Diamond Livery v. Indus. Comm'n

• Decision Date: 27 October 1919
• Docket Number: No. 12488.,12488.
• Citation: 124 N.E. 609,289 Ill. 591
• Parties: DIAMOND LIVERY v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

289 Ill. 591

124 N.E. 609

DIAMOND LIVERY

v.INDUSTRIAL COMMISSION et al.

No. 12488.

Supreme Court of Illinois.

Oct. 27, 1919.

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

Proceedings under the Workmen's Compensation Act, by Charles E. Poole, employé, against the Diamond Livery, employer. Award of the State Industrial Commission was affirmed, and the employer brings error. Reversed.

Albert N. Powell, of Chicago, for plaintiff in error.

Charles C. Spencer, of Chicago, for defendant in error.

THOMPSON, J.

This is a writ of error sued out by the Diamond Livery, plaintiff in error, to review a judgment of the circuit court of Cook county affirming an award of the State IndustrialCommission in favor of Charles E. Poole; the circuit court having certified that the cause is one proper to be reviewed by this court.

Plaintiff in error had for many years operated a business in Chicago where it boarded the horses and sheltered the vehicles owned and used by Carson, Pirie, Scott & Co., Marshall Field & Co., Siegel, Cooper & Co., and many other firms of the city of Chicago. It furnished all accommodations, such as feeding, stalling and cleaning the horses, cleaning the wagons and harness, hitching and unhitching the horses, and storing the wagons. The owners of the horses and wagons employed their own drivers, delivery boys, and other helpers. The several firms paid the plaintiff in error for this service. Twelve or fifteen men were employed by plaintiff in error and were carried on the pay roll. In addition to this boarding service, the plaintiff in error owned some horses which it rented to merchants for $1.50 a day for use on wagons owned by the merchant and driven by the merchant's employé. When these horses were not thus engaged, they were sometimes used by the plaintiff in error in filling calls for funerals, parties, or other trip service, and when so employed the plaintiff in error furnished the carriage and the driver and made a charge for each trip. There were two regular employés at the barn who made these trips when there was a call for a carriage. If for any reason one of these men could not go or both were busy with calls, arrangements were made with some one to make the trip, and this person was paid 25 per cent. of the money earned on the trip. In order to avail himself of the opportunity to make these extra trips, Charles E. Poole, defendant in error, stayed around the barn most of his time. He was permitted to sleep in the barn and provided himself with sleeping accommodations wherever convenient-a part of the time in the harness room and a part of the time in one of the stalls. He was not on the pay roll and was not a regular employ ¸of the plaintiff in error. Since August, 1912, Poole had availed himself of the privilege of sleeping in the barn, and by keeping himself in close touch with the barn had been able to keep reasonably regularly employed by making these special trips and by doing other odd jobs about the barn. When the regular drivers were not available, Poole was given the opportunity to make the trip, and, if he desired, he made the trip and was paid at the end of the trip 25 per cent. of the money earned on the trip. If for any reason the regular employés of the plaintiff in error were not able to keep the premises or the horses clean, the foreman would say to Poole that he would give him 50 cents for sweeping the floor, or would give him a quarter for cleaning a horse and hitching it up, or something to that effect. If Poole wanted to perform this service, he would do so, and would be paid as soon as that service had been performed. Although he remained around the premises most of the time, he was not required and was under no obligation to plaintiff in error to perform these services if he was not so disposed. He could come and go as he pleased. If a call came to the barn after 12 o'clock at night, while he was sleeping at the barn, and there was no other employé at the barn, he would answer the call, and if there was a request for service he would make the trip and the next morning would be paid his 25 per cent. of the money earned on that trip. September 10, 1914, Poole was about the barn throughout the day. He went on an...