Martin v. Kralis Poultry Co., Inc.

• Decision Date: 07 June 1973
• Docket Number: No. 71--247,71--247
• Citation: 297 N.E.2d 610,12 Ill.App.3d 453
• Parties: Beatrice Camille MARTIN, Plaintiff-Appellee, v. KRALIS POULTRY CO., INC., a corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 610

297 N.E.2d 610

12 Ill.App.3d 453

Beatrice Camille MARTIN, Plaintiff-Appellee, v. KRALIS POULTRY CO., INC., a corporation, Defendant-Appellant.

No. 71--247.

Appellate Court of Illinois, Fifth District.

June 7, 1973.

Paul T. Riggle and James B. Moses, Smith, McCollum & Riggle, Flora, for defendant-appellant.

C. M. Jack Heap, Olney, Philip C. Zimmerly, Champaign, for plaintiff-appellee.

EBERSPACHER, Presiding Justice.

This case involved a common law tort action brought to recover damages for personal injuries occasioned by the alleged negligence of the defendant in maintaining the floor of a room used as an entranceway into its plant. The jury rendered a verdict for the plaintiff in the sum of $75,090.52, upon which the court entered the judgment and from which this appeal is taken.

The defendant, Kralis Poultry Co., Inc., operates a poultry processing plant. The plaintiff, Beatrice Martin, was employed by the defendant on the day of her fall. Her husband, Ellis Martin, was also employed by the defendant as a superintendent. On the day of her fall the plaintiff had left the plant after work to attend a union meeting, off the company premises, to vote on whether to strike. At the end of the union meeting, the plaintiff returned to the defendant's plant, at the request of her husband, to obtain a ride home. She entered the defendant's plant for the purpose of meeting her husband, when she slipped and fell in the entranceway leading into the plant. The negligence of the defendant, as alleged by the plaintiff, was in placing soap on the floor of the entranceway, in permitting the soap to remain on the floor, and in failing to warn the plaintiff of the unsafe condition of the floor. Ellis Martin, the plaintiff's husband and the defendant's plant superintendent, testified in his affidavit and on the witness stand that he had discussed the impending strike with the plant manager and told him that he could obtain the results of the union strike vote from his wife. He testified that, to obtain this information, he specifically asked his wife to return to the plant to obtain a ride home. Charles Walker, the defendant's plant manager, denied that any such conversation took place. Ellis Martin did not wait for his wife to return to the plant.

There are three issues which form the bases of this appeal: first, whether the rights of the plaintiff are to be determined in a common law tort action or under the Workmen's Compensation Act of Illinois; second, whether a statement of counsel for the plaintiff was so prejudicial that the judgment should be reversed; and finally, whether the jury was properly instructed.

It is argued by the defendant that the plaintiff's injury arose out of her employment by the defendant, and therefore her action at law for damages was barred. The defendant cites the affidavit of Ellis Martin and his testimony at trial to the effect that the defendant employer needed and hoped to obtain information concerning the union strike vote, that the defendant employer specifically asked the plaintiff employee to return to the defendant's plant for this purpose, and that when she returned to the defendant employer's plant and was injured, she was there for its benefit and at the request of its superintendent. In light of these facts, the defendant argues that the plaintiff's injury arose out of and in the course of her employment. Therefore, her cause of action at law is barred by the Workmen's Compensation Act of Illinois.

The defendant also cites four cases in support of these contentions. In Anderson v. Poray, Inc., 42 Ill.App.2d 1, 191 N.E.2d 417, 421 (1963), the plaintiff, a salesman engineer, was injured when he fell from a scaffold while assisting in the remodeling of his employer's plant. The court found that the plaintiff's common law tort action was barred by the Workmen's Compensation Act. However, the court also found that the invitation to participate was extended to the plaintiff only because he was an employee, he was engaged in company activities which produced his injuries, and he was there solely because of an employer-employee relationship.

In Jewel Tea Co. v. Industrial Comm., (1955), 6 Ill.2d 304, 128 N.E.2d 699, the Illinois Supreme Court held that injuries sustained by an employee while playing softball in an inter-company league competition after working hours and off the company premises were compensable under the Workmen's Compensation Act, as arising out of and in the course of employment. However, the court found that there were subtle pressures from the company to encourage participation on the teams, such that the plaintiff and others like him felt compelled to play.

In Sanborn Co. v. Industrial Comm., (1950), 405 Ill. 50, 89 N.E.2d 804, a secretary was asked to work on her usual day off and was directed by her employer to run an arrand. Enroute to the office she was injured in an automobile accident. The court held that since she was carrying her employer's check and was acting pursuant to his direction, her injuries arose out of and in the course of employment. This was so, the court said, because the claimant was performing unusual duties, on a day which was ordinarily a holiday for her, at the express direction of her superior. 405 Ill. 55, 89 N.E.2d 806.

Lastly the defendant cites Swift & Co. v. Industrial Comm. (1932), 350 Ill. 413, 183 N.E. 476. In this case a route salesman was killed in an automobile accident while he was carrying out the employer's special directions in attempting to collect a delinquent account. The court found that because the deceased was performing the duty imposed upon him by his contract of employment at the time of the accident, he was acting out of and in the course of his employment.

All of these cases cited by the defendant can easily be distinguished from the case at bar. The last three citations are of cases where the employee asserted employment, brought his case under the Workmen's Compensation Act, and had that decision sustained on review. In the case at bar, the plaintiff did not assert employment at the time of her injury and did not bring an action under Workmen's Compensation. On the contrary, she brought a common law tort action. In each of the cases cited by the defendant, the plaintiff was either engaged in company activities which produced his injuries, or was in a position to be injured because of an employer-employee relationship and because of subtle pressures to be there, or was acting pursuant to specific directions by the employer to perform an unusual task. However, none of these situations existed in the case before us. Other than the testimony of the plaintiff's husband, the record indicates that the plaintiff returned to the defendant's plant at the request of her husband, solely to obtain a ride home. From the viewpoint of the plaintiff, she was merely complying with her husband's request arising out of their relationship as husband and wife. From her point of view, she was not engaged in any company activities, she was in the plant for personal reasons, she was not acting under any pressure and she was not performing any unusual task for her employer. She was merely meeting her husband so that they might ride home together.

An analysis of the applicable Illinois law will further clarify this discussion. The pertinent Illinois Statute, Ill.Rev.Stat. Ch. 48, § 138.5(1967), provides:

No common law or statutory right to recover damages from the employer * * * for injury * * * 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.

Section 138.1(b) 2 further provides:

The term 'employee' as used in this Act shall be construed to mean: * * *

Every person in the service of another under any contract of hire, express or implied, oral or written, * * * but not including any person who is not engaged in the usual course of the trade, business, profession or occupation of his employer unless he is so engaged at the lawful direction or instruction of his employer.

From a reading of these excerpts from the Illinois Statutes, it is impossible to lay down a single all-encompassing rule by which the status of a person performing a service for another can definitely be fixed as an employee, and ordinarily no single feature of the relationship is determinative, but all must be considered together and each case must depend on its facts. (Anderson v. Poray, Inc., (1963), 42 Ill.App.2d 1, 191 N.E.2d 417; Village of Creve Coeur v. Industrial Comm., (1965) 32 Ill.2d 430, 206 N.E.2d 706.) The cases have generally held, however, that there necessarily must be a contract of hire, express or implied. To be covered a person must be under a contract of hire and be engaged in the usual course of his employer's business at the time of injury and the absence of either requirement at the time of the injury places the employee beyond the scope of the Workmen's Compensation Act. Anderson v. Poray, Inc., (1963), 42 Ill.App.2d 1, 191 N.E.2d 417.

The purpose of the Illinois Workmen's Compensation Act is to protect workmen and compensate them for injuries received while performing any duty necessary to be performed in the course of their employment or incident to it. (Beverly Country Club v. Massachusetts Bonding & Insurance Co., (1932), 268 Ill.App. 380.) The Workmen's Compensation Act does not apply to every accidental injury happening to an employee, but the injury contemplated by the Act must originate in some risk of the employment. (Klug v. Industrial Comm., (1943), 381 Ill. 608, 46 N.E.2d 38; Schwartz v. Industrial Comm., (1942), 379 Ill. 139, 39 N.E.2d 980.) To be compensable under the Workmen's Compensation Act the injury must arise both 'out of' and 'in the course of' being used in the conjunctive, they must coexist, neither alone being sufficient. Proof of one...