Appeal from the Circuit Court of Cook County; the Hon. BEN
SCHWARTZ, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT.
The plaintiff, James P. Stanton, filed an action for personal injuries arising out of a collision on the Tri-State Tollway in July of 1965. Donald L. Johnson was named a defendant in a count charging willful and wanton conduct and another defendant, Ronald H. Coleman, was named in an ordinary negligence count. The trial court, on motion of Johnson, entered summary judgment for him and this appeal is from the final judgment thus entered. The action below against Coleman is not affected by this appeal. No findings of fact or conclusions of law were made by the trial court.
The facts and circumstances surrounding the plaintiff's injuries are ascertainable from the pleadings, the affidavits in support of the motion for summary judgment and certain discovery depositions made a part of the record in support of the motion.
Plaintiff and defendant Johnson are both residents of the State of Indiana. Both were employed by an Indiana corporation, Quality Builders, Inc., of which Johnson is secretary-treasurer and foreman of a construction crew which included Stanton and other employees. Quality Builders undertook to construct some poultry houses for Hawthorne Melody Farms at or near Libertyville, Illinois. Both the plaintiff and Johnson, together with three other employees of Quality Builders, were engaged in the construction work on these poultry houses and all of this group of employees traveled from Indiana to Illinois in a van driven by the defendant, starting out on a Sunday afternoon, arriving at the Libertyville destination early that evening, and beginning work on a Monday. All of the employees stayed at a motel near Libertyville until the following Friday and then would return home. The van, owned by the defendant Johnson and his wife, was equipped with only two seats in front and the other three passengers would ride sitting in lawn chairs or on tool boxes in the back of the van.
On the occasion of the injury the employees had worked on Friday, then had gone to the motel to clean up and check out, and during the work and at the motel they had consumed some beer. They then started the trip back to Shelbyville, Indiana. While on the Tri-State Tollway, at a point near Hinsdale, the defendant Johnson lost control of the vehicle, swerved across the grass median strip dividing the north and southbound lanes, and collided head-on with the car driven by the defendant Coleman, which was traveling in a northerly direction. Plaintiff, who was in the back of the van, was thrown from the rear of the van onto its motor and suffered severe injuries to his spinal cord and was permanently paralyzed.
The gasoline, oil and maintenance of the vehicle driven by Johnson were paid for by Quality Builders and the record rather clearly establishes that it was at least understood by the employees and Johnson that he (Johnson) furnish transportation to the employees in connection with the necessary trips to Libertyville, Illinois.
Following the injury, the plaintiff applied for Workmen's Compensation benefits with the Industrial Board of Indiana and ultimately entered into an agreement with the insurance carrier for Quality Builders, Inc., to accept certain specified benefits in the nature of disability payments and medical expenses. This agreement was approved by the Industrial Board of Indiana in August of 1965 and the record establishes that the plaintiff has received and accepted some $28,000 pursuant to this agreement.
The motion for summary judgment also establishes that the plaintiff has also filed a claim in Illinois with the Industrial Commission, seeking benefits under the applicable Illinois act, and in that application for adjustment of claim alleged that he was an employee of Quality Builders at the time of the occurrence. The disposition of that claim is not established.
The motion for summary judgment asserted that both the plaintiff and the defendant were employees of Quality Builders and that at the time of the accident Johnson was acting in behalf of Quality Builders in transporting employees from the jobsite to their respective homes, and that the exclusive remedy provisions of both the Illinois and Indiana laws applicable to Workmen's Compensation operate to bar this common-law remedy.
The trial court necessarily so held when it allowed the motion for summary judgment.
Section 5 of the Illinois Workmen's Compensation Act (Ill Rev Stats 1965, c 48, par 138.5), so far as is relevant, provides:
". . . (a) 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 anyone otherwise entitled to recover damages for such injury." (Footnote omitted.)
The Indiana act provides in relevant part as follows:
". . . 40-1206 Rights and remedies of employee under this act exclusive. The rights and remedies herein granted to an employee subject to this act . . . on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise, on account of such injury or death."
Both the Illinois and Indiana statutes have, in addition, provisions the effect of which is to exclude from automatic coverage employment or operations done, had or ...