Appeal from the Circuit Court of Cook County; the Hon. ELMER
N. HOLMGREN, Trial Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
This is a personal injury action brought by plaintiff, against his employer. On a stipulation of facts, in a non-jury trial, the court found that at the time and place of the injury, plaintiff was subject to the terms and provisions of the Workmen's Compensation Act of Illinois, and that his action at law for damages was therefore barred. Judgment was entered for defendant, and plaintiff appeals.
The basic question is whether the rights of plaintiff are to be determined in a common law tort action or under the Workmen's Compensation Act of Illinois.
The employer, defendant Poray, Inc., on and prior to the date of the occurrence on June 12, 1954, was engaged in the manufacture of various metal parts for television, radio and automotive manufacturers. Its plant was located in Chicago.
Plaintiff, on the date of the occurrence and for a period of six years prior thereto, was in the employ of the defendant as a salesman-engineer. His job was to call upon the engineering and purchasing departments of prospective customers and solicit their work. He ordinarily worked five days a week, Monday through Friday, but he would work on Saturday whenever it was necessary to bring his sales records up to date or to check jobs that were going through the plant, and occasionally to attend a sales meeting. He had a drawing account of $800 a month against commissions. If the commissions exceeded $800 a month, he received the additional amount.
Several months before June 12, 1954, Walter Poranski, defendant's president, called a meeting of the various salesmen-engineers, department heads, foremen, and other supervisory personnel of the company, and informed them that it would be necessary to remodel, enlarge and modernize the facilities of the company in order to compete with existing business conditions. He advised them that they would benefit as the company grew and prospered. Plaintiff, as part of this staff, attended this meeting and several later meetings, where the remodeling plans were explained and discussed. At these meetings, held in the company offices, Walter Poranski asked the men, including plaintiff, to assist in the remodeling and modernization work by coming in on Saturdays and Sundays, or such spare time as they had, and by helping out in whatever there was to do.
Defendant employed some 300 persons, about 250 of whom punched a time card when they arrived and left the plant of defendant company. The balance of approximately 50 employees kept no record of their time. Plaintiff was not required to, and did not, keep any record of his time devoted to the company business or affairs.
The work of modernizing and remodeling the polishing and buffing department commenced some time prior to June 12, 1954, and plaintiff, on four or five Saturdays, assisted in various ways in the construction work, for about four or five hours each time. Before engaging in the construction work, he would do whatever he had to do in connection with his sales work.
Personnel of defendant did as much of the remodeling as they could, and defendant subcontracted on the outside such work as could not be done by its employees. The plaintiff and other employees of defendant were not compelled to assist in the remodeling work unless they wished to. Plaintiff chose when and the length of time he would give. A person was selected for each group to supervise the work. Employees of defendant who were on an hourly basis received overtime pay for such hours as they worked on either Saturday or Sunday, but employees who were on a salary basis, like plaintiff, received no pay for such hours as they worked on Saturday or Sunday.
On Saturday, June 12, 1954, plaintiff went to defendant's place of business, arriving there about eight or nine o'clock in the morning. He first went through some accounts and then went down to start on the construction work. This was about nine or ten o'clock in the morning. No one in particular appeared to be in charge. While working on a scaffold, passing steel rods to the second floor, he felt the platform tip, and he fell to the floor and was injured. A pin attached to the pipe by means of a short chain, which held the fitted pipes in place in the scaffold, had worked loose or fallen from the piping, causing the scaffold and platform to drop down or collapse on one corner.
The stipulated medical testimony indicates plaintiff suffered a comminuted fracture of the upper end of the tibia entering the knee joint and had a definite permanent lack of flexion.
The trial court made four specific findings as to the time and place of the injury: (1) that the relationship between plaintiff and defendant "was that of employer and employee"; (2) that plaintiff "was engaged in the usual course of the trade, business and occupation of the defendant"; (3) that defendant "was operating and conducting its business under and pursuant to the provisions of the Workmen's Compensation Act of Illinois"; and (4) "that the claim of the plaintiff comes within, and is subject to, the terms and provisions of the Workmen's Compensation Act of Illinois." Plaintiff appeals from the findings of the trial court and the judgment order in favor of defendant.
It is plaintiff's theory that at the time and place alleged in the complaint, his relationship was not that of employer and employee; that he was not working under a contract of hire with appellee; that he was not engaged in the usual course of the trade, business and occupation of the appellee; that at best, he was a volunteer with respect to the work he was doing; and that therefore his common law remedy is not vitiated by the terms and provisions of the Workmen's Compensation Act of Illinois.
Chapter 48, section 138.1(b) of the Illinois Revised Statutes, 1961, defines the term "employee" as it is used in the Workmen's Compensation Act of Illinois. The portion of subsection 2 that is relevant to the instant issues is the following:
"2. Every person in the service of another under any contract of hire, express or implied, oral or written, including persons whose employment is outside of the State of Illinois where the contract of hire is made within the State of Illinois, and including aliens, and minors who, for the purpose of this Act shall be considered the same and have the same power to contract, receive payments and give quittances therefor, as adult employees, but not including any person who is not engaged in the usual course of the trade, business, profession or occupation of his employer."
At the outset, plaintiff states that the statute has two fundamental requirements: (1) that the person be under a contract of hire; and (2) that he 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 carries the employee beyond the scope of the Workmen's Compensation Act." We agree.
The relationship of employer and employee is a contractual relationship and "is a product of mutual assent, that is, of a meeting of minds expressed by some offer on the part of one to employ or to work for the other and an acceptance on the part of the other," and ". . . there can be no employer and employee relationship, and no liability for compensation under the act, in the absence of a contract of ...