Saldana v. Wirtz Cartage Co.

• Decision Date: 04 December 1978
• Docket Number: No. 50377,50377
• Citation: 385 N.E.2d 664,74 Ill.2d 379,24 Ill.Dec. 523
• Parties: , 24 Ill.Dec. 523 Abundio SALDANA, Appellee and Cross-Appellant, v. WIRTZ CARTAGE CO. et al., Appellants and Cross-Appellees.
• Court: Illinois Supreme Court

Page 664

385 N.E.2d 664

74 Ill.2d 379, 24 Ill.Dec. 523

Abundio SALDANA, Appellee and Cross-Appellant, v. WIRTZ CARTAGE CO. et al., Appellants and Cross-Appellees.

No. 50377.

Supreme Court of Illinois.

Dec. 4, 1978.

Jacobs, Williams & Montgomery, Ltd., Chicago (Wyatt Jacobs, Barry L. Kroll, and David A. Novoselsky, Chicago, of counsel), for appellants and cross-appellees.

Fred Lambruschi, Chicago (Herbert P. Veldenz, Chicago, of counsel), for appellee and cross-appellant.

UNDERWOOD, Justice:

Plaintiff, Abundio Saldana, brought this action in the circuit court of Cook County to recover for personal injuries he suffered when he was struck by a truck operated by defendant Roy Fitzsimmons, a driver for defendant Wirtz Cartage Company (Wirtz). The jury returned a verdict for both defendants, and the circuit court entered judgment accordingly. The appellate court reversed (55 Ill.App.3d 440, 13 Ill.Dec. 104, 370 N.E.2d 1131), finding that a special interrogatory submitted to the jury should have been accompanied by explanatory instructions and that this error required a new trial. We granted defendants leave to appeal.

Although Fitzsimmons was employed as a driver for Wirtz, he had been instructed to take a Wirtz truck and report to Allied Asphalt Paving Company (Allied). On November 14, 1970, he reported to Allied's dispatcher, who directed him to haul asphalt to its paving site on Landwehr Road near Northfield. Fitzsimmons testified that after he was assigned to Allied by Wirtz, Allied decided what and where he was to haul and that he received orders and directions only from Allied's foreman. A dispatcher for Wirtz also testified that Wirtz exercised no supervision over Fitzsimmons and that he was "taken over" by Allied or their foreman. If Allied was not satisfied with a driver such as Fitzsimmons, it could request another. Allied paid Wirtz for the truck and driver, and Wirtz paid Fitzsimmons weekly. Plaintiff was designated by Allied as a "dumpman" on a paving crew which was working at the Landwehr Road site. His job was to guide dump trucks as they backed up to a Barber-Greene asphalt paving machine, open the tail gates, signal the drivers to raise the truck bed, signal the trucks to move out, and sign reports to verify that the trucks had been unloaded. During the afternoon of November 14, plaintiff guided Fitzsimmons as he backed the truck up to the Barber-Greene machine and then signaled him to raise the bed. At that time, another driver, Jack Moore, came up to plaintiff to get his report signed. Plaintiff walked toward the front of the truck to meet Moore. As plaintiff was signing the report, Fitzsimmons pulled away from the machine. Plaintiff was positioned so that a rear tire struck his leg, causing him to fall down in such a way that his right foot was pinned under the wheel and injured. Fitzsimmons testified that plaintiff had signaled him to pull out but plaintiff denied doing so.

At trial, defendants asserted that they had exercised due care and that plaintiff was contributorially negligent. In addition, the defendants relied upon the "loaned employee" defense, which is based on the principle that an employee loaned by a "general" employer to a borrowing or "special" employer is in the same position as any other of the special employer's regular employees, I. e., he is entitled to workmen's compensation benefits from the special employer but he has no right to bring a common law negligence action against it or a fellow employee. After the evidence had been heard, defendants maintained that they had proved the loaned-employee defense as a matter of law while plaintiff contended that Fitzsimmons was not shown to be a loaned employee, also as a matter of law. The trial court, however, decided that this was a question of fact and, at defendants' request, submitted to the jury the following special interrogatory:

"Was the defendant, ROY FITZSIMMONS, at the time of the occurrence wholly subject to the control and direction of the ALLIED ASPHALT PAVING COMPANY and free during such time from the direction and control of WIRTZ CARTAGE COMPANY?"

together with a special interrogatory as to plaintiff's contributory negligence. Plaintiff, at the instructions conference, objected to the quoted interrogatory because he continued to maintain that Fitzsimmons was not a loaned employee as a matter of law. Neither plaintiff nor defendants requested or tendered instructions on this question and none were given. The jury found that plaintiff was not contributorially negligent, but it answered the other interrogatory affirmatively, finding that Fitzsimmons was wholly subject to the control and direction of plaintiff's employer, Allied. The jury also returned a general verdict against plaintiff.

On appeal, plaintiff alleged several trial errors which were not considered by the appellate court. While that court reversed, it did so on grounds which were neither raised nor argued by the parties the failure of the trial court to instruct the jury on the meaning of "control and direction" as those terms were used in the special interrogatory. Other than for jurisdictional reasons a reviewing court should not normally search the record for unargued and unbriefed reasons to reverse a trial court judgment. "(W)hile this court will examine the record for the purpose of affirming a judgment, it will not do so for the purpose of reversing it * * * " (People v. ex rel. Akin v. Southern Gem Co. (1928), 332 Ill. 370, 372, 163 N.E. 825, 827), for when an appellant seeks reversal, "theories not pursued nor advanced with citation of authorities are deemed waived" (Flynn v. Vancil (1968), 41 Ill.2d 236, 242, 242 N.E.2d 237, 241, citing Mitchell v. Van Scoyk (1953), 1 Ill.2d 160, 164, 115 N.E.2d 226).

Here, even if the terms "control and direction" should have been defined, the error was not preserved for review. No request for a defining instruction was made and no such instruction tendered. The appellate court quoted only an isolated segment of the record "Your Honor, I object to the interrogatory, He has taken a position, Your Honor Is it a matter of law?", finding, on the basis of this quotation, that "it is evident from the record that counsel was at this point objecting to the interrogatory * * * because of the lack of explanatory instructions." (55 Ill.App.3d 440, 445, 113 Ill.Dec. 104, 108, 370 N.E.2d 1131, 1135.) The quoted statement by counsel together with others in the context from which it was taken, clearly demonstrated that plaintiff objected to giving the interrogatory solely because he felt that the loaned-servant question on the facts of this case was a matter of law. Nor does the record before us contain any mention of failure to give accompanying instructions. Special interrogatories must be tendered, objected to, ruled upon and submitted to the jury in the same manner as are instructions. (Ill.Rev.Stat.1973, ch. 110, par. 65.) To preserve an objection to an interrogatory as well as to an instruction, one must set it forth with specificity so the trial court is advised of the specific nature of the objection before ruling. (Supreme Court Rule 239(b), 58 Ill.2d R. 239(b); Delany v. Badame (1971), 49 Ill.2d 168, 178, 274 N.E.2d 353; see Havlovic v. Scilingo (1972), 7 Ill.App.3d 918, 289 N.E.2d 79.) Additionally, even if plaintiff had properly objected, he is still required to tender a proper instruction. Supreme Court Rule 366(b)(2)(i), 58 Ill.2d R. 366(b)(2)(i); Department of Public Works & Buildings v. Klehm (1973), 56 Ill.2d 121, 127, 306 N.E.2d 1, Cert. denied (1974), 417 U.S. 947, 94 S.Ct. 3072, 41 L.Ed.2d 667.

Plaintiff contends that he was taken by surprise by defendants' assertion of the "loaned employee" defense three days before trial. We note, however, that the instructions conference was not held until six days after this defense was first raised; that period does not seem to us an unreasonably short time within which to prepare those instructions plaintiff considered proper.

Moreover, while unnecessary to our disposition of this case, we note our serious doubt of the necessity or wisdom of attempting to further define the terms "control and direction." Those words are, if anything, less technical than the phrase "having charge of," and this court has held that phrase one of common usage and understanding and that further attempts at definition can only lead to confusion and error. (Voss v. Kingdom & Naven, Inc. (1975), 60 Ill.2d 520, 526, 328 N.E.2d 297; Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill.2d 111, 119, 15 Ill.Dec. 664, 373 N.E.2d 1348.) "It is well established that the meaning of words, used in their conventional sense, need not be defined or explained in giving instructions to the jury." Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, 323, 211 N.E.2d 247, 252.

Plaintiff states in his brief that, "(a)dmittedly, the opinion of the Appellate Court was on a point not raised by the plaintiff," but contends that we should affirm nonetheless because the result is correct on other, properly preserved grounds which were briefed and argued in the appellate court.

Plaintiff first contends that the trial court erred in refusing to rule that Fitzsimmons was not a loaned servant as a matter of law. At common law, the rule that an employee cannot recover for the negligence of his fellow employee (see, E. g., Honner v. Illinois Central R.R. Co. (1854), 15 Ill. 550) applied as well to a loaned employee. (Pioneer Fire-Proofing Co. v. Clifford (1906), 125 Ill.App. 352, Aff'd (1907), 232 Ill. 150, 83 N.E. 448; see Illinois Central R.R. Co. v. Cox (1858), 21 Ill. 20.) This principle has been applied to Workmen's Compensation Act cases so that one injured while working for the special or borrowing employer is entitled to receive workmen's compensation benefits from that special employer (Raymond Concrete Pile Co. v. Industrial Com. (1967), 37 Ill.2d 512, 229...