APPEAL from the Circuit Court of Tazewell County; the Hon.
IVAN L. YONTZ, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 29, 1979.
On the afternoon of November 12, 1975, the deceased, Arthur C. Prince, was killed when the car he was driving collided with a truck driven by defendant Michael McCasky. The plaintiff, wife of the deceased and executrix of the estate of Arthur Prince, subsequently brought a wrongful death action against McCasky and his employer, defendant Atchison, Topeka and Santa Fe Railway Co. (hereinafter referred to as Santa Fe). Plaintiff also filed a workmen's compensation claim against the decedent's employer, The General Electric Company. Prior to trial on the wrongful death action, the arbitrator awarded Mrs. Prince $267.01 per week for the rest of her life pursuant to the applicable provisions of the Workmen's Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.7(a)). Electric Mutual, General Electric's Workmen's Compensation insurance carrier, subsequently filed a complaint for intervention claiming a lien on any judgment plaintiff would recover against defendants McCasky and Santa Fe (Ill. Rev. Stat. 1975, ch. 48, par. 138.5(b)). After a trial by jury, judgment was rendered in favor of the plaintiff against both defendants for $250,000. On motion by the plaintiff, the trial court ordered that the lien of Electric Mutual be applied to only one-third of the judgment; and not to the entire amount. Also subsequent to the judgment, McCasky's liability insurer, Country Mutual, filed a petition for leave to make a tender of $25,000 (the maximum limit of its policy coverage) to the court, along with interest and costs. The court granted the petition, and Country Mutual paid $25,000 to the clerk of the Circuit Court of Tazewell County.
Multiple issues have been raised by all parties on appeal. These issues are as follows:
A. Was defendant McCasky within the scope of employment when the accident occurred?
1. If McCasky was within the scope of his employment with Santa Fe when the accident occurred, and the judgment in favor of plaintiff Prince was proper, should the case nevertheless be remanded for a new trial because:
a. The giving of plaintiff's instructions nos. 8, 25 and 34 confused and misled the jury.
b. The court incorrectly granted defendants' motion in limine to preclude testimony by various individuals regarding the drinking habits of McCasky and co-employees while on the job, which would suggest drinking on the job was within the scope of employment.
B. Should the case be remanded in any event for a new trial on the issue of damages because the damages awarded plaintiff were insufficient and contrary to the manifest weight of the evidence?
C. If the judgment in favor of the plaintiff was proper, should the lien of Electric Mutual be increased and apply to the entire judgment instead of one-third? (Our resolution of the issue will involve a determination of whether section 5(b) of the Workmen's Compensation Act is valid, given recent statutory changes which have removed the ceiling on the recovery by widowed spouses under the Act.)
D. Did the trial court incorrectly sever count III from counts I and II?
E. Did the trial court err in allowing McCasky's liability insurer, Country Mutual, to tender the policy limits to the clerk of the court subsequent to judgment against the insured?
1 The first issue we will deal with is whether defendant McCasky was within the scope of employment when the fatal accident occurred. It is well settled that an employer is not to be held vicariously liable for injuries caused by an employee when that employee is engaged in a "frolic of his own," as he is considered at that time to be outside the scope of employment. However, once the employee departs from his frolic, and re-enters the scope of employment, injuries resulting from his negligence will result in vicarious liability on the part of the tortfeasor's employer under the doctrine of respondeat superior. The resolution of this first issue will entail an examination of the activities of McCasky and one Alvin Payton on November 12. Alvin Payton was McCasky's passenger, who was also killed in the fatal accident.
Alvin Payton was a co-employee of McCasky and lived in Lilly, Illinois. On the morning of November 12, Payton gave another Santa Fe employee, Michael McLaughlin, a ride to the Santa Fe facility in Morton, Illinois. Payton was to give McLaughlin a ride home that afternoon after work, at approximately 4.
Defendant McCasky was employed as a machine operator for Santa Fe. He had held this position for approximately 2 1/2 years. Shortly before 7:30 on the morning of November 12, he reported to work at the Morton Depot. (Both McCasky and Payton normally worked from 7:30 until 4, with a half-hour for lunch which was usually taken four hours after work began but could be taken at any time.) After his arrival, McCasky was told by his foreman, David Cuevas, that he and Payton were to go to Pekin and repair a tamping machine. Repair of the machine involved the removal and replacement of bolts. McCasky was instructed to drive his own vehicle, a 1974 Chevrolet truck, to Pekin. It was Santa Fe policy to reimburse its ...