O'Brien v. Industrial Commission

• Decision Date: 01 April 1971
• Docket Number: B-L,No. 43375,43375
• Citation: 269 N.E.2d 471,48 Ill. 2d 304
• Parties: Herschel O'BRIEN, Appellee, v. The INDUSTRIAL COMMISSION et al. (Edward H. Bueltel, d/b/aine Transfer, Appellant.)
• Court: Illinois Supreme Court

Page 471

269 N.E.2d 471

48 Ill.2d 304

Herschel O'BRIEN, Appellee, v.The INDUSTRIAL COMMISSION et al. (Edward H. Bueltel, d/b/a B-Line Transfer, Appellant.)

No. 43375.

Supreme Court of Illinois.

April 1, 1971.

Rehearing Denied May 26, 1971.

Katz, McAndrews, Durkee & Telleen, Rock Island (C. C. McAndrews and Stuart R. Lefstein, Rock Island, of counsel), for appellant.

David E. Murray and Ole Bly Pace, III, of Ward, Ward, Castendyck, Murray & Pace, Sterling, for appellee.

RYAN, Justice.

The arbitrator awarded the petitioner compensation under the Workmen's Compensation Act.The Commission reversed the decision of the arbitrator.On Certiorari the circuit court of Lee County reversed the decision of the Commission and reinstated the arbitrator's award.This is an appeal from the judgment of that court.(Ill.Rev.Stat.1969, ch. 48, par. 138.19(f)(2).)The sole question presented is whether an employer-employee relationship existed between respondent and petitioner at the time of the injury.

Herschel O'Brien(petitioner), owned and operated a gasoline station.He resided in a mobile home 100 to 150 yards south of this station.A State of Illinois truck weigh scale was located across the highway from his station.On July 7, 1965, at approximately 12:30 A.M., a tractor-trailer combination, owned by respondent, Edward H. Bueltel, doing business as B-Line Transfer (B-Line), loaded with a cargo of coils of steel, which were separated into groups of three or four and bound together by bands, was found to be overweight on a rear axle when it was weighed at the scale.The driver of the truck was Charles White, an employee of B-Line.White determined that it was necessary to move part of the load forward toward the front axle.Because of the weight and size of the steel coils, White was unable to move them by himself and he inquired of an employee at petitioner's station as to the availability of anyone who could assist him.The employee advised White that he could not help because he was busy at the station.He stated, however, that he would ask petitioner to assist.White asked what the charge for this service would be and the reply was, 'It depends on how long it takes, anywhere from $5.00 to $10.00.'White then requested that he ask petitioner to help.The employee walked to petitioner's home, awakened him and advised him of White's request.Petitioner dressed and came to the station.White told petitioner the problem and they went to the truck which was parked in back of petitioner's station.White showed petitioner the location of the overweight and the coils which had to be moved.White testified before the arbitrator that petitioner suggested cutting the bands around the steel coils to facilitate moving them.White stated he thought it was a good idea, and the bands were cut with a hammer and chisel.The evidence is not clear as to the ownership of the implements used in cutting the bands.However, White testified that the hammer might have been his.After the bands were cut, both men attempted to turn one of the coils of steel and in so doing, it upset on petitioner's leg resulting in injury to him.

Respondent, Bueltel, testified that the truck was leased to another company for this particular haul and that the driver, White, had authority to and did, in fact, sign the lease agreement on behalf of B-Line for this trip.Any expense incurred as a result of trouble with the equipment on the haul would have been paid by B-Line.The driver was paid by B-Line and if he would have paid petitioner for assisting him in moving the steel coils, B-Line would have reimbursed him.Petitioner was never paid anything for assisting White in moving the steel coils.The injury interrupted the completion of the job and any negotiations regarding payment.The arbitrator found that at the time of petitioner's injury the relationship of employee and employer existed between petitioner and respondent and awarded compensation to petitioner.

At the hearing before the Commission on review, petitioner testified that on three or four occasions prior to the date of injury, he, or some of his employees had helped truckers shift loads.He further testified that compensation paid therefor went to the station if the one who did the work was on duty at the station and went directly to the one who did the work if he was off duty.Petitioner also testified that he expected to be paid by White at the rate of about $3.00 per hour.The Commission in reversing the decision of the arbitrator specifically found that the relationship of employee and employer did not exist between petitioner and respondent.On Certiorari, the circuit court of Lee County reversed the decision of the Commission and found that the relationship of employee-employer did exist and reinstated the award of the arbitrator.

The question whether a person is an independent contractor or an employee in any given instance, is one of the most vexatious and difficult to determine in the law of compensation.(1957 Ill.Law Forum 185.)This complexity arises not by reason of the rule of law involved in making this determination, but rather because of the varying nature of the factual situations presented.No rule has been adopted by this court to be applied to the facts of all cases.Henry v. Industrial Comm., 412 Ill. 279, 106 N.E.2d 185.

This court has often held that the right to control the manner of doing the work is probably the most important single consideration in determining whether the relationship is that of an employee or an independent contractor.(Coontz v. Industrial Comm., 19 Ill.2d 574, 169 N.E.2d 94;Crepps v. Industrial Comm., 402 Ill. 606, 85 N.E.2d 5;Henry v. Industrial Comm., 412 Ill. 279, 106 N.E.2d 185;Immaculate Conception Church v. Industrial Comm., 395 Ill. 615, 71 N.E.2d 70.)Other factors, such as whether compensation is on a time basis or by the job, the right to discharge, and the furnishing...