APPEAL from the Circuit Court of Macon County; the Hon. ALBERT
G. WEBBER, III, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Plaintiffs, Vern Collier, Lois Collier, his wife, and Donald Collier, his son, sued defendants Wagner Castings Co. (WCC), John A. Wagner, John A. Wagner, Jr., and William Stogner in the circuit court of Macon County seeking damages for the infliction of physical injuries upon and a violation of the civil rights of Vern Collier and the extreme emotional distress of all the plaintiffs. They appeal from a judgment dismissing their first amended complaint upon defendants' motion.
The complaint contained four counts, each directed against all defendants. The thrust of plaintiffs' claims is that plaintiff Vern Collier was stricken while at work as an employee of WCC and was then given grossly inadequate treatment by defendant Stogner who was a licensed practical nurse or medical attendant for WCC. The individual defendants Wagner are alleged to be officers and directors of WCC. They and WCC are charged with making work rules and giving notices that contributed to the injuries inflicted upon Vern Collier. He is the only plaintiff as to counts I, II and III. Count I sounds in the tort of outrage and seeks compensation only for severe emotional distress. Count II also alleges elements of outrage but relies principally on allegations of a violation by defendants of section 8(a) of the Illinois Workmen's Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(a)) and seeks recovery for severe emotional distress, physical harm and a violation of civil rights. Count III repeats the allegations of count II, alleges that defendants' conduct was wilful and wanton and seeks punitive damages. Count IV is brought by Lois Collier and Donald Collier, wife and son of Vern Collier. It repeats the allegations of count I, alleges that those plaintiffs were present and witnessed Vern Collier's suffering and grief and seeks damages for severe emotional distress and the loss of companionship and society of Vern Collier.
Defendants' motion to dismiss maintains as to each count that it: (1) fails to state a cause of action; (2) fails to allege facts imposing a duty on defendants or a proper basis for a direct action by plaintiffs against them; and (3) is barred by sections 5(a) and 11 of the Illinois Workmen's Compensation Act (Ill. Rev. Stat. 1973, ch. 48, pars. 138.5(a) and 138.11). Filed supplemental to and in support of the motion was a copy of a settlement contract, lump-sum petition and order together with affidavit setting forth that a lump-sum settlement had been approved between Vern Collier and WCC for workmen's compensation for a heart attack with which Vern Collier was stricken on March 17, 1975, and which arose in the course of and out of his employment with WCC.
The trial court determined that each of the counts failed to state a cause of action. We agree. Counts I, II and III show on their face that they do not come within any exception to the provisions of sections 5(a) and 11 of the Act (Ill. Rev. Stat. 1973, ch. 48, pars. 138.5(a) and 138.11), which bar actions by the employee Vern Collier against his employer or its officers, directors or agents. Any claims in count IV for loss of consortium are barred under the ruling in Bloemer v. Square D Co. (1972), 8 Ill. App.3d 371, 290 N.E.2d 699, and the count otherwise fails to state a cause of action.
At the time of the occurrence sections 5(a) and 11 stated in pertinent part as follows:
"No common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury." Ill. Rev. Stat. 1973, ch. 48, par. 138.5(a).
"The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer engaged in any of the enterprises or businesses enumerated in Section 3 of this Act * * *." (Ill. Rev. Stat. 1973, ch. 48, par. 138.11.)
In Mier v. Staley (1975), 28 Ill. App.3d 373, 329 N.E.2d 1, we ruled that the bar of section 5(a) can be claimed, as here, by officers and directors of a corporation for acts done in their official capacities.
The theory of our decision here is premised upon the precedent of Komel v. Commonwealth Edison Co. (1977), 56 Ill. App.3d 967, 372 N.E.2d 842, and Hayes v. Marshall Field & Co. (1953), 351 Ill. App. 329, 115 N.E.2d 99. In each of these cases the court ruled as a matter of law that when an employee of the employer, even though that employee be a physician or surgeon, treats a co-employee for a "line of duty" injury and does so improperly, an action for the resulting injuries brought by the injured employee against the treating employee or the employer is barred by section 5 of the Act. Komel was a suit against both the employee and the employer, while suit in Hayes was brought only against the employer. Similar immunity would logically inure to officers, directors and agents.
The Komel court reasoned that (1) the test of whether an injury was received in the "line of duty" so as to be barred by section 5(a) is the same test as used to determine whether the employee's injury is compensable under the Act, citing Sjostrom v. Sproule (1965), 33 Ill.2d 40, 210 N.E.2d 209, and (2) an employer's liability under the Act includes that for aggravation of a compensable injury received during treatment, citing Lincoln Park Coal & Brick Co. v. Industrial Com. (1925), 317 Ill. 302, 148 N.E. 79.
1 Plaintiffs allege in each count of the complaint that upon becoming stricken, Vern Collier was no longer in the "line of duty" and that his subsequent injuries did not arise in the course of and out of his employment. However, counts II and III specifically state that his original seizure arose in the course of and out of his employment. The complaint clearly sets forth that the misconduct alleged of defendants relates to their treatment of or failure to treat the seizure. Under Komel, as a matter of law, this conduct occurred while Collier was in the "line of duty." Accordingly, his injuries were compensable under the Act and common law action by him against the defendants was barred by the combined effect of sections 5(a) and 11 unless the complaint set forth a cause of action excepted from the restrictions of those sections.
Plaintiffs assert that the tort of outrage is not barred by sections 5(a) or 11. This type of action was first recognized in the State in Knierim v. Izzo (1961), 22 Ill.2d 73, 174 N.E.2d 157. There, a complaint was ruled to state a cause of action when it alleged that a defendant who had murdered plaintiff's husband had caused her extreme mental anguish and nervous exhaustion by his prior threats to commit the murder. Recently in Public Finance Corp. v. Davis (1976), 66 Ill.2d 85, 360 N.E.2d 765, a suit had been filed by a debtor claiming to have suffered extreme mental disturbance because of the creditor-finance corporation's tactics in seeking collection of a debt. Although the supreme court determined that the complaint did not state a cause of action, that court recognized the existence of a tort action for emotional distress and tested the complaint before it by the standards set forth in Restatement (Second) of Torts § 46 (1965).
Section 46 describes the tort of outrage as follows:
"Outrageous Conduct Causing Severe Emotional Distress
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly ...