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07/08/88 Darcy E. Bean, Ex'r of the v. Missouri Pacific Railroad

July 8, 1988

DARCY E. BEAN, EX'R OF THE ESTATE OF CARL M. BEAN, DECEASED, PLAINTIFF

v.

MISSOURI PACIFIC RAILROAD COMPANY, DEFENDANT AND COUNTERDEFENDANT-APPELLANT (GOLDMINE FARMS, INC., DEFENDANT AND COUNTERPLAINTIFF-APPELLEE)



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

525 N.E.2d 1231, 171 Ill. App. 3d 620, 121 Ill. Dec. 924 1988.IL.1074

Appeal from the Circuit Court of Madison County; the Hon. A. A. Matoesian, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. HARRISON, P.J., and CALVO, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

This appeal arises out of litigation involving a truck-train collision at the intersection of U.S. Highway 51 and the Missouri Pacific Railroad Company's (MoPac's) railroad tracks located north of Pana, Illinois. Carl Bean, MoPac's engineer, and Harold Albright, the driver of the truck owned by Goldmine Farms, Inc. (Goldmine), were killed in the accident.

On March 2, 1983, the estate of Carl Bean filed a three-count complaint in the circuit court of Madison County. Count I was brought pursuant to the Federal Employer's Liability Act (45 U.S.C. § 51 et seq. (1982)), charging MoPac with negligent acts or omissions that resulted in Bean's death. Counts II and III were brought under Illinois law, charging Goldmine with negligence. Count II sought damages for Bean's "conscious pain and suffering." Count III, under the Illinois Wrongful Death Act (Ill. Rev. Stat. 1983, ch. 70, par. 1 et seq.), sought recovery for pecuniary loss to Bean's next of kin.

MoPac answered the complaint on May 18, 1983, denying liability and asserting Bean's negligence as an affirmative defense. On October 9, 1984, MoPac filed a counterclaim against Goldmine. In count I, MoPac denied that it was negligent and claimed that Goldmine was responsible for causing the collision. MoPac alleged that it had sustained damage to its tracks, equipment, and right of way as a result of Goldmine's negligence and prayed for judgment against Goldmine. In count II, MoPac, while continuing to deny fault and liability, acknowledged its status as an alleged joint tortfeasor and, citing the Contribution Among Joint Tortfeasors Act (Contribution Act) (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.), claimed it was entitled to contribution from Goldmine "regarding the Bean suit" and asked that "the pro rata share of each tortfeasor be determined in accordance with his relative culpability, if any."

On October 31, 1984, Goldmine filed an answer to MoPac's counterclaim. Goldmine denied fault and liability, and moved to dismiss the counterclaim. Then, on October 3, 1986, Goldmine filed a counterclaim against MoPac wherein Goldmine denied liability, claimed that MoPac "and/or" Bean were responsible for the collision, and citing the Contribution Act, requested contribution from MoPac in the event Goldmine should be adJudged liable.

MoPac, on November 19, 1986, filed a motion to dismiss Goldmine's counterclaim, contending that Goldmine could not recover contribution from MoPac for the alleged negligence of its agent, Carl Bean, who is also plaintiff's decedent. MoPac argued that Goldmine was obliged to plead Bean's comparative negligence which, if established, would reduce the extent of Goldmine's liability to Bean's estate and would preclude a recovery in contribution from MoPac for the same conduct. MoPac additionally observed that the FELA wrongful death claim in count I and the wrongful death claim in count III under Illinois law were not coextensive as to the elements of recoverable damages. MoPac noted that the measure of damages for pecuniary loss under Illinois law is greater than what is allowed under the FELA. MoPac argued that the counterclaim of Goldmine could require MoPac to contribute an amount which far exceeds MoPac's potential liability to Bean's estate under the provisions of the FELA.

The circuit court, on March 9, 1987, filed an order denying MoPac's motion to dismiss Goldmine's counterclaim. However, the court, pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308), did certify three issues for an immediate appeal. We agree with MoPac's appellate counsel that the issues can be succinctly restated as follows: (1) whether Goldmine's contribution claim is preempted by the FELA where the practical effect is to expose MoPac to liability more extensive than that imposed by the FELA; (2) whether Goldmine can state a cause of action for contribution from MoPac based on the conduct of MoPac's employee, and plaintiff's decedent, Carl Bean.

We will deal first with the preemption argument advanced by MoPac on appeal. MoPac argues that the FELA limits the railroad's liability for all purposes in litigation arising out of an injury to the railroad's employee. Thus, MoPac argues that Goldmine cannot recover in an action for contribution under Illinois law what Bean cannot recover in a direct action under the FELA against MoPac, i.e., damages considered non-pecuniary under the FELA such as loss of consortium and loss of society.

While it is true that by virtue of the supremacy clause of article VI of the Federal Constitution (U.S. Const., art. VI, cl. 2), Federal law, in most instances, overrides or preempts State law on the same subject matter (Allis-Chalmers Corp. v. Lueck (1985), 471 U.S. 202, 208, 85 L. Ed. 2d 206, 213, 105 S. Ct. 1904, 1909; Bartley v. University Asphalt Co. (1986), 111 Ill. 2d 318, 327, 489 N.E.2d 1367, 1371), the FELA does not govern actions such as Goldmine's third-party action for contribution from MoPac. Decisions of the United States Supreme Court and the Federal circuit courts clearly establish the scope of the FELA. Referring to the FELA, Justice Lurton wrote in Michigan Central R.R. Co. v. Vreeland (1913), 227 U.S. 59, 66-67, 57 L. Ed. 417, 420, 33 S. Ct. 192, 194:

"By this act Congress has undertaken to cover the subject of the liability of railroad companies to their employees injured while ...


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