dissenting:
Whether the Workmen’s Compensation Act barred plaintiff’s action was determined by the jury adversely to defendant’s contention. It answered in the negative this special interrogatory:
“Were the plaintiffs, Linda Hindle and Joyce Lynn Pakenham, engaged in the line of their duties as employees of the defendant, De Kalb Agricultural Association, at the time and place of the occurrence in question?”
It is fundamental that the burden of proving this affirmative defense was upon the defendant. (Victor v. Dehmlow (1950), 405 Ill. 249, 252-54.) Specifically, the defendant invoking such a defense “would be required to plead, and have the burden of proving, that the plaintiff was injured or killed by an accident arising out of and in the course of his employment.” 405 Ill. 249, 253-54.
These principles are relevant in determining whether the evidence on this issue presented a factual or legal issue, or a mixed question of law and fact. These girls had completed their work when they clocked out on their timecards at 4 p.m. Their pay period terminated at that hour. They were not required to ride home with Mary Dillbeck. After 4 p.m. they had no duty, direction or instruction. Insofar as the employer was concerned, the girls could do as they desired after they left the fields. If they wished to leave the truck at any given point between the fields and Earlville, they were free to do so.
We appreciate the difference between this trip and the trip to work. In the morning it was required that they assemble at a certain point in Earlville, and they were paid their hourly wage between the point where they were picked up and the work site proper.
Substantially the same issue has been decided differently by this court. In Meador v. City of Salem (1972), 51 Ill. 2d 572, plaintiff was employed by the Salem Police Department. His hours were 4 p.m. to midnight, and frequently, as a courtesy, he was given a ride home in one of the police cars of the defendant city. On the night in question, while he was being given a ride home, the police officer driving the city vehicle, in an effort to overtake a speeding automobile, ran off the road causing injury to the plaintiff. There, as here, defendant asserted the affirmative defense of the Workmen’s Compensation Act. There, as here, there was a special interrogatory answered adversely to defendant. But there, unlike here, the court determined that the issue was one of fact for the jury.
In Lopez v. Galeener (1975), 34 Ill. App. 3d 815, another similar situation was encountered. The defendant operated a feed store in town, as well as a poultry farm. Richard Schuette and Douglas Lopez were hired to work on the poultry farm. However, at the feed store in town defendant provided a shower room where those who did this work could change clothes. On the afternoon of the particular day, Schuette and Lopez went to the feed store after school. They changed their clothes, and defendant Galeener left with them and two other boys, including defendant Hess, for his poultry farm. En route they stopped at a cafe for about 20 minutes. When completing their journey to the farm, the station wagon, then operated by defendant Hess, was struck by an automobile, resulting in injury to Schuette and death to Lopez. In the action by Schuette and the administrator of Lopez’ estate, it was disputed whether Schuette and Lopez were required to report at the feed store in town before beginning their work at the poultry farm.
In affirming a judgment for the plaintiffs, the appellate court noted:
“The defendants, Galeener and Hess, have argued that the travel of Schuette and Lopez from the" feed store to the poultry farm was occasioned by the demands or exigencies of their employment with Galeener. The evidence, when viewed most favorably to plaintiffs shows they were not required by their employment to go to the feed store, and that they were not required by their employment to travel from the feed store to the poultry farm. The most that can be said about the relationship of Schuette and Lopez to the feed store is that Schuette and Lopez could go to the feed store to change their clothes if they desired to do so. This certainly does not overwhelmingly prove that the presence of Schuette and Lopez at the feed store or that the traveling by Schuette and Lopez from the feed store to the poultry farm was brought about by the demands or exigencies of the employment.” Lopez v. Galeener (1975), 34 Ill. App. 3d 815, 819-20.
Could not the jury here reasonably conclude that this trip after the day’s work was a courtesy of the employer, or that the trip was not requisite to the demands or exigencies of the employment, or that the girls’ work consisted of being in town in the morning and going to the fields until the end of the working day when they were no longer subject to the employer? If they found any of the foregoing facts unfavorably to the defendants, such would justify the negative answer to the special interrogatory.
We must remember it was for the jury to draw these inferences, give meaning to the circumstances, and attach whatever significance to the particular facts as was justifiable.
Such evidence was a basis for the conclusion reached here by reasonable and fair-minded men in the exercise of their impartial judgment.
That we might reach a different result is immaterial. This is the very purpose of juries. As G. K. Chesterton once observed: “I would trust twelve ordinary men, but I cannot trust one ordinary man.” Joiner, Civil Justice 136 (1962).
While the statute employs the words “in the line of his duty” (Ill. Rev. Stat. 1967, ch. 48, par. 138.5), this court has determined that this means that the injury must not only be “in the course of employment” but that it must “arise out of” the employment. (Sjostrom v. Sproule (1965), 33 Ill. 2d 40, 43.) This is an aspect which in and of itself would raise an issue of fact in this situation.
At the time of this accident, these girls were riding in a vehicle on a public highway. They were not subjected by their employment to a hazard to which the public was not exposed. Nor did their employment peculiarly expose them to a greater threat of injury than that to any traveler in any vehicle along the highway.
In General Steel Castings Corp. v. Industrial Com. (1944), 388 Ill. 66, involving an employee whose work was ended and who had left his employer’s premises, this court noted:
“Whether an accident is so related or incident to the employment as to cause it to be seen that it arose out of or in the course of the employment, depends upon the particular circumstances of each case. No formula can be laid down which will automatically solve every case. The test is whether the employee, when injured, was at the place where, by reason of his employment, he was required to be, or where he is subjected by reason of his employment to a hazard to which the public is not exposed, or to which he by reason of his employment is exposed peculiarly and to a greater degree than the public. If his work for the day is ended and he is off his employer’s premises where the hazard to which he is exposed is the same and of the same degree as that to which the public is exposed, his injury is not compensable. It is not sufficient to say he would not have been at that place if it had not been for his job, since the same can usually be said of the general public.” 388 Ill. 66, 70.
This same principle has been articulated in a series of cases. In Great American Indemnity Co. v. Industrial Com. (1937), 367 Ill. 241, an employee, working for his employer, was walking along a public street when a foreign substance was deposited in his eye, causing him to lose the sight thereof. In holding that the injury did not arise out of employment, the court quoted from Mueller Construction Co. v. Industrial Board (1918), 283 Ill. 148. That case, after citing similar cases, said:
“[T] he gist of the decisions seems to be that there' must be some special risk incident to the particular employment which imposes a greater danger upon the employee than upon other persons using the streets. The criterion, however, is not that other persons are exposed to the same danger, but rather that the employment renders the workman peculiarly subject to the danger.” (283 Ill. 148, 157.)
See also Farley v. Industrial Com. (1941), 378 Ill. 234, 237; Borgeson v. Industrial Com. (1938), 368 Ill. 188, 193.
When it is considered that the workday for these girls, as well as their period of compensation, terminated at the fields, that there was no requirement for them to ride from the fields to Earlville with Mary Dillbeck, that they could leave the truck at any time, and that the injury arose out of a danger to which the public in general was exposed, it would appear that it is an issue of fact whether the girls were in the line of their duties at the time of the accident.
The trial court was of the opinion that the affirmative defense presented a factual issue; three judges of the appellate court, on appeal from an order granting summary judgment in which this subject was in issue (1 Ill. App. 3d 1021), believed that there was such a factual issue as would withstand a summary judgment, and two judges of this court share that belief. (The appellate court on the second appeal, in a Rule 23 order (58 Ill. 2d R. 23), never touched on this question, since it took the position that a judgment_in favor of Mary Dillbeck precluded the action against De Kalb Agricultural Association, Inc.)
We note this as indicative of considerable division of judgment on whether here “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) In my opinion the majority has unfortunately treated the evidence in the light most favorable to the party making the motion for judgment, notwithstanding the verdict of the jury.
The majority’s holding that Linda Hindle and Joyce Parkenham were in the line of their employment at the time of this occurrence does not mean that compensation for this injury and death will be received under the Workmen’s Compensation Act (Ill. Rev. Stat. 1967, ch. 48, par. 138.1 et seq.). The employer might be successful in the defense of these claims for the reasons discussed in these opinions. This, of course, would magnify the error of the majority.
MR. JUSTICE GOLDENHERSH joins in this dissent.