Kristensen v. Gerhardt F. Meyne Co.
| Decision Date | 15 March 1982 |
| Docket Number | No. 80-2323,80-2323 |
| Citation | 433 N.E.2d 1050,60 Ill.Dec. 812,104 Ill.App.3d 1075 |
| Parties | , 60 Ill.Dec. 812 Edward KRISTENSEN and Fred Gorr, Plaintiffs-Appellants, v. GERHARDT F. MEYNE CO., A. J. Lowe & Sons, Inc., Western Heating and Air Conditioning Co., Inc. and R. A. Martin Co., Inc., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Saul R. Leibowitz, Reilly, Sentman, Woolley & Leibowitz, John C. Sands, Chicago, for defendants-appellees.
Lord, Bissell & Brook, C. Roy Peterson and Hugh C. Griffin, Sweeney & Riman, Ltd., Marvin Riman, Wildman, Harrold, Allen & Dixon, Kevin T. Martin, William J. Rogers, and Ruth E. VanDemark, Chicago, for plaintiffs-appellants.
Edward Kristensen and Fred Gorr (plaintiffs) brought an action under the Illinois Structural Work Act against R. A. Martin Co., Inc. (R. A. Martin). R. A. Martin raised as an affirmative defense that plaintiffs were general employees of R. A. Martin or, in the alternative, that they were special or loaned employees of R. A. Martin.
At the jury instructions conference, R. A. Martin requested and was granted leave to submit to the jury special interrogatories to determine the employment status of plaintiffs. In its answer to the interrogatories, the jury found that plaintiffs were not R. A. Martin employees. It did, however, find that plaintiffs were special or loaned employees of R. A. Martin at the time of their accident. The jury then returned a general verdict in favor of plaintiffs and against R. A. Martin. Because the Workmen's Compensation Act immunes a borrowing employer from liability resulting from any common law or statutory suit brought by a borrowed employee, the trial judge refused to enter judgment on the general verdict for plaintiffs. Rather, it entered judgment in favor of R. A. Martin. Plaintiffs now appeal.
On appeal, plaintiffs argue that: (1) the trial court erred in refusing to enter judgment on the general verdict for plaintiffs and against R. A. Martin; and (2) their original amended complaints should not have been allowed into evidence.
We affirm.
Western Heating and Air Conditioning Co., Inc. (Western Heating) is a residential heating and air conditioning company. R. A. Martin Co., Inc. (R. A. Martin) is a commercial ventilation business. The two companies share a facility in Maywood, Illinois. They have common ownership and a common set of officers and directors and the same controller. Each has its own employees and its own job superintendent.
At trial, plaintiff Edward Kristensen frequently and persistently testified that he was hired by Western Heating and had worked there for seven years. At the same time, he stated that, except for one month, his seven years as a Western Heating employee were spent doing commercial installations. With the exception of the one month he spent doing residential work, all of his work was supervised by Roy Hart, the R. A. Martin superintendent. As Kristensen's supervisor, Hart had the authority to fire him.
Fred Gorr was hired by Western Heating in the 1950's to do residential installation. During his 26 years at Western Heating, Gorr did only residential work. Gorr was supervised by Joseph Kraft, a Western Heating supervisor.
On January 15, 1975 Kristensen reported, as he normally did, to Roy Hart. Hart instructed Kristensen to go to the Village of Bartlett waste water treatment facility. Bartlett was a large commercial job on which Kristensen had worked 15 or 20 times in the previous six month period.
On the same morning, Gorr reported to his supervisor, Kraft. Kraft informed Gorr that he had no work for him that day. Gorr was given the option of reporting to Roy Hart to see if there was any commercial work available. Gorr reported to Hart and was sent to the Bartlett facility with Kristensen. Their assignment was to install a 40 pound bypass damper in a heating duct.
In order to install the damper, it was necessary for Kristensen and Gorr to erect a scaffold. Normally, four planks form the floor of the scaffold. It was impossible for the men to station the scaffold against the wall because there was piping in the way, so they placed two of the four planks on a higher rung. They placed the 40 pound damper on the planks on which they stood. Suddenly, one of the planks gave way and both men fell to the concrete floor. Both sustained serious injuries.
Kristensen and Gorr filed complaints against R. A. Martin, Western Heating, Gerhardt F. Meyne Co. (general contractor of the Bartlett job), and A. J. Lowe & Sons, Inc. (subcontractor of the sheet metal job at the Bartlett plant).
At the jury instructions conference, R. A. Martin requested and was granted leave to submit special interrogatories to the jury for the purpose of determining the employment status of plaintiffs. In answer to the special interrogatories, the jury found that Kristensen and Gorr were not R. A. Martin employees. It did, however, find that they were loaned employees of R. A. Martin at the time of the accident.
The jury returned a verdict in favor of Kristensen and against R. A. Martin in the amount of $105,000 and for defendant Gerhardt F. Meyne Co. and A. J. Lowe & Sons, Inc., and against Kristensen. The jury also returned a verdict in favor of Fred Gorr and against R. A. Martin in the amount of $140,000 and in favor of Gerhardt F. Meyne Co. and A. J. Lowe & Sons, Inc., and against Gorr.
Based on the jury's finding that R. A. Martin was a borrowing employer and, therefore, immune from liability under the Workmen's Compensation Act, the trial court refused to enter judgment on the general verdict for plaintiffs and against R. A. Martin. Instead, it entered judgment in favor of all defendants, including R. A. Martin.
First, plaintiffs argue that the trial court erred in submitting four interrogatories to the jury. Initially, relying on Albaugh v. Cooley (1980), 88 Ill.App.3d 320, 43 Ill.Dec. 740, 410 N.E.2d 873, plaintiffs contend that the use of special interrogatories as permitted by the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 65) constitutes a legislative usurpation of judicial functions. Albaugh recently was overruled by the Illinois Supreme Court. (Albaugh v. Cooley (1981), 87 Ill.2d 241, 57 Ill.Dec. 720, 429 N.E.2d 837.) As a result, we need not further consider the question of the constitutionality of section 65.
Alternatively, plaintiffs argue that the trial court should have allowed the general verdict in their favor to stand because the special interrogatories were ambiguous and because the jury's answers to the second two interrogatories conflicted with its answers to the first two interrogatories. The first two special interrogatories asked:
The second two special interrogatories asked:
The jury answered the first two special interrogatories in the negative. The second two were answered in the affirmative.
R. A. Martin's obvious intent in submitting the special interrogatories to the jury was to determine whether plaintiffs were general or loaned employees of R. A. Martin at the time of their accident. The distinction is extremely important. Under section 1(a)(4) of the Illinois Workmen's Compensation Act, both an employer which loans an employee to another and the borrowing employer are jointly and severally liable to the borrowed employee for any compensable injury sustained by the borrowed employee. (See Ill.Rev.Stat.1979, ch. 48, par. 138.1(a)(4).) Because of their joint and several liability, both the loaning employer and the borrowing employer are immune from liability resulting from any common law or statutory suit instituted by a borrowed employee. See Ill.Rev.Stat.1979, ch. 48, par. 138.5(a).
Plaintiffs contend that the jury's finding that plaintiffs were not employees of R. A. Martin was inconsistent with its finding that they were subject to the control and direction of R. A. Martin. This contention ignores the distinction between a general and a loaned employee. Illinois courts have recognized that an employee in the general employment of one person may be loaned to another for the performance of special...
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