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Spees v. Stapleton

JUNE 30, 1969.

GEORGE SPEES, PLAINTIFF-APPELLANT,

v.

ELMER STAPLETON, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Williamson County, First Judicial Circuit; the Hon. JOHN H. CLAYTON, Judge, presiding. Reversed and remanded.

MORAN, J.

OPINION AS AMENDED ON REHEARING

(For original opinion see 104 Ill. App.2d 385, 244 N.E.2d 430.)

George Spees filed suit for personal injuries against Elmer Stapleton in the Circuit Court of Williamson County. After the depositions of both Spees and Stapleton were taken, Stapleton filed a motion for summary judgment on the ground that the undisputed facts contained in the depositions attached to his motion barred Spees's suit because his injuries arose out of and in the course of his employment. Ill Rev Stats (1967), c 48, par 138.5 (a). The trial court granted Stapleton's motion and entered judgment in favor of Stapleton and against Spees. Spees appeals.

The essential facts testified to in the depositions are undisputed and reveal that Spees and Stapleton were employed by the Central Illinois Public Service Company on February 25, 1965, the time of the accident. Both parties, along with thirteen other employees, assembled for work each day at a gas plant maintained by the Central Illinois Public Service Company on Route 37, north of Marion. From this starting place employees would pick up the company trucks and begin their daily duties.

The accident occurred at about 7:30 a.m., on the company parking lot. A six-inch snowfall had occurred the night before the accident with drifts four and five feet high in places. Spees arrived at work shortly before 7:30 a.m., intending to watch the usual morning game of washers which the employees played. Thirteen of the fifteen employees arrived at the plant about 7:30 a.m., either to engage in or to watch the game of washers. Work did not begin until 8:00 a.m., and this was strictly adhered to.

After parking his pickup truck on the parking lot, Spees started inside the building when he noticed that Stapleton had driven onto the parking lot and became stuck in the snow. At this point he called to Stapleton and offered to pull him out. Stapleton answered, "All right."

While Stapleton was rocking his car back and forth in an effort to free it, Spees drove his truck behind Stapleton's car, leaving eight to ten feet between the two vehicles. Spees got out and started to hitch a chain from his truck to Stapleton's car in order to pull him out. While Spees was looking toward his truck, Stapleton drove his car back into Spees, pinning him to the front bumper of the truck.

Stapleton testified that after Spees offered to aid him that he did not pay any more attention to him because he thought that if Spees were going to give him a pull, he would first give some kind of notice before tying on. Stapleton further stated that his windows were covered with steam and moisture on the inside and he could only see through the front windshield; that at no time before the impact did he ever apply his brakes, honk his horn, or give a signal of any kind; that he understood that Spees was going to pull him from the rear with a chain; and that it was about three or four minutes from the time he had the conversation with Spees until the accident occurred.

As a result of the accident, Spees sustained a broken leg and was off work for eleven weeks. His leg still builds up pressure and he has pain behind the knee. Spees testified that he did not file for workmen's compensation because he was not hurt on the job and that he did not make any claim against Central Illinois Public Service Company.

Appellant contends that this accidental injury did not arise out of or in the course of his employment so as to render the provisions of the Workmen's Compensation Act applicable and bar this common-law action.

The phrases, "arising out of" and "in the course of" the employment, are used conjunctively in our Act (Ill Rev Stats 1967, c 48, § 138.2; Chmelik v. Vana, 31 Ill.2d 272, 201 N.E.2d 434) thus requiring the presence of both elements to make the Workmen's Compensation Act applicable.

The words, "arising out of" refer to the origin or cause of the accident and presuppose a causal connection between the employment and the accidental injury, and in order for an injury to come within the Act it must have had its origin in some risk connected with or incidental to the employment, so that there is a ...


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