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09/14/89 Bearl L. Houston, v. Quincy Post 5129

September 14, 1989

BEARL L. HOUSTON, PLAINTIFF-APPELLANT

v.

QUINCY POST 5129, VETERANS OF FOREIGN WARS, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

544 N.E.2d 425, 188 Ill. App. 3d 732, 135 Ill. Dec. 929 1989.IL.1421

Appeal from the Circuit Court of Adams County; the Hon. Dennis K. Cashman, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. SPITZ and STEIGMANN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Plaintiff was injured when a bingo sign fell on him at the Veterans of Foreign Wars hall. Plaintiff filed suit against the VFW and another member of the organization alleging negligence. Upon motion of the VFW, the trial court dismissed the lawsuit against VFW ruling, as a matter of law, plaintiff was an employee of the VFW at the time of the injury and his suit was therefore barred by the exclusive remedy provisions of the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, pars. 138.5, 138.11). On appeal plaintiff contends the trial court erred in its determination that, as a matter of law, he was an employee of the VFW. We agree and reverse.

The facts may be gleaned from plaintiff's complaint and the various pleadings attendant to defendant's motion to dismiss under section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-619).

Plaintiff, a member of the bingo committee of the VFW, was helping conduct a bingo game on the VFW premises on September 8, 1987. His duties included calling the bingo numbers and straightening up the premises after the game concluded. During the cleanup process, a nine-foot-long, four-foot-high, one-foot-thick bingo sign, weighing approximately 200 pounds, fell on him, severely injuring his left arm.

Claimant had been a member of the bingo committee for approximately two years prior to the accident and had worked the games periodically selling bingo cards, calling the numbers, and cleaning up the tables and stage from which the sign which injured him fell. In return for this activity, claimant received a $4-per-night credit toward his lifetime VFW membership dues. This credit had been instituted approximately one

The VFW's motion to dismiss alleged claimant was an employee at the time of the injury by virtue of the credit toward dues payment provided him for services. In addition, defendant maintained it controlled and supervised claimant's work because the bingo committee chairman assigned specific duties to the various members who worked the bingo games. This assertion was substantiated by the deposition of codefendant Jack Wolkitt, who testified the bingo committee chairman expressly assigned him specific tasks. He was also told by Wolkitt he would be replaced if those tasks were not performed satisfactorily. Wolkitt received 50 cents an hour for his services which sum was applied as a credit toward dues or items which could be ordered through the VFW catalog. Defendant also presented the affidavit of the deputy commander of the post which stated a workers' compensation policy purchased by defendant was in effect on the date of the accident.

In contrast, plaintiff stated in his affidavit in opposition to the motion to dismiss that no member of the bingo committee had particular duties and all members would help out whenever assistance was needed. Similarly, plaintiff maintained no one was given instructions on what needed to be done since all members knew what was required of them and no members of the committee were under the direct supervision of the bingo chairman. Plaintiff also averred he never expressly or impliedly, orally or in writing, agreed to enter into a contract for hire as an employee of the VFW and never considered himself as such. Finally, plaintiff stated he was not on the VFW payroll, never had income or social security taxes deducted by the organization, and did not fill out any government-required employment forms.

In determining claimant was an employee, as a matter of law, the trial court relied on the following factors: claimant received a $4 credit per night toward his lifetime membership, defendant Wolkitt established he held a comparable remunerated position while both worked under the direction of the bingo committee chairman. Upon this basis the trial court dismissed the complaint as to VFW. We note, parenthetically, the allegations of the complaint directed to defendant Wolkitt are not before us on this appeal.

A motion for involuntary dismissal under section 2--619(a)(9) is properly brought to determine questions of employment and the scope of employment such as those presented here. (Kinney v. Continental Assurance Co. (1976), 42 Ill. App. 3d 263, 356 N.E.2d 131.) As the historical and practice notes to that section indicate:

"The purpose of this section is primarily that of affording a means of obtaining at the outset of a case a summary Disposition of issues of law or of easily proved issues of fact, with a reservation of jury trial as to disputed questions of fact." (Ill. Ann. Stat., ch. 110, ...


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