Franklin Coal & Coke Co. v. Indus. Comm'n

• Decision Date: 15 February 1921
• Docket Number: No. 13716.,13716.
• Citation: 296 Ill. 329,129 N.E. 811
• Court: Illinois Supreme Court
• Parties: FRANKLIN COAL & COKE CO. v. INDUSTRIAL COMMISSION et al.

296 Ill. 329

129 N.E. 811

FRANKLIN COAL & COKE CO.

v.INDUSTRIAL COMMISSION et al.

No. 13716.

Supreme Court of Illinois.

Feb. 15, 1921.

Error to Circuit Court, Franklin County; Charles H. Miller, Judge.

Proceeding under the Workmen's Compensation Act (Hurd's Rev. St. 1919, c. 48, §§ 126-152i) by Henry F. Weaver for compensation for injuries, opposed by the Franklin Coal & Coke Company, employer. Compensation was awarded, but the award was set aside by the circuit court, and the claimant brings error.

Reversed, and award confirmed.George R. Stone, of Marion, and R. E. Hickman, of Benton, for plaintiff in error.

W. H. Hart and W. W. Hart, both of Benton, for defendant in error.

DUNN, J.

Henry F. Weaver was injured on October 28, 1918, while using a joiner or planer in the construction of mine or pit cars, so that he lost the use of some of the fingers of his left hand, and upon his application an award of compensation was made to him by the Industrial Commission against the Franklin Coal & Coke Company. Upon a writ of certiorari the circuit court of Franklin county set aside the award and the claimant has sued out a writ of error to reverse this judgment.

The only controversy is whether the plaintiff in error at the time of his injury was working for the defendant in error as an employee, or was an independent contractor or was working for an independent contractor.

The defendant in error was operating coal mines at Royalton, in Franklin county, and the plaintiff in error had been in its employ as a carpenter most of the time for three or four years before he was injured, being carried on the payroll and drawing his pay, as did other employees, twice a month, at the rate of 75 cents an hour for the time he worked. Before the accident the defendant in error had difficulty in getting mine cars for use in its mines, which it had been accustomed to purchase, and it therefore arranged to get the material and have the cars constructed. The cars were built by the plaintiff in error and George Taylor, another carpenter employed by the defendant in error, in the shop provided by defendant in error upon its premises about 700 or 800 feet from one of its shafts. The defendant in error furnished all materials and practically all the tools used in the construction of the cars and directed the sizes and dimensions of the cars to be built. The plaintiff in error and Taylor were paid $17.50 for the work on each car. While they were at work on the cars they were also subject to the orders of defendant in error for other work about the mine as carpenters, and actually did other carpenter work for the defendant in error, for which they were paid at the rate of 75 cents an hour on the pay roll of the company.

Concerning the contract for the work on these cars the plaintiff in error testified:

‘Mr. Mitchell asked me one morning when I walked into the office how it would suit me to go to Coffeen, Ill., to build 50 mine cars, and I asked him what he wanted to give me for building these cars, and he told me Mr. Taylor was going to build 75 cars at $18 a car, and he would let me know the next Monday about going to Coffeen. I went to see him the next Monday and he said he was not allowed to build the cars up there on account of the local, and had me go down and see if he could arrange an old lumber yard place downtown to build them at Royalton and make a shop out of it. I went and looked it over and told him that we couldn't arrange to build the cars down there, so he said he would build these cars over there at the mine; that he would go to work and put that shop up and for me to see Mr. Taylor, and if it was agreeable with Mr. Taylor we would build all the cars there at this one shop and he would ship the cars to Coffeen. I saw Mr. Taylor and he said it was all right with him; he would be glad for me to help him and he would help me build the cars, and so we just started in the work in that way. We had built 37 cars when I got hurt. The contract with the respondent company was first took by Mr. Taylor, and then Mr. Mitchell latter on wanted me to make these 50 for him. The ones that he wanted at Coffeen were never made. I never made that contract with Mr. Mitchell. If any contract was made at all it was Mr. Taylor that made the contract. I made no contract with Mr. Mitchell at all. He only talked about it but it was never finished.’

Taylor testified:

‘The pit cars were built for the Franklin Coal & Coke Company by the order and direction of J. L. Mitchell. He asked me some time before to take a contract to build these cars. I told him one morning I was ready to build them if we could agree on prices, and we agreed on $18 a car, and I saw Mr. Weaver and he offered to go in fifty-fifty with me and we would build the cars. The contract was made with Mr. Mitchell and me but not in the presence of Mr. Weaver. He hadn't anything to do with it. I made the contract myself, and Mr. Weaver was helping in that work when he was injured. I don't know that it was with the knowledge and consent of Mr. Mitchell that Mr. Weaver and I assumed the contract that I had with Mitchell. I...