Houston v. Quincy Post 5129, Veterans of Foreign Wars

• Decision Date: 14 September 1989
• Docket Number: No. 4-89-0177,4-89-0177
• Citation: 188 Ill.App.3d 732,544 N.E.2d 425
• Parties: , 135 Ill.Dec. 929 Bearl L. HOUSTON, Plaintiff-Appellant, v. QUINCY POST 5129, VETERANS OF FOREIGN WARS, a Not-for-Profit Corporation, and Jack Wolkitt, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 425

544 N.E.2d 425

188 Ill.App.3d 732, 135 Ill.Dec. 929

Bearl L. HOUSTON, Plaintiff-Appellant, v. QUINCY POST 5129, VETERANS OF FOREIGN WARS, a Not-for-Profit Corporation, and Jack Wolkitt, Defendants-Appellees.

No. 4-89-0177.

Appellate Court of Illinois Fourth District.

Sept. 14, 1989.

David E. Rapoport, Katz, Friedman, Schur & Eagle, Chicago, for plaintiff-appellant.

Babette B. Rokusek, Keefe, Gorman & Brennan, Quincy, for defendants-appellees.

Justice LUND delivered the opinion of the court:

Plaintiff was injured when a bingo sign fell on him at the Veterans of Foreign Wars (VFW) hall. Plaintiff filed suit against the VFW and another member of the organization alleging negligence. Upon motion of the VFW, the trial court dismissed the lawsuit against VFW ruling, as a matter of law, plaintiff was an employee of the VFW at the time of the injury and his suit was therefore barred by the exclusive remedy provisions of the Workers' Compensation Act (Act) (Ill.Rev.Stat.1987, ch. 48, pars. 138.5, 138.11). On appeal plaintiff contends the trial court erred in its determination that, as a matter of law, he was an employee of the VFW. We agree and reverse.

The facts may be gleaned from plaintiff's complaint and the various pleadings attendant to defendant's motion to dismiss under section 2-619 of the Code of Civil Procedure. Ill.Rev.Stat.1987, ch. 110, par. 2-619.

Plaintiff, a member of the bingo committee of the VFW, was helping conduct a bingo game on the VFW premises on September 8, 1987. His duties included calling the bingo numbers and straightening up the premises after the game concluded. During the cleanup process, a nine-foot long, four-foot high, one-foot thick bingo sign, weighing approximately 200 pounds, fell on him severely injuring his left arm.

Claimant had been a member of the bingo committee for approximately two years prior to the accident and had worked the games periodically selling bingo cards, calling the numbers, and cleaning up the tables and stage from which the sign which injured him fell. In return for this activity, claimant received a $4 per night credit toward his lifetime VFW membership dues. This credit had been instituted approximately one year before the injury when a new bingo chairman was selected by the organization. Prior to that time, bingo committee members who worked the games received nothing in return for their services. Plaintiff had performed this same sort of volunteer work for the Eagles and Elks Clubs during the previous 15 years but no monetary remuneration of any sort was provided him by those organizations.

The VFW's motion to dismiss alleged claimant was an employee at the time of the injury by virtue of the credit toward dues payment provided him for services. In addition, defendant maintained it controlled and supervised claimant's work because the bingo committee chairman assigned specific duties to the various members who worked the bingo games. This assertion was substantiated by the deposition of codefendant Jack Wolkitt who testified the bingo committee chairman expressly assigned him specific tasks. He was also told by Wolkitt he would be replaced if those tasks were not performed satisfactorily. Wolkitt received 50cents an hour for his services which sum was applied as a credit toward dues or items which could be ordered through the VFW catalog. Defendant also presented the affidavit of the deputy commander of the post which stated a workers' compensation policy purchased by defendant was in effect on the date of the accident.

In contrast, plaintiff stated in his affidavit in opposition to the motion to dismiss that no member of the bingo committee had particular duties and all members would help out whenever assistance was needed. Similarly, plaintiff maintained no one was given instructions on what needed to be done since all members knew what was required of them and no members of the committee were under the direct supervision of the bingo chairman. Plaintiff also averred he never expressly or impliedly, orally or in writing, agreed to enter into a contract for hire as an employee of the VFW and never considered himself as such. Finally, plaintiff stated he was not on the VFW payroll, never had income or social security taxes deducted by the organization, and did not fill out any government required employment forms.

In determining claimant was an employee, as a matter of law, the trial court relied on the following factors: claimant received a $4 credit per night toward his lifetime membership, defendant Wolkitt established he held a comparable remunerated position while both worked under the direction of the bingo committee chairman. Upon this basis the trial court dismissed the complaint as to VFW. We note, parenthetically, the allegations of the complaint directed to defendant Wolkitt are not before us on this appeal.

A motion for involuntary dismissal under section 2-619(a)(9) is properly brought to determine questions of employment and the scope of employment such as those presented here. (Kinney v. Continental Assurance Co. (1976), 42 Ill.App.3d 263, 1 Ill.Dec. 131, 356 N.E.2d 131.) As the historical and practice notes to that section indicate:

"The purpose of this section is primarily that of affording a means of obtaining at the outset of a case a summary disposition of issues of law or of easily proved issues of fact, with a reservation of jury trial as to disputed questions of fact." (Ill.Ann.Stat., ch. 110, par. 2-619, Historical and Practice Notes, at 662 (Smith-Hurd 1983).)

Unlike a motion for summary judgment, upon which the trial court is not permitted to decide disputed questions of fact, section 2-619(c) provides that "[i]f a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties * * *." Ill.Rev.Stat.1987, ch. 110, par. 2-619(c); see also North Park Bus Services, Inc. v. Pastor (1976), 39 Ill.App.3d 406, 349 N.E.2d 664.

The definition of "employee" in the Workers' Compensation Act makes it clear that the basis of the relationship is a "contract for hire, express or implied, oral or written, * * *." (Ill.Rev.Stat.1987, ch. 48, pars. 138.1(a)(2), (b)(2).) The existence of such a relationship is determined by an application of the principles governing the formation of other contracts and must reflect a meeting of the minds expressed by some offer on the part of one to employ or to work with another and an acceptance on the part of the other. (Crepps v. Industrial Comm'n (1949), 402 Ill. 606, 85 N.E.2d 5.) One does not enter the employ of another without at least an implied acquiescence in the relationship. To thrust upon a worker an employee status to which he has never consented might well deprive him of valuable rights under the compensation act, notably the right to sue his own employer for common law damages. (McHugh-Brighton v. Industrial Comm'n (1969), 42 Ill.2d 52, 245 N.E.2d 480.) No single fact controls the existence or nonexistence of an employment relationship. Many factors, such as the right to control the manner in which the work is done, the method of payment, the right to discharge, the skill required and the work done, and the furnishing of tools, material, and equipment, have evidentiary value and must be considered. (Village of Creve Coeur v. Industrial Comm'n (1965), 32 Ill.2d 430, 206 N.E.2d 706.) Significantly, the supreme court has stated the existence of such a relationship is, in every case, primarily a question of fact, and can only become a question of law where there is no conflict in the evidence and but one conclusion can reasonably be drawn therefrom. Crepps, 402 Ill. 606, 85 N.E.2d 5.

Under this standard we conclude the trial court erred in determining claimant was an employee of the VFW, as a matter of law. The status of members of volunteer organizations is discussed in some detail by Professor Larson. Examination of this aspect of workers' compensation law reveals the issue is not free from doubt:

"A rather shadowy but nevertheless real line separates the true gratuitous employment situations from those in which the 'payment' takes the form of discharging an obligation of substantial cash value voluntarily assumed. The most familiar example of the latter category is that of the church member who 'works out' his pledge toward construction of a church. There are two ways to look at such a relationship. One is to say, as New Jersey has held in the case of a trustee working off his church construction pledge at the rate of $1.50 an hour, that this is merely a case of donation of services and hence not a contract of hire in the compensation law sense. [Armitage v. Trustees of Mount Fern Methodist Episcopal Church (1954), 33 N.J.Super. 367, 110 A.2d 154.] The other is to say that, in effect, the worker is being paid, in that he is receiving credit against an obligation. To reach this result it is only necessary to conceive of the process in two stages rather than one. The first stage is the assumption of the obligation, in the form of pledging cash or services to the church. This assumption is uncoerced, but, once undertaken, is binding. Pennsylvania in this situation invoked a theory familiar to the law of charitable pledges generally when it held: 'The mutual promises made by other members * * * to render services * * * would be a valid consideration * * *.' [Schreckengost v. Gospel Tabernacle (1959), 188 Pa.Super. 652, 149 A.2d 542.] The second stage is then to say that, since the obligation exists (never mind whether originally assumed voluntarily),...