Orsini v. Industrial Com'n of Illinois
| Citation | 96 Ill.Dec. 900,142 Ill.App.3d 540,491 N.E.2d 1360 |
| Decision Date | 09 April 1986 |
| Docket Number | No. 1-85-0883,1-85-0883 |
| Parties | , 96 Ill.Dec. 900 Leonard ORSINI, Plaintiff-Appellee, v. INDUSTRIAL COMMISSION OF ILLINOIS and Wilmette Texaco, Defendants-Appellants. WC. |
| Court | United States Appellate Court of Illinois |
Braun, Lynch, Smith & Strobel, Ltd., Chicago (Francis J. Lynch, of counsel), for defendants-appellants.
Murges, Bowman & Corday, Ltd., Chicago (John T. Bowman, of counsel), for plaintiff-appellee.
Respondent, Wilmette Texaco, appeals from a judgment of the circuit court of Cook County reversing a decision by a three to two majority of the Industrial Commission denying a claim for workers' compensation benefits by petitioner, Leonard Orsini. The question is whether the trial court erred in finding as a matter of law that petitioner was entitled to benefits "because of the employer's acquiescence in the allowing of Orsini to work on his own vehicle during regular work hours." We affirm.
The essential facts are undisputed. Petitioner was employed by respondent as a mechanic at respondent's service station. When there was no other work to do, petitioner was permitted to work on his own automobile on the premises of the service station during regular work hours. On July 3, 1981, while waiting for parts needed to complete a job, petitioner was working on his own automobile during regular work hours. Peter Van Houton, owner of respondent, was aware that petitioner was doing this. Petitioner was adjusting the carburetor when the automobile lurched forward and pinned petitioner between the automobile and a work bench. This accident caused the injuries which are the subject of petitioner's workers' compensation claim. It was established by expert testimony for respondent that a defect in the transmission of petitioner's automobile caused it to lurch forward.
Where undisputed facts permit only one inference with respect to an issue, the issue becomes a question of law to be determined by the court. (Union Starch, Division of Miles Laboratories, Inc. v. Industrial Commission (1974), 56 Ill.2d 272, 275, 307 N.E.2d 118.) In the case at bar there is no dispute as to how petitioner was injured. The question is rather whether the undisputed facts entitle petitioner to workers' compensation benefits. Accordingly, the circuit court was correct in characterizing the question presented as one of law.
When an employee is injured while working on a personal project at his place of employment during regular work hours, his employer may be held liable if the employer had knowledge of or acquiesced in the employee's practice. (Bradway v. Industrial Commission (1984), 124 Ill.App.3d 983, 985, 80 Ill.Dec. 156, 158, 464 N.E.2d 1139, 1141; see IA A. Larson, Workmen's Compensation Law § 27.31(b) (1982).) In the case at bar, petitioner's employer knew that petitioner was working on his own automobile during working hours when there was no other work to be done, and had acquiesced in this practice by petitioner. The circuit court was therefore correct in its decision that petitioner was entitled to workers' compensation benefits as a matter of law.
The two cases respondent relies upon most heavily as precluding recovery are inapposite. In Fisher Body Division, General Motors Corporation v. Industrial Commission (1968), 40 Ill.2d 514, 240 N.E.2d 694, the injuries to the employee occurred after working hours. In Mazursky v. Industrial Commission (1936), 364 Ill. 445, 4 N.E.2d 823, a laundry truck driver, apparently during working hours, was injured while repairing a tire for his own car in his employer's garage. The employer had acquiesced in employees repairing their own cars in the garage in the past, however the Mazursky court did not find this to be significant. The continuing validity of this aspect of Mazursky is questionable in light of more recent cases broadening the workers compensation liability of employers based on acquiescence. (See, e.g., Union Starch, Division of Miles Laboratories, Inc. v. Industrial Commission (1974), 56 Ill.2d 272, 307 N.E.2d 118.) Also, the Mazursky opinion does not reveal whether the repairs previously acquiesced in had been made during or outside of working hours, so it is impossible to ascertain whether the claimant's repairs were performed in the manner his employer had permitted. (See Bradway v. Industrial Commission (1984), 124 Ill.App.3d 983, 986, 80 Ill.Dec. 156, 158-159, 464 N.E.2d 1139, 1141-1142.) We therefore do not believe Mazursky controls the issue in this case.
Finally, we note that courts in several other states have allowed recovery for injuries incurred by employees working on personal projects at their places of employment during regular work hours where the employer had knowledge of or acquiesced in the practice of their employees. See, e.g., Parker v. Travelers Insurance Company (1977), 142 Ga.App. 711, 236 S.E.2d 915; Penzara v. Maffia Brothers (1954), 307 N.Y. 15, 119 N.E.2d 570; W.R. Grace and Company v. Payne (Ky.App.1973), 501 S.W.2d 252; Hanchett v. Brezner Tanning Company (1966), 107 N.H. 236, 221 A.2d 246; Lee v. F.M. Henderson & Associates (1973), 284 N.C. 126, 200 S.E.2d 32; Watkins v. City of Wilmington (1976), 290 N.C. 276, 225 S.E.2d 577; Chrisman v. Farmers Cooperative Associates of Bradshaw (1966), 179 Neb. 891, 140 N.W.2d 809; J. & G. Cabinets v. Hennington (1980) 269 Ark. 789, 600 S.W.2d 916.
The foregoing is sufficient to dispose of the issue raised. Certain points made in the dissent, however, merit further comment.
The main thrust of the dissent is that mere acquiescence of the employer is not sufficient to satisfy the requirement that an injury arise out of a claimant's employment to be compensable. In the case at bar, there was more than mere acquiescence by the employer to indicate that the injury arose out of petitioner's employment. First, petitioner had permission from his employer to work on his own car when there were slack periods. Second, he was injured while performing a task which, if performed on a customer's car, would unquestionably have been within the ordinary scope of his employment duties.
Petitioner was a mechanic. He was not injured while repairing his television set or the like but rather while making an adjustment on his automobile. The dissent argues that any expertise developed by petitioner in adjusting the carburetor on such "an antique vehicle" as his 1967 Oldsmobile would not benefit his employer. The description of a fourteen year old automobile as an "antique" is a bit extreme. Moreover, although the Industrial Commission made a similar observation with respect to benefit to the employer, the record does not appear to support the dissent's implicit assumptions that (1) petitioner's employment did not require him to work on older cars and (2) adjustment of the carburetor in the 1967 Oldsmobile differs radically from the adjustments required in newer automobiles. The dissent also makes a point of the defective "junkyard" transmission which caused the accident. It is true petitioner obtained the transmission from an automobile boneyard--a logical place to look for a reasonably priced, used, major part for an old automobile. The fact is, however, irrelevant to whether the injury is compensable. If the injury had occurred while working on a customer's automobile, it would clearly have been compensable, regardless of the condition and origin of the offending transmission, and regardless of the age of the automobile.
The dissent goes through an extensive and illuminating discussion of the Illinois cases following and distinguishing Mazursky v. Industrial Commission (1936), 364 Ill. 445, 4 N.E.2d 823, and in so doing demonstrates the difficulty of reconciling them all. Mazursky and Fisher Body Division, General Motors Corporation v. Industrial Commission (1968), 40 Ill.2d 514, 240 N.E.2d 694, seem the closest to the case at bar, however, in both cases, the claimants were injured performing tasks outside of the ordinary scope of their employment duties. In Mazursky, the claimant was a laundry truck driver injured repairing a tire for his car. In Fisher Body, the claimant was a "fork and tier" truck driver injured by a battery which exploded while he was trying to start his car. In contrast, petitioner here was a mechanic, whose ordinary duties included mechanical work on automobiles, who was injured while doing mechanical work on an automobile. Most of the cases from other jurisdictions, which the dissent ignores, are factually similar to the case at bar in this regard. Parker v. Travelers Insurance Company (1977), 142 Ga.App. 711, 236 S.E.2d 915 (); Penzara v. Maffia Bros. (1954), 307 N.Y. 15, 119 N.E.2d 570 (); Lee v. F.M. Henderson & Associates (1973), 284 N.C. 126, 200 S.E.2d 32 (); Chrisman v. Farmers Cooperative Association of Bradshaw (1966), 179 Neb. 891, 140 N.W.2d 809 (); J. & G. Cabinets v. Hennington (1980), 269 Ark. 789, 600 S.W.2d 916 ().) Although the other foreign jurisdiction cases may support a broader rule, making employer acquiescence alone enough to satisfy the arising-out-of-the-employment requirement, it is unnecessary to consider the soundness of that rule in the case at bar where the employer gave his permission to the employee to work on his own car and where the injury occurred while petitioner was...
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