Anderson v. Meyer

• Decision Date: 05 October 1949
• Docket Number: Gen. No. 10284.
• Citation: 87 N.E.2d 787,338 Ill.App. 414
• Parties: ANDERSON v. MEYER.
• Court: United States Appellate Court of Illinois

338 Ill.App. 414

87 N.E.2d 787

ANDERSON

v.MEYER.

Gen. No. 10284.

Appellate Court of Illinois, Second District.

Aug. 10, 1949.

Rehearing Denied Oct. 5, 1949.

Appeal from Circuit Court, Henry County; Ray I. Klingbiel, Judge.

Action by Helen Olson Anderson, administratrix de bonis non of the estate of Arlie Julius Olson, deceased, against Wesley Meyer and Carl Ropp, for the death of the deceased as result of a collision between a truck which the deceased was driving, and truck operated by Wesley Meyer and owned by Carl Ropp. From an adverse judgment, Wesley Meyer appeals.

Judgment affirmed.Welch & Welch, Kewanee, Vera M. Binks, Kewanee, for appellant.

Sollo, Graham & Califf, Moline, Reynolds M. Everett, Galva, for appellee.

WOLFE, Presiding Justice.

This suit was brought in the Circuit Court of Henry County by the Administratrix of the Estate of Arlie Julius Olson, deceased, against Wesley Meyer and Carl Ropp to recover damages under the Injuries Act for negligently causing the death of the plaintiff's intestate. The decedent was fatally injured on April 10, 1045, as a result of a collision between a truck he was driving and a truck being operated by Wesley Meyer on State Highway No. 82 about four miles north of the city of Geneseo.

At the time of the accident the plaintiff's intestate was an employee of Rollin Nelson driving a truck belonging to him. Wesley Meyer was an employee of Carl Ropp as a truck driver and operating a truck belonging to Ropp.

The complaint is based on the alleged improper operation of the truck which was under the control of Meyer. Count one of the complaint charges general negligence of the defendant, Meyer. Count two charges Meyer with wilful and wanton conduct. Count three charges the defendant, Ropp, with general negligence in the operation of his truck by his servant and agent, Wesley Meyer. The fourth count charges Ropp with wilful and wanton conduct through his servant and agent, Wesley Meyer, in the operation of Ropp's truck. There are no facts stated in the complaint from which it appears that the parties and Rollin Nelson were bound by the provisions of the Workmen's Compensation Act, either prima facie or otherwise.

The defendants made a motion to strike the complaint because it does not state a cause of action. This point is not argued in this Court. Vide, Mueller v. Elm Park Hotel Co., 291 Ill. 391, 397, 63 N.E.2d 365.

The motion to strike being overruled, the defendants filed an answer denying the charges of the complaint. There was a trial before a jury. At the close of the plaintiff's evidence the defendant, Meyer, filed a motion for a directed verdict on the first count and a like motion on the second count. Similar motions were made by the defendant, Ropp, on his behalf. Rulings on the motions were reserved by trial judge until the close of all the evidence. At the close of all the evidence, motions as before made for a directed verdict were presented to the Court and overruled.

The defendant then made a motion, ‘to dismiss the case for the following reason. That the record now shows that the remedy of the next of kin, if any, is under the provisions of the Workmen's Compensation Act of the State of Illinois and not under ‘An Act requiring compensation for causing death by wrongful act, neglect or default’ approved February 12th, 1853, as amended.'

After argument by counsel the foregoing motion was overruled by the Court. The defendants based this motion on certain provisions of Section 29 of the Workmen's Compensation Act, Ill.Rev.Stat. c. 48, § 166, which will be hereinafter stated. It is evident that arguments in the trial court, under the motion and testimony of Meyer at the trial tending to prove that Meyer had departed from his employment prior to the accident, lead the plaintiff to make the motions hereafter mentioned in favor of Ropp, the employer of Meyer.

There was a verdict for $6,000.00 against the defendants, Meyer and Ropp. Thereafter the plaintiff made two motions filed on the same day. The first motion asks for judgment in favor of Ropp notwithstanding the verdict, on the ground that there was no evidence that Meyer was acting as the agent of, or in the course of his employment for Ropp at the time of the accident. The other motion was for a new trial against Ropp on the ground that the verdict is contrary to the weight of the evidence in that there was not sufficient evidence that Meyer was the agent of Ropp, or engaged in the course of his employment for Ropp at the time of the accident. The motions were taken under advisement by the trial judge.

Judgment was entered against the defendant, Wesley Meyer, in the amount of $6,000.00 and costs of suit. Subsequently, the trial judge, being of the opinion that the motion for a judgment in favor of Ropp notwithstanding the verdict and the motion for a new trial, as to Ropp being in the alternative, allowed the motion made by the plaintiff in favor of Ropp for a judgment notwithstanding the verdict and rendered judgment in favor of Ropp. The defendant, Meyer, has appealed from the judgment against him.

It is first contended by the defendant that the trial court erred in not dismissing the case at the close of all the evidence as the remedy of the plaintiff, if any, for compensation against his employer, was under the Workmen's Compensation Act. In support of his contention the plaintiff cites a part of Section 29 of the act 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 employees, 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 employee or personal representative to recover against such other person shall be transferred 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.’

Construing Section 29 of the act the Supreme Court in the case of O'Brien v. Chicago City R. Co., 305 Ill. 244, 137 N.E. 214, 218, 27 A.L.R. 479 has held, ‘that the common-law right of action of any employee against any other person than his employer for negligently injuring him in the course of his employment, where such other person is bound by the provisions of the Workmen's Compensation Act, is abolished.’

The defendant bases his foregoing contention on the ground that the evidence in the case shows that Rollin Nelson, the employer of plaintiff's intestate, also plaintiff's intestate, and Carl Ropp, the employer of Meyer, and the defendant, Meyer, were all bound by the Workmen's Compensation Act; that any legal liability of Meyer for damages to the plaintiff's intestate resulting from any negligence of Meyer was transferred to the employer of the plaintiff's intestate.

It appears from the evidence that the two employers, Nelson and Ropp, were each engaged in the business of ‘carriage by land’ under Paragraph 3 of the Workmen's Compensation Act, Ill.Rev.Stat.1947, c. 48, § 139, and it is conceded by the plaintiff that the said employers and their employees were automatically bound by the provisions and terms of the act. The employment of Meyer as a truck driver engaged in the extra-hazardous employment of carriage by land created a risk under his employment which imposed on him a greater danger than upon other persons using the public highways. Mueller Construction Co. v. Industrial Board, 283 Ill. 148, 118 N.E. 1028, L.R.A.1918F, 891, Ann.Cas.1918E, 808.

The arguments of counsel on the first contention of the defendant, are limited and centered on the question whether the defendant, Meyer, at the time of the accident, was acting, ‘in the course of his employment,’ and under the circumstances there existing, whether he and his employer were bound by the Workmen's Compensation Act. As will hereafter appear, the evidence on the question whether Meyer had departed from his employment, at the time of the collision, is not disputed and the problem presented for determination is one of law. Farley v. Industrial Commission, 378 Ill. 234, 37 N.E.2d 787,Chicago & West Towns Rys. v. Industrial Commission, 381 Ill. 257, 45 N.E.2d 285.

In the case of Mueller v. Elm Park Hotel Co., 391 Ill. 391, on page 396, 63 N.E.2d 365, on page 367, it is stated that the case of Stevens v. Illinois Central Railroad Co., 306 Ill. 370, 137 N.E. 859 announces: ‘The rule * * * that where it appears from the complaint or the evidence that the plaintiff was employed in an extra-hazardous occupation which is automatically under the act, and also that the defendant was engaged in an extra-hazardous occupation, which would prima facie make it automatically subject to the provisions of the act, the burden is on the plaintiff to show either that the defendant causing the injury was not under the act or that the injury did not arise out of and in the course of the employment of the plaintiff. In the Stevens case, it appeared from both the pleadings and the evidence that the plaintiff, at the time of his injury, was employed in a business covered by the act, and that the defendant was engaged in a business which would prima facie automatically subject it to the provisions of the act, unless it was engaged in interstate commerce at the time complained of. In this situation it was necessary for the plaintiff to show either that the defendant was not at that particular time bound by the provisions of the act, or that the injury did not arise out of and in the course of his employment.’

We have for determination here whether or not the accident was caused by the alleged negligence of Meyer while acting, ‘in the...