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Kancevicius v. Moyer

MARCH 22, 1971.

ANTHONY KANCEVICIUS, PLAINTIFF-APPELLANT,

v.

WILLIAM A. MOYER ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Du Page County; the Hon. PHILIP F. LOCKE, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 24, 1971.

The Plaintiff, Anthony Kancevicius, was riding in a car driven by a co-employee, Harrison Stout, on the 1st of September, 1966. Stout was driving south on Towne road at its intersection with Roosevelt Road, Route 30. Route 30 is a four lane highway divided by a median strip. As Stout approached Route 30 he failed to stop, drove across the westbound lanes, across the median strip, and was struck by a car driven by William A. Moyer in the fourth lane, being the southerly eastbound lane of the four lane highway.

The complaint of Kancevicius charges Stout with wilful and wanton conduct and the defendant Moyer with negligence. At the conclusion of the Plaintiff's case the Trial Court directed a verdict both on the wilful and wanton count against the co-employee with whom Kancevicius was riding, and also directed a verdict as to the defendant Moyer.

As a basis for the above directed verdict as to Stout the Trial Court found that the plaintiff had filed an application under the Workmen's Compensation Act which the Court held to be a bar to a common law action against the co-employee driver of the car. The Trial Court found that there was no negligence on the part of Moyer.

In Sjostrom v. Sproule (1962), 34 Ill. App.2d 338, 181 N.E.2d 379 where the two employees were both employed by Armour & Company and required to work in Bradley, Illinois, both employees being residents of Chicago, the Appellate Court held that the injury to one while riding with the other to the place of work did not arise out of or in the course of his employment. The case was retried and after a verdict on the common law liability of the defendant, the Appellate Court reversed itself 49 Ill. App.2d 451, 200 N.E.2d 19, (1964) and said:

"After a careful consideration of the law applicable to the facts disclosed by the record we have decided that our former opinion is erroneous and would result in injustice to the defendant. Both parties were in the course of their employment at the time of the occurrence. They were on their way to their job site at the direction of their employer and in transportation furnished by the employer. The trend of recent decisions is to broaden the reach of the Workmen's Compensation Act. Dunham Co. v. Industrial Comm., 16 Ill.2d 102, 156 N.E.2d 560 holds that a transportation risk arises out of the employment and that the employee would not have been exposed to the transportation hazard but for his employment. In the case at bar plaintiff and defendant were subjected to the hazards of the road because of Armour's furnishing transportation and its direction to use it."

However, the Court in the same paragraph went on to say:

"The furnishing of transportation by the employer is a well recognized exception to the rule that travel to and from work is ordinarily not within the Compensation Act. Angerstein in Illinois Workmen's Compensation (Rev. Ed.) Vol. 1, Sec. 406, recognizes the exception to the general rule that the employer is not liable for accidental injuries sustained by the employee away from the employer's premises while on the way to or from work where the employer provides a means of conveyance to or from work. In 99 C.J.S. Workmen's Compensation 235, page 837, the author states: `This exception to the general rule has been held to be as well established as the rule itself, and to be supported by overwhelming authority.' * * *."

Upon a further appeal to the Supreme Court the Supreme Court sustained the Appellate Court in its second opinion 33 Ill.2d 40, 210 N.E.2d 209 (1965). It is to be expressly noted that both Plaintiff and Defendant in the Sjostrom case were furnished company transportation to and from their temporary place of employment. In this respect the Sjostrom case differs from the one at hand.

The questions before this court are whether or not the filing of an application for adjustment of claim before the Industrial Commission under the Workmen's Compensation Act is a bar to suit, and secondly, does the Illinois Workmen's Compensation Act apply under the factual situation here.

In Sloma v. Pfluger (1970), 125 Ill. App.2d 347, 261 N.E.2d 323 this Court considered a case of co-employees driving to work together. In this case the plaintiff was 18 years of age, worked with one Richard Lee Carpenter, both being employed by L.H. Wood Construction Company. They were in the business of erecting dry walls. Carpenter drove his own pickup truck and Sloma rode with him. Carpenter lived in Carpentersville and his employer maintained a supply trailer in Meadowdale which is almost contiguous to Carpentersville. On the day in question Carpenter and Sloma had worked in Belvidere and left the job site about 3:30 P.M., and had driven to a tavern in Belvidere where they remained for two and one-half hours. They drove east from Belvidere at a speed of 70 to 90 m.p.h. when they struck a vehicle driven by Pfluger. The Appellate Court held that the transportation furnished by Carpenter to Sloma was a matter between Carpenter and the Plaintiff, and further stated on page 327:

"The facts in this case suggest that the Plaintiff's scope of employment began and ended at the job-site; that there was nothing to take him out of the normal rule that travel to and from the place of employment is beyond the realm of the employment relationship; and that one injured in the course of such travel is not injured as an employee. (Urban v. Industrial Com. (1966), 34 Ill.2d 159, ...


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