Immaculate Conception Church v. Indus. Comm'n

• Court: Illinois Supreme Court
• Writing for the Court: STONE
• Citation: Immaculate Conception Church v. Indus. Comm'n, 395 Ill. 615, 71 N.E.2d 70 (Ill. 1947)
• Decision Date: 22 January 1947
• Docket Number: No. 29534.,29534.
• Parties: IMMACULATE CONCEPTION CHURCH v. INDUSTRIAL COMMISSION et al.

395 Ill. 615

71 N.E.2d 70

IMMACULATE CONCEPTION CHURCH

v.INDUSTRIAL COMMISSION et al.

No. 29534.

Supreme Court of Illinois.

Jan. 22, 1947.

Error to Superior Court, Cook County; Ulysses S. Schwartz, judge.

Proceeding under the Workmen's Compensation Act by Eleanor J. Metz, compensation claimant, opposed by the Immaculate Conception Church, alleged employer, to recover for the death of William E. Metz, deceased. The Industrial Commission made an award in favor of the claimant, and the alleged employer appealed to the superior court of Cook county. To review an order of the superior court of Cook county affirming the award, the alleged employer brings error.

Judgment of superior court reversed and award set aside.

Peregrine & Bruegger, of Chicago, for plaintiff in error.

Jones, Key & Chapman, of Chicago (C. D. Jones and Robert G. Dreffein, both of Chicago, of counsel), for defendant in error.

STONE, Justice.

By this writ of error plaintiff in error seeks reversal of an order of the superior court of Cook county confirming an award of the Industrial Commission to defendant in error, Eleanor J. Metz.

On September 2, 1941, William F. Metz, while working as a plumber on a building owned by plaintiff in error, fell from a scaffold some seven or more feet, receiving injuries from which he died the next day without regaining consciousness. His widow filed application for an award under the Workmen's Compensation Act, against plaintiff in error and Albert Drohan, its pastor. The sole issue involved is whether deceased was an employee or an independent contractor.

The church owned a frame building occupied as a ‘Sisters' Convent.’ Desiring to move the building to a new site, it engaged Crowe Brothers to so do. It was necessary to disconnect the plumbing, and after the building was placed on its new location, to install new water and sewer connections and connect the plumbing thereto. The work of installing new sewer and water connections involved breaking concrete at some points on Harlem avenue and tunneling under it at others.

Metz, a member of the parish of plaintiff in error, had been a plumbing contractor for years. His business billheads so indicated. For about twenty-five years he had been a member of the ‘Plumbing Contractors Association,’ though not a member at the time of his death.

Albert Drohan, called in the record ‘Father Albert,’ was a Catholic priest and pastor of plaintiff in error parish. On or about August 8, 1941, Father Albert sent for Metz and told him of the moving of the Sisters' home and that he wanted Metz to make the necessary connections. To which Metz replied ‘all right.’ The next day Father Albert and Metz discussed the location of the water mains on Talcott avenue in front of the new location of the building to be moved. Metz disconnected the water and sewer pipes before the building was moved. After the building had been moved to its new location, Father Albert, Metz and one John Miniter, a sewer contractor, met at the new location of the building, and Miniter drew a rough sketch or diagram, identified but not in evidence, of the necessary plumbing connections, a copy of which was left with Father Albert. Metz, without conferring with Father Albert, engaged Miniter to connect the sewer outlets of the building to the sewer in the street. This Miniter did, using his own employees. At the time of the death of Metz no statement had been made out, or given to anyone by Miniter.

After the death of Metz, Miniter compiled two statements, of materials furnished and work done. One was made to Metz and the other to plaintiff in error. Miniter testified this was because he did not know who should receive the statement.

On August 20, 1941, Metz applied for and received a highway permit. In so doing he signed an acceptance of the provisions of such permit, in and by which he made himself personally liable for any damages resulting from the breaking of the concrete pavement and tunneling thereunderto install these sewer connections. He gave bond for faithful performance. , on August 21, 1941, he, in his own name, obtained a meter permit from the city of Chicago. On August 22, 1941, Metz made a pencil memorandum of ‘four hours wiping stop cock etc.’ and ordered, in his own name, a quanity of pipe and fittings, amounting to $68.98.

On August 23, 1941, Father Albert left on his vacation and did not return until after the death of Metz. August 26, 1941, there was ordered and delivered on the job, $78.86 worth of material from the Jefferson Park Fuel and Material Company. John J. Quinn, auditor and secretary of that concern, testified that the material listed in plaintiff in error's exhibit 4, stating sold to Immaculate Conception Church, was ordered by telephone; that Father Albert called him on the telephone giving the first order. Father Albert testified he did not ‘directly at any time, order any materials for the job from the Jefferson Park Fuel and Material Company.’ August 27, 1941, Metz ordered $26.09 worth of material from the Weil-McLain Co. August 25, 1941, Metz employed Brooks to break the concrete pavement with his air hammer. Brooks sent Metz a statement for $20. August 29, 1941, Brook's employees excavated a ditch, at the agreed price, with Metz, of $25. Statement for this work was not sent to Metz before he died but one was sent September 17, 1941. Pencil memoranda, in the handwriting of Metz, show a credit of $40, which Father Albert stated he paid.

Defendant in error, widow of Metz, testified her husband had done both contract work and work by the hour; that in each case he kept his records as to his time; that each evening, upon his arrival home, she would sit down with him and he would mark on a piece of paper his time for the day; that when materials were to be kept track of he would mark them on a separate slip; that upon completion of any job the entries on the slips of paper would be carried forward to a daybook; that on the Immaculate Conception job there were only slips of paper because the job was not completed. After Metz's death, Mrs. Metz took all the bills to Father Albert. She also testified that at the coroner's inquest she was sworn and testified that when asked by whom her husband was employed, she answered, ‘By himself. He was a master plumber.’ And when asked the question, ‘and his Social Security number, please, do you know what it is?’, answered: ‘I don't think he had any. I don't think he had to have any whatever, as he was a boss himself.’ An award was entered. The superior court, on certiorari, affirmed the award but as Albert Drohan had died prior to the hearing in the superior court, the award was by stipulation set aside as to him.

Plaintiff in error contends that defendant in error failed to maintain the burden of proving that her deceased husband was an employee under section 5 of the act; that all the facts are undisputed, except the testimony that Father Albert on August 26, 1941, ordered, by telephone, from Jefferson Park Fuel and Material Company the first of three deliveries of material for the job, and, as to that disputed fact, the undisputed testimony was that Father Albert left on his vacation on August 23, and that the arbitrator erred in refusing to admit Father Albert's testimony relative to a conversation he had with the deceased about ordering material from the Jefferson Park Fuel and Material Company, and that where, as here, the main and essential facts are not in dispute, the question for decision is one of law.

It is not possible to, in all cases, lay down a rule by which the status of men working and contracting together can be accurately defined, as to whether they are employees or independent contractors. Each case must depend upon its own facts. No one feature of the relation is determinative, but all must be considered together. Kehrer v. Industrial Comm., 365 Ill. 378, 6 N.E.2d 635;Stellwagen v. Industrial...