Star Brewing Co. v. Cleveland, C., C. & St. L. Ry. Co.

275 F. 330, 1921 U.S. App. LEXIS 2232

• Court: Court of Appeals for the Seventh Circuit
• Decided: April 8, 1921
• Docket: No. 2845
• Status: Published

Opinions

BAKER, Circuit Judge.

In its declaration Star Brewing Company alleged that one of its employés, while duly engaged in his employment, was killed by reason of the railway company’s negligent operation of a locomotive; that plaintiff and its said employé and also defendant were all subject to the provisions of the Wprkmen’s Compensation Act of Illinois (Laws 1913, p 335); that under the operation of said Compensation Act plaintiff became liable to pay to the deceased’s widow the sum of $3,500; and that under .the provisions of said Compensation ¿tort defendant became liable to plaintiff for 1be same amount.

Defendant’s plea in bar alleged that the employe's death occurred on December 19, 1916, and that the action by plaintiff was not begun until August 30, 1918, more than one year after the death. On the o vent ding of plaintiffs demurrer to this plea, plaintiff declined to plead over; and this writ of error challenges the consequent judgment.

Thus Is raised the sole question: Is plaintiff’s action founded upon a new right given by the Workmen’s Compensation Act, or is it founded upon an assignment of a cause of action given by the Illinois Injuries Act (Kurd’s Rev. St. 1919, c. 70) for wrongfully causing death?

We are of the opinion that the declaration is based upon a new and independent right of action created by the Workmen’s Compensation Act, and therefore that five years is the only limitation of time that Is applicable.

“An act to promote the general vrelffre of the people of this state by providing compensation’ for accidental injuries or death suffered in the course of employment within this state” is the title of the act, which alone is sufficient to indicate the general legislative intent to do away with the uncertainties and hardships commonly observed in personal Injury suits, with their questions of contributory negligence, assumption of risk, and fellow servant, and their difficulties ia the measurement of damages, and to substitute for the uncertainties and expense. of such lawsuits, which had been home by the employés in the store, a definite and easily ascertained and cheaply and promptly ob-wined compensation which should primarily be home by the industry or Industries in which the injury was inflicted ?md ultimately be borne by the public at large in sustaining the Industries. But the act did not change the existing law as to aay parties except employes and employers in the included industries.

This purpose, in our judgment, Is completely and adequately accomplished by the detailed provisions and machinery of the act. But, as bearing directly oh the sufficiency of defendant’s plea, it is not necessary to set forth herein more than is embodied in the following sections:

“Bee. 6. No comwon-law or statutory right to recover damages for injury or death sustained by any employs while engaged in the line of Ids duty as such employe other than the compensation herein provided shall be available to any employs who is covered by the provisions of this act, to any one wholly or partially dependent upon Mm, the legal representatives of his estate, «r any one otherwise entitled to recover damages for such injury.”

Section 7. which proscribes the amounts payable for injuries resulting in death, makes the compensation payable to dependents in such aliares as correspond to their respective degrees of dependency.

“Sec. 11. The compensation herein provided, together with the provisions of this act, shall be the measure of the responsibility of any employer engaged in any of the enterprises or businesses enumerated in section three (3) of this act, or of any employer who is not engaged in any such enterprises or businesses, but who has elected to provide and pay compensation for accidental injuries sustained by any employe arising out of and in the course of the employment according to the provisions of this act, and whose election to continue under this act, has not been nullified by any action of his employees as provided for to this act.” As amended by" act approved June 25,1917, in force July 1, 1917. Laws 1917, p. 505.

“Sec. 29. 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 employes, 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 three (3) of this act, then the right of the employe or personal representative to recover against such other person shail be subrogated to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained in an amount not •exceeding the aggregate amount of compensation payable under this act, by reason of the injury or death of such employs. Where the injury or death for which compensation is payable under this act, was not proximately caused by the negligence of the employer or his employes and was caused under circumstances creating a legal liability for damages. on the part of some person other than the employer to pay damages, such other person having elected not to be bound by this act, then legal proceedings may be taken against siieh other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this act, but in such case if the action against such other person is brought by the injured employs or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employs or personal representative there shall be paid to the employer the amount of compensation paid or to bo paid by him to such emiployé or his personal representative: Provided, that if the injured employe or his personal representative shall agree to receive compensation from the employer or to institute proceedings to recover the same or accept from the employer any payment on account of such compensation, such employer shall be subrogated to all the rights of such employ^ or personal representative and may maintain, or in case an action has already been instituted, may continue an action either in the name of the employe* or personal representative or in his own name against such other person for the recovery of damages to which hut for this section the said omployS or personal representative would be entitled, but such employer shall nevertheless pay over to the injured employé or personal representative, all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this act, and all costs, attorneys' fees and reasonable expenses incurred by such employer in making such collection and enforcing such liability." As amended by act approved June 25, 1917, in force July 1, 1917. Laws 1917, p. 505.

Defendant’s plea is based on the contention that the words “under circumstances creating a legal liability for damages in some person other than the employer to pay damages,” and the word “subrogated,” and the words “the damages sustained,” indicate that the legal proceedings provided for in the first part of section 29, through which the employer may recover a judgment against the negligent third party, are legal proceedings based upon an assignment of the cause of action created by the Illinois Injuries Act for wrongful death, and that “the damages sustained” are the damages which the Illinois Injuries Act awards to the personal representative of the deceased. But this contention, in our judgment, is incompatible with the scheme of the act as a whole, and particularly with the above-quoted sections. By section 6 the right of any employé under the act, or his representative, to maintain a common-law or statutory action to recover damages against any employer under the act for injury or death sustained in the line of duty is explicitly abolished. Unless in some other portion •of the act such right of action is revived, it must remain forever dead; and it is contrary to rational thought to say that a suit can be maintained upon the assignment of a nonexistent thing. Section 7 conflicts with the idea that plaintiff’s declaration is founded upon aa assignment of a cause of action under {lie Illinois Injuries Act for wrongful death, because that section provides for an entirely different method of distributing the compensation among the dependents of the decedent. Section 11 is likewise inimical to defendant’s contention because it limits the responsibility of every employer who is under the act to the amount of compensation.determined under the schedules of the act by the Industrial Board.

Respecting the insistence that “the damages sustained,” mentioned in the first part of section 29, are the damages admeasured in personal injury suits, it suffices to say that the Illinois decisions furnish an unequivocal denial. Keeran v. Traction Co., 277 Ill. 413, 115 N. E. 636; Friebel v. Chicago City Ry. Co., 280 Ill. 76, 117 N. E. 467; Gones v. Fisher, 286 Ill. 606, 122 N. E. 95. “The damages sustained” are the damages sustained by the employer in compensating his employé, on account of which he is entitled to sue the negligent third party for reimbursement.

As to the urge that the words “under circumstances creating a legal liability for damages in some person other than the employer to pay damages” and the words “the right of the employee or personal representative to recover against such other person shall be subrogated to his employer” mean that plaintiff’s declaration is based on an assigned death claim, we are unable to find an answer in the Illinois decisions.

Looking to the historical evil that was intended to be remedied, to the declared purpose of the Legislature as set forth in the title of the act, to the act as a whole embodying a detailed scheme to effectuate the declared purpose, and to the familiar canons of statutory interpretation, we have no difficulty in solving the ambiguity which is created by defendant’s emphasis upon the literalism of the quoted words and in finding the legislative intent to be as follows: If an injury to an employ'd •while in the line of his employment is caused by a third party, and the employer, employe, and third party are all under the Workmen’s Compensation Act, then, under section 29 of that act, the third party is liable to pay to the employer the amount of compensation awarded against him and in favor of the employe, provided the third party was guilty of negligence or a. violation of some statute giving rise, prior to the adoption of the Workmen’s Compensation Act, to an action for damages by the employe. This interpretation is adopted by us from the fourth paragraph of the syllabus in the Eriebel Case, supra. If the text of that decision at all points unequivocally sustained the syllabus, there could be no debate concerning the Illinois construction of the Illinois legislation. But on page 86 of 280 Ill., on page 471 of 117 N. E., the following language appears:

“The word ‘subrogated,’ as used in that section, is more nearly equivalent to the word ‘transferred’ than perhaps any other word that might be used in its place. The meaning of that sentence is that the right of action of the employe against the third party causing the injury is transferred to his employer by operation of section 29.”

But in thus furnishing a basis for defendant’s insistence that there can be a transfer or assignment of a nonexistent thing, the court did not_have before it or in mind the precise question that defendant is now presenting. And against this expression there are other parts of the opinion that should be balanced.. For example, on page 85 of 280 111., on page 470 of 117 N.E.:

“If, on the other hand, the injury to the employe is caused by the negligence of a third party, or is caused under circumstances that would make the third party liable to the employé at common law for the injury, under section 29 the third party causing the injury must pay the compensation allowed to the employé under the statute if all three of them, the employé, the employer, and the party causing the injury, are hound by the provisions ,of the Compensation Act. * * * He is only hound, however, to pay the same sum of money as would be awarded to the injured employé against his employer under the Compensation Act.”

And from page 87 of 280 Ill., and page 471 of 117 N. E.:

“We think it clear that the employer may at once, after the compensation is fixed under the Compensation Act in a proceeding by the employé against him, proceed in a suit against the third party who caused the injury and recover from such third party the amount payable under the Compensation Act by such employer to such employé without first having paid the employé the compensation awarded. The statute further intends by section 29 that the sum so recovered by the employer from the third party shall be for the sole use of such injured employé, although it may at the same time be reimbursement to the employer of the amount paid out by the employer by way of compensation for such injury.”

We therefore entertain the view that the opinion in the Eriebel Case, taken as a whole, supplies a just foundation for the fourth paragraph of the syllabus, whether prepared by the court itself or by the official reporter.

Confirmation of this construction of the first part of section 29 is afforded by comparing it with the last portion of the section which deals with the situation where the negligent third party is not under the Compensation Act. In such cases the negligent third party can, of course, only be sued on his pre-existent common-law or statutory liability, and this last portion of section 29 effectuates under certain circumstances a transfer or assignment to the employer of that cause of action—an assignment which otherwise would be against the common law of champerty. This last portion of section 29 therefore emphasizes the fact that the situation covered by the first portion, wherein employer, employé, and negligent third party are all under the act, is governed by the commands given without qualification in sections 6 and 11.

If Illinois had never adopted a “Lord Campbell’s Act,” and if Illinois had never had any common law of negligence, the Legislature could not have defined the “circumstances,” under which the third party who is under the act is liable to reimburse the immediate employer of the injured employé, who are both also under the act, by reference to such pre-existent common-law and statutory liabilities. Under such assumptions, contrary to the facts, of course it would have been necessary for the Legislature, in order to carry out the purpose declared in the title to provide “compensation for accidental injuries or death suffered in the course of employment within this state,” to give an independent definition of the “circumstances.” But, inasmuch as there already existed full definitions of the “circumstances” under which common-law and statutory liability would arise when the bill was introduced and when It was enacted into law, the means were at hand through which to define the “circumstances” by reference. Rights un der contracts, conveyances, or statutes are not affected by the question whether all the terms, conditions, descriptions, and definitions are written out in full or are brought in by reference to previous contracts, conveyances, or statutes.

We are not unmindful of the rule that considerations of hardship cannot properly lead a court to broaden a statute beyond its legitimate limits so as to cover cases which the court may think are within the spirit of the act and have been inadvertently overlooked by the Legislature. But in the present case plainly there is no casus omissus, for the very case of employer, employe, and negligent third party who are all under the act has received the explicit attention of the lawmakers. Therefore the problem is solved by applying to the Inept expressions in the first portion of section 29 the relevant canons of construction. Legislative intent is the polestar. Discovery of that intent is the object of all rules of interpretation. Here we think the applicable method is to study the act as a. whole against the historical background of the evil to be cured, and to weigh the title and all of tlie provisions of the act with a view of harmonizing what might seem to be ambiguities or inconsistencies, if looked at only separately, into a rational whole that will accomplish the obvious and declared intention. To that end a court should noi stick in the bark of literalism, but should penetrate to the sap of the spirit of the legislation. And we know' of no better exposition of this attitude than is found in United States v. Kirby, 7 Wall. 482, 19 L. Ed. 278:

“All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the Legislature intended exceptions to its language, which would avoid results of this character. The reason of the law, in such cases, should prevail over its letter. The common sense of man approves the judgment mentioned by Puffendorf that the Bolognian law which enacted ‘that whoever drew blood in the streets should be punished with the utmost severity’ did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the statute of 1 Edward II, which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire, ‘for he is not to be hanged because he would not stay to be burnt.’ ”

The judgment is reversed, with the direction to sustain the demurrer to the plea.