Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Kane County,
the Hon. Joseph T. Suhler, Judge,
MR. CHIEF JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 23, 1977.
Mary Dillbeck was hired in June of 1966, by De Kalb Agricultural Association, Inc. (hereafter De Kalb), to act as a crew leader in its corn-detasseling operations. Required to provide transportation for the crew (for which she would receive additional compensation), she arranged to use her father's 1958 three-quarter-ton pickup truck. Two lawn chairs and an old truck seat were installed in the back of the truck to provide seating. On her first day as a crew leader, July 18, 1966, she met the members of her crew at a park in Earlville, Illinois, at approximately 8 a.m. and drove them in her father's truck to the work site. They arrived at 8:30 and detasseled corn until 4 p.m., the end of the workday. The crew members seated themselves in the back of the truck and Mary Dillbeck drove the truck in an easterly direction along Preserve Road toward Route 23. The weather was clear and warm, and the gravel road was dry. As she approached Route 23 Mary Dillbeck attempted to slow down in anticipation of the stop she would have to make at the junction of Route 23 and Preserve Road. She lost control of the vehicle when it started to slide on the gravel, and the truck slid off the road and struck a utility pole. Linda Hindle, a crew member, was seriously injured, and Joyce Lynn Pakenham, another crew member, was killed.
Linda Hindle and Justin Pakenham, as administrator for the estate of Joyce Lynn Pakenham, filed separate suits in the circuit court of Kane County naming Mary Dillbeck, Leo Dillbeck, her father, and De Kalb as defendants and charging their negligence. The defendants filed motions for summary judgments contending that Linda Hindle's injuries and Joyce Lynn Pakenham's death arose in the line of their employment, and thus any common law actions were barred by section 5(a) of the Workmen's Compensation Act (Ill. Rev. Stat. 1967, ch. 48, par. 138.5(a)). That section provided, in part:
"No common law or statutory right to recover damages from the employer or his employees for injury or death sustained by any employee while engaged in the line of his duty as such employee * * * shall be available to any employee who is covered by the provisions of this Act * * *."
The trial court granted the motions but the appellate court reversed (1 Ill. App.3d 1021), holding that the motions should have been denied. On remand the suits were consolidated for trial.
Officer James L. Rackley, an Illinois State police officer, testified that he arrived at the scene shortly after the accident. He said that it occurred on Preserve Road about 400 feet west of Route 23 and that the truck left "tire marks or skid marks" 242 feet long on Preserve before it left the road and struck the pole. He stated that the truck continued moving after it struck the pole and came to rest at a point 37 feet south of Preserve and 90 feet east of where it had left the road. He said that he spoke with Mary Dillbeck shortly after the accident and that she told him that "it was caused because she lost control of the vehicle."
The plaintiffs called Mary Dillbeck to testify as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 60). She testified that she was moving at about 40 miles per hour and that when she applied the brakes the back end of the truck began to swerve. She said that she then turned the wheels of the truck in the direction the truck was swerving, but because the swerving became worse, she turned the wheels in the opposite direction to bring the vehicle under control. She testified that, however, at some point after the truck began to swerve, she lost control and the vehicle headed off the road. She said that she was required by De Kalb to provide transportation for her crew members from Earlville to the fields where the work was done and back again, for which transportation she was paid $5 per day. She testified that she had authority to hire and fire members of her crew and that she was required by De Kalb to supervise them while they worked in the fields. She also said that she had the right to select the route to be used for getting from Earlville to the fields and back again and that on the day of the accident she was returning to Earlville over the same route she had driven that morning to get to the field where the crew was to work.
The plaintiffs also called Ernest Kastler, a foreman for De Kalb who supervised its detasseling operations in the Earlville area in July of 1966, to testify as an adverse witness under section 60. He said that a crew leader was paid $5 per day for the use of the vehicle she provided to transport her crew to and from work. He stated that there was no public transportation in the Earlville area. He said, too, that a crew might work in more than one field in a single day, that this was not determined in advance, and that a crew might not work a full 8 hours in case of bad weather. He testified, too, that he had authority from De Kalb to pay the crew members for the time they spent traveling from Earlville to the fields or for the time they spent returning from the fields to Earlville and that he had, as the foreman of that crew, decided Mary Dillbeck's crew would be paid for the time it spent traveling from Earlville to the fields. He said that on July 18 the crew members were paid from the time they left Earlville at 8 a.m. until they finished in the fields at 4 p.m. He stated that crew leaders were paid $1.60 per hour and crew members, who ranged in age from 14 to 16, $1.15 per hour. He said that he selected Mary Dillbeck to be a crew leader and that she was free to select the routes to travel to and from the fields. Kastler testified that Mary Dillbeck was not required to drive her crew directly back to their home community immediately after work. He stated that she and her crew were free to go wherever they wished after work if Mary Dillbeck was willing to drive the members because "she was still in charge of them until they got back to the park in Earlville."
Linda Hindle testified that by prearrangement she met Mary Dillbeck on July 18, 1966, at 8 a.m. at a park in Earlville and that at that time she did not know which field they were going to work in that day. She said that Kastler did not give her any instructions concerning her work or Mary Dillbeck's responsibilities. She stated on cross-examination that she knew that De Kalb would provide transportation for her to and from the fields. She testified that she had no idea how fast the truck was traveling just before the accident or whether it had slid on the gravel.
At the close of all evidence, the trial court granted Leo Dillbeck's motion for a directed verdict. Before the case went to the jury, the plaintiffs filed an amended complaint. In count I they alleged that De Kalb, through its agent Mary Dillbeck, had negligently operated the truck; Mary Dillbeck was not named as a defendant in count I. In count II they alleged that De Kalb had been negligent in selecting Mary Dillbeck to provide transportation for the plaintiffs. In count III they alleged that Mary Dillbeck was an independent contractor and that she had negligently operated the truck. Count II was dismissed by the trial court for failing to state a cause of action.
Together with instructions and general verdict forms, these two special interrogatories were submitted to the jury:
"You are instructed to answer `yes' or `no' to the following Interrogatory: Was the defendant, Mary K. Dillbeck, an independent contractor at the time and place of the occurrence in question?"
"You are instructed to answer `yes' or `no' to the following Interrogatory: Were the plaintiffs, Linda Hindle and Joyce Lynn Pakenham, engaged in the line of their duties as employees of the defendant, De Kalb Agricultural Association, at the time and place of the occurrence in question?"
The jury returned a verdict in Linda Hindle's favor and against De Kalb in the amount of $100,000 and in Justin Pakenham's favor and against De Kalb in the amount of $30,000. The jury found in favor of Mary Dillbeck. Both special interrogatories were answered in the negative. Following the trial, the case was again appealed to the appellate court, and, in a Rule 23 order (58 Ill.2d R. 23), the court reversed the judgment against De Kalb, stating:
"Since De Kalb's only liability here must be on the basis of respondeat superior for the actions of its driver, Mary Dillbeck, and since the jury has found for her and against the plaintiffs and judgments thereon have been entered, from which no appeals ...