Cable v. Perkins

459 N.E.2d 275, 121 Ill. App. 3d 127, 76 Ill. Dec. 638, 1984 Ill. App. LEXIS 1389

• Court: Appellate Court of Illinois
• Decided: January 6, 1984
• Docket: 3-83-0291
• Status: Published

Opinions

PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from a summary judgment granted by the Knox County circuit court. The plaintiff sued Darrel Perkins, who was delivering newspapers for his mother Carolyn Perkins when he collided with plaintiff’s decedent, Walter Cable. Walter Cable died of a heart attack several months after the collision with Darrel Perkins. The Galesburg Printing & Publishing Company was also made a defendant. The Knox County circuit court granted summary judgment in favor of the Galesburg Printing & Publishing Company finding as a matter of law that Carolyn Perkins was an independent contractor. Plaintiff appealed, raising as an issue whether the circuit court erred in finding as a matter of law that Perkins was an independent contractor and granting summary judgment. We affirm.

We base our decision largely.on the similarities between this case and a previous decision by this court in Manahan v. Daily News-Tribune (1977), 50 Ill. App. 3d 9, 365 N.E.2d 1045. In Manahan v. Daily News-Tribune, this court found that a motion for summary judgment was properly granted in favor of the newspaper publisher when one of its deliverymen collided with plaintiffs while delivering newspapers. Like Carolyn Perkins, the Daily News-Tribune deliveryman had a contract with the newspaper publisher for whom he worked. The terms of the delivery contract in the Daily News-Tribune case provided that the deliveryman furnish and maintain his own equipment, maintain insurance and employ any persons necessary to carry out his job. The deliveryman did not have to follow any designated route so long as he delivered to every customer designated by the publisher. His compensation was based on the number of customers plus a flat fee, and no withholding tax or social security contributions were withheld. The newspaper also had the right to terminate the contract if the deliveryman failed to make deliveries. This court in Manahan found that the deliveryman was an independent contractor as a matter of law.

This court reasoned that if there are no genuine issues of material fact after giving consideration to pleadings, affidavits and any other evidence before the court that the trial court could draw the necessary inference from the undisputed facts and properly grant summary judgment. The facts in this case are undisputed. Carolyn Perkins and the Galesburg Publishing Company executed a delivery contract which was undisputedly adhered to by both parties. The contract provided that Perkins supply all necessary manpower, vehicles and pay all expenses regarding delivery. Perkins was paid a flat rate of $145 per week — an amount determined by the number of customers and the mileage. Perkins was to pay her own taxes and, therefore, there was nothing withheld from her weekly check. No one instructed Perkins as to how she was to make deliveries, and no one ever rode with her on her route. Either party could terminate the contract with 30 days’ notice.

It is true that customer complaints were raised through the company and not directed personally to Perkins. The route was designated by the company and deliverymen had no control over customer lists. Nevertheless we find this delivery contract nearly indistinguishable from the contract in Manahan v. Daily News-Tribune. As this court held in Manahan, the contract between the parties may be conclusive if the parties to the contract abided by its terms. (50 Ill. App. 3d 9, 14.) There is no evidence that the parties did not abide by the contract terms and, therefore, we hold that Perkins was an independent contractor as a matter of law and, therefore, that the circuit court of Knox County should be affirmed.

Judgment affirmed.

BARRY, J., concurs.