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Walker v. Midwest Emery Freight Systems





Appeal from the Circuit Court of Cook County; the Hon. Lawrence P. Hickey, Judge, presiding.


PRESIDING JUSTICE MEJDA delivered the opinion of the court:

Plaintiff James Walker brought this action to recover damages sustained when he was run over by the rear wheels of a truck-tractor upon which he had been riding and from which he fell. His wife, Josephine Walker, who joined as plaintiff, sought damages for loss of consortium. Plaintiffs' action sought recovery against the defendants on the theory of negligence. The defendants were Walter Green, the operator of the truck; John Tunstall, Green's fellow employee; Paul E. DeMuth d/b/a Lowery Trucking Co. (hereinafter Lowery Trucking), lessor of the truck-tractor and Green and Tunstall's employer; and Midwest Emery Freight Systems (hereinafter Midwest Emery), the lessee of the truck-tractor.

During the trial, plaintiffs moved to strike certain affirmative defenses pleaded by defendants interposing the Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.) as a bar to plaintiffs' common law action. The trial court granted the motion after determining, as a matter of law, that plaintiff James Walker was an independent contractor rather than an employee or fellow employee of defendants. From this ruling and from the subsequent verdicts and judgments entered in favor of plaintiffs, defendants appeal.

Defendants have raised several issues claiming prejudicial error; however, the dispositive issue presented is whether the trial court erred in ruling, as a matter of law, that plaintiff was neither an employee of Midwest Emery nor a fellow employee of defendants Green And Tunstall. The pertinent facts are as follows.

On the night of March 24, 1974, four over-the-road truck drivers were present in the Chicago truck depot yards of defendant Midwest Emery. The drivers, plaintiff, David Hardin, defendant Green and defendant Tunstall, had previously driven their respective tractor-trailer combinations to the yards where they were parked. The trucks driven by Green and Tunstall were owned by Paul DeMuth, d/b/a Lowery Trucking. The trucks driven by plaintiff and Hardin were owned by plaintiff. Each of the trucks, with driver, had been leased by their respective owners to Midwest Emery and were, when on the road, operating pursuant to Midwest Emery's Interstate Commerce Commission Certificate. Plaintiff was both owner and operator of the truck driven by him.

The uncontroverted trial testimony established that the incident resulting in plaintiff's injury occurred when, in an effort to start the engine of Tunstall's tractor which could not be started by normal cranking due to the cold, Hardin, Green and Tunstall agreed to tow the nonstarting tractor with a driver in the towed tractor engaging and disengaging its clutch. Hardin's combination was used as the towing vehicle and the vehicles were connected by an 18-foot chain. Despite several towing attempts with Tunstall at the wheel of the towed tractor, no ignition was achieved. Then plaintiff, who had been performing truck maintenance in the nearby Midwest Emery garage, became involved by mounting the frame behind the cab of Tunstall's tractor intending to foster ignition by injecting ether into Tunstall's tractor's diesel air intake system. Green replaced Tunstall in the cab of the nonstarting tractor and Hardin operated the towing combination. Plaintiff testified that Tunstall acted as signalman for the maneuver which followed. The ensuing accident occurred when, after the two vehicles had moved a distance of between 15 to 25 feet, plaintiff was run over by the rear wheels of the towed tractor upon which he had been standing.

The parties' testimony with respect to the factors causing plaintiff to fall under the truck's wheels was controverted and need not be fully summarized here. In sum, plaintiff's version was that the towed truck began to run and then came to a stop. Believing that the truck was not going to move, he began to dismount at which moment the truck unexpectedly jerked, causing him to fall under its rear wheels. Green testified that as the towed truck's engine began to "kick over," both vehicles came to rest and did not move again. By that time, plaintiff was on the ground. Tunstall and Green both denied that Tunstall participated in the maneuver as signalman. Hardin did not testify.

Both Lowery Trucking, owner of the towed vehicle, and plaintiff, owner of the towing vehicle, had entered into contractual relationships with Midwest Emery whereby each leased their respective trucks, with drivers, to Midwest under similar lease agreements. Under the terms of plaintiff's lease agreement, entitled "Equipment Contract," plaintiff leased a specified tractor to Midwest Emery for a period of not less than one year. The lease could be terminated at Midwest Emery's option by giving 30 days' notice to plaintiff. Plaintiff was to pay all operating and maintenance expenses of the tractor, agreed to comply with all applicable safety regulations, and was to be paid a certain percentage of the revenue derived from the operation of the tractor. Midwest Emery agreed to pay plaintiff's social security taxes and unemployment taxes and to pay directly to plaintiff's driver his wages. In the event that plaintiff and driver were one and the same, payment of rental and wage was to be by mutual agreement of the parties. A driver was to be provided by plaintiff who was to be his "employee."

The lease also contained a clause providing that Midwest Emery was "to retain exclusive possession, control and use of said vehicles for the duration of this contract, within the meaning of, and only for the purpose of, compliance with the ruling of the Interstate Commerce Commission." Midwest Emery further reserved "the right to control the manner, means and detail of and by which the Contractor [plaintiff] * * * performs his services as well as the ends to be accomplished * * *." Finally, an additional clause provided:

"It is the intent of the parties that the contract [sic] have the legal rights and legal liabilities which accrue to any independent Contractor, except insofar as the specific provisions of this contract conflict with such status, and further excepting any condition brought about directly by compliance with the law, rules or regulations of any governmental bodies having jurisdiction."

At the close of the evidence, plaintiff moved to strike and dismiss defendants' affirmative defenses which alleged that plaintiffs' negligence action was barred by the Workers' Compensation Act. It was the defendants' position that the action was barred because Midwest Emery was plaintiff's employer and because Green and Tunstall were his fellow servants and co-employees. Plaintiff, referring to the lease agreement, argued that the uncontroverted evidence established that plaintiff was an independent contractor and not an employee or fellow employee vis-a-vis defendants. The trial court, relying primarily on the lack of evidence to support a contrary finding, ruled, as a matter of law, that no employer-employee or fellow employee status was established. Accordingly, the motion striking defendants' affirmative defenses was granted.


Defendants contend that the trial court erred in striking its affirmative defenses because the lease agreements demonstrated as a matter of fact, if not alternatively as a matter of law, that plaintiff was the employee of Midwest Emery rather than an independent contractor and that defendants Green and Tunstall were, in turn, his fellow employees and therefore immune from his common law tort action under the Workers' Compensation Act. (See Ill. Rev. Stat. 1981, ch. 48, par. 138.5.) Alternatively, defendants contend that the order striking the affirmative defenses was error because plaintiff's activities ...

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