Newberry v. Indus. Comm'n

Decision Date09 December 1930
Docket NumberNo. 20223.,20223.
Citation341 Ill. 554,173 N.E. 472
PartiesNEWBERRY v. INDUSTRIAL COMMISSION et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to Circuit Court, Cook County; Harry W. McEwen, Judge.

Proceedings under the Workmen's Compensation Act by Bessie Phinney, surviving widow of Daniel P. Phinney, deceased, employee, against Mary L. Newberry, employer. To review a judgment of the circuit court confirming an award of the Industrial Commission in favor of claimant, the employer beings error.

Judgment reversed, and award set aside.

Sass & Hood, of Chicago (George C. Bliss, of Chicago, of counsel), for plaintiff in error.

Stoffels & Stoffels, of Chicago (Harry Goodman and Herbert R. Stoffels, both of Chicago, of counsel), for defendant in error.

HEARD, J.

Plaintiff in error, Mary L. Newberry, by leave of this court, has sued out a writ of error to review a judgment of the circuit court of Cook county confirming an award of the Industrial Commission against her, in favor of Bessie Phinney, for compensation at the rate of $12.50 per week for 300 weeks under the Workmen's Compensation Act, for accidental injuries resulting in the death of Daniel P. Phinney, her husband.

There is no dispute as to the facts. On September 29, 1927, Daniel P. Phinney, who was employed as a watchman at a building located at Townsend and Huron streets, Chicago, was found dead at the bottom of the elevator shaft in the basement of the building. This particular building, which was owned by plaintiff in error, was a double or L-shaped building occupied by various tenants, who were her lesses. The principal lessee was the VanPelt Branch of the United Last Company, which, under the terms of its lease, occupied the four floors and the basement of the building at 440 West Huron street. On the Townsend street side it occupied the basement. Under the terms of the lease to the United Last Company the latter was to have possession of the dry kiln opening off the first floor and the engine and boiler house, with appurtenances. The lease further provided that the lessee should furnish steam heat necessary for the entire building, also power to operate the elevator and air compressor, steam to operate the house pump and pumping water for supply tanks, and remove all cinders made in the operation of the plant during the term of the lease. At the time of the accident the fifth floor of the building on the Huron street side was occupied by the Manufacturers Glass Company. The first floor on the Townsend street side was occupied by the Manufacturers' Plate Company, the second, third, and fourth floors by the Beecher Manufacturing Company, and the fifth floor by Dodge & Ascher, Inc. Under the terms of their leases the lessees agreed to furnish their proportionate share of the watchman's salary. The leases provided that the lessees pay their rent at the office of C. F. Durland & Co. C. F. Durland & Co. acted as agent of the landlord to collect the rent, take care of the repairs, and pay the taxes. Plaintiff in error did not hire the deceased, Phinney, as watchman or direct Durland to hire him. At the hearing on arbitration Herman Woinowski was called as a witness on behalf of the claimant. It appears from his testimony that he was employed by the VanPelt Branch of the United Last Company as engineer and had been in its employ about nineteen years; that he was the engineer of the building, and that deceased was supposed to work under his direction. The deceased's duties were those of night watchman, taking care of the building, pulling clocks, and cleaning fires in the morning. His hours of duty were from 6:00 p. m. until 5:30 a. m. He was the only man employed in the building at night and was left in charge of the building by the engineer, Woinowski. The premises occupied by the various lessees were not open at night. In case Phinney was unable to attend to his duties at night, Woinowski would hire someone else to take his place or else stay on duty himself. The deceased received as wages for his services $25 a week, which was paid every two weeks through C. F. Durland & Co. Most of the checks for the wages of deceased were made payable to Woinowski, who in turn indorsed them and gave them to the deceased. The various tenants of the building paid the wages of the deceased as watchman of their premises to C. F. Durland & Co. The deceased was employed as watchman in 1926 by Patterson, who was manager of the VanPelt Branch of the United Last Company. Part of the duties of the deceased was that of cleaning out the ashes, which under the terms of its lease was an obligation of the United Last Company. Woinowski, the engineer for the United Last Company, instructed Phinney as to his duties as night watchman. He had twelve clocks to pull each hour and there were key stations on each floor, the clocks being located in various parts of the building. As a rule the deceased carried a lantern. The stairways were lighted. It was not...

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8 cases
  • Mangiaracino v. Laclede Steel Co., 37132.
    • United States
    • United States State Supreme Court of Missouri
    • 11 Diciembre 1940
    ...Railroad Const. Co. v. Industrial Comm., 286 Ill. 632; Imperial Brass Mfg. Co. v. Ind. Comm., 341 Ill. 51; Newberry v. Industrial Comm., 341 Ill. 554; Board of Education of Chicago v. Ind. Comm., 321 Ill. 23; West Side Coal & Mining Co. v. Industrial Comm., 291 Ill. 301. (b) The plaintiff's......
  • Mangiaracino v. Laclede Steel Co.
    • United States
    • United States State Supreme Court of Missouri
    • 11 Diciembre 1940
    ......632;. Imperial Brass Mfg. Co. v. Ind. Comm., 341 Ill. 51;. Newberry v. Industrial Comm., 341 Ill. 554;. Board of Education of Chicago v. Ind. ......
  • Great Atlantic & Pacific Tea Co. v. Indus. Comm'n, 20948.
    • United States
    • Supreme Court of Illinois
    • 8 Abril 1932
    ......Newberry v. Industrial Commission, 341 Ill. 554, 173 N. E. 472; Nelson Railroad Construction Co. v. ......
  • Jording v. Industrial Com'n, 3-92-0688
    • United States
    • United States Appellate Court of Illinois
    • 2 Diciembre 1993
    ...... Simply put, as stated in Newberry v. Industrial Comm'n (1930), 341 Ill. 554, 173 N.E. 472, the charge or ......
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