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Wolland v. Industrial Com.

OPINION FILED APRIL 16, 1982.

JERRY WOLLAND, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (CITY OF PEORIA, APPELLEE).



Appeal from the Circuit Court of Peoria County, the Hon. Charles M. Wilson, Judge, presiding.

JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Claimant, Jerry Wolland, a Peoria policeman, sought compensation under the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, pars. 138.1 et seq.) for injuries sustained when his service revolver accidentally discharged. The arbitrator denied compensation, finding claimant "failed to prove that he sustained accidental injuries arising out of and in the course of his employment." That decision was affirmed by the Industrial Commission, and confirmed by the Peoria County circuit court. Claimant appealed pursuant to our Rule 302(a). 73 Ill.2d R. 302(a).

The proof indicated that on September 11, 1979, claimant and several fellow officers went off duty at 4 p.m. and met on a friend's boat where claimant drank about three beers between 4 and 6 p.m. A backyard barbeque was planned for later that evening at the home of Officer Koenig just outside the Peoria city limits. At 6 p.m. claimant and Officer Koenig went to pick up the latter's girlfriend and stayed at her apartment for about an hour and a half, during which claimant drank two more beers and a shot of schnapps. Claimant, driving his truck, and Officer Koenig, driving his motorcycle, then went to the Koenig home. Officer Koenig testified that claimant did not appear to be under the influence of alcohol at this time. They arrived at the house about 8 p.m. While Officer Koenig prepared the charcoal, claimant took off his coat and removed his handcuffs from his belt. He testified that as he attempted to pull his weapon from the holster it "went off," the bullet entering his lower right calf. Both the weapon and the holster were equipment approved by the Peoria police department. Claimant testified that as he was removing his coat it got caught on his belt. He "felt a slight tug" and thought the coat cocked the gun, which then fired as a result of touching his belt or his finger. He also estimated that the hammer required about a onepound pull to cock it and that the weapon was not supposed to fire if the hammer was hit but rather only if the trigger itself was "pulled or knocked." He did not remember touching the trigger. However, hospital records introduced into evidence note that "[t] he patient states that his 38 caliber revolver accidentally went off while he was cleaning it."

It was stipulated that the rules governing the conduct of the city and its police officers authorized an annual allowance for carrying a weapon off duty, and testimony established that the amount of the allowance was $125. The 1972 rules manual required that "[o]fficers shall go armed at all times whether on or off duty." An officer is "off duty" when not employed during the regular assigned hours, but an officer is "subject to duty as needed." The rules also require that "[w]hen `off duty', they [officers] shall be responsible for taking proper police action, according to the circumstances, on any matter coming to their attention at any time." The deputy superintendent of police testified that the rules manual had not been updated to include several verbal agreements between the superintendent of police and the police benevolent association, one of which apparently removes the requirement that an officer carry his weapon when outside the city limits.

The question presented on these facts is whether the decision of the Commission that claimant's injuries did not arise out of and in the course of his employment as a police officer for the city of Peoria was contrary to the manifest weight of the evidence. Claimant, relying on the rule which required him to carry his weapon even while off duty and upon County of Peoria v. Industrial Com. (1964), 31 Ill.2d 562, maintains that since carrying the weapon was an integral duty of his employment the injury is compensable.

Respondent argues, relying upon Siens v. Industrial Com. (1981), 84 Ill.2d 361, that claimant was not "in the course of" performing police duties in that neither the time, place nor circumstances of the injury were related to police work. See, e.g., Scheffler Greenhouses, Inc. v. Industrial Com. (1977), 66 Ill.2d 361; cf. Loyola University v. Industrial Com. (1951), 408 Ill. 139 (employee who lived on premises and "on call" 24 hours, who was injured on the premises but during off-duty hours and not while performing duties, held not entitled to compensation).

Police claimants offering the argument that they are "on duty" 24 hours a day have met with mixed success in other jurisdictions. In cases where an off-duty officer is injured while actually performing a police function, compensation is uniformly awarded. (See, e.g., Kelly v. County of Nassau (1977), 58 App. Div.2d 681, 395 N.Y.S.2d 733; Petrocelli v. Workmen's Compensation Appeals Board (1975), 45 Cal.App.3d 635, 119 Cal.Rptr. 620; Krasnoff v. New Orleans Police Department (La. App. 1970), 241 So.2d 11; King v. City of Clinton (Mo. App. 1961), 343 S.W.2d 185.) Where, however, the off-duty officer was not performing a police function when injured, compensation has been denied in: City of Coral Gables v. Williams (Fla. App. 1980), 389 So.2d 1212 (injury occurred outside city); Mayor of Baltimore v. Jakelski (1980), 45 Md. App. 7, 410 A.2d 1116; Rogers v. Industrial Com. (Colo. App. 1978), 574 P.2d 116; Walker v. State Accident Insurance Fund (1977), 28 Or. App. 127, 558 P.2d 1270; State Compensation Insurance Fund v. Workmen's Compensation Appeals Board (1973), 29 Cal.App.3d 902, 106 Cal.Rptr. 39; McKiernan v. City of New Haven (1964), 151 Conn. 496, 199 A.2d 695; Simerlink v. Young (1961), 172 Ohio St. 427, 178 N.E.2d 168; Blackley v. City of Niagara Falls (1954), 248 App. Div. 51, 130 N.Y.S.2d 77; Baughman v. City of Omaha (1943), 142 Neb. 663, 7 N.W.2d 365. These cases all involved the "going and coming" rule. Compensation was awarded to officers "going and coming" in: Toomey v. City of Portland (Me. 1978), 391 A.2d 325 (even though accident occurred outside city limits); Abshire v. City of Rockland (Me. 1978), 388 A.2d 512; Workmen's Compensation Appeal Board v. DelCimmuto (1976), 23 Pa. Commw. Ct. 43, 350 A.2d 459 (uniformed security guard); Collier v. County of Nassau (1974), 46 App. Div.2d 970, 362 N.Y.S.2d 52; Director of Finance v. Alford (1973), 270 Md. 355, 311 A.2d 412 (officer called to work in emergency); Warg v. City of Miami Springs (Fla. 1971), 249 So.2d 3; Jasaitis v. City of Paterson (1959), 31 N.J. 81, 155 A.2d 260; Sweat v. Allen (1941), 145 Fla. 733, 200 So. 348; cf. Chambo v. City of Detroit, Police Department (1978), 83 Mich. App. 623, 269 N.W.2d 243 (where court denied compensation because accident occurred outside city limits but indicated that a different result would be reached if the accident occurred within the city).

Professor Larson (1 A. Larson, Workmen's Compensation sec. 16.12 (1978)) does not regard the fact that the employee is on call 24 hours per day as sufficient to render compensable those injuries which would otherwise come within the normal "going and coming" rule.

Claimant also relies upon the Missouri appellate court's decision in King v. City of Clinton (Mo. App. 1961), 343 S.W.2d 185, holding that where a uniformed officer was injured by the accidental discharge of his weapon, which occurred when he tripped on his back porch as he was leaving for work, the injury arose from his employment because of the risk inherent in carrying the weapon. Because officers were required to be armed at all times, the court there held that the officer was "actively performing a duty of his employment" even though his actual duty hours had not yet begun.

Two of this court's decisions have dealt with injuries sustained from accidental, self-inflicted gunshot wounds. In Marshall v. City of Pekin (1916), 276 Ill. 187, this court reversed an award by the Industrial Board but did not reach the question of "arising out of and in the course of" employment because the officer was not engaged in an extrahazardous occupation as defined by the Act nor had the city yet elected coverage under the Act. More recently in Siens v. Industrial Com. (1981), 84 Ill.2d 361, we affirmed the denial of compensation to a village marshal who sustained shotgun wounds to his leg when the encased gun accidentally discharged as he pushed it over the seat of his car. In that case we held that the Commission's decision that the marshal did not prove that his injury arose out of and in the course of his employment was not against the manifest weight of the evidence. We noted that although a peace officer may be entitled to carry a weapon at all times, "it does not necessarily follow that every injury suffered by a peace officer is compensable. Any injury must still be incidental to one's employment as a peace officer." (84 Ill.2d 361, 364.) Since "he was preparing to pursue a diversion unrelated to his job with the village" — going duck hunting — "[t]he injury he suffered did not occur in the course of his employment." (84 Ill.2d 361, 365.) In Siens we distinguished County of Peoria v. Industrial Com. (1964), 31 Ill.2d 562, a case which claimant argues supports his claim, because the deputy there, although "off duty," was engaged at his superior's direction in aiding a distressed motorist, "normal, incidental functions of all deputy sheriffs" (31 Ill.2d 562, 566), when he was struck by a passing automobile and killed.

While the Commission, in view of the conflict between claimant's testimony and the hospital records, may have simply decided claimant had not met his burden of proof, we believe its decision appropriate, assuming the injury occurred as claimant testified. While, in those circumstances, claimant's case would fall between Siens and County of Peoria, it is, in our judgment, much closer to the former. As in Siens, claimant was engaged in a diversion totally unrelated to his employment as a police officer, and had, in fact, been so engaged for several hours prior to his injury. Concededly the rules required him to carry his weapon while in the city, but claimant was not in the city at the time the gun discharged. Too, the case for compensation is significantly more persuasive when the activity in which the officer is injured in off-duty hours is one, as in County of Peoria, in which he might normally be engaged during on-duty hours.

We do not intend to suggest that carrying a weapon is not incidental to employment as a law-enforcement officer or that an accidental shooting of one's self would never be compensable. We simply hold that in the circumstances of this case the Commission's decision that claimant's injury did not arise out of and in the course of his employment is not contrary to the manifest weight of the evidence.

Accordingly, the judgment of the circuit court of Peoria County, confirming the decision of the ...


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