Appeal from the Circuit Court of Macoupin county; the Hon.
L.E. WILHITE, Judge, presiding. Affirmed upon remittitur;
otherwise reversed and remanded.
JUDGE CARROLL DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 20, 1957.
This action was filed April 3, 1954 to recover damages allegedly occasioned by the negligence of the defendant in operating his truck.
The complaint alleges in substance that Robert G. Baker, an employee of plaintiff, was killed on July 23, 1952 in a collision between a truck which he was operating and another truck owned and operated by defendant; that at the time of the occurrence the deceased was engaged within the scope of his employment: that the accident was caused by the negligence of the defendant; that as the result of the defendant's negligence, plaintiff's truck was damaged beyond repair and that plaintiff sustained further damages in that he was required to pay compensation as the employer of the deceased in the sum of $7,565.
In his answer, defendant raised two affirmative defenses (1) that since plaintiff's suit was not instituted within one year of the death of Robert G. Baker, it was barred by the Statute of Limitations and (2) that since defendant was a farmer and not insured under the Workmen's Compensation Act he is specifically exempted from the provisions of said Act.
Upon motion of plaintiff these special pleas were stricken. It was stipulated on the trial that the damage to the plaintiff's truck was the sum of $2,275 and that the amount he was required to pay and did pay under the Workmen's Compensation Act for the death of Baker was $7,565. The jury returned a verdict for $9,840 which was the total of the two damage items. Motion for judgment notwithstanding the verdict and for a new trial were overruled. Judgment was entered on the verdict and this appeal followed.
Defendant makes no complaint as to that portion of the verdict covering the stipulated damage to the truck but submits that this court should order a remittitur of $7,565, the amount of compensation paid by plaintiff.
The death of Robert G. Baker occurred on July 23, 1952 which was some 20 months prior to the filing of this action. At that time limitation on the filing of a suit to recover under the Wrongful Death Statute was one year from the date of the death of the decedent. Par. 2, Chap. 70, Ill. Rev. Stats. 1953.
It follows therefore that on the date of the filing of this suit, the right to bring an action for decedent's wrongful death was barred by the statute. However, plaintiff does not contend otherwise but insists that the instant proceeding is not a wrongful death action. It further appears from plaintiff's argument that he does not seek to recover from defendant on any theory of subrogation arising by virtue of the provisions of the Workmen's Compensation Act.
If we correctly interpret the theory upon which the complaint is based, it is that an employer, independent of the provisions of the Workmen's Compensation Act, has a common law right of action against a third party for the recovery of all damages the employer has sustained as the result of the negligence of such third party including compensation paid and that such action would be barred only by the five year Statute of Limitations.
Plaintiff has cited no Illinois case in which the proposition for which he contends was considered by the court. However, it is argued that Geneva Construction Co. v. Martin Transfer and Storage Co., 4 Ill.2d 273 by reason of the points discussed therein, presents an analogy sufficiently appropriate to constitute authority for sustaining his theory of recovery herein.
Before considering whether the opinion of the Supreme Court in the above case lends support to plaintiff's argument, we deem it essential that the pertinent provisions of the Workmen's Compensation Act and the construction placed thereon by our courts be to some extent reviewed.
At the time of the accident in which plaintiff's employee met his death, the Workmen's Compensation Act of 1951 was in force. Sub-Sec. B of Sec. 5 thereof (Par. 138.5 Chap. 48, Ill. Rev. Stats. 1951) provided in part as follows:
". . . 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 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 ...