delivered the opinion of the court:
This case involved a common law tort action brought to recover damages for personal injuries occasioned by the alleged negligence of the defendant in maintaining the floor of a room used as an entranceway into its plant. The jury rendered a verdict for the plantifl: in the sum of $75,090.52, upon which the court entered the judgment and from which this appeal is taken.
The defendant, Kralis Poultry Co., Inc., operates a poultry processing plant. The plaintiff, Beatrice Martin, was employed by the defendant on the day of her fall. Her husband, Ellis Martin, was also employed by the defendant as a superintendent. On the day of her fall the plaintiff had left the plant after work to attend a union meeting, off the company premises, to vote on whether to strike. At the end of the union meeting, the plaintiff returned to the defendant’s plant at the request of her husband, to obtain a ride home. She entered the defendant’s plant for the purpose of meeting her husband, when she slipped and fell in the entranceway leading into the plant. The negligence of the defendant, as alleged by the plaintiff, was in placing soap on the floor of the entranceway, in permitting the soap to remain on the floor, and in failing to warn the plaintiff of the unsafe condition of the floor. Ellis Martin, the plaintiff’s husband and the defendant’s plant superintendent, testified in his affidavit and on the witness stand that he had discussed the impending strike with the plant manager and told him that he could obtain the results of the union strike vote from his wife. He testified that, to obtain this information, he specifically asked his wife to return to the plant to obtain a ride home. Charles Walker, the defendant’s plant manager, denied that any such conversation took place. Ellis Martin did not wait for his wife to return to the plant.
There are three issues which form the bases of this appeal: first, whether the rights of the plaintiff are to be determined in a common law tort action or under the Workmen’s Compensation Act of Illinois; second, whether a statement of counsel for the plaintiff was so prejudicial that the judgment should be reversed; and finally, whether the jury was properly instructed.
It is argued by the defendant that the plaintiff’s injury arose out of her employment by the defendant, and therefore her action at law for damages was barred. The defendant cites the affidavit of Ellis Martin and his testimony at trial to the effect that the defendant employer needed and hoped to obtain information concerning the union strike vote, that the defendant employer specifically asked the plaintiff employee to return to the defendant’s plant for this purpose, and that when she returned to the defendant employer’s plant and was injured, she was there for its benefit and at the request of its superintendent. In light of these facts, the defendant argues that the plaintiff’s injury arose out of and in the course of her employment. Therefore, her cause of action at law is barred by the Workmen’s Compensation Act of Illinois.
The defendant also cites four cases in support of these contentions. In Anderson v. Poray, Inc. (1963),
In Jewel Tea Co. v. Industrial Com. (1955),
In Sanborn Co. v. Industrial Com. (1950),
Lastly the defendant cites Swift & Co. v. Industrial Com. (1932),
All of these cases cited by the defendant can easily be distinguished from the case at bar. The last three citations are of cases where the employee asserted employment, brought his case under the Workmen’s Compensation Act, and had that decision sustained on review. In the case at bar, the plaintiff did not assert employment at the time of her injury and did not bring an action under Workmen’s Compensation. On the contrary, she brought a common law tort action. In each of the cases cited by the defendant, the plaintiff was either engaged in company activities which produced his injuries, or was in a position to be injured because of an employer-employee relationship and because of subtle pressures to be there, or was acting pursuant to specific directions by the employer to perform an unusual task. However, none of these situations existed in the case before us. Other than the testimony of the plaintiff’s husband, the record indicates that the plaintiff returned to the defendant’s plant at the request of her husband, solely to obtain a ride home. From the viewpoint of the plaintiff, she was merely complying with her husband’s request arising out of their relationship as husband and wife. From her point of view, she was not engaged in any company activities, she was in the plant for personal reasons, she was not acting under any pressure and she was not performing any unusual task for her employer. She was merely meeting her husband so that they might ride home together.
An analysis of the applicable Illinois law will further clarify this discussion. The pertinent Illinois statute, Ill. Rev. Stat, ch. 48, §138.5 (1967), provides:
“No common law or statutory right to recover damages from the employer * * * for injury * * * sustained by any employee while engaged in the fine of his duty as such employee other than the compensation herein provided, shall be available to any employee who is covered by the provisions of this Act.”
Section 138.1 (b)2 further provides:
“The term ‘employee’ as used in this Act shall be construed to mean: * .
Every person in the service of another under any contract of hire, express or implied, oral or written, * * * but not including any person who is not engaged in the usual course of the trade, business, profession or occupation of his employer unless he is so engaged at the lawful direction or instruction of his employer.”
From a reading of these exceipts from the Illinois Statutes, it is impossible to lay down a single all-encompassing rule by which the status of a person performing a service for another can definitely be fixed as an employee, and ordinarily no single feature of the relationship is determinative, but all must be considered together and each case must depend on its facts. (Anderson v. Poray, Inc. (1963),
The purpose of the Illinois Workmen’s Compensation Act is to protect workmen and compensate them for injuries received while performing any duty necessary to be performed in the course of their employment or incident to it. (Beverly Country Club v. Massachusetts Bonding & Insurance Co. (1932),
From these cases it is clear that there must be a causal connection between the conditions existing on the employer’s premises and the injury to the employee, and the accident must have had its origin in some risk connected with or incidental to the employment. A risk is incidental to the employment only when it belongs to or is connected with what an employee has to do in fulfilling his contract of émployment. (Chicago Hardware Foundry Co. v. Industrial Com. (1946),
The record in the present case shows that the plaintiff was employed as an inspector and that on the day of her injuries she had finished her work and clocked out two hours before she sustained her injury. And not only is there no evidence of an employment relationship, there is no evidence of a causal connection between any such employment and her injury. Since she had clocked out, her injury did not occur within the time of her employment. There is no evidence that the risk encountered by the plaintiff was incidental to her employment as an inspector or that her injury resulted from a hazard to which she would not have equally been exposed apart from it. The hazardous condition of the floor is not in dispute in this case, and the risk which it posed was not any greater to the plaintiff by virtue of her return to the plant after hours, than that which it posed to any other person also entering the plant through that particular entranceway on that day. The defendants make much of the fact that the actions of the plaintiff were beneficial to the employer, that they were performed at the direction of the employer, and that the accident occurred on the employers premises. Again the case law has clarified these three points. As was mentioned above, before an injury can be said to arise out of the employment, the risk thereof must be one peculiar to the work. It does not follow, therefore, that simply because an activity is beneficial to an employer it is also incidental to the employment. (Spees v. Stapleton (1989),
Concerning the defendant’s last assertion, that the injury occurred on the defendant employer’s premises, again there is substantial evidence to the effect that the plaintiff was on the defendant’s premises solely for the purpose of obtaining a ride home from her husband, something for her own personal benefit. Cases have held that even though an accident happens on the employer’s premises, if it occurs while the employee is doing something there for his own personal benefit, if does not arise out of his employment. Mazursky v. Industrial Com. (1936),
In short, two hours after the normal work day had ended, the evidence supports the conclusion that there was no lawful direction by the employer that she perform an unusual task and no benefit that her presence on the employer’s premises could render the company. To substantiate and lend support to the conclusion that plaintiff’s injuries did not arise out of and in the course of her employment, we cite the case of Lyons v. Michigan Bldg. Co., Inc. (1947),
In the final analysis it should be remembered that the existence of an employer and employee relationship is a question of fact.- (Crepps v. Industrial Com. (1949),
The defendant next complains of a statement made by counsel for the plaintiff in the presence of the jury which is alleged to be so prejudicial as to warrant reversal. The plaintiff called a Department of Labor safety inspector as a witness and began to question him about Industrial Commission rules. Before any specific rules were mentioned, the following dialogue occurred between counsel:
“Defendant’s Counsel: May it please the Court, I think maybe we might have this out of the presence of the jury, but there is nowhere in the complaint any allegation as to any statute or directives of the Department of Safety, and this comes as a surprise at this time.
Plaintiff’s counsel: If the Court please, I want to contest this. It cannot come as a surprise. The plant has been warned repeatedly about that.”
Defendant cites the general rule that: “A judgment obtained through statements of counsel concerning inadmissible matters that are prejudicial is grounds for a reversal where the prejudice is clear, though the trial court directs the jury to disregard the statements.” Illinois Law & Practice, vol. 3, Appeal and Error, pages 55-59. However, each of the cases cited by the defendant to support its argument involved either many instances of prejudicial statements by counsel, or the court did not direct the jury to disregard counsel’s statements, or counsel made comments respecting the ability to pay, all of which can be distinguished from the case before us.
None of the cited cases is similar to the one before us. In this case plaintiff’s attorney made a single ambiguous remark, early in trial, during a confusing interchange between attorneys for both sides, which may not have been heard or understood by the jury. The trial judge quickly took corrective action to instruct the jury to disregard the exchange between counsel, no other reference was made to the entire episode throughout the trial, and the record shows that the trial judge reaffirmed his decision in ruling on defendant’s post-trial motion. In addition to the general rule cited by the defendant, is the rule that “Improper argument or misconduct of counsel may constitute ground for reversal but only where it is apparent or probable that the complaining party has been prejudicially affected thereby.” (Illinois Law & Practice, vol. 3, Appeal and Error, pages 55-59.) Applicable Illinois case law has shown that misconduct by counsel may be rendered harmless error by corrective action of the court. Furthermore, the trial court is in the unique position of hearing all the testimony, all of the arguments, and of observing the parties, their counsel, and the effect of all of this on the jury. For this reason the sound rule exists that the question of whether conduct is or is not prejudicial rests within the sound discretion of the trial court and its decision wül not be disturbed unless it is clear that the court has abused its discretion. (Johnson v. Cunningham (1969),
The third and final ground for appeal mentioned by the defendant was that the court did not properly instruct the jury. The defendant alleges initially that the court erred in failing to give its tendered instruction I.P.I. 3.01, impeachment by prior inconsistent statement. There are only two cases cited to support this position, neither of which are on point. In Savage v. Blancett (1964),
The law is clear that I.P.I. 3.01 is a cautionary instruction and that the decision to give or not to give it is totally within the discretion of the trial judge. (Schneiderman v. Interstate Transit Line (1948),
A review of the record in this case also shows that each instance of impeachment cited by the defendant was evidence of contradictory statements by other witnesses. These are not prior inconsistent statements within the usual definition. They should be statements made by the witness himself before trial, which are contrary to and inconsistent with testimony given in trial. (Reilly Tar & Chemical Corp. v. Lewis (1942),
The defendant argues the second error in the instructions dealt with the giving of I.P.I. 34.04, mortality tables as evidence of damages. The defendant argues that the court erred in instructing the jury that it may consider the health, habits, and other activities of the plaintiff in determining life expectancy and future damages when there was no evidence of these before the jury. The three cases cited by the defendant are not on point and may be distinguished on the facts; and the language of the courts which defendant cited from these cases is quoted out of context, such that no further consideration of these cases need be made. Instead we must look to the case law dealing with this instruction and the record in this case.
Where mortality tables are introduced into evidence, the jury should be carefully instructed as to their purposes for fixing damages and their use is prejudicial without such instructions. (Avance v. Thompson (1944),
The record indicates that there was in fact ample evidence concerning the health, habits and activities of the plaintiff since her injury. She has lost wages and raises in pay since her accident; she had to wear a cast for two years; she was bedridden, in a wheel chair, or on crutches since the accident; she was unable to do her housework and thus was forced to hire a maid; and since the accident she has been unable to stand for more than thirty minutes at a time. And, finally, there was medical testimony as to the plaintiff’s future health. Contrary to the defendant’s allegation, to exclude that portion of I.P.I. 34.04 specifying “health, habits and activities of the plaintiff” would have been prejudicial. Therefore viewed in light of the case law and the record this instruction was proper and when taken together with the other instructions given, it substantially presented the law fairly to the jury upon the facts.
The third and final error alleged to have been made in instructing the jury was the Court’s Instruction No. 2, on the burden of proof, which the defendant says was a vague and senseless instruction. The instruction reads as follows:
“The Plaintiff has the burden of proving each of the following propositions: First, that the Plaintiff before and at the time of the occurrence was using ordinary care for her own safety; Second, that the Defendant acted, or failed to act in one of the ways claimed by the Plaintiff as stated to you in these instructions and that in so acting or failing to act, the Defendant was negligent; Third, that the Plaintiff was injured; Fourth, that the negligence of the Defendant was a proximate cause of the injury to the Plaintiff.
In this case the Defendant has.asserted the affirmative defense that at the time the Plaintiff sustained her alleged personal injuries she was on the premises of the Defendant, with the consent of the Defendant, solely to satisfy her own purposes, i.e., to obtain a ride to her residence.
The Defendant has the burden of proving this defense.
If you find from your consideration of all the evidence that each of the propositions required of the Plaintiff has been proved and that the Defendant’s affirmative defense has not been proved then your verdict should be for tire Plaintiff. If, on the other hand, you find from your consideration of aH the evidence, that any one of the propositions the Plaintiff is required to prove has not been proved, or, unless Plaintiffs presence was known to Defendant, that the Defendant’s affirmative defense has been proved, then your verdict should be for the Defendant.”
We find the insertion of the language “unless Plaintiff’s presence was known to Defendant” in the last sentence of the instruction confusing but in view of the evidence and defendant’s affirmative defense do not arrive at the conclusion that the confusion was necessarily prejudicial to defendant. Their sole ground for objection at the conference on this instruction was that the phrase “unless Plaintiff’s presence was known to Defendant” was added over the objection of defendant after the final argument, and defendant’s argument was made on the theory that the instruction would be given without the inserted clause.
The defendant argues at length that this was a peremptory instruction that it was vague and defective and therefore that it warrants a reversal, citing Milford Canning Co. v. Central Ill. P. Serv. Co. (1963),
For the foregoing reasons, the judgment of the trial court is affirmed.
G. MORAN and JONES, JJ., concur.