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Hendricks v. Bettner

OPINION FILED AUGUST 12, 1976.

RODNEY E. HENDRICKS, PLAINTIFF-APPELLANT,

v.

RICHARD H. BETTNER, D/B/A BETTNER TILING SERVICE, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Ogle County; the Hon. JOHN MOORE, Judge, presiding.

MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal from a summary judgment for the defendants in a personal injury suit. The plaintiff, Hendricks, sued Richard Bettner, doing business as Bettner Tiling Service, for personal injuries Hendricks received on or about February 9, 1973, when his vehicle was struck by a vehicle driven by an employee of Bettner.

In his answer defendant Bettner (hereinafter referred to as defendant), besides denying the allegations as to his or his employee's negligence, set up the affirmative defense that the plaintiff was also his employee and was, therefore, barred from maintaining this action by Section 5(a) of the Workmen's Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.5(a)).

The defendant then filed a motion for summary judgment alleging that there was no genuine issue as to a material fact and that the plaintiff was his employee at the time of the accident in question, which motion he supported by affidavits and by copies of letters written by plaintiff's counsel. Defendant contends that the said letters amount to admissions by the plaintiff establishing the plaintiff's employee status with the defendant.

There were three such letters relied upon by the defendant. A letter dated March 9, 1973, from plaintiff's counsel to the workmen's compensation carrier merely gives information from which it could be surmised that the plaintiff had made a claim for workmen's compensation benefits, since it gives details in support of such a claim. A letter dated March 23, 1973, also to the insurance company's adjuster, merely states:

"There was no agreement.

There was some negotiations leading in that direction, but according to everything I can find, the relationship between Bettner and Hendricks was Employer-Employee."

The third letter dated April 13, 1973, in its material parts stated:

"So far as this office knows and so far as we have been told there is no joint venture contract between Rodney Hendricks and Richard Bettner, nor has there ever been such a contract.

Mr. Hendricks on the date of his injury was an employee of Richard Bettner."

Besides the attorney's signature this letter also carried the plaintiff's signature in the margin.

In addition, the motion for summary judgment alleged that the plaintiff, at the time of the motion in question, had "accepted over $9,000 in payments from Country Mutual Insurance Company, the Workmen's Compensation carrier for the defendant Richard Bettner." A copy of the plaintiff's application for workmen's compensation benefits was also attached.

The plaintiff, in opposition to the motion for summary judgment, filed an affidavit stating that at the time of the accident he was an independent contractor working on a commission basis on the total amount Bettner received from his customers.

• 1 The trial court's order granting the motion for summary judgment found that there was no genuine issue as to any material fact and that the defendant was entitled to judgment as a matter of law. No memorandum opinion was filed by the court, but we must assume that he considered the letters indicated above to be admissions binding upon the plaintiff which removed any issue as to his employment status and that such admissions were not ...


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