Goodrick v. Industrial Com'n

• Decision Date: 10 December 1992
• Docket Number: No. 3-92-0024,3-92-0024
• Citation: 178 Ill.Dec. 681,605 N.E.2d 120,237 Ill.App.3d 885
• Parties: , 178 Ill.Dec. 681 Normand GOODRICK, Appellant, v. The INDUSTRIAL COMMISSION et al. (Albert Cioni d/b/a Granville Motor Company, Appellee). WC. Third District, Industrial Commission Division
• Court: United States Appellate Court of Illinois

Page 120

605 N.E.2d 120

237 Ill.App.3d 885, 178 Ill.Dec. 681

Normand GOODRICK, Appellant, v. The INDUSTRIAL COMMISSION et al. (Albert Cioni d/b/a

Granville Motor Company, Appellee).

No. 3-92-0024 WC.

Appellate Court of Illinois,

Third District,

Industrial Commission Division.

Dec. 10, 1992.

R.J. Lannon, Jr., Herbolsheimer, Lannon, Henson, Duncan & Reagan, LaSalle, Karen C. Eiten, Herbolsheimer, Lannon, Henson, Duncan & Reagan, Ottawa, for Normand Goodrick.

George J. Picha, Picha & Salisbury, Rockford, for Albert Cioni, Granville Motor Co.

Justice STOUDER delivered the opinion of the court:

The appellant, Normand Goodrick (the claimant), filed an application for adjustment of claim pursuant to the Workers' Compensation Act (the Act) (Ill.Rev.Stat.1987, ch. 48, par 138.1 et seq.) contending he sustained injuries on April 14, 1988, while in the employ of the appellee, Albert Cioni, d/b/a Granville Motor Company (the employer). Following a hearing, the arbitrator found there was an employer/employee relationship and awarded benefits. On review, the Commission reversed, finding no such relationship and denied the claim. The circuit court confirmed and the claimant now appeals.

On April 13, 1988, the claimant was laid off from his job with Alverson Construction Company. The claimant was an ironworker and worked out of a local union hall. He had worked on a bridge project with Alverson for approximately 2 1/2 months.

The claimant testified that on leaving work that day he went to the Town Club Tavern, where he called his wife to join him. After she arrived, Albert Cioni also entered the bar and sat next to the claimant. The claimant stated he had known Cioni for 17 or 18 years and that they had become close friends in recent years. According to the claimant, Cioni asked him if he was working and the claimant told him he had been laid off that day. Cioni then invited the claimant to accompany him to an automobile auction in Chicago the next day. The claimant's wife in her testimony before the arbitrator confirmed this conversation.

The claimant had accompanied Cioni to one previous auction in 1986. The record shows that if Cioni bought vehicles at the auction, those who accompanied him would be asked to drive the vehicles back to Granville. There were times when no vehicles were purchased. The record shows that commercial transport of the vehicles from Chicago to Granville would cost $100 per vehicle.

The claimant testified he had his wife drop him off at the Town Club the next morning around 7:00 a.m. He met Cioni there, and the two went to Cioni's business where they were met by two other gentlemen who were also going to the auction. From there they proceeded to Cedar Point, Illinois, in Cioni's van to pick-up another individual. They picked up a sixth person in Peru, Illinois, and proceeded on to the auction in Chicago.

Cioni obtained complementary breakfast tickets at the auction for all of the men. Cioni purchased four vehicles at the auction. Cioni asked the claimant to drive a Mercury Sable back to Granville. Three of the other gentlemen drove the other purchased vehicles. All of the drivers followed Cioni to Dunlap's Supper Club where Cioni purchased lunch and drinks for all the men. The claimant testified he had six or seven beers while at Dunlap's.

The caravan proceeded to the Holiday Inn in Morris, Illinois, where the group stopped to use the rest room and have drinks. The claimant testified he had two beers while in Morris. The group proceeded to the Holiday Inn in Peru. After about twenty minutes at the bar, the other gentlemen left. Cioni and the claimant remained at the bar drinking. The claimant had five or six beers. Cioni and the claimant then went to the Cedar Lanes Motel in Cedar Point where the claimant had approximately four more beers. The record shows that Cioni purchased almost all of the drinks, with one or two of the gentlemen purchasing a round of drinks along the way. The claimant did not pay for anything that day.

The claimant phoned home from Cedar Point and told his wife he would be home shortly. Cioni paid for the call. This was sometime between 8:30 p.m. and 9:00 p.m. The claimant was going to drive the Sable home and return it to Cioni in the morning. On his way home, the claimant was involved in a serious one car accident in which he suffered a fractured neck. As a result, the claimant has lost the use of his legs and has only limited function in his upper extremities.

Cioni and the other witnesses at arbitration confirmed the basic series of events that day. However, Cioni testified that he did not recall speaking with the claimant on the evening of April 13, 1988. Cioni recalled that he went to the Town Club around 5:00 a.m. on April 14, 1988, and had some coffee. He then went to his dealership around 6:30 a.m. to put gas in his van. When he returned to the Town Club he found the claimant sitting with two of the men who were going with him to Chicago. According to Cioni, the claimant asked him if he was going to Chicago and if he minded if the claimant went along. Pamela Grant, who was working that morning at the Town Club testified she heard the claimant ask if Cioni was going to Chicago and whether he could go along.

The arbitrator found the claimant's version of how the trip was initially agreed upon more credible and specifically relying on Ragler Motor Sales v. Industrial Comm'n (1982), 93 Ill.2d 66, 66 Ill.Dec. 342, 442 N.E.2d 903, found an employer/employee relationship existed. Regarding earnings, the arbitrator noted the claimant and Cioni had been good friends for a number of years, and that Cioni knew the claimant was an ironworker. The arbitrator found Cioni knew the claimant had just been laid off from his job and noted that the claimant had made $18.75 an hour at this job. Based on these facts and the claimant's 1987 tax return, the arbitrator found the claimant's average weekly wage was $750.

The Commission found that based on the testimony no payment or promise of payment was ever made, nor was one expected. The Commission concluded that a gratuitous relationship existed, and that the purchase of food and drink was a gratuity and not consideration establishing a contract for hire. The Commission also commented that the arbitrator had erred in finding the claimant was concurrently employed on April 14, 1988. The Commission found given he was laid off on April 13, 1988, the claimant could not be concurrently employed on April 14, 1988. The Commission reversed the arbitrator's decision and denied all compensation for claims. The circuit court subsequently confirmed.

On appeal, the claimant contends the evidence establishes the existence of an employer/employee relationship. The claimant contends that Cioni's version of how the claimant came to accompany Cioni to the auction is not credible. The claimant asserts Cioni controlled all aspects of the trip and that the practice of buying all food and drink was established on previous trips. The claimant also argues he provided a valuable service in transporting the vehicle back to Granville. The claimant insists the...