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Gunterberg v. B. & M. Transportation Co.

APRIL 8, 1975.

ROBERT J. GUNTERBERG, PLAINTIFF-APPELLANT,

v.

B & M TRANSPORTATION CO., INC., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND BERG, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

In a three-count complaint, plaintiff, Robert J. Gunterberg, brought this action to recover damages for injuries sustained as a result of an assault and battery. Count I sought recovery against the three individual defendants, Lewis Hopkins, George Skinner, and Alfred Johnson, for an alleged assault and battery committed upon plaintiff. *fn1 Counts II and III sought recovery against the corporate defendants, B & M Transportation Co., Inc. and B & M Transport Company, on the theories of a negligent hiring and respondeat superior. The corporate defendants moved for summary judgment on the theory that defendant Hopkins was an independent contractor rather than an employee. From the entry of summary judgment on Counts II and III in favor of the corporate defendants, plaintiff appeals.

In Count I of his complaint, plaintiff alleged that defendant Hopkins was in possession and control of a tractor trailer truck which he had parked on property owned by plaintiff; that in so doing, Hopkins had blocked ingress and egress from plaintiff's business premises; that plaintiff posted several written communications upon the truck requesting that the owner or driver remove the truck so that plaintiff could gain access to his business premises; that plaintiff, when he returned to place another notice upon the truck, was severely beaten and kicked to unconsciousness by the three individual defendants; and that, while plaintiff was unconscious, defendant Hopkins attempted to run over plaintiff with the truck, but was restrained by the arrival of police officers.

Count II alleged that defendant Hopkins was an employee or agent of defendants B & M Transportation Co., Inc. and/or B & M Transport Company; that he was a man of extreme and vicious propensities; that the corporate defendants knew or should have known of Hopkins violent character and, in the exercise of ordinary care, should have foreseen that Hopkins would attack and injure persons during the course of his employment.

In Count III, the complaint alleged that on the date and time in question, Hopkins had parked his truck pursuant to the orders of the corporate defendants for the purpose of either unloading or loading freight; that the corporate defendants had instructed Hopkins to park in a place where no parking fees would be imposed; that, at the time of the incident, Hopkins was attempting to protect his position regarding free parking; and that his actions were on behalf of his employers with their direction and consent.

Regarding Counts II and III, the corporate defendants admitted that Hopkins had driven his own tractor to Chicago hauling a trailer owned by B & M Transportation Co., Inc., but denied each and every other allegation.

After issue was joined, the corporate defendants moved for summary judgment on the grounds that defendant Hopkins was an independent contractor in relation to B & M Transportation Co., Inc., and that no contractual relationship existed between Hopkins and B & M Transport Company. In support of their motion, defendants submitted the lease agreement between defendant Hopkins and B & M Transportation Co., Inc., and the affidavit of Gene Bramble, president of B & M Transportation Co., Inc. No counteraffidavits were filed on behalf of plaintiff.

Under the terms of the lease agreement, Hopkins leased a particular tractor to B & M Transportation Co., Inc. Either party could terminate the lease without cause after the expiration of 30 days. The lessor was to pay all maintenance and operating expenses of the tractor, all road and fuel taxes, and reimburse the lessee for all purchases of license plates and permits. The lessor could select other qualified drivers to operate the tractor, but was required to furnish the lessee with a certificate of Workmen's Compensation Insurance covering such drivers. The lessor agreed to carry all the safety devices as required by the Interstate Commerce Commission, and also assumed full responsibility for compliance with safety regulations insofar as the lessee's trailer was concerned. The lessor was to be paid a variable percentage of the revenue derived from the use of the tractor.

The lessor was also required to submit to the lessee driver's logs upon the completion of each trip; furnish a physician's certificate stating that he is physically fit to perform the duties of a long distance truck driver; identify the equipment as the property of the lessee, paint the tractor red, and keep it in an attractive and clean condition at all times; have his equipment pass the lessee's inspection test after each trip.

The lease could be cancelled if the lessor or his employees violated any of the provisions of the agreement or rules and regulations of the Interstate Commerce Commission or otherwise conducted themselves in a manner prejudicial to the interests of the lessee. Two additional clauses provided:

"Lessee shall have exclusive possession, control and use to the equipment and assumes complete responsibility in respect thereto during said lease.

The lessor agrees that he will at all times comply with rules and regulation established by B & M TRANS CO., INC."

In his affidavit, Gene Bramble stated that Hopkins singed the lease in his presence and that no taxes were ever deducted from payment to Hopkins pursuant to the lease. He further stated that the sole contractual agreement was between Hopkins and B & M Transportation Co., Inc., and that he had knowledge that no company by the name of B & M Transport Company had any contractual arrangement with Hopkins on or about the date of the occurrence. Solely on the basis of the lease agreement and Bramble's affidavit, the trial court entered summary judgment in favor of the corporate defendants on Counts II and III.

It is plaintiff's position that the entry of summary judgment was improper because the lease agreement demonstrated as a matter of law that Hopkins was an employee of the corporate defendants rather than an independent contractor. Alternatively, plaintiff contends that the issue ...


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