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04/21/95 CHARLES HEEPKE v. HEEPKE FARMS

April 21, 1995

CHARLES HEEPKE, PLAINTIFF-APPELLANT,
v.
HEEPKE FARMS, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Madison County. No. 94-L-99. Honorable Nicholas G. Byron, Judge, presiding.

Presiding Justice Maag delivered the opinion of the court: Chapman, J., concurs. Justice Lewis, dissenting

The opinion of the court was delivered by: Maag

PRESIDING JUSTICE MAAG delivered the opinion of the court:

Plaintiff, Charles Heepke, appeals from a Madison County circuit court order dismissing his amended complaint with prejudice.

Plaintiff filed this action against defendant, Heepke Farms, Inc., on January 31, 1994, seeking recovery for personal injuries he sustained in a farm truck accident on February 21, 1992. On March 14, 1994, defendant filed a motion to dismiss plaintiff's complaint, asserting that the fellow servant doctrine precluded plaintiff from imputing his coworker's negligence to their common employer under a theory of respondeat superior. The trial court granted defendant's motion on April 8, 1994. The court specifically found that plaintiff and the allegedly negligent coworker were "members of the same department" and that the fellow servant rule therefore applied.

Plaintiff filed an amended complaint on April 25, 1994. Defendant again filed a motion to dismiss, asserting the fellow servant doctrine as a defense. The trial court granted defendant's motion on August 5, 1994, and dismissed plaintiff's complaint with prejudice. Plaintiff appeals from this order.

A trial court should dismiss a cause of action on the pleadings only if it is apparent that no set of facts can be proven which will entitle plaintiff to recover. ( Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 565 N.E.2d 654, 152 Ill. Dec. 121.) When considering a motion to dismiss at the pleading stage, all well-pleaded facts must be assumed to be true. Burdinie, 139 Ill. 2d at 505, 565 N.E.2d at 657.

Defendant, Heepke Farms, Inc., is a duly authorized corporation engaged in the business of farming in the State of Illinois. The defendant has three corporate officers: Mark A. Heepke, president; Fred W. Heepke, vice president and treasurer; and Charles F. Heepke (plaintiff), secretary.

On February 21, 1992, plaintiff was working as a manual laborer for the defendant. Plaintiff was riding in the rear of a farm truck loaded with hogs. The truck was owned by defendant and being operated by Fred Heepke. Plaintiff's job was to raise the truck's gate and release the hogs after Fred had backed the truck up against an unloading ramp. Plaintiff alleges that Fred improperly and negligently backed the truck up, thereby causing plaintiff to fall from the truck and suffer personal injury. Plaintiff alleges that both he and Fred were working as employees of the defendant at the time of the accident. The complaint was based on the theory of respondeat superior. It alleged that Fred was acting in the scope of his employment as a truck driver when the accident occurred, and that his alleged negligence should be imputed to the corporate defendant.

Plaintiff cannot maintain a workers' compensation claim because defendant had withdrawn from workers' compensation coverage for its corporate officers under section 3 of the Illinois Workers' Compensation Act. (820 ILCS 305/3 (West 1992).) Each corporate officer, including plaintiff, signed the form electing to withdraw from coverage.

Plaintiff's only contention on appeal is that the trial court erred in applying the fellow servant rule to dismiss his amended complaint. Plaintiff makes two arguments in support of his position. He first argues that the fellow servant rule is an antiquated doctrine which has been rendered impotent since Illinois adopted the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1992)). Plaintiff urges us to take this opportunity to abolish the rule once and for all.

Defendant argues that we do not have the authority to abolish the fellow servant doctrine. We agree. The Illinois supreme court first announced the rule that would become known as the fellow servant rule in Honner v. Illinois Central R.R. Co. (1854), 15 Ill. 550. In Honner, the court stated that a master is not liable to one servant for the carelessness of another servant where both servants are engaged in the master's business. ( Honner, 15 Ill. at 552.) The supreme court adopted the rule after fully discussing the policy behind the doctrine and reviewing the case authorities to date. ( Chicago & Northern R.R. Co. v. Moranda (1879), 93 Ill. 302.) Illinois has never abolished the fellow servant rule, either by statute or court ruling. In fact, the rule has recently been treated as viable by Illinois courts in Burnett v. Caho (1972), 7 Ill. App. 3d 266, 285 N.E.2d 619, and by the United States court of appeals in Pomer v. Schoolman (7th Cir. 1989), 875 F.2d 1262.

Once our supreme court has declared the law on a point, it alone can overrule or modify its previous opinion. ( People v. Pruitt (1992), 239 Ill. App. 3d 200, 606 N.E.2d 866, 179 Ill. Dec. 1034; Rusher v. Smith (1979), 70 Ill. App. 3d 889, 388 N.E.2d 906, 26 Ill. Dec. 905.) It is not within our authority to overrule or modify decisions of our supreme court. ( Pruitt, 239 Ill. App. 3d at 209, 606 N.E.2d at 872.) We, therefore, decline plaintiff's invitation to abolish 141 years of Illinois law.

Plaintiff next argues that the fellow servant rule should be narrowly construed to allow a jury to determine whether plaintiff and his coemployee were in the "same department". Plaintiff asserts that the policy behind the fellow servant rule, that fellow servants have a duty to monitor each other's safety, is frustrated by the modern world of specialized job descriptions. Therefore, ...


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