein in challenging the statute were neither presented in that case nor in the cases cited by the court.

The scope of those decisions cannot be ascertained without reference to the history of the act under consideration. The first paragraph of section 29, passed in 1913, deprived employees of a common-law right of action against third party tort-feasors who elected to be bound by the act, as the present act does, but was then part of an elective compensation act. The constitutionality of this section was sustained in Keeran v. Peoria, Bloomington and Champaign Traction Co. 277 Ill. 413, where the court predicated its decision on the fact that the act was elective. The court held that since the employee had a right to elect whether he would take the benefits of the act, and, having done so, the act became part of a binding contract between him and his employer, and consequently the employee could not urge that his constitutional rights were infringed by any of the obligations of the act.

Of the cases cited in Petrazelli v. Propper, it appears that the court in Friebel v. Chicago City Railway Co. 280 Ill. 76, construing the same elective statute, predicated the constitutionality of section 29 on the ground that the statute was elective and became part of the employment contract, in accordance with the Keeran case. Gones v. Fisher, 286 Ill. 606, involved the second paragraph of section 29 rather than the first, and the court therein merely reiterated the conclusions in the Keeran and Friebel cases. City of Taylorville v. Central Illinois Public Service Co. 301 Ill. 157, merely held that the parties erroneously interpreted section 29, for in order to recover the amount of the compensation award from the third party tort-feasor, the employer had to prove all the elements of damage sustained by the employee, and that such damages were at least as much as the compensation award; and in Bauer v. Rusetos & Co. 306 Ill. 602, the court specifically stated that the validity of section 29 was not questioned.

In 1917 the Workmen's Compensation Act was amended whereby it applied automatically to employees and employers engaged in certain designated hazardous enterprises, and such persons no longer had the right to elect not to be bound by the act. The constitutionality of the compulsory act was sustained in Grand Trunk Western Railway Co. v. Industrial Com. 291 Ill. 167, on the ground that it was a valid exercise of the police power, rather than on the theory obtaining previously that the act became part of the contract of employment when the parties elected to become bound thereby. The court held that the State had power to establish this departure from the common-law rules affecting employers' liability for personal injuries to their employees, since the public had a direct interest in the matter of compensation for human life lost or disability incurred in the course of a hazardous employment, which should properly be borne by the common enterprise. However, there was no question raised therein as to the validity of section 29 under this compulsory statute, nor did the court consider the relationship between either the employer or the employee and the third party tort-feasor.

We are, therefore, in agreement with the trial court that the constitutionality of the first paragraph of section 29 of the present compulsory act has neither been adjudicated by this court nor challenged on the grounds urged by the plaintiff herein, i.e., that the provision effects arbitrary classifications in violation of the aforementioned constitutional guarantees. Therefore, in the absence of a binding precedent it is incumbent upon this court for the first time to determine this constitutional issue.

From the terms of the statute it appears that where an employee under the act is injured in the course of his employment by the negligence of a third party tort-feasor who is bound by the act, the employee has no common-law right of action against such person, and can secure only compensation from his employer. (O'Brien v. Chicago City Railway Co. 305 Ill. 244.) The third party is granted immunity from liability, except that he may be obliged to reimburse the employer of the injured employee for the amount of compensation paid. The employer must first establish, however, in an action instituted in his own name, and for his exclusive benefit, the negligence of the third party tort-feasor, the injured employee's freedom from contributory negligence, the amount of damage suffered by the injured employee, and all the essential elements the latter would ...

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