Bristol & Gale Co. v. Indus. Comm'n

• Decision Date: 07 April 1920
• Docket Number: No. 12880.,12880.
• Court: Illinois Supreme Court
• Parties: BRISTOL & GALE CO. v. INDUSTRIAL COMMISSION et al.

292 Ill. 16

126 N.E. 599

BRISTOL & GALE CO.

v.INDUSTRIAL COMMISSION et al.

No. 12880.

Supreme Court of Illinois.

Feb. 18, 1920.

Rehearing Denied April 7, 1920.

Error to Circuit Court, Cook County; Oscar M. Torrison, Judge.

Proceeding under the Workmen's Compensation Act by Catherine Johnson, administratrix, for compensation for the death of her husband, George Johnson, opposed by the Bristol & Gale Company, employer. Compensation was granted, and the award sustained by the circuit court, and the employer brings error.

Reversed and remanded, with directions.Phelps & Ballas, of Chicago, for plaintiff in error.

William N. Brady and Irving E. Read, both of Chicago, for defendant in error.

CARTER, J.

This was an application by Catherine Johnson, administratrix of the extate of George Johnson, deceased, before the Industrial Commission of Illinois for an award for the death of her husband, which it is alleged occurred while he was working for the Bristol & Gale Company, plaintiff in error. The Industrial Commission entered an award in favor of the administratrix, and on review the circuit court of Cook county sustained the award, certifying that the case was one proper to be reviewed by this court, and it has been brought here by writ of error.

Plaintiff in error, the Bristol & Gale Company, a corporation, had at the time of the 29, 1916, and for years prior threto, dealt in farm machinery at its place of business, 156 Carroll avenue, Chicago, Ill. The company was lessee of the entire building, consisting of five stories and basement, used in its business. The different machinery was shipped to the company in parts and resold shipped to the company in parts and resold and reshipped by it in the same condition as received. No manufacturing or assembling was done by the company. There were two departments to the business, the shipping department, on the first floor, and the office, on the second floor. The company employed five or six men about its place of business and had several salesmen on the road. There was an elevator in the building, operated by electricty, which was used to move the farm machinery from one floor to the other; the elevator being the only power-driven machinery used on the premises. Two wheel trucks were used to move the farm implements about on the different floors and in and out of the elevator. A platform extended out from the front of the building on a level with the first floor, which was used as a shipping platform to load and unload freight thereon. George Johnson, the deceased, owned a horse and wagon. He, with his horse and wagon, had been engaged by plaintiffin error for several years prior to the accident to haul freight between its place of business and the various freight houses and terminals in Chicago, being paid for his services and those of his horse and wagon $22.50 a week. His wagon was kept busy the entire year in doing the hauling of plaintiff in error. It had painted on its sides, ‘Bristol & Gale Company-Farm Machinery,’ and across the back of the seat, ‘george Johnson, Express.’ The agreement between Johnson and plaintiff in error was that a man was to report with a horse and wagon at its place of business every day at about 8 o'clock in the morning. If the usual wagon was out of repair, another wagon was used. If Johnson was sick or away on a vacation, he was to supply a substitute driver. Johnson's wife ran an independent express business by herself, using other wagons and horses, and frequently, when plaintiff in error's business required more hauling than Johnson could attend to, it hired from Mrs. Johnson horses and wagons to assist in doing the business and paid Mrs. Johnson direcf, rather than making any arrangements as to this extra help with Johnson himself. A weekly check for the regular wagon used by Johnson was made payable to him, and the checks for the extra horses and wagons hired of Mrs. Johnson were made payable to her. She kept wagons and did a general express business on Grand avenue, in Chicago. Johnson fed his own horse and had him shod and kept the wagon in repair. He had nothing to do with operating the elevator or moving the farm implements about in the building on Carroll avenue. The men working inside brought the shipments from the building onto the shipping platform and handed them to Johnson, who loaded them onto his wagon. The freight that he brought to the place of business from the railroads or terminals he unloaded from his wagon with the assistance of the company's men, and the men then moved it into the building. His orders were given to him by the shipping clerk of plaintiff in error, who gave him his loads, and also gave him the freight bills and money to pay the freight on goods coming to the warehouse. His quitting time at night varied. Usually he was given a load at the warehouse or directions to pick one up elsewhere, and unless he had time to pick it up that night he did not come back. He made his delivery or got his load the next day if it was too late to finish up that night. He worked until between 5 and 6 o'clock each day. During the day the shipping clerk knew where he had gone and when he was expected back. At his home he received directions over the telephone to pick up things on his way down in the morning. If he was not on time at his work, the shipping clerk would call up to find out what delayed him. He worked every day in the year, except when ill or away on a vacation. He did no other work than that which he did for plaintiff in error, and drove no wagon but the one lettered with plaintiff in error's name and business. He had a regular vacation, and received gifts at Thanksgiving and Christmas, as did the other employés of plaintiff in error. All the evidence as to the hiring of the horses and wagons from Mrs. Johnson and the way she was paid was admitted over the objection of counsel for defendant in error.

On the morning of the accident which caused Johnson's death he arrived at plaintiff in error's place of business about the usual time. A shipment of farm implements was loaded on his wagon for delivery to the Wabash Railroad on its team track near Fourteenth street, on Plymouth court, and south of the Polk street station. A bill of lading in triplicate and a shipping order were delivered to him when he started away. Plaintiff in error's place of business is about a mile and a half from the Wabash team track. Johnson's ordinary route, as we understand the record, would be to drive to the Polk street depot; then south as far as Taylor street; then east on Taylor street across the railroad tracks leading into the Polk street station to either Dearborn street or Plymouth court; then south to Twelfth street; then a little west under the Twelfth street viaduct to the Wabash scale shanty to be weighed; then south along the Wabash team track to the Wabash car in which he wanted his load placed. After driving part of this way he left his wagon and went to the Wabash scale house for information as to the location of the freight car, and then started back on foot west across the Western Indiana tracks towards his horse and wagon, and was struck by a Wabash Railroad engine backing south over the Western Indiana Railroad tracks and sustained injuries which caused his death almost immediately. The evidence tends to show that the Bristol & Gale Company had neither elected nor rejected the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, §§ 126-152i).

Counsel for plaintiff in error earnestly insist that the deceased was an independent contractor, and not an employé of the Bristol & Gale Company within the terms of the Workmen's Compensation Act, and that therefore the applicant was not entitled to compensation under the act. Under the proof in this record we think that the evidence as to the teams owned, operated, and controlled by Johnson's wife has no real bearing on the question whether Johnson was an independent contractor or an employé of plaintiff in error. The evidence, we think, is clear that the deceased was in no way connected with the ownership of the teams of Mrs. Johnson at the time they were employed by plaintiff in error or at any other time. He had absolutely no control or interest in the earnings of said teams. They were hired from Mrs. Johnson direct and paid for by check to her order. The drivers of those teams were hired by Mrs. Johnson, and her husband in no way controlled their operation.

There is a great amount of discussion in the books as to whether a person is an independent contractor or an employé. In the decisions and lengthy notes in Richmond v. Sitterding, 101 Va. 354, 43 S. E. 562,65 L. R. A. 445, 99 Am. St. Rep. 879,Messmer v. Bell & Coggeshall Co., 133 Ky. 19, 117 S. W. 346,19 Ann. Cas. 1, and Pace v. Appanoose County (Iowa) 168 N. W. 916, 17 N. & C. C. A. 682, may be found an abundance of authority on the subject. The numerous definitions of an independent contractor given by the authorities are not essentially different. Among others are the following:

‘An independent contractor is one who renders service to another in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.’ Messmer Case, supra, note 19 Ann. Cas. on page 4.

Again:

‘An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified.’ Gay v. Roanoke Railroad & Lumber Co., 148 N. C. 336, 62 S. E. 436.

Also:

‘One who contracts to do a specific piece of work, furnishing his own assistants, and executingthe work either entirely in accordance with his own ideas, or in accordance with a plan previously given to him by the person for whom the work is done, without being subject to the orders of the latter in respect to...