{ "id": 3411037, "name": "Alice Classen, Public Administrator and Administratrix of Estate of Curtis Nelson, Deceased, Appellant, v. Edward C. Heil, Appellee", "name_abbreviation": "Classen v. Heil", "decision_date": "1947-02-04", "docket_number": "Term No. 4605", "first_page": "433", "last_page": "439", "citations": [ { "type": "official", "cite": "330 Ill. App. 433" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "380 Ill. 341", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2553395 ], "opinion_index": 0, "case_paths": [ "/ill/380/0341-01" ] }, { "cite": "300 Ill. 119", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2424987 ], "opinion_index": 0, "case_paths": [ "/ill/300/0119-01" ] }, { "cite": "161 Ill. 316", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3122994 ], "opinion_index": 0, "case_paths": [ "/ill/161/0316-01" ] }, { "cite": "329 Ill. 82", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5202007 ], "opinion_index": 0, "case_paths": [ "/ill/329/0082-01" ] }, { "cite": "327 Ill. App. 197", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3421666 ], "opinion_index": 0, "case_paths": [ "/ill-app/327/0197-01" ] }, { "cite": "159 Ill. 46", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3133829 ], "pin_cites": [ { "page": "52, 53" } ], "opinion_index": 0, "case_paths": [ "/ill/159/0046-01" ] }, { "cite": "384 Ill. 564", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2491356 ], "pin_cites": [ { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/ill/384/0564-01" ] }, { "cite": "284 Ill. App. 463", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3159736 ], "pin_cites": [ { "page": "474, 475" } ], "opinion_index": 0, "case_paths": [ "/ill-app/284/0463-01" ] } ], "analysis": { "cardinality": 425, "char_count": 9238, "ocr_confidence": 0.537, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.09513064275175889 }, "sha256": "1badbec7b86d72be3d4779c3f25c27aa1356f5769e68501aa0073899b4ca402e", "simhash": "1:262bd63d21a01453", "word_count": 1543 }, "last_updated": "2023-07-14T21:56:15.773386+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Alice Classen, Public Administrator and Administratrix of Estate of Curtis Nelson, Deceased, Appellant, v. Edward C. Heil, Appellee." ], "opinions": [ { "text": "Mr. Justice Smith\ndelivered the opinion of the court.\nBy this appeal the plaintiff seeks to reverse an order sustaining the defendant\u2019s motion to dismiss plaintiff\u2019s complaint under sec. 48 of the Civil Practice Act [Ill. Rev. Stat. 1945, ch. 110, par. 172; Jones Ill. Stats. Ann. 104.048].\nPlaintiff appellant, Alice Classen, public administrator and administratrix of the estate of Curtis Nelson, deceased, hereinafter referred to as the plaintiff, instituted a suit against defendant appellee, Edward C. Heil, hereinafter referred to as the defendant, to.recover judgment against him for damages sustained by the next of kin and heirs at law of Curtis Nelson, deceased, because of his death resulting from injuries sustained by him when he was struck by a truck being driven by the defendant.\nThe plaintiff\u2019s complaint sets out a cause of action for wrongful death. The defendant\u2019s motion to dismiss is on two grounds but the motion was allowed by the trial court on the first ground, namely, that which challenged the plaintiff\u2019s legal capacity to sue. The motion to dismiss alleges that it affirmatively appears from the plaintiff\u2019s complaint that the decedent was an employee of the highway department of St. Clair county, Illinois, and while in the course of his employment he received the injuries which resulted in his death. It further alleges that it does not appear from the plaintiff\u2019s complaint that at the time Nelson sustained the injuries from which he died the defendant was not subject to and bound by the provisions of the Workmen\u2019s Compensation Act. It further alleges that the defendant was an employee of Philip G. Knecht as highway commissioner of the Town of Marissa of St. Clair county, Illinois, and was bound by the provisions of the Workmen\u2019s Compensation Act. The basis of the motion is that by virtue of sec. 29 of the Workmen\u2019s Compensation Act [Ill. Rev. Stat. 1945, eh. 48, par. 172.29; Jones Ill. Stats. Ann. 143.16 (29)] the alleged cause of action for wrongful death of the said Curtis Nelson against the defendant was transferred to the employer of the said Curtis Nelson, because both Curtis Nelson and the defendant were operating under and bound by the Workmen\u2019s Compensation Act, and the plaintiff does not have a cause of action against this defendant. The defendant filed with his motion a joint affidavit signed by Philip G. Knecht and himself, which states in substance that at the time Nelson was struck by the truck driven by the defendant, the defendant was an employee of the highway commissioner of the Town of Marissa and that said highway commissioner had insured his liability under the Workmen\u2019s Compensation Act.\nThe plaintiff filed no pleading challenging the sufficiency of the defendant\u2019s motion to dismiss or the attached affidavit in support of it.\nThe trial court found that the provisions of the Workmen\u2019s Compensation Act abolished the common law right of action which the plaintiff had against the defendant, because all parties to said suit were subject to the provisions of the Act and allowed the motion to dismiss and entered a judgment against the plaintiff for costs.\nParagraph \u201ca, \u201d of the first point of the plaintiff\u2019s assignments of error on this appeal refers to the incompetency of the defendant to sign the affidavit in support of the motion to dismiss by virtue of sec. 2 of the Evidence Act [Ill. Rev. Stat. 1945, ch. 51, par. 2; Jones Ill. Stats. Ann. 107.068]. Paragraph \u201cb,\u201d avers that the entire affidavit is incompetent because it is impossible to determine what part is competent, as all matters are not within the knowledge of both affiants. Paragraph \u201cc,\u201d avers that the affidavit states conclusions rather than facts. All of these points attack the sufficiency of the affidavit in support of the defendant\u2019s motion to dismiss.\nAs to the defendant signing the attached affidavit, there is no question that he would have been an incompetent person to testify at the trial had the plaintiff objected because he was an adverse party defending in a suit brought by the administrator of a deceased person. By the same token the defendant was an improper party to the affidavit, had the plaintiff objected. The proper method of objecting was for the plaintiff to file a countermotion to strike the affidavit, as provided in sec. 45 of the Civil Practice Act [Ill. Rev. Stat. 1945, ch. 110, par. 169; Jones Ill. Stats. Ann. 104.045]. (People for use of Dyer v. Sanculius, 284 Ill. App. 463, 474, 475.) The plaintiff by failing to object to the defendant\u2019s participation in this affidavit waived this objection. It is well settled that incompetent evidence, which is admitted without objection, cannot be objected to for the first time in an appellate court. (Clarke v. Storchak, 384 Ill. 564, 582; Doty v. Doty, 159 Ill. 46, 52, 53.)\nAs to the plaintiff\u2019s contention that the entire affidavit is incompetent, because it is impossible to tell what is competent, and, because it states conclusions rather than facts, we are of the opinion that these defects have also been waived by the plaintiff\u2019s failure to object to the sufficiency of the affidavit. Section 42, subpar. (3), of the Civil Practice Act [Ill. Rev. Stat. 1945, eh. 110, par. 166, subpar. (3); Jones Ill. Stats. Ann. 104.042, subpar. (3)] provides, \u201cAll defects in pleadings, either in form or substance, not objected to in the trial court shall be deemed to be waived.\u201d In Thomas v. Bourdes, 327 Ill. App. 197, the defendant filed a motion to dismiss under section 48, subpar. (f) of the Civil Practice Act [Ill. Rev. Stat. 1945, ch. 110, par. 172, subpar. (f); Jones Ill. Stats. Ann. 104.048, subpar. (f)] and attached certain affidavits to show that the cause of action was barred by the statute of limitations, some of which were executed by attorneys for certain defendants. The plaintiff filed no pleading attacking the motion. The motion was granted and the suit was dismissed. On appeal, in answer to the plaintiff\u2019s attack on the affidavits executed by the attorneys, the court said at page 202, \u201cSince these points were not raised before the trial court, we shall not consider them.\u201d\nThe case of Kunde v. Prentice, 329 Ill. 82, is to the same effect, where the court, in passing on alleged irregularities in an affidavit for garnishment said, \u201cEven if the affidavit was defective in this respect, its sufficiency was not questioned in the motion to open the judgment. The sufficiency of an affidavit is waived by a failure to object to it in the trial court. (Commercial Natl. Bank v. Payne, 161 Ill. 316.)\u201d\nThe second point of the plaintiff\u2019s assignment of errors, paragraph \u201ca,\u201d avers that the affidavit appended to the motion to dismiss does not reveal that both parties are subject to the Compensation Act. However, an examination of the affidavit reveals that the defendant was an employee of the Town of Marissa and it is not controverted that the Town of Marissa was bound by the Workmen\u2019s Compensation Act. The affidavit gave a detailed statement of the employment of the defendant by the highway commissioner of the Town of Marissa and traced his actions up until the defendant\u2019s truck struck Nelson. The facts set out are considered sufficient to definitely establish the relationship of employer and employee between the highway commissioner and the defendant. This being true, the averment in paragraph \u201cb,\u201d that there were no facts before the court upon which to base such a finding, is also disposed of.\nUnder paragraph \u201c c, \u201d the plaintiff avers that the affidavit attached to the motion to dismiss is not the type contemplated by sec. 48 of the Practice Act, and in the argument a point is made of the fact that an affidavit, and not affidavits, was attached. However, in the absence of an objection to the joint affidavit by a proper pleading, as above pointed out, we consider the affidavit attached to the motion to dismiss sufficient to support the finding of the trial court.\nUnder paragraph \u201cd,\u201d the plaintiff avers that the motion to dismiss admitted the well pleaded facts of the complaint and nothing in the complaint indicates that both parties are subject to the provisions of the Compensation Act. This statement fails to take into consideration the new matter brought before the court by the affidavit filed in support of the motion to dismiss. We are of the opinion that the trial court properly found that all parties to the suit were under and bound by the Workmen\u2019s Compensation Act and that the plaintiff did not have the legal capacity to sue. The law is well settled that under such circumstances, sec. 29 of the Workmen\u2019s Compensation Act, transfers the right of the plaintiff to sue to his employer. (Goldsmith v. Payne, 300 Ill. 119; Thorton v. Herman, 380 Ill. 341-346.)\nFor the reasons indicated, the order sustaining defendant\u2019s motion to dismiss is affirmed.\nAffirmed.\nCulbertsoh and Bartley, JJ., concur.", "type": "majority", "author": "Mr. Justice Smith" } ], "attorneys": [ "Johnson & Johnson, of Belleville, for appellant.", "Baker, Lesemann, Kagy & Wagner, of East St. Louis, for appellee." ], "corrections": "", "head_matter": "Alice Classen, Public Administrator and Administratrix of Estate of Curtis Nelson, Deceased, Appellant, v. Edward C. Heil, Appellee.\nTerm No. 4605.\nOpinion filed February 4, 1947.\nReleased for publication March 6, 1947.\nJohnson & Johnson, of Belleville, for appellant.\nBaker, Lesemann, Kagy & Wagner, of East St. Louis, for appellee." }, "file_name": "0433-02", "first_page_order": 469, "last_page_order": 475 }