Chicago's Finest Workers Co. v. Industrial Commission

• Decision Date: 26 September 1975
• Docket Number: No. 47202,47202
• Citation: 61 Ill.2d 340,335 N.E.2d 434
• Parties: CHICAGO'S FINEST WORKERS COMPANY, Appellant, v. The INDUSTRIAL COMMISSION et al. (Cozzi Iron and Metal Inc., Appellee and Cross-Appellant.)
• Court: Illinois Supreme Court

Page 434

335 N.E.2d 434

61 Ill.2d 340

CHICAGO'S FINEST WORKERS COMPANY, Appellant, v. The INDUSTRIAL COMMISSION et al. (Cozzi Iron and Metal

Inc., Appellee and Cross-Appellant.)

No. 47202.

Supreme Court of Illinois.

Sept. 26, 1975.

James C. Serkland, Perz & McGuire, Chicago, for appellant.

William J. Catena, Chicago, for appellee.

RYAN, Justice:

This appeal is from a judgment of the circuit court of Cook County confirming the decision of the Industrial Commission which had affirmed an award of the arbitrator to an employee, Gabe Payne, under the Workmen's Compensation Act. (Ill.Rev.Stat.1971, ch. 48, par. 138.1 Et seq.) The application for adjustment of claim filed by Payne named both Chicago's finest Workers Company (Chicago's Finest) and Cozzi Iron and Metal, Inc. (Cozzi) as the employers. The decision of the arbitrator found that on the date of the injury the relationship of employer and employee existed between both respondents and Gabe Payne. The award was against both respondents, who sought review by the Industrial Commission and of the Commission's decision by the circuit court.

Chicago's Finest has appealed from the judgment of the circuit court, contending that it was a loaning employer as defined by section 1 (Ill.Rev.Stat.1971, ch. 48, par. 138.1(a)(4)); that Cozzi was the borrowing employer and that Payne was injured in the employment of the borrowing employer. Chicago's Finest, relying on the statute referred to above, contends that the award should have been against Cozzi and that it is responsible for the payment of the benefits only if Cozzi does not pay. Cozzi contends that it did not have notice of the alleged accident within 45 days as required by statute. Ill.Rev.Stat.1971, ch. 48, par. 138.6(c).

Chicago's Finest is in the business of furnishing employees on a temporary basis to other employers. On January 12, 1972, Gabe Payne reported at Chicago's Finest place of business for work. Albert Warren, the owner, after receiving a request for workers from John Cozzi, sent Payne and another day laborer to Cozzi to work. This company's place of business was in the 3000 block on 26th Street in Chicago. When the workers arrived John Cozzi took them to a location off Lawndale Avenue where they were directed to sort scrap metal. At the end of the day John Cozzi signed the ticket which had been given to them when they were sent to the job, and the ticket was taken back to Chicago's Finest where they received their day's wages. While at work, Payne had inquired if Cozzi needed permanent workers. Cozzi indicated that he did and that he would let them know about the permanent job the next week. He told the men that he wanted them to return to the same location the next day. He said that he would be late for work, but they should report to the job site and begin sorting metal.

When Payne arrived at Chicago's Finest on January 13, the employee who had worked with him the previous day failed to appear, so Albert Warren sent another employee with Payne. He gave them a work ticket to take with them. They reported directly to the job site as Cozzi had directed and not to Cozzi's place of business. Because of the cold weather the other employee refused to work and sat in a shanty on the premises. Payne, who was wearing cloth gloves, sorted the metal for 2 to 3 hours breaking it loose from the frozen ground with other pieces of metal or prying it loose with his hands. John Cozzi arrived later and tried to start a crane to use in breaking loose frozen metal. When he could not get it started he requested Payne to continue to work. However, because of the cold, Payne asked John Cozzi to sign the ticket so that they could return. The temperature was below zero. John Cozzi refused to sign the ticket, and Payne called Warren, who told them to come back to Chicago's Finest and he would pay them. When they returned Warren paid them and Payne went home. He arrived home before noon. Payne subsequently discovered that he had suffered frostbite, and portions of his fingers were amputated.

Although Payne did not personally notify Cozzi within the 45 days prescribed by the Act, Albert Warren of Chicago's Finest testified that on February 14, 1972, Payne came to his office and told him that he had suffered frostbite at Cozzi's and wanted medical attention. Warren stated he then called John Cozzi and told him that Payne had suffered frostbite at his place of business on January 13. Warren then referred Payne to a doctor. Cozzi presented no evidence to controvert this testimony, and the arbitrator and the Industrial Commission found that notice of the accident was given to the respondents within the time required by the Act. This finding was not against the manifest weight of the evidence and will not be disturbed. Technical Tape Corp. v. Industrial Com., 58 Ill.2d 226, 317 N.E.2d 515; Andronaco v. Industrial Com., 50 Ill.2d 251, 278 N.E.2d 802.

Chicago's Finest contends that under the provisions of section 1(a)(4) of the Act (Ill.Rev.Stat.1971, ch. 48, par. 138.1(a)(4)), Cozzi is primarily responsible for the payments of compensation to Payne. This section provides:

'Where an employer * * * loans an employee to another such employer and such loaned employee sustains a compensable accidental injury in the...