Calvert v. Illinois Power & Light Corp.
| Decision Date | 30 June 1937 |
| Docket Number | Gen. No. 39196. |
| Citation | 9 N.E.2d 443,291 Ill.App. 243 |
| Court | United States Appellate Court of Illinois |
| Parties | CALVERT v. ILLINOIS POWER & LIGHT CORPORATION. |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Cook County.
Suit by Jack Russell Calvert against the Illinois Power & Light Corporation. To review an order granting defendant's motion for a new trial after verdict for the plaintiff, the plaintiff petitioned for leave to appeal, which was allowed.
Order granting a new trial vacated and set aside and judgment rendered for the defendant. E. Bentley Hamilton, of Peoria, for appellant.
Crahen, Sullivan, O'Toole & Sullivan and George E. Billett, all of Chicago, for appellee.
This cause is in this court upon the petition of the plaintiff for leave to appeal from an order of the superior court of Cook county granting a new trial, which was allowed.
On April 29, 1936, after a hearing of the cause before the court and a jury, a verdict was returned in open court finding the issues for the plaintiff and assessing his damages in the sum of $21,250.
Thereafter the defendant filed a motion for judgment non obstante veredicto, and also a motion for a new trial; and subsequent thereto, on July 31, 1936, the trial judge granted defendant's motion for a new trial.
The action upon which this case was brought is one at common law for alleged negligence, and was instituted by the plaintiff against the defendant company, as the result of an accident which happened on September 14, 1930, whereby the plaintiff was injured. At the time of the accident and prior thereto, plaintiff was a student at the University of Illinois, located at Champaign, Ill.
To the declaration the defendant filed a plea of the general issue, and subsequent thereto several specific pleas were filed by the defendant company in which it is alleged that the plaintiff was barred from recovery in his common-law action, due to the fact that the University of Illinois was operating under and subject to the provisions of the Workmen's Compensation Act of Illinois (Smith-Hurd Ill.Stats. c. 48, § 138 et seq.).
Replications were filed by the plaintiff to these several pleas.
The evidence offered on behalf of the plaintiff shows that on the day in question he was driving a milk wagon owned by the University of Illinois, in a northerly direction upon a certain thoroughfare known as Sixth street, at the intersection of John street, in Champaign, Ill., about 6 a. m., when his truck came in contact with a certain trolley wire, which had become loosened and was looped down over the street at a height of about 6 feet from the street level, and of which the plaintiff had no knowledge until it came in contact with the windshield of his truck; that the defendant company had notice of the condition of the hanging trolley wire over the street at the point hereinabove indicated, but that, after receiving notice of this condition about 5 a. m., an hour before the accident occurred, the company made no effort to guard the intersection or to remove the wire hanging in the manner described until at least an hour after receiving notice. There is evidence, however, that a police officer of Champaign, Ill., was present at the intersection directing traffic prior to the time of the occurrence of the accident, but that he had left the intersection and was at least 50 feet away when the accident took place.
The evidence shows that plaintiff's injuries were of a permanent character; that he was obliged to expend $5,000 for medical and hospital care; and that at the present time his nose is deformed and his eyesight impaired.
The defendant offered evidence by the testimony of certain employees of the University of Illinois that the University of Illinois in certain of its departments kept, maintained, and operated certain machinery, sharp-edged tools, electric motors, motortrucks, etc., for the purpose of showing that the University of Illinois automatically was bound by the Workmen's Compensation Act. The plaintiff urges that the order granting a new trial was erroneous for the following reasons:
(1) That the question as to whether or not a person or corporation is operating under the Workmen's Compensation Act is a question of fact.
(2) That the University of Illinois was not operating under the Compensation Act either automatically or by election.
(3) That upon a motion for a new trial the trial court, when passing on said motion, has no right to weigh the evidence, and the verdict in this case was warranted by the record and justified by the evidence.
The important issue in this case is whether the defendant was controlled by the provisions of the Workmen's Compensation Act in force at the time of the accident. Section 138(a) chapter 48, Smith-Hurd Ill.Stats., paragraph 201(a) of (section 1 of the Act) chapter 48, Ill.Rev.Stat.1935, is as follows: “Election by any employer to provide and pay compensation according to the provisions of this Act shall be made by the employer filing notice of such election with the industrial commission, or by insuring his liability to pay compensation under this act in some insurance carrier authorized, licensed or permitted to do such insurance business in this State.”
Section 139 of chapter 48 of Smith-Hurd Ill.Stats., paragraph 202, c. 48, Ill.Rev.Stats.1935 (), which applies not alone to individuals, but also to municipal corporations, is in the following words:
“The provisions of this Act hereinafter following shall apply automatically and without election to the State, county, city, town, township, incorporated village or school district, body politic or municipal corporation, and to all employers and all their employees, engaged in any department of the following enterprises or businesses which are declared to be extra hazardous, namely: * * *
The plaintiff during September of 1930, and also during the year previous, had worked for the University as a driver of one of its milk trucks used for delivering milk to private consumers, which was sold both at retail and wholesale to persons and corporations in the cities of Champaign and Urbana, Ill., at rates somewhat higher than regular rates for milk in that vicinity, and plaintiff had also worked in the Bottling Works of the University, for which work he received 35 cents per hour in 1929 and 1930.
The defendant calls our attention to the evidence that the University maintained three retail trucks and one wholesale truck for the delivery of milk to retail and wholesale customers, all of which were motor driven. This employment of the plaintiff in delivering milk was from 4:30 a. m. to 7:30 a. m., for which he was paid and received compensation of $40 per month. On the morning in question he was not only taking care of his own route but also the route of another driver who was absent on vacation. This work was done with the knowledge and acquiescence of the University, and was performed as one of the conditions laid down by the University; namely, that one driver should take over the route of another if it became necessary for any reason to do so.
There seems to be no dispute in the evidence that the University employed more than two trucks and more than two employees in the delivery of a commodity for hire, and that altogether the University had between 200 and 300 men working as employees who were not students or connected in any way with the instruction or courses offered by the University. The men so employed operated wood-working machinery, electric drills, maintained the various sharpedged tools, saws, and various implements which were kept by the University, and worked in the machine shop, the power plant, and on band saws, planers, drills, joiners, and lathes.
On April 2, 1930 the United States Fidelity & Guaranty Company issued its certificate of insurance, insuring the board of trustees of the University of Illinois for accidents to chemists, clerical office, drivers, and chauffeurs under policy No. 2--539607. The Indemnity Company of North America also issued a certificate of insurance for a policy effective February 4, 1929, which continued in force until the policy of the United States Fidelity & Guaranty Company became effective on April 2, 1930. The records of the Industrial Commission show that the insurance remained in full force and effect until March 21, 1931.
The University of Illinois was a “body corporate and politic” of the state of Illinois. It was incorporated under the Act entitled, “An Act to provide for the organization and maintenance of the Illinois Industrial University,” approved February 28, 1867, and the act, which is set forth in Smith-Hurd Illinois Revised Statutes, c. 144, § 22 (section 1), provides that it “shall be a body corporate and politic, to be styled ‘The Board of Trustees of the Illinois Industrial University,’ ” and by Amendment approved June 19, 1885 (page 252 [Smith-Hurd Ill.Stats. c. 144, § 48]), the name was changed to University of Illinois. The act further provided that it should have power to contract and be contracted with, to sue and be sued, to plead and be impleaded, etc.
The defendant contends that plaintiff was a student only in landscape gardening and had nothing whatever to do, so far as his instruction was concerned, with the dairy department or the agricultural department, both of which were under the School of Agriculture.
Defendant also contends that the University used explosive gases or vapors or corrosive acids, and sharp-edged cutting tools, grinders, or implements, and is an enterprise in which statutory or municipal ordinance regulations are...
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