Appeal by intervening petitioner from the Circuit Court of
Cook county; the Hon. WILLIAM J. TUOHY, Judge, presiding. Heard
in the third division of this court for the first district at the
October term, 1953. Order appealed from affirmed. Opinion filed
February 24, 1954. Rehearing denied March 24, 1954. Released for
publication April 22, 1954.
MR. JUSTICE LEWE DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 24, 1954.
Campbell-Lowrie-Lautermilch Corporation, hereinafter called "Campbell," appeals from an order denying its motion for leave to file a lien under the provisions of the Workmen's Compensation Act of the State of Illinois, in the suit now pending in the circuit court of Cook county brought by plaintiff Angus Hyland against 79 West Monroe Corporation.
August 11, 1952 plaintiff filed his amended complaint consisting of two counts. Count 1 alleged in substance that Campbell, a general contractor who was engaged by defendant to remodel its office building, employed plaintiff, a carpenter, and that plaintiff, while making repairs in an elevator shaft in defendant's building was injured as a result of defendant's negligent operation of an elevator.
Count 2 charged defendant with willful and wanton misconduct in the operation of the elevator. Defendant answered and as a special defense averred that the accident arose out of and in the course of the employment of the plaintiff by Campbell; that at the time of the accident Campbell and defendant were bound by the Workmen's Compensation Act; and that by virtue of section 29 of the Act [Ill. Rev. Stats. 1949, ch. 48, § 166; Jones Ill. Stats. Ann. 143.44] all rights, if any, existing in the plaintiff on account of the alleged occurrence are subrogated to the plaintiff's employer Campbell.
February 6, 1952 Campbell served notice upon each of the parties, which reads:
"Please take notice that on Monday, February 9, 1953, at 10:00 a.m., I shall appear before Judge Cornelius J. Harrington, Room 909, County Building, or any other judge sitting in his stead, and move the Court to be allowed to file a lien under the Workmen's Compensation Act, copy of which lien is attached hereto, at which time and place you may appear if you see fit."
A document titled "lien" attached to the foregoing notice reads as follows:
"ANGUS HYLAND met with an accidental injury which arose out of and in the course of his employment with CAMPBELL-LOWRIE-LAUTERMILCH CORPORATION, a corporation, at or near 79 W. Monroe Street, on the fourteenth day of August A.D. 1950. Subsequently thereto, his employer, CAMPBELL-LOWRIE-LAUTERMILCH CORPORATION, by and through their insurance carrier, The Liberty Mutual Insurance Company, paid to ANGUS HYLAND $22.50 for a period of 93 weeks up to and including January 28, 1953, in the amount of TWO THOUSAND NINETY TWO DOLLARS AND FIFTY CENTS ($2,092.50).
"In addition thereto, the employer, by and through their insurance carrier, has paid out surgical, hospital, medical services, prosthesis, etc., a sum of, to wit: NINE THOUSAND FOUR HUNDRED FIFTY NINE DOLLARS AND SIXTY NINE CENTS ($9,459.69).
"WHEREFORE, CAMPBELL-LOWRIE-LAUTERMILCH CORPORATION, for the use of Liberty Mutual Insurance Company, a corporation, claims a lien in the amount of, to wit: ELEVEN THOUSAND FIVE HUNDRED FIFTY TWO DOLLARS AND NINETEEN CENTS ($11,552.19)."
In Grasse v. Dealer's Transport Co., 412 Ill. 179, our Supreme Court in declaring paragraph one of section 29 of the Workmen's Compensation Act unconstitutional, said, at page 201:
"The effect of our determination is to render the provision void, and to relegate the parties to such rights as they may have had prior to the enactment of the unconstitutional provision. (People v. Schraeberg, 347 Ill. 392.) Under those circumstances, the rights of the parties would be governed by common-law subrogation principles, and the non-negligent employer who had paid compensation would be entitled to be subrogated to the rights of the employee against the third party tort-feasors."
Campbell contends that, notwithstanding the invalidity of the first paragraph of section 29, as a non-negligent employer under the Workmen's Compensation Act, it is entitled to reimbursement for the amount expended, from the third-party tort-feasor also under ...