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Sloma v. Pfluger

JUNE 18, 1970.




Appeal from the Circuit Court of Kane County, Sixteenth Circuit; the Hon. JOHN S. PETERSEN, Judge, presiding. Judgment affirmed upon filing of a consent to remittitur within MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

Rehearing denied September 3, 1970.

The plaintiff, James Sloma, brought this suit against the Administratrix of the Estate of Richard Lee Carpenter, to recover damages for personal injuries which the plaintiff suffered on March 29, 1966, while riding in a pickup truck owned and operated by Richard Lee Carpenter. The plaintiff also sought recovery against L.H. Wood, individually and doing business as L.H. Wood Construction Company, the employer of both Carpenter and the plaintiff; and against Burton E. Pfluger, the driver of the other vehicle involved in the accident. Carpenter died as the result of the accident in question.

The trial court severed the issues of liability and damages and ordered that each issue be tried by a separate jury. The first jury found the defendants, Carpenter and Wood, liable, and the defendant, Pfluger, not liable. At a subsequent trial, the jury assessed damages in favor of the plaintiff in the sum of $380,000. At the trial on the issue of liability, the jury answered special interrogatories and found: that Carpenter was guilty of wilful and wanton conduct resulting in the accident; that the plaintiff was free from contributory wilful and wanton misconduct; that Carpenter was within the scope of his employment at the exact time of the accident (approximately 6:45 p.m.); that Carpenter was within the scope of his employment at an earlier time, when he had arrived at a tavern at approximately 3:45 p.m.; and that Carpenter was within the scope of his employment at an earlier time, when he left the tavern in question at approximately 6:30 p.m. A judgment was entered on the jury verdicts, and the employer, Wood, appealed.

Wood contends that there was no probative evidence of the resumption of employment by Carpenter after approximately two and one-half hours of drinking in the tavern, and that he, thus, was entitled to a directed verdict; that the verdict and answers to the interrogatories are against the manifest weight of the evidence; that certain opinion evidence as to the cost of future custodial care for the plaintiff was erroneously admitted, in that there was no evidence of the necessity for such custodial care; and finally, that the verdict of $380,000 is excessive and the result of errors committed in the course of the trial.

Wood was engaged in the business of erecting dry walls as a part of the construction of new buildings. He employed between one hundred fifty and two hundred men, and had four superintendents working for him. His operations encompassed the Chicago metropolitan area, north to Waukegan and west to Rockford. His main office was in Algonquin. The materials that were needed for the jobsites were either delivered to these sites, or kept in supply trailers throughout the area. Wood's superintendents had keys and access to these supply trailers. The materials stored in the trailers were normally delivered to the various jobsites by superintendents, or by employees hired for that purpose.

Carpenter was employed by Wood as a taper. He was a capable worker and his work ranged over a wide area. He required less supervision than many, or most, of Wood's employees. Apparently, Mr. Darnell, his superintendent, merely told him where his job assignments were to be. Carpenter's work relationship was rather unique in that he had his own pickup truck, which he drove to his various jobsites, and in which he carried his supplies and tools. He lived in Carpentersville, and his employer maintained a supply trailer in Meadowdale — a shopping center about a mile and a half from Carpenter's home. This trailer was primarily for Carpenter's use, and even though he was not a superintendent, he had a key to this supply trailer. Carpenter's key opened only this supply trailer — not the other trailers belonging to Wood. Carpenter was not paid an hourly rate; but rather, was paid on a piecework basis.

The plaintiff was eighteen years old at the time of the accident. He had been employed by Wood for a little over a year, and had been working directly with Carpenter for approximately two months. Carpenter's superintendent, Darnell, testified that he had "given" the plaintiff to Carpenter to use as a laborer-apprentice. The plaintiff was paid an hourly rate and was paid only from the time he arrived at the job until the time he left, and was not paid for any transportation time. He lived about a half a block from Carpenter in Carpentersville, and rode daily to and from the various jobsites with Carpenter, in the latter's pickup truck.

On the day in question, the plaintiff and Carpenter had worked on a job in Belvidere, which they completed. They left the jobsite at about 3:30 p.m., and drove to a tavern in Belvidere where they frequently stopped while working in the Rockford or Belvidere area. On this occasion, they remained in the tavern for about two and one-half hours. During this time, Carpenter had five or six bottles of beer, but the plaintiff had nothing alcoholic to drink. The plaintiff testified that Carpenter's eyes were glassy when they left the tavern at about 6:30 p.m., but that his speech and gait were normal, and that he did not believe Carpenter to be intoxicated. They got into the pickup truck — Carpenter driving — and proceeded east on U.S. Highway 20. The plaintiff testified that he placed his knees on the dashboard and fell asleep almost immediately.

The accident took place about a mile east of Belvidere, on U.S. Highway 20 — a paved two-lane highway at this point. Pfluger was driving a large tractor-trailer truck combination in an easterly direction at the time and place in question, and at the time of the accident was making a left-hand turn into a restaurant driveway, and was, thus, partially in the westbound lane of traffic. Carpenter's pickup truck struck the rear of Pfluger's vehicle. Witnesses estimated that Carpenter's pickup truck was travelling at a speed of from 70 to 90 miles per hour. The pickup truck exploded and burned: Carpenter was killed and the plaintiff severely injured. Visibility was good at this time and place.

The plaintiff testified that when they left the tavern they were then going to Meadowdale to pick up supplies; that they would go to Meadowdale for supplies before Carpenter would take him home because he lived only a half block from Carpenter; and that they intended to pick up supplies that night since they had completed the job in Belvidere and had only four or five bags of supplies left in the pickup truck, and it would take fifteen or twenty bags for the next day's work. It is undisputed that the plaintiff was not paid for any help he might give Carpenter in loading the supplies.

He further testified that, depending upon where they were to be working the following day, they would, at times, pick up supplies at night, to save time the following day; that they normally started work at about 7:00 a.m., and that the plaintiff knew that they were going to be working at either the Whitehall or Woodview jobsites in Prospect Heights the following day. Darnell, the superintendent, testified that he had planned to call Carpenter that evening to advise him that they would be working at Woodview the following morning.

The plaintiff also testified that Carpenter had told him that they were going to Meadowdale to pick up supplies. This testimony was stricken by the court and the jury was advised to disregard it.

We will first consider Wood's contention that he was entitled to a directed verdict on the issue of liability. Wood contends that if, at the time of the accident, the plaintiff and Carpenter were going to pick up supplies, then the plaintiff, too, was in the scope and course of his employment; and that in such event, Wood, the employer, is not liable for the injuries caused by the co-employee, Carpenter.

While Carpenter was on piecework and paid accordingly, the plaintiff was paid by the hour, and only for the time on the jobsite. His duties did not include picking up the supplies for the work to be done. Apparently, Carpenter was the only employee who was authorized and actually expected to pick up his supplies. If the plaintiff aided Carpenter, he did so as a volunteer. The evidence does not support any agreement or understanding between Wood and the plaintiff which could be ...

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