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representatives of his estate, or anyone otherwise entitled to recover damages for such injury.”
Section 29 provides 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 employee, 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, then the right of the employee or personal representative to recover against such other person shall 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 employee. 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 employee 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 such 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 employee 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 employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative, provided that if the injured employee 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 pay
ment on account of such compensation, such employer shall be subrogated to all the rights of such employee, 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 employee, or personal representative or in his own name against such other person for a recovery of damages to which but for this section the said employee or personal representative would be entitled, but such employer shall nevertheless pay over to the injured employee 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."
By the provisions of section 29 an employer is made liable for compensation to his employee for any injury received by the employee in the line of his employment, which injury was caused by the action of a third party, whether the third party in causing the said injury was guilty of negligence or not, if all three are bound by the Compensation act. In case the third party whose action caused the injury is not guilty of negligence or of a violation of any statute and is not liable in an action for damages by the employee against him, the employee, under the provisions of the Compensation act, can recover for his injury in such case even if he could not have had a recovery against anyone but for that act. This is one benefit to the employee from being under the Compensation act that is overlooked by appellant in the discussion by him of the constitutionality of section 29. If, on the other hand, the injury to the employee is caused by the negligence of a third party, or is caused under circumstances that would make the third party liable to the employee. at common law for the injury, under section 29 the third party causing the injury must pay the compensation allowed to the employce
under the statute if all three of them, the employee, the employer and the party causing the injury, are bound by the provisions of the Compensation act, as in this case. He is only bound, however, to pay the same sum of money as would be awarded to the injured employee against his employer under the Compensation act, and his liability is dependent altogether on the question whether or not his negligence or violation of some statute was the proximate cause of the employee's injury and for which the employee could recover damages without regard to the Compensation act. There can be no question, we think, when sections 6 and 29 are construed together, that the employee is not entitled to more than the compensation allowed by the Compensation act in such a case, and the party directly liable to him for such compensation is his employer. Such was the holding of this court in the case of Keeran v. Peoria, Bloomington and Champaign Traction Co. 277 Ill. 413. It was also held in that case that the injured employee could not maintain an action against the party causing the injury where the third party and himself and his employer are all bound by the provisions of the Compensation act. We see no reason for receding from that holding. The positive provisions of the first sentence of said section 29 are, that “the right of the employee or personal representative to recover against such other person shall be subrogated to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained.” 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 employee against the third party causing the injury is transferred to liis employer by operation of section 29. The general doctrine of subrogation is, that where one has been compelled to pay the debt or obligation which ought to have been paid by another, he is entitled to a cession of all the remedies that the creditor possessed against such other party, and that the creditor of such other party who has been paid his debt has no longer any right of action against his debtor. The statute in this case, however, does not even contemplate that the employee must be paid his damages or compensation before his right of action is subrogated or transferred to his employer. This is plainly indicated by the language of the first sentence of section 29, which limits the right of action of the employer to a recovery of an amount not exceeding the aggregate amount of compensation "payable under this act.” We think it clear that the employer may at once, after the compensation is fixed under the Compensation act, in a proceeding by the employee 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 employee without first having paid the employee 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 employee, 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.
By the foregoing construction of sections 6 and 29 we think the whole objection to the constitutionality or validity of section 29 is answered. It is conceded that this court has heretofore, in the case of Keeran v. Peoria, Bloomington and Champaign Traction Co. supra, settled the question of the validity or constitutionality of this section against the contention of appellant, and that almost all other courts of last resort in this country have construed similar acts as constitutional upon the ground that such acts become binding upon employers and employees upon their election to abide by them.
It is thought by appellant, however, that there is one point of hardship against appellant in this case, and against employees generally under similar circumstances, that has been overlooked in our discussion of section 29. One question put to this court by appellant is, what have appellees in this case, or employers similarly situated, waived for the benefits they receive under this section ? And again, what advantage does said section 29 give to the appellant and other employees that may be similarly situated as he now is? These queries are answered by appellant by the statement that appellees do not even waive their common law defenses for the benefit received by them of not paying full damages, and that appellant is prevented by section 29 from recovering an amount sufficient to cover his injuries, as was guaranteed to him by law prior to the enactment of the Compensation act; and further, that he is made dependent solely upon his employer, solvent or insolvent, for his recovery of compensation. We do not think the position of appellant is tenable. By electing to come under the Compensation act and be bound by all of its provisions, including section 29, appellees take upon themselves the liability of paying damages to one of their employees when injured by the action of some third person while the employee is in the line of his employment. Appellees may be thus obligated to pay compensation to their employee for an injury caused by some third person and for which said third person cannot be made to respond to them in like sum as such compensation paid to such employee. On the other hand, this appellant, by electing to come under the act, is not made to depend solely on the solvency or insolvency of his employer in the recovery of his compensation. We think it is clear that under section 29 his damages or compensation is made doubly sure. But for the Compensation act his right of recovery would have been solely against the party who negligently caused the injury. If such party is not guilty of negligence he has no right of action against him and no right to compensation against his employer. Under section 29 his right to compensation against his em