delivered the opinion of the court.
The plaintiffs, Beulah Sutton Dillon, individually, and Joan Marie Dillon, individually, brought suit October 22,1954 under the Dram Shop Act (Ch. 43, Ill. Rev. Stats., 1953, par. 135) against certain defendant tavern operators for loss of means of support as a result of the fatal shooting on July 17, 1954 of James Dillon, husband and father, respectively, of the two plaintiffs, by one Carl Swenson, an intoxicated person, who allegedly was sold or given alcoholic liquor by the defendants, thereby rendering him intoxicated. All of the defendants answered the complaint. For the present purposes, the essential facts, as to which there seems to be no controversy, may be considered to be as follows: At the time of James Dillon’s death, he was employed as a night clerk at the Eastman Hotel, Rockford, which was owned and operated by Robert Eager. Robert Eager carried workmen’s compensation insurance covering his employees in the operation of the hotel with Auto Owners (Mutual) Insurance Company. James Dillon, by reason of his employment and the circumstances of his injury was covered by the Workmen’s Compensation Act. His death arose out of and in the course of his employment by a pistol wound inflicted by Carl Swenson, the intoxicated person. Carl Swenson was not an employee of the Eastman Hotel or Auto Owners (Mutual) Insurance Company. The death of James Dillon was not proximately caused by any negligence of the employer, Robert Eager, or of any of his employees.
Prior to the filing of the Dram Shop suit, Robert Eager, d/b/a Eastman Hotel, entered into a lump sum settlement contract, through his foregoing workman’s compensation insurer, providing for a lump sum settlement with Beulah Dillon only, the widow of James Dillon, which contract was approved by the Industrial Commission. Joan Dillon, the daughter of James Dillon, and one of the plaintiffs in the later Dram Shop suit, was not listed in the compensation case as a dependent of James Dillon, her father, or mentioned in the workmen’s compensation lump sum settlement contract. By that settlement Robert Eager, d/b/a Eastman Hotel, or his compensation insurance carrier, paid Beulah Dillon only, the widow, $6375 workmen’s com.r pensation on September 3, 1954. It does not appear that there are any pending administration proceedings on the estate of the deceased employee, and, in any event, it does not appear that Beulah Dillon (or Joan Dillon) is the personal representative thereof.
Thereafter, following the institution of the Dram Shop suit, Robert Eager, d/b/a Eastman Hotel, and Auto Owners (Mutual) Insurance Company, sought leave to intervene as parties plaintiff in the Dram Shop suit, claiming a right to be subrogated to the extent of the $6375 workmen’s compensation payment, and sought to impress a lien to that extent upon any judgment entered in that suit in favor of the plaintiffs. The appellants’ procedure took the form of a Motion on April 18,1955 to join in the suit and that all orders be made for their protection so that no release or settlement in the action or satisfaction of judgment be valid without their consent, and a Notice of Lien and Subrogation Interest of April 19, 1955 claiming a lien on any amounts recovered by the plaintiffs to the extent of the workmen’s compensation paid. Subsequently, in the Dram Shop suit a series of judgments, agreed upon by the plaintiffs and defendants, were entered June 20, 1955 totalling $3,000 in favor of the plaintiff Beulah Dillon, and $3,000 in favor of the plaintiff Joan Dillon. The Court thereafter, on August 19, 1955, denied the Motion to Intervene of Robert Eager, d/b/a Eastman Hotel and Auto Owners (Mutual) Insurance Company, found that they had no right of subrogation, no right to a lien on the judgments in favor of the plaintiffs, and no right to intervene, and denied the motion to impress a lien on the judgments in favor of the plaintiffs. It is from this order that Robert Eager, d/b/a Eastman Hotel, and Auto Owners (Mutual) Insurance Company appeal. A subsequent order directed the Clerk to hold the money meanwhile paid on the judgments, pending the present appeal. The appellants here ask that the order of August 19, 1955, be reversed, their motion to intervene be granted, that they be found to have a right of subrogation and lien interest in the judgments of June 20,1955, and that the Clerk be directed to pay the $6,000 to the appellants.
The appellants, Robert Eager, d/b/a Eastman Hotel and Auto Owners (Mutual) Insurance Company, the employer and his workmen’s compensation insurer, claim the right to intervene in the Dram Shop suit of the widow and child of the employee, to be subrogated, and to have a lien on the judgments therein in favor of the plaintiffs by reason of the provisions of Ch. 48, Ill. Rev. Stats., 1953, par. 138.5.
Ch. 48, Ill. Rev. Stats., 1953, par. 138.5, being Section 5 of the Workmen’s Compensation Act of 1951, as amended in 1953, provides, so far as material:
“Sec. 5. (a) . . .
“However, in any action now pending or hereafter begun to enforce a common law or statutory right to recover damages for negligently causing the injury or death of any employee it shall not be necessary to allege in the complaint that either the employee or the employer or both were not governed by the provisions of this Act or of any similar Act in force in this or any other State.
“(b) 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 employees and was caused under circumstances creating a legal liability for damages on the part of some person other than the employer to pay damages, 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. In such case, however, 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 including amounts paid or to be paid pursuant to the provisons of paragraph (a) of Secton 8 of this Act.
“If the injured employee or his personal representative shall agree to receive compensation from the employer or accept from the employer any payment on account of such compensation, or to institute proceedings to recover the same, the said employer may have or claim a lien upon any award, judgment or fund out of which such employee might be compensated from such third party.
“In such actions brought by the employee or his personal representative, he shall forthwith notify his employer by personal service or registered mail, of such fact and of the name of the court in which such suit is brought, filing proof thereof in such action. The employer may, at any time thereafter join in said action upon his motion so that all orders of court after hearing and judgment shall be made for his protection. No release or settlement of claim for damages by reason of such injury or death, and no satisfaction of judgment in such proceedings, shall be valid without the written consent of both employer and employee or his personal representative, except in the case of the employers, such consent shall not be required where said employer has been fully indemnified or protected by Court Order.
“In the event the said employee or his personal representative shall fail to institute a proceeding against such third person at any time prior to 3 months before said action would be barred at law said employer may in his own name, or in the name of the employee, or Ms personal representative, commence a proceeding against such other person for the recovery of damages on account of such injury or death to the employee, and out of any amount recovered the employer shall pay over to the injured employee or his 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, including amounts paid or to be paid pursuant to the provisions of paragraph (a) of Section 8 of the Act, and costs, attorney’s fees and reasonable expenses as may be incurred by such employer in making such collection or in enforcing such liability.”
Referring particularly to the provisions of subparagraph (b) of that section, the present Dram Shop suit of the widow and cMld of the employee, in which the employer and his workmen’s compensation insurer seeks to intervene, to be subrogated, and to impress a lien on the plaintiffs’ judgments is not an action “brought by the injured employee or his personal representative” in which a judgment has been obtained and paid or settlement made, within the language thereof. No amount has been or will be “received by such employee or personal representative” in this suit, within the language thereof, from which could be paid to the employer the amount of compensation paid by him. The “injured employee or his personal representative” have not here agreed to receive compensation from the employer or accepted from the employer any payment on account thereof or instituted proceedings to recover the same, and there is no “award, judgment or fund out of which such employee might be compensated from such third party” upon which the employer can possibly “have or claim a lien,” within the language thereof. This not being an action “brought by the employee or his personal representative,” the plaintiffs are not thereby required to notify the employer thereof; the employer is not entitled to join therein upon his motion; and the written consent of the employer is not necessary to a valid release or settlement of claim or satisfaction of judgment herein, the claim or claims of the plaintiffs herein not being a “claim for damages by reason of such injury or death” as referred to in the statute, and this present suit not coming under the terminology “such proceedings” as used in the statute.
The phraseology “personal representative” as used in that subparagraph (b) with respect to suits against third parties, amounts received therein, and workmen’s compensation payments received, which the appellants argue means and includes a widow or child of a deceased employee, has, we believe, instead, its ordinary, commonly accepted meaning and connotation, and means simply the administrator, or executor, or party in like official capacity, of a deceased employee, or the conservator or guardian of an incompetent or minor employee, there being nothing in the context or surrounding circumstances to indicate a contrary intention. See: Johnson v. Van Epps (1884)
The purpose and object of this par. 138.5 of the Workmen’s Compensation Act, so far as now material, is made particularly clear by the opening sentence of subparagraph (b) which reads: “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 employees and was caused under circumstances creating a legal liability for damages on the part of some person other than the employer to pay damages, 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.”, and by the second paragraph of the preceding subparagraph (a) which reads: “However, in any action now pending or hereafter begun to enforce a common law or statutory right to recover damages for negligently causing the injury or death of any employee it shall not be necessary to allege in the complaint that either the employee or the employer or both were not governed by the provisions of this Act or of any similar Act in force in this or any other State.”, and by the last paragraph of subparagraph (b) which reads, in part, “In the event the said employee or his personal representative shall fail to institute a proceeding against such third person at any time prior to 3 months before said action would be barred at law said employer may in his own name or in the name of the employee, or his personal representative, commence a proceeding against such other person for the recovery of damages on account of such injury or death to the employee, . . The meaning, purpose, object, and proper interpretation of paragraph 138.5, must be derived from the whole paragraph, in the light of its history and the prior judicial construction of analogous portions of the Workmen’s Compensation Act formerly in effect, and not just from the phraseology “was caused under circumstances creating a legal liability for damages on the part of some person other than the employer to pay damages” in subparagraph (b), as the appellants seek to do.
Paragraph 138.5, so far as now material, was intended to provide for the case where' the injury or death of an employee for which workmen’s compensation is, in any event, payable by the employer was not proximately caused by the negligence of the employer or his employees, but was caused by the negligence of some third party creating a legal liability for damages on the part of that third party, for which an action would lie either by the employee or his personal representative to enforce a common-law or statutory right, under the wrongful death statute, to recover damages for so negligently causing the injury or death of the employee, and to permit legal proceedings to be taken against such third party to recover such damages for such injury or death, notwithstanding the employer’s payment of or liability to pay workmen’s compensation, and, further, to permit in those cases a method of indemnification of or repayment to the employer out of any such recovery of the compensation he had paid or become liable for, with concomitant rights in the employer in those cases to a lien on any award, judgment, or fund, and to join in that kind of action, to consent or not consent to releases or settlements of that kind of claim, and to himself commence that kind of proceeding if, under certain circumstances, it was not otherwise instituted. A third party’s liability in a case under the Dram Shop Act does not rest on any theory of negligence at all.
So understood as to its purposes and objects, the remaining provisions of par. 138.5, and particularly of subparagraph (b) thereof, are logical, cohesive, comparatively simple, and relatively easy to apply in the types of cases to which it was intended to be applied, namely, suits either at common law or under the wrongful death statute by the employee or his personal representative for damages on account of his injuries or death negligently caused by the third party, and the indemnification of or repayment to or recoupment by the nonnegligent employer therein of the compensation he’d paid or become liable for. Those provisions, on the other hand, are anomalous, incongruous, inapposite, and inappropriate when attempted to be applied to a case of the type of the case at bar.
Subparagraph (b) of par. 138.5 is substantially similar to a part of Section 29 of the former Workmen’s Compensation Act (Ch. 48, Ill. Rev. Stats., 1949, par. 166), formerly in effect, in substance, with some amendments, since 1913. The judicial construction, interpretation and observations in cases arising under Section 29 of the former Act are equally applicable and. apposite to the consideration of the corresponding provisions of subparagraph (b) of par. 138.5: Angerstein, Ill. Work. Comp., Vol. 2, pp. 45-46, 70. Subparagraph (b) of par. 138.5 relates to the rights of the employee and the employer in cases where the employee is injured in the course of his employment solely by the negligent act of a third party: Angerstein, supra, Vol. 2, p. 28. The legislative objective, as judicially construed in cases arising under Section 29 of the former Act, was to afford a remedy for reimbursement of a nonnegligent employer who has been compelled to pay compensation to an employee or his dependent as a direct result of the negligence of a third party: Angerstein, supra, Vol. 2, pp. 46, 70, 71. It is essential in order that there be an action against the third party that there be a legal liability for damages; the complaint must state a good common-law cause of action and the proof must establish a good common-law or statutory right of recovery of damages for negligence or wrongful death; the negligence of the third party must be the proximate cause of the injury or death: Angerstein, supra, Vol. 2, pp. 57, 58, 59, 81.
Under the former Section 29, the predecessor of the present subparagraph (b) of par. 138.5, the common-law right of action for the injury of an employee against the third party whose neglect caused the injury is preserved for the indemnification of the employer for workmen’s compensation paid or allowed where the injury arose out of and in the course of the employment, and for the benefit of the employee: Gones v. Fisher (1919)
The appellants have referred us to no case, and we know of none, and Angerstein, supra, refers to none where either Section 29 of the former Act, or par. 138.5, of the present Act, have been held applicable to and applied to a cause of action, action, suit, or proceeding against a third party under the Dram Shop Act, .and the attempted indemnification or recoupment thereby of a nonnegligent employer, or where either has been held applicable to and applied to anything other than a common-law or statutory negligence cause of action, action, suit, or proceeding by the employee or his personal representative (or the employer or his workmen’s compensation insurer) against a third party for damages for negligently causing the injury or death of the employee, and, in turn, the indemnification or recoupment of a nonnegligent employer.
The Dram Shop Act, Ch. 43, Ill. Rev. Stats. 1953, par. 135, under which the present suit is brought, provides, so far as material:
“Sec. 14. Every husband, wife, child, parent, guardian, employer or other person, who shall be injured, in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; . .
A cause of action thereunder is not a common-law action; it is not based upon and does not depend upon negligence at all; it is entirely statutory in character: Schroder v. Crawford (1880)
The amount of workmen’s compensation here paid, $6375, was not paid to the employee, deceased, or to his personal representative. It was paid to Beulah Dillon, the widow, pursuant to and in discharge of the statutory obligation of the employer and his insurer under the Workmen’s Compensation Act, existing independently of whether the employer and insurer have any right of indemnification or recoupment from anyone else, she evidently being the person who formed the basis for determining the amount of compensation to be paid by the employer: Ch. 48, Ill. Rev. Stats., 1953, par. 138.7 (a) and (e). Neither the injured employee or his personal representative agreed to receive compensation, or accepted any payment thereof on account, or instituted any proceedings to recover such.
The statute, Ch. 48, Ill. Rev. Stats., 1953, par. 138.5, upon which the appellants rely, is, therefore, not here applicable, gives them no right to intervene in this Dram Shop suit, gives them no right to be subrogated, and gives them no lien on the judgments herein in favor of the plaintiffs.
A considerable part of the brief of the appellants is, in addition, devoted to urging that they, as the employer of the deceased employee, and his workmen’s compensation insurer, have been injured in their property by the intoxicated person, or in consequence of that person’s intoxication, because of the required workmen’s compensation payment made by them to the employee’s widow, and that they hence have right of action in their own names against the defendants who allegedly sold or gave alcoholic liquor to that person and thereby caused such intoxication, pursuant to the Dram Shop Act, Ch. 43, Ill. Rev. Stats., 1953, par. 135, and many of the authorities they cite are cited as being in support of that theory. That theory and contention, if we understand it correctly, is entirely separate from and disassociated from the particular provision of the Workmen’s Compensation Act otherwise here under consideration, Ch. 48, Ill. Rev. Stats., 1953, par. 138.5. That argument presents a question on facts which are not in this case. This is not a suit by the employer or his compensation insurer against these defendants under the Dram Shop Act and we are not called upon to determine whether there is or is not such a right of action in the appellants thereunder as they urge. This is a suit by the widow and child of the employee against these defendants under that Act for their alleged injury in their means of support. Even if the appellants’ theory in this respect were correct and there were a right of action in the appellants under the same Act against these same defendants for which they could maintain a separate suit themselves, which we do not determine one way or the other, that would seem to have no bearing whatever upon the separate rights of action of the widow and child, would not destroy such separate rights, and would not, because thereof, give the appellants a “common law right of subrogation and right of lien” in and to the judgments here recovered by the widow and child on their separate rights of action. The appellants’ conclusion from their theory in this respect is “the employer and insurance company now rightly, both legally and equitably, have a common law right of subrogation and right of lien” in and to the plaintiff’s judgments herein, and that conclusion, we believe, is a non sequitur, even, assuming the theory to be correct, which question, as we say, is not here presented or determined.
The appellants refer to a number of Illinois cases. Some of them we have already commented on,—F. K. Ketler Co. v. Industrial Commission, supra; Huntoon v. Pritchard, supra; Baker & Conrad Inc. v. Chicago Heights Const. Co., supra; Melohn v. Ganley, supra; Gones v. Fisher, supra; O’Brien v. Chicago City Ry. Co., supra. They and, generally speaking, all the other cases so referred to by the appellants involve, in varying forms, and with sometimes different specific phases or points particularly presented, common-law or statutory negligence actions or causes of action by the employee or his personal representative (or the employer or his workmen’s compensation insurer) against a third party for damages arising because of the alleged negligent injury or death of the employee, and the application, inter alia, of Section 29 of the former Act to the particular situation presented. None of them (with one exception)' have anything to do with a suit or cause of action by anyone against a third party under the Dram Shop Act. And none of them have anything to do with any claimed common-law subrogation principles or rights of the employer or his insurer. Nordland v. Poor Sisters of St. Francis Seraph of Perpetual Devotion (1955)
In Grasse v. Dealer’s Transport Co. (1952)
In Geneva Const. Co. v. Martin Transfer & Storage Co. (1954)
If the appellants here are relying upon some claimed common-law right of subrogation, of lien, and of intervention, separate from and independent of their claims under the statute, Ch. 48, Ill. Rev. Stats., 1953, par. 138.5, which matter is not made clear in their briefs, such is a claim or theory evidently not presented to and urged in the trial 'court, and they may not try their case on one theory in that court and, to that extent, upon a distinct and wholly different theory in the Appellate Court: Davis v. Illinois Collieries Co. (1908)
The appellants say that since Joan Dillon, the daughter of the employee, and one of the plaintiffs herein, was not listed as a dependent in the workmen’s compensation proceeding, it constituted a gross fraud on the appellants to enter the judgments herein for $3000 in her favor without the written approval of the appellants, and such are not binding on them. No authority is cited for that, no further reason therefor or explanation thereof is given other than the general statement of the proposition, and we do not understand the logic thereof. It does not appear whether Joan Dillon was or was not legally a dependent of the' employee under the compensation act, and should or should not have been classed in the compensation proceeding, but if she was such a dependent thereunder and should have been so classed the failure to do so apparently could not have hurt the appellants but rather have benefited them, as evidently the compensation award could have been greater than it was had she been so included. How that makes the judgments in this cause in her favor a gross fraud on the appellants, we do not perceive.
The order of August 19, 1955 will, therefore, be affirmed.
Affirmed.
DOVE, P. J. and EOVALDI, J., concur.