Burgess v. Erickson

• Decision Date: 20 June 1966
• Docket Number: Gen. No. 65--73
• Citation: 218 N.E.2d 111,72 Ill.App.2d 85
• Parties: Edsel L. BURGESS, Plaintiff-Appellant, v. Allyn ERICKSON, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 111

218 N.E.2d 111

72 Ill.App.2d 85

Edsel L. BURGESS, Plaintiff-Appellant, v. Allyn ERICKSON, Defendant-Appellee.

Gen. No. 65--73.

Appellate Court of Illinois, Third District.

June 20, 1966.

Elmo E. Koos, Peoria, for appellant.

McConnell, Kennedy, McConnell & Morris, Peoria, for appellee.

CORYN, Presiding Justice.

This is an appeal from a summary judgment entered for defendant, Allyn Erickson, on a motion in bar of a cause by plaintiff, Edsel Burgess, to recover for personal injuries allegedly caused by defendant's negligence. By affirmative defense, defendant asserted that the incident complained of arose out of and in the course of the joint employment of the parties by a common employer operating under the provisions of the Workmen's Compensation Act, and that this common law cause was therefore barred by § 5(a) of that Act. (Ill.Rev.Stats., ch. 48, § 138.5(a)). Plaintiff denied the applicability of the Workmen's Compensation Act. Affidavits, counteraffidavits, and part of plaintiff's discovery deposition were given in support of and against defendant's motion.

Defendant has filed a motion here to dismiss this appeal for the reason that plaintiff did not file the record on appeal within sixty days as required by Ch. 110, § 201.1(2)(d), Ill.Rev.Stats. The notice of appeal was filed on September 7, 1965, and the sixtieth day from that date was November 6, 1965. The office of the Clerk of the Appellate Court was closed on November 6, being Saturday, and the appellant filed the record on appeal the following Monday, that is, November 8, 1965, which was sixty-two days from the date the notice of appeal was filed. The time within which the record on appeal must be filed in this court is computed by excluding the first day, that is, the day on which the notice of appeal is filed, and including the last day, unless the last day is a Sunday, a legal holiday, or a day in which the office of the clerk of this court is closed. Ill.Rev.Stats., ch. 131, § 1.11; Pettigrove v. Parro Construction Corp., 44 Ill.App.2d 421, 194 N.E.2d 521. Accordingly, the filing of the record on appeal herein on Monday, November 8, 1965, was within the time prescribed by law, and therefore the motion to dismiss this appeal is denied.

The essential facts of this case, as established by the pleadings and the deposition and affidavits attached to the motion are not in dispute. Plaintiff, on November 21, 1961, and left Building W at 7:30 a.m. after completing his work shift at the East Peoria plant of the Caterpillar Tractor Company, and was crossing the company's Parking Lot #9 on his way to another company parking lot to meet his car pool. Defendant, on his way to work at Caterpillar, drove his car into Parking Lot #9 and there struck plaintiff. Parking Lot #9 was reserved for use of supervisory personnel and neither plaintiff nor defendant were authorized to park there. The sole issue to be determined, then, is whether, under these facts, plaintiff's suit against defendant is barred by § 5(a) of the Workmen's Compensation Act.

A similar situation was presented in Chmelik v. Vana, 31 Ill.2d 272, 201 N.E.2d...