Appeal from the Circuit Court of Ogle County, Fifteenth
Judicial Circuit; the Hon. HELEN M. RUTKOWSKI, Judge, presiding.
Reversed and remanded, with directions.
MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 8, 1968.
Plaintiff brought 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 Stats 1965, c 48, par 138 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 Stats 1965, c 70, par 1, et seq.).
Section 5(a) of the Workmen's Compensation Act (Ill Rev Stats 1965, c 48, par 138.5(a)) provides, in part, as follows:
"No common law or statutory right to recover damages from the 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. Chicago & 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 Pk. Hotel Co., 391 Ill. 391, 397-398 incl., 63 N.E.2d 365 (1945); Ill Rev Stats 1965, c 48, par 138.5 (a) and c 110, par 43 (4).
Section 3 of the Workmen's Compensation Act (Ill Rev Stats 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 ...