APPEAL from the Circuit Court of Vermilion County; the Hon.
FRANK J. MEYER, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Plaintiffs appeal from the judgment entered for defendant upon the pleadings in plaintiffs' action for personal injuries sustained by Bradley Stockton.
Plaintiff, Bradley Stockton, an employee of Joan of Arc Corporation (hereinafter Corporation), at Hoopeston, Illinois, was injured on the premises of his employer when struck by a truck owned by defendant and driven by one Cavazos. The complaint alleged that defendant was an independent contractor operating a truck for hire or leasing by the Corporation, and that Cavazos was defendant's employee.
Defendant filed a motion to dismiss under section 48(i) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 48(1)(i)), alleging that Cavazos was driving as an employee of the Corporation and that plaintiffs had no right of common law recovery for injuries caused by a fellow servant. Plaintiffs' stipulated that Bradley Stockton had entered into a stipulated statement under the Workmens Compensation Act with the Corporation.
The order on appeal reflects that the court considered the affidavits of defendant and the driver, Cavazos, and an evidentiary deposition by the personnel manager of the Corporation filed by plaintiffs and thereupon ordered that "said be dismissed in bar of action and at plaintiffs' costs."
The plaintiffs contend that whether defendant and the driver, Cavazos, were employees of the Corporation was a question of fact for the jury and was improperly determined as a matter of law.
Defendant entered into an oral arrangement with the Corporation whereby he brought some 25 to 30 individuals to the area to pick asparagus, corn and tomatoes in fields leased by the Corporation. He was to supervise the individuals in their work and was known as a "crew chief." Defendant also supplied two trucks and drivers, including the truck and driver which struck plaintiff, Bradley Stockton. Those picking in the fields were placed on the Corporation payroll and it paid social security taxes for such.
Defendant received a specified sum on each unit of garden stuff picked by his crew. He was paid $2.50 per ton for the produce hauled from the fields in his trucks. The Corporation issued weekly checks for wages to the driver but the total of such wages paid the driver was deducted from the total paid for the tonnage hauled in the trucks in the settlement made with defendant at the end of the season. This settlement for the hauling by defendant's trucks during the picking season was made separately from the payments made to him upon the production of his crew working in the fields.
Defendant's affidavit seeks to characterize the transaction as a leasing of his truck to the Corporation, while the complaint alleges that defendant was an independent contractor furnishing trucks for hire to the Corporation, but retaining control and supervision of the truck driven by Cavazos.
• 1 Defendant has the burden of proving the affirmative defense relied upon in his motion. Hindle v. Dillbeck (1971), 1 Ill. App.3d 1021, 274 N.E.2d 594.
Section 48(3) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 48(3)), provides that upon the hearing on the motion the parties may present affidavits or other proof denying facts alleged, or establishing facts obviating the grounds of defect, including the language:
"If a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties, or may deny the motion without prejudice to the right to raise the subject matter of the motion by answer and shall so deny it if the action is one at law and a jury demand has been filed by the opposite party in apt time." (Emphasis supplied.)
"This section makes it mandatory, however, that the court shall deny the motion, without prejudice, if it is an action at law and a jury demand has been filed by the opposite party in apt ...