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10/19/87 Joshua Page, v. Central Gulf Railroad


October 19, 1987

JOSHUA PAGE, PLAINTIFF-APPELLANT

v.

ILLINOIS CENTRAL GULF RAILROAD, DEFENDANT-APPELLEE

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

516 N.E.2d 431, 162 Ill. App. 3d 744, 114 Ill. Dec. 276 1987.IL.1552

Appeal from the Circuit Court of St. Clair County; the Hon. Joseph F. Cunningham, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE KARNS delivered the opinion of the court. HARRISON and LEWIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS

Plaintiff, Joshua Page, appeals from the dismissal of his complaint brought under the Federal Employers' Liability Act (45 U.S.C. secs. 51-60 (1982)) against his employer, defendant Illinois Central Gulf Railroad (Illinois Central), for the aggravation of his lung condition caused by exposure to fumes at work. The circuit court of St. Clair County dismissed plaintiff's complaint on the ground that under the doctrine of res judicata, plaintiff's action for aggravated injuries (hereinafter Page II) was barred by his previous action against Illinois Central for injuries arising from exposure to toxic fumes at work (hereinafter Page I). We affirm.

In Page I, plaintiff filed a complaint against Illinois Central in October of 1979, alleging that on September 18, 1978, "and for some periods of time," he, as a painter, was exposed to toxic fumes at work which caused injury to his lungs and respiratory tract. The trial commenced in February of 1982, and on February 25, the jury returned a verdict for plaintiff in the amount of $200,000. Illinois Central paid the judgment in full. Four days after the judgment, plaintiff was disqualified on the basis of his medical condition from continuing to work as a painter for Illinois Central. Plaintiff pursued administrative remedies for his disqualification, but the National Mediation Board denied his claim for compensation and reinstatement to service.

In November of 1982, plaintiff filed Page II, seeking damages for aggravation of his lung injury caused by exposure to fumes at work beginning November 1, 1979. The trial court dismissed Page II on motion of Illinois Central. The trial court determined from the record of Page I and the pleadings, exhibits and affidavits filed in Page II that Page II alleged no new exposure to fumes subsequent to the trial of Page I

and that the jury in the prior action was instructed on all past and future damages arising from plaintiff's exposure to fumes up to his last day of work in February 1982. The trial court therefore entered an order dismissing Page II on the basis of res judicata.

Under the doctrine of res judicata, a final judgment on the merits rendered by a court of competent jurisdiction constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. (E.g., Godare v. Sterling Steel Casting Co. (1981), 103 Ill. App. 3d 46, 50, 430 N.E.2d 620, 622; Pierog v. H. F. Karl Contractors, Inc. (1976), 39 Ill. App. 3d 1057, 1060, 351 N.E.2d 249, 252.) The doctrine extends not only to all matters which were actually decided but also to all matters which could have been raised or determined. (E.g., Spiller v. Continental Tube Co. (1983), 95 Ill. 2d 423, 432, 447 N.E.2d 834, 838; Bland v. Lowery (1976), 43 Ill. App. 3d 413, 416, 356 N.E.2d 1318, 1321.) If the same evidence would sustain both the first and the second action, there is an identity of the causes of action and res judicata applies. (See Keim v. Kalbfleisch (1978), 57 Ill. App. 3d 621, 624, 373 N.E.2d 565, 568; Pierog v. H. F. Karl Contractors, Inc. (1976), 39 Ill. App. 3d 1057, 1061, 351 N.E.2d 249, 252.) Even though a single group of operative facts may give rise to the assertion of different types of relief, or different theories of relief, it is still a single cause of action that exists. Pierog v. H. F. Karl Contractors, Inc. (1976), 39 Ill. App. 3d 1057, 1061, 351 N.E.2d 249, 253. See also Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 254, 461 N.E.2d 959, 963.

At issue in both Page I and Page II was the progressive injury to plaintiff's lungs and respiratory system caused by exposure to fumes while working for Illinois Central. The question then becomes whether there is an identity of the causes of action in Page I and Page II. We answer this question by looking not only to the pleadings in both actions but also to the record and evidence of the first action. See Hays v. Louisiana Dock Co. (1983), 117 Ill. App. 3d 512, 516, 452 N.E.2d 1383, 1387; Bland v. Lowery (1976), 43 Ill. App. 3d 413, 415, 356 N.E.2d 1318, 1320; Pierog v. H. F. Karl Contractors, Inc. (1976), 39 Ill. App. 3d 1057, 1061, 351 N.E.2d 249, 252.

Although the pleadings in Page I and Page II cover different time periods, the evidence in Page I was not limited solely to September 18, 1978, and "some periods of time," as alleged in the initial complaint. Rather, the evidence of exposure and injury covered plaintiff's entire working career with Illinois Central, up to the day of trial. Because of such evidence, plaintiff's counsel argued to the jury that plaintiff's exposure to the fumes caused his progressive lung disease and that such disease would disable him from working and make him a "pulmonary cripple." Counsel specifically argued for future damages because of the permanent and progressive nature of plaintiff's disease. He told the jury, based on medical testimony, that plaintiff's condition would only get worse if he were to continue to be exposed to fumes at work. He therefore asked the jury for a verdict large enough to allow plaintiff "to quit work tomorrow." Finally, counsel reminded the jury that plaintiff could not come back in the future to recover further damages as his disease progressed. "This is his only and his last day in court. . . . It's it. Final. . . . He has one chance for adequate compensation, one chance only. This is his only day in court." Moreover, the instructions given to the jury included a request for future medical costs and future loss of wages for injuries caused by inhalation exposures sustained by plaintiff during his employment with Illinois Central. Obviously, plaintiff's claim in Page II, based upon the same core of operative facts, was actually litigated or certainly could have been litigated in Page I. Plaintiff seeks duplicate recovery for only one cause of action. With no new exposure or injury to plaintiff after the judgment in Page I, we find no error in the trial court's declaring Page II to be barred by the doctrine of res judicata.

For the foregoing reasons, we affirm the judgment of the circuit court of St. Clair County dismissing plaintiff's complaint.

Affirmed.

CASE RESOLUTION

Judgment affirmed.

19871019

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