Leszinske v. Grebner

• Decision Date: 12 December 1967
• Docket Number: Gen. No. 67--42
• Citation: 89 Ill.App.2d 470,232 N.E.2d 496
• Parties: Isabelle E. LESZINSKE, Administrator of the Estate of Lyle R. Leszinske, a minor, deceased, Appellee, v. Kate GREBNER, Administrator of the Estate of Otto F. Grebner, deceased, Appellant.
• Court: United States Appellate Court of Illinois

Page 496

232 N.E.2d 496

89 Ill.App.2d 470

Isabelle E. LESZINSKE, Administrator of the Estate of Lyle

R. Leszinske, a minor, deceased, Appellee, v. Kate GREBNER, Administrator of the Estate of Otto F.

Grebner, deceased, Appellant.

Gen. No. 67--42.

Appellate Court of Illinois, Second District.

Dec. 12, 1967.

Rehearing Denied Jan. 8, 1968.

Gunner & Keller, Dixon, for appellant.

Fearer & Nye, Oregon, for appellee.

DAVIS, Presiding Justice.

Plaintiff brougt this action as Administrator of the Estate of Lyle R. Leszinske, to recover for his alleged wrongful death. The defendant is the Administrator of the Estate of Otto F. Grebner, the driver of the auto in which Lyle R. Leszinske (herein called Leszinske) was riding at the time he received the injuries which presumably caused his death. The jury returned a verdict for the plaintiff in the sum of $10,000 and the defendant appealed from the judgment entered thereon.

Otto F. Grebner (herein called Grebner) was engaged in the business of painting houses and buildings. On September 8, 1965, Leszinske, 18 years of age, was employed by Grebner on a full-time basis as a painter. His work included the loading and unloading of Grebner's station wagon, as well as other general duties. At approximately 6:30 p.m., on that date, Grebner was driving his station wagon in a northerly direction on U.S. Highway No. 51, just south of Rochelle, where both Grebner and Leszinske lived. Leszinske was riding in the front seat next to Grebner.

The highway at this point was a straight two-lane concrete road. The weather was clear, the pavement dry and visibility was good. Grebner was driving consistently at a speed of 35 to 40 miles per hour, and at this given point his car went off the road slightly so that the two right tires were on the shoulder. The car continued northerly in this manner for approximately one or two car lengths when it suddenly swerved back onto and across the northbound traffic lane of the highway, into the southbound traffic lane thereof, and into the path of another car.

Both Grebner and Leszinske were dead when their respective bodies were removed from the car. Grebner had a heart attack in 1959, and there was evidence tending to indicate that his heart was no longer beating at the time he received the injuries from the accident.

The defendant's principal contention is that plaintiff's remedy was under the Workmen's Compensation Act (Ill.Rev.Stat.1965, ch. 48, par. 138.1 et seq.), and that therefore the plaintiff could not recover under any common law or other statutory right, including the Wrongful Death Act (Ill.Rev.Stat.1965, ch. 70, par. 1, et seq.).

Section 5(a) of the Workmen's Compensation Act (Ill.Rev.Stat.1965, ch. 48, par. 138.5(a)) provides, in part, as follows:

'No common law or statutory right to recover damages from te employer or his employees for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.'

The plaintiff did not have the right to maintain this action under the Wrongful Death Act if Leszinske's employment was covered by the Workmen's Compensation Act, and if the injuries and death arose out of and in the course of such employment. There are two issues which must be met: (1) was the employment under the Act; and (2) if so, then did the injuries and death arise out of and in the course of the employment.

Nothing in the complaint suggested that the employment was extrahazardous or that there had been an election to come under the Workmen's Compensation Act. Thus, as to the issues of coverage under the Act and the source of injuries, the burden of proof was upon the defendant and she was required to assert the application of the Act as an affirmative defense. Christian v. C. & I.M. Ry. Co., 412 Ill. 171, 174, 105 N.E.2d 741 (1952); Victor v. Dehmlow, 405 Ill. 249, 252, 253, 90 N.E.2d 724 (1950); Mueller v. Elm Park Hotel Co., 391 Ill 391, 397--398 incl., 63 N.E.2d 365 (1945); Ill.Rev.Stat.1965, ch. 48, par. 138.5(a) and ch. 110, par. 43(4).

Section 3 of the Workmen's Compensation Act (Ill.Rev.Stat.1965, c. 48, par. 138.3) specifies those occupations in which there is automatic application of the Act, and, consequently, coverage thereunder. It states in part, as follows:

'The provisions of this Act hereinafter following shall apply automatically and without election 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:

'1. The erection, maintaining, removing, remodeling, altering or demolishing of any structure, except as provided in sub-paragraph 15 of this Section. * * *'

It is undisputed that Leszinske was working for Grebner as a painter and was doing painting work on the day in question. Thus, as to the issue of coverage of the employment under the Act, the defendant clearly sustained her burden. The business of painting buildings is obviously an enterprise engaged in maintaining structures. Any other interpretation would require us to take unwarranted liberties in defining the words and language of the statute. As to this particular issue, at this posture of the case, there was no discretionary determination for the jury under the proof in this case. As a matter of law, it could properly reach but one conclusion.

Grebner's business was subject to the automatic coverage of the Workmen's Compensation Act unless excepted therefrom under subparagraph 15 of Section 3, supra, which exempted from coverage, among other things, work done on a farm. Walsh v. Industrial Comm., 345 Ill. 366, 369, 178 N.E. 82 (1931); Storrs v. Industrial Comm., 285 Ill. 595, 597, 121 N.E. 267 (1918). Coverage under the Act is determined by the business or enterprise of the employer and not the particular kind of work or the specific thing which the employee may have been doing at the time of the injury. Figgins v. Industrial Comm., 379 Ill. 75, 77, 78, 39 N.E.2d 353 (1942). As to the issue of whether any exception to the automatic coverage was applicable, the burden of proof was upon the plaintiff and she must plead any exception to the automatic coverage. No such exception was plead or put in issue.

The second issue pertaining to the applicability of the Workmen's Compensation Act is whether the injuries and death arose out of and in the course of Leszinske's employment. With reference to this, plaintiff alleged in her complaint, as follows:

'That on or about September 8, 1965, at or about the hour of 6:30 p.m. DST, the said Lyle R. Leszinske was an employee of Otto F. Grebner, deceased, and a passenger in a 1964 Ford Falcon station wagon owned by the said Otto F. Grebner in the capacity of an employee in that Lyle R. Leszinske, as a part of his employment, would accompany the said Otto F. Grebner, back to the workshop at Otto F. Grebner's request and assit Otto F. Grebner in unloading work equipment.'

The plaintiff argues that this allegation was to show that 'plaintiff's intestate was on his way back to the defendant's (sic) intestate's workshop to assist in unloading work equipment'; and that the obvious reason for such allegation was to remove the case from the provisions of the Guest Act and thereby the plaintiff would be required to prove only ordinary negligence rather than wilful and wanton conduct. However, such allegation was sufficient not only to remove the case from the provisions of the Guest Act but also to bring it under the terms of the Workmen's Compensation Act.

It is generally held that accidents which occur while an employee is going to and from his place of employment do not arise out of and in the course of employment. Urban v. Industrial Comm., 34 Ill.2d 159, 161, 214 N.E.2d 737 (1966); Christian v. C. & I.M. Ry. Co., supra, 412 Ill. 175, 105 N.E.2d 741. This general rule, however, is not applicable where the employee's trip is determined by the demands of his employment or when his duties as employee take him to the place of his injury. Urban v. Industrial Comm., supra, 34 Ill.2d 161, 163, 214 N.E.2d 737; Sanborn Co. v. Industrial Comm., 405 Ill. 50, 54, 89 N.E.2d 804 (1950); Scott v. Industrial Comm., 374 Ill. 225, 228, 29 N.E.2d 93 (1940).

In the case at bar, the general 'going to and coming from work' rule obviously cannot be applied. Leszinske's employment for the day had not ended if he was going to Grebner's workshop to help unload the station wagon. To fulfill this obligation of his employment, Leszinske was riding with his employer, Grebner, at a time when and at a place where he might reasonably be expected to be. Leszinske was 'in the course of his employment.'

Under these facts there can be no question of the requisite causal...