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Manahan v. Daily News-tribune

OPINION FILED JULY 7, 1977.

DONNA MANAHAN ET AL., PLAINTIFFS-APPELLANTS,

v.

THE DAILY NEWS-TRIBUNE, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of La Salle County; the Hon. WENDELL L. THOMPSON, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal from a summary judgment of the Circuit Court of LaSalle County. The summary judgment was granted to The Daily News-Tribune. The plaintiffs sued The Daily News-Tribune, alleging it was responsible by respondeat superior for the acts of its employee and agent, Larry L. Johnson. The Daily News-Tribune responded that Johnson was an independent contractor and not an agent or employee of The Daily News-Tribune and therefore, The Daily News-Tribune was not responsible for Johnson's acts. The lawsuit in the trial court named The Daily News-Tribune, a corporation, Larry L. Johnson, and Edward P. Johnson, individually and d/b/a Johnson's Three Minute Automatic Car Wash, as defendants. On September 15, 1975, an order of default was entered against all defendants except The Daily News-Tribune.

The Manahans alleged that on March 21, 1975, at approximately 4:55 p.m., an automobile driven by Larry L. Johnson crossed the center line of the highway and collided with an automobile driven by Donna Manahan and owned by Lyle Manahan. The collision occurred when Johnson attempted to make a left turn from the northbound lane across the southbound lane and into a private drive at the same time that Donna Manahan approached the private drive as she travelled in the southbound lane. At the time of the collision Johnson was working as a newspaper deliveryman for The Daily News-Tribune; he had just delivered a newspaper.

The Daily News-Tribune admitted that Johnson was working as a newspaper deliveryman at the time of the collision. He was working pursuant to a contract which had been executed between himself and Dennis Lenart, of the circulation department of the The Daily News-Tribune. The agreement provided that Larry Johnson was to deliver copies of The Daily News-Tribune "to such persons and at such places and time and during such hours as * * * [were] * * * from time to time * * * designated and furnished [by The Daily News-Tribune]." "In making such deliveries, [Larry Johnson] an independent contractor agrees to furnish and maintain his own equipment, pay for the cost of operation thereof, keep this same property insured, * * * and to employ on his own account, any other persons necessary for the performance of the contract." As long as he "makes delivery at the times and to the persons and places designated by [The Daily News-Tribune]," Johnson has "full right to determine the route or routes to be taken." The Daily News-Tribune "shall exercise no control over [Johnson's] operation as independent contractor and * * * [Johnson's] * * * entire compensation shall be that stipulated herein." "[Johnson] agrees to pay all State and Federal taxes, and to procure and maintain such State, Federal, or Municipal registrations, licenses and permits as may be necessary to operate such vehicles." In the event that Johnson failed to deliver the newspapers or otherwise defaulted in his agreement, The Daily News-Tribune could terminate the contract. Payment was to be made on a per-customer basis plus the sum of $64 per week.

On June 11, 1976, a hearing on the motion for summary judgment was held. On June 16, 1976, the court found as a matter of law that Larry Johnson was an independent contractor and not an agent or employee of The Daily News-Tribune. On July 1, 1976, the order was entered.

The plaintiffs raise two points on appeal, (1) the determination of employment as either independent contractor or employer-employee is a material question of fact to be decided by the jury and not by the trial judge in a summary judgment proceeding, and (2) a worker who is controlled by his employer as to the place, time and hours of performance, among other factors, with only the independence of providing his own means of transportation at times and paying his own taxes is an employee.

The plethora of recent appeals from summary judgment orders indicates that there is a misunderstanding about the matters which can be resolved by the summary judgment procedure.

The procedure is authorized by section 57 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 57):

"(1) For plaintiff. Any time after the opposite party has appeared or after the time within which he is required to appear has expired, a plaintiff may move with or without supporting affidavits for a summary judgment or decree in his favor for all or any part of the relief sought.

(3) Procedure. The opposite party may prior to or at the time of the hearing on the motion file counteraffidavits. The judgment or decree sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law."

• 1, 2 The purpose is to determine whether a genuine issue of fact exists. If no such genuine issue exists, the motion for summary judgment is granted and the cause is terminated for the moving party. The procedure is to be encouraged because it promotes efficient and economic use of the judicial system. It must be clearly understood, however, that the summary judgment procedure may not be used to try any issue. (Dowell v. William H. & Nelson Cunliff Co. (1975), 26 Ill. App.3d 388, 324 N.E.2d 660, Rivan Die Mold Corp. v. Stewart-Warner Corp. (1975), 26 Ill. App.3d 637, 325 N.E.2d 357.) It is not a modified trial procedure. The right of the moving party to obtain a summary judgment must be clear and free from doubt. (Equilease Corp. v. Cattlemen's Freezer Meats, Inc. (1973), 13 Ill. App.3d 1, 299 N.E.2d 419.) The opposing party has the right to a trial if there is a genuine issue of fact; therefore, the granting of a motion for summary judgment is not and cannot be a matter of discretion. Wegener v. Anna (1973), 11 Ill. App.3d 316, 296 N.E.2d 589.

• 3 In determining whether there is a genuine issue of material fact, the trial court should consider the pleadings and admissions, affidavits in support of and in opposition to the motion, and any other evidence before the court. If the court finds no genuine issue after giving due consideration to those matters, it may grant the motion for summary judgment as a matter of law (Joseph W. O'Brien Co. v. Highland Lake Construction Co. (1972), 9 Ill. App.3d 408, 292 N.E.2d 205; Yuhas v. Allis-Chalmers Distribution Service Corp. (1973), 12 Ill. App.3d 814, 299 N.E.2d 166; Robinson v. George (1940), 16 Cal.2d 238, 105 P.2d 914) if the court also finds that the moving party is entitled to judgment. Baier v. State Farm Insurance Co. (1975), 28 Ill. App.3d 917, 329 N.E.2d 543.

• 4 It has been suggested that the judge in deciding a motion for summary judgment may not draw inferences. (Lesser v. Village of Mundelien (1975), 36 Ill. App.3d 433, 344 N.E.2d 29.) We do not believe that this is an exclusive statement. If the court is presented with facts with which reasonable men may disagree or facts which are subject to conflicting inferences, summary judgment should not be granted. However, where but a single inference can be drawn from undisputed facts, summary judgment is proper. (Robinson v. George (1940), 16 Cal.2d 238, 241, 105 P.2d 914, 916; Trzaska v. Bigane (1945), 325 Ill. App. 528, 60 N.E.2d 264.) "That there is some evidence from which possibly a different inference might have been drawn is not significant as long as there is a reasonable basis in substantial competent evidence to support the inference which is drawn." (Westlund v. Kewanee Public Service Co. (1956), 11 Ill. App.2d 10, 24, 136 N.E.2d 263.) Further, if only the complaint and answer purport to raise issues of material fact, and those issues are not supported by the evidentiary facts, affidavits, etc., summary judgment is proper. Carruthers v. B.C. Christopher & Co. (1974), 57 Ill.2d 376, 313 N.E.2d 457.

In the instant case, the court had before it for consideration the complaint, the answer, the motion for summary judgment, the depositions of Larry L. Johnson, a co-defendant, and Dennis F. Lenart, circulation manager for The Daily News-Tribune, a copy of the agreement between The Daily News-Tribune and Larry Johnson, dated November 12, 1974, and the ...


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