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Moushon v. National Garages





APPEAL from the Circuit Court of Peoria County; the Hon. HOWARD WHITE, Judge, presiding.


Rehearing denied November 19, 1956.

By his suit in the circuit court of Peoria County, the plaintiff, Raymond Moushon, sought to recover damages for a personal injury caused by the alleged negligence of his employer, National Garages, Inc. But the court allowed the defendant's motion to dismiss on the ground that section 5(a) of the Workmen's Compensation Act barred the action. (Ill. Rev. Stat. 1951, chap. 48, par. 138.5.) After the plaintiff elected to stand by his complaint, judgment was entered for the defendant. The appeal comes to this court on the theory that a constitutional question is involved.

The issue is two-fold: (1) Does section 5(a) of the Workmen's Compensation Act bar the plaintiff's suit? (2) If so, is the statute as so construed constitutionally valid?

The plaintiff was injured in the course of his employment for the defendant when a safety device on the "man lift" which he was riding failed to operate. He alleges that "his internal organs were greatly crushed and bruised including a ruptured urethra, which injuries have not permanently disabled [him] from engaging in his usual type of work but have rendered him impotent and have caused him great pain and suffering."

The parties agree that the employment was such as to automatically be covered by the Illinois Workmen's Compensation Act and thereby subject the plaintiff-employee and the defendant-employer to its terms. It is also agreed that the injury resulted from an "accident" within the meaning of the statute and arose out of and in the course of the employment. The defendant provided medical, surgical and hospital services reasonably necessary to cure and relieve from the effects of the injury, as required by section 8(a) of the act. (Ill. Rev. Stat. 1951, chap. 48, par. 138.8.) The defendant also paid, and the plaintiff received, compensation for the period of his temporary total disability, in accordance with section 8(b) of the act. The plaintiff's claim before the Industrial Commission, in which relief is asked under section 8(e) for loss of use of both testicles, is still pending.

On these admitted facts, we think that section 5(a) of the act constitutes a bar to the plaintiff's common-law action. This section provides, in part, as follows: "No common law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employee who is covered by the provisions of this Act, * * *."

The plaintiff takes the position that the foregoing is inapplicable where the injury does not fit a category specified by section 8(e). But this ignores the fact that he is still an employee "who is covered by the provisions of this Act," and more, the injury is admittedly compensable under other of its provisions.

Actually, it is difficult to see that any defense could exist to a claim for compensation under section 8(e) as well. Since the amendatory act of 1951, the section is not limited to the loss of both testicles, but covers also their permanent and complete loss of use. Even prior to this amendment, this court held that the act did not require "physical severance of the testicles" but included loss "in the more serious sense that they never again could perform their normal function having to do with sexual intercourse and the propagation of offspring." (Northwestern Barb Wire Co. v. Industrial Com. 353 Ill. 371.) This is precisely the injury which the plaintiff claims here. And that the Industrial Commission regards such an injury compensable as a loss of use of both testicles in indicated by its award in Anderson Shumaker Co. v. Industrial Com. No. 33564, in which we denied a writ of error at the March, 1955, term. In that case, as here, the injury consisted primarily of a ruptured urethra. See Gray, Attorney's Textbook of Medicine, vol. 3, sec. 301.07.

Yet even if it be assumed that the injury is not under section 8(e), it does not follow that the plaintiff should prevail. He still is covered by the act and sustained an accidental injury for which he received compensation benefits. Therefore, by its clear import section 5(a) bars his suit.

This is consistent with the legislative purpose of the statute. "The act was designed as a substitute for previous rights of action of employees against employers and to cover the whole ground of the liabilities of the master, and it has been so regarded by all courts. * * * It is therefore clear that the words `accident' and `accidental injuries' used in the act, were meant to include every injury suffered in the course of employment for which there was an existing right of action at the time the act was passed; also to extend the liability of the employer to make compensation for injuries for which he was not previously liable and to limit such compensation. The act, in taking away existing rights of action of the employee and extending the liabilities of the employer, fixes limits to the amount to be recovered, and is sustained as a legitimate exercise of the police power for the promotion of the general welfare by covering the entire subject with fixed rules." Matthiessen & Hegeler Zinc Co. v. Industrial Board, 284 Ill. 378, 382-3.

The general view regarding the particular problem before us here is expressed as follows by a leading writer in this field: "The compensation remedy is exclusive of all other remedies for the same injury, if the injury falls within the coverage formula of the act. If it does not, as in the case where occupational diseases are deemed omitted because not within the concept of accidental injury, the compensation act does not disturb any existing remedy. However, if the injury itself comes within the coverage formula, common-law action is barred even though the particular element of damage is not compensated for, as in the case of disfigurement in some states, impotency, or pain and suffering." (Larson, Workmen's Compensation Law, sec. 65.00.) At section 65.10 of the cited text the author states a reason for the compensation act affording the exclusive remedy: "This is part of the quid pro quo in which the sacrifices and gains of employees and employers are to some extent put in balance, for, while the employer assumes a new liability without fault, he is relieved of the prospect of large damage verdicts."

The plaintiff refers to decisions of other jurisdictions involving non-compensable occupational diseases or injuries for which no compensation was provided by statute. They are not analogous to the instant case. Apart from statutory and factual differences, the employees did not qualify for benefits under the applicable statutes. The courts were not called upon, as is this court, to permit a recovery under the Workmen's Compensation Act and then permit also a suit at common law against the same person, to recover additional damages said to arise out of and be connected with the same accidental injury constituting the basis for the one cause of action. See Hyett v. Northwestern Hospital, 147 Minn. 413.

Having determined that the statute is applicable, we next consider its constitutionality as against asserted violations of due process (Ill. Const., art. II, sec. 2; U.S. Const., 14th amend.) ...

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