delivered the opinion of the court:
Aрpellant, C. B. Gones, began this action on the case in the circuit court of Vermilion county against appellee, J. G. Fisher, the Illinois Printing Company and Newton Shields for damages for .personal injuries, charging in his declaration that while he was in the exercise of reasonable care for his own safety he was injured by the negligence of the defendants in operating an automobile. A verdict of $5000 was recovered by appellant, upon which judgment was entered. On appeal to the Appellate Court for the Third District the judgment was reversed, the court holding that there was no liability against the Illinois' Printing Company and Newton Shields, and the cause was remanded for further proceedings against appellee. Upon re-instatement in the circuit court the suit was dismissed as- to the defendants the Illinois Printing Company and Newton Shields and an amended declaration containing practically the same averments against appellee as were in the original declaration was filed against him alone. Appellee filed pleas of the general issue, thе Statute of Limitations and five special pleas. Afterward he withdrew the plea of the Statute of Limitations, and thereupon the court overruled appellant’s demurrer to the five special pleas. Appellant elected to stand by his demurrer. The cоurt entered judgment in bar of the action, and the appellant has appealed directly to- this court on the ground that the constitutionality of section 29 of the Workmen’s Compensation act is involved.
Three of the special- pleas alleged, in substance, that appellant at the time of his alleged injuries was employed by a co-partnership, Schmitt & Leachman; that both appellant and his employers had elected to be bound by the Workmen’s Compensation act and were within its provisions and that apрellee had elected not to be bound by that act; that appellant’s injuries occurred in the course of and arose out of his employment and were not proximately caused by the negligence of his employers or their employees; that appellant had agreed to accept, and had accepted from his employers for his injuries, the sum of $1000 under the Workmen’s Compensation act; that this action is not maintained in appellant’s name by his employers, wherefore no cause of actiоn arose against appellee in favor of appellant and he could not maintain the action, but any action for his alleged injuries could be maintained or continued only by his employers in their name or in the name of the appellant. The other special pleas contained substantially the same averments as the first three special pleas, except that they contained no averments that appellee had or had not elected to come under the Workmen’s Compensation аct.
The pleas were based on sections 6 and 29 of the Workmen’s Compensation act, the first of which provides that no common law or statutory right to recover damages for injury or death sustained by an employee while engaged in the line of his duty as such employee, other than the compensation provided in the act, shall be available to any employee who is covered by the provisions of the act. That section is qualified by section 29, which, so far as is material to this case, reads as follows: “Where thе injury or death for which compensation is payable undér 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 somе 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 his 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 payment 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 the recovery of damages to which but for this section the said employee or personal representаtive 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 рaid 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.” (Hurd’s Stat. 1917, p. 1466.)
It is contended by the appellant that if section 29 deprives employeеs of their right to recover from third parties who are not under the act for injuries caused by their negligence such a provision is not within the title of the act, as required by section 13 of article 4 of the constitution, and deprives appellant of his property without duе process of law, contrary to the provisions of section 2 of article 2 of the constitution. Sections 6 and 29 were fully considered in the cases of Keeran v. Peoria, Bloomington and Champaign Traction Co.
By the express provisions of sеction 29 above quoted, where the person by whose neglect the injury is caused has elected not to be bound by the act, as alleged in three of the pleas now ■ under consideration, the common law right of action is preserved against him in full. In such case thе employee is not put to his election between compensation under the Compensation act and damages at common law. . The common law action and the claim for statutory compensation may be prosecuted at the same time. Said section does not limit the damages which may be recovered in the action at law to the amount of compensation allowed to the employee, but does provide for the indemnification of the employer out of the amount recovered. After the employer is thus completely indemnified the employee is entitled to the entire balance of the judgment recovered, if there is a recovery for more than is sufficient for such indemnification. The employer is given the right to sue for the entire damаges, either in his own name or in the name of the injured employee, or he may continue any suit begun in the name of such employee after his liability for compensation is fixed or paid. The right of action is not otherwise modified by the Compensation act. The law action in such a case is continued and maintainable for the use of both employer and employee, for both are supposed to be, and are in fact, interested in the judgment. Each party has an actual and enforcible interest in the judgment
in cases whеre it is in excess of indemnity to the employer, and each party necessarily would have the right to enforce the collection of the judgment and the payment to himself of the portion thereof legally belonging to him. The party in whom is the legal right of action mаy bring and maintain a suit, and it is not necessary that the record should show for whose use or benefit the suit is brought. (Atkins v. Moore,
The pleas in question stated no defense to appellant’s declaration. The judgment is therefore reversed and the cause is remanded, with directions to sustain the appellant’s U er"
Reversed and remanded, with directions.