Allen-Garcia Co. v. Indus. Comm'n

• Citation: 334 Ill. 390,166 N.E. 78
• Decision Date: 20 April 1929
• Docket Number: No. 18667.,18667.
• Parties: ALLEN-GARCIA CO. v. INDUSTRIAL COMMISSION et al.
• Court: Supreme Court of Illinois

334 Ill. 390

166 N.E. 78

ALLEN-GARCIA CO.

v.INDUSTRIAL COMMISSION et al.

No. 18667.

Supreme Court of Illinois.

April 20, 1929.

Error to Circuit Court, St. Clair County; Louis Berureuter, Judge.

Proceeding under the Workmen's Compensation Act by Edward Dartt, claimant, opposed by the Allen-Garcia Company and others. Award of the Industrial Commission was affirmed in certiorari proceedings by the circuit court, and the Allen-Garcia Company brings error.

Affirmed.William P. Boynton, of Alton, for plaintiff in error.

A. B. Garrett and Thomas L. Fekete, Jr., both of East St. Louis, for defendant in error.

DUNCAN, J.

Edward Dartt, defendant in error, was accidentally injured while at work as operator of a steam crane used in and about the erection of a tipple at the coal mine of Donk Bros. Coal & Coke Company near Edwardsville, Ill. He filed his claim for compensation for that injury with the Industrial Commission against plaintiff in error, the Allen-Garcia Company, and Donk Bros. Coal & Coke Company. A hearing was had before an arbitrator, and Swift & Co. also appeared and took part in that hearing. At the close of the evidence for defendant in error, with his consent, his claim was dismissed as to Donk Bros. Coal & Coke Company. The arbitrator entered an award against plaintiff in error, finding that the earnings of Dartt for the year prior to his injury were $1,872 and his average weekly wage $36; that at the time of his injury Dartt had three children under 16 years of age; that necessary first aid, medical, surgical, and hospital services had been provided for him by plaintiff in error, and that he was entitled to receive from plaintiff in error $17 a week for 27 3/7 weeks for temporary total incapacity, then payable and amounting to $466.30, and to an additional sum of $405.26 for first aid, medical, surgical, and hospital services. The award was reviewed and confirmed by the Industrial Commission and by the circuit court of St. Clair county on certiorari proceedings. This court allowed a writ of error.

The only contention made in this court by plaintiff in error is that the record does not establish the existence of the relationship of employer and employee between plaintiff in error and defendant in error at the time of the latter's accidental injury.

There is practically no conflict in the evidence. Donk Bros. Coal & Coke Company contracted with plaintiff in error to furnish engineering services in connection with the construction of ‘top works, shacks, and mechanical installationat the bottom of No. 4 mine at Edwardsville, Illinois.’ Under the contract all material was to be furnished by the coal company, and plaintiff in error, among other things, was to assist in the purchase of material, inspect all material and workmanship, supervise the work in the field, and do such part of the fieldwork with its own force as appeared to the best interest of the owner, the coal company, and certify its pay roll to the coal company, to be paid by it direct. The coal company agreed to pay ‘all pay rolls, bills for material, labor, traveling and other expenses' of plaintiff in error, and in addition thereto five per cent. of the actual cost of the work for its services. The construction work was being done by plaintiff in error for the coal company, and it informed the coal company that the work would be expedited if a steam crane were furnished to handle the steel to be used in the construction. The coal company applied to Swift & Co., the owner of the steam crane that was later used in the construction work, to furnish the crane and an engineer to operate it, and a contract was entered into between them. The terms for the rental of the crane do not appear in the record, but the coal company was to pay Swift & Co. some amount a day for the use of the crane, based on the number of hours it was in service, and the amount of Dartt's wages; Dartt at the time of that contract being in the employ of Swift & Co. for the operation of the crane in its business. About June 1, 1923, Dartt was ordered by the master mechanic of Swift & Co. to take the crane to No. 4 mine of the coal company and work with the crane there. The master mechanic told Dartt that he would be paid by Swift & Co. for his work at the mine at the same rate that it had been paying him while in its employ, and that he would be furnished with a helper-a fireman. Dartt reported to No. 4 mine with the crane and asked for the boss. Wayne O. Axtell, superintendent for plaintiff in error, told Dartt in a general way what he was to do with the crane and to take orders from one Heller, who was Axtell's assistant. Dartt lived in East St. Louis, and it was agreed between him and Axtell that he should be allowed to go home every evening and return in the morning during the time he should work at the mine, and that his transportation expense would be repaid to him. It was further agreed between Dartt and Axtell that Dartt should take the first trolley car from East St. Louis to Edwards-ville in the morning and arrive at the mine about 7:45 o'clock, and that he should then work up to 3:15 o'clock in the afternoon, the general quitting time, and thereafter grease the machine, fill the boiler with water, etc. The other men started to work at 7:00 o'clock in the morning, and Dartt was to work after the general quitting time in the afternoon long enough to make up the time he was late in starting to work in the morning. Dartt did no work other than with the crane. With the crane he moved steel used in the construction work. Heller, who acted as fireman on the crane, told Dartt what pieces of steel to handle and what to do with them. Dartt reported to Swift & Co. the hours of his work and was paid by that company. He did not appear on the pay roll of plaintiff in error, but Axtell kept a record of his time, and also kept a record of the amount of money due him for his expense in going back and forth from his home to work. The latter amount was paid to Dartt by the coal company on certificate of Axtell. Axtell testified that, so far as he knew, the rental cost of the crane and the wages of Dartt ware not considered a part of the cost of the work on which plaintiff in error was paid a percentage for its services under its contract with the coal company. About June 10, Dartt, on orders from Swift & Co., returned with the crane to that company, but soon went back with the crane to mine No. 4 and worked there until the accidental injury, on July 7. On the morning of that day Dartt came to the job, as usual, a short time after the other men had begun work. Heller was operating the crane, and while Dartt was on or about the crane, getting ready to operate it, Heller attempted to lift too heavy a load, the crane tipped over, and Dartt was injured. After Dartt was injured Swift & Co. would not furnish another engineer for the crane, and plaintiff in error employed an engineer from Alton. He was hired by Axtell and was on plaintiff in error's pay roll.

In section 4 of the Workmen's Compensation Act (Smith-Hurd Rev. St. 1927, c. 48, § 141) the word ‘employer’ is defined to include every person, firm, public, or private corporation, ‘who has any person in service or under any contract for hire, express or implied, oral or written, and who is engaged in any of the enterprises...