Chicago Great Western R. Co. v. Indus. Comm'n of Illinois

• Decision Date: 21 October 1918
• Docket Number: No. 12074.,12074.
• Citation: 120 N.E. 508,284 Ill. 573
• Parties: CHICAGO GREAT WESTERN R. CO. v. INDUSTRIAL COMMISSION OF ILLINOIS et al.
• Court: Illinois Supreme Court

284 Ill. 573

120 N.E. 508

CHICAGO GREAT WESTERN R. CO.

v.INDUSTRIAL COMMISSION OF ILLINOIS et al.

No. 12074.

Supreme Court of Illinois.

Oct. 21, 1918.

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

Proceedings under the Workmen's Compensation Act by the Standard Trust & Savings Bank, administrator, for compensation for the death of Christ Anderson, opposed by the Chicago Great Western Railroad Company, employer. The award of the Industrial Board was affirmed by circuit court on certiorari, and, the circuit judge having certified that the case was one to be heard by the Supreme Court, the employer brings error. Reversed.

Winston, Strawn & Shaw, of Chicago (Ralph M. Shaw, Charles J. McFadden, Silas H. Strawn, and John D. Black, all of Chicago, of counsel), for plaintiff in error.

A. Brown and Irving W. Baker, both of Chicago, for defendant in error.

CARTER, J.

Christ Anderson filed an application with the Industrial Board on April 10, 1917, for adjustment of a claim against the plaintiff in error railroad company for injuries alleged to have been sustained by him while in the employ of that company, on March 21, 1917, by falling or being knocked from a swinging scaffold. Evidence was heard by an arbitrator, who found in favor of the applicant, and an award of damages was made. June 20, 1917, after the application was filed with the Industrial Board, Anderson died, and the Standard Trust & Savings Bank was appointed administrator, in whose name the subsequent proceedings were prosecuted. After the finding by the arbitrator, on petition for review the Industrial Board found in favor of the administrator and awarded weekly payments aggregating $3,500. The circuit court on certiorari affirmed the award of the Industrial Board, and, the circuit judge having certified that the case was one which should be heard by this court, it was brought here by writ of error.

The accident occurred near the corner of Polk and Franklin streets, in Chicago. Polk street runs east and west and crosses Franklin street at right angles by means of a viaduct. About 45 feet northwest of the viaduct is plaintiff in error's Harrison street freighthouse. Previous to March 21, 1917, plaintiff in error began to build a drive or runway from this viaduct to the second floor of the freighthouse, then under process of construction. In building this runway it was necessary that certain structural ironworkers' services be used. Regular men employed by the railroad began the work; but after a conference with the business agent of the Structural Ironworkers' Union four union men from the headquarters of said union were sent over to continue the work, Christ Anderson being one of the four, and one of them, Carmody, being put in charge of the work as foreman. This runway appears to have been a part of the general scheme for the freighthouse that was being built, so that the Washburn-Crosby Company could drive from Polk street to and from the second floor of the freighthouse with loads of flour. On the day of the accident, Anderson was working on said runway when a horse and wagon being driven beneath the viaduct by an employé of the Heco Envelope Company struck the scaffold, causing Anderson to fall 12 or 14 feet to the pavement and to receive injuries from which he died about 13 weeks after. The details of the accident or the extent of the injuries are not in dispute. The only question raised on this hearing is whether or not the employment of the deceased was casual, and therefore whether or not he could recover under the provisions of the Workmen's Compensation Act (Hurd's Rev. St. 1915-16, c. 48, §§ 126-152h) which was in force at the time of the accident.

The evidence tends to show that structural ironworkers are a part of the regular force of employés of various railroads; that some of these ironworkers regularly employed by plaintiff in error started to do this work, when a change was made by calling in the four workmen as above stated. The question as to whether these new men were union or nonunion is, as suggested by counsel, not material; but the facts as to the change of the workmen during the construction of this runway are only important in their bearing on the character of the contract entered into between the railroad company and Christ Anderson. We judge from the evidence in the record that it is not disputed that railroads now and then call in structural ironworkers from the union headquarters to do work of this character. There is proof in the record, however, that plaintiff in error had never before called Anderson or his fellow employés to do this character of work for it. The evidence shows that Anderson had been an experienced structural ironworker for many years, and, so far as the record shows, this is the only employment he ever had from the plaintiff in error company. The particular job of doing structural ironwork on this runway lasted three or four days after the four union men came to do the work. Apparently two of the four quit before the job was completed and were paid for what work they had done, and other union men were sent from union headquarters to take their places.

Counsel for defendant in error argues that there is nothing to show that Anderson may not have begun a work which was to give him permanent employment with the railroad company as a structural ironworker. There is nothing in this record that in any way tends to uphold this argument. The evidence all justifies the conclusion that he was only employed for that particular job, as were the other three men who came at the same time. The work of building this runway was a part of the regular work for the conduct of the railroad's business. The putting on of these union ironworkers for this temporary work only bears on the character of the contract of employment. The character of the work was fixed by the fact that it was a part of the railroad work. The character of the contract of employment, as to whether it was casual or not, was fixed by the contract of hiring-that is, the contract could have been of such a nature that Anderson would have been a regular employé of the railroad as a structural ironworker, or it could have been of such a nature that he was only a casual employé for this particular job-and the question to be determined here is which kind of contract was, in fact, made. The fact that the man making the contract is union or nonunion is wholly incidental to the question of what the real contract was. The burden of proof is upon the claimant to prove the employment and injury, but the burden is on the plaintiff in error to prove that the employment is but casual. Peoria Terminal Co. v. Industrial Board, 279 Ill. 352,...