Sinclair Ref. Co. v. Indus. Comm'n

• Decision Date: 18 June 1925
• Docket Number: No. 16647.,16647.
• Citation: 317 Ill. 541,148 N.E. 291
• Parties: SINCLAIR REFINING CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

317 Ill. 541

148 N.E. 291

SINCLAIR REFINING CO.

v.INDUSTRIAL COMMISSION et al.

No. 16647.

Supreme Court of Illinois.

June 18, 1925.

Error to Circuit Court, Effingham County; William B. Wright, Judge.

Proceeding under the Workmen's Compensation Act by Frank J. Freepartner, claimant for compensation, opposed by the Sinclair Refining Company, employer. Award of the Industrial Commission was affirmed in the circuit court, and the employer brings error.

Affirmed.

George A. Schneider, of Chicago, for plaintiff in error.

Parker & Bauer, of Effingham, for defendant in error.

STONE, J.

Defendant in error was awarded compensation for injuries received while in the employ of plaintiff in error. The facts of the injury are not disputed. The controverted questions were, whether at the time of the accident, the relation of employer and employee existed, and, if so, whether the correct method of computing annual earnings of the applicant was used by the Commission.

Plaintiff in error conditions that defendant in error was an independent contractor, and therefore not under the operation of the Compensation Act. Defendant in error was engaged in the plumbing business in Effingham. He had a shop of his own and did work by the hour. Plaintiff in error is engaged in the business of refining and selling oil, gasoline, and greases at wholesale and retail. Defendant in error had been at various times engaged by L. J. Nickham, superintendent of plaintiff in error at Effingham. In each instance his employment was for the purpose of installing pumps and underground tanks, which were rented by plaintiff in error to retailers in gasoline. Defendant in error was not continuously engaged with plaintiff in error in such work, and, when not so engaged, did plumbing work for others, either by the hour or on contract. He usual method of work when employed by plaintiffs in error was to furnish a helper, tools, shovels, etc., and to go to the place where the pump and tank were to be installed, and there perform the necessary services as plumber, and at times assist his helper in burying the tank into which the gasoline was to be put from plaintiff in error's wagons. The evidenceshows, without dispute, that Nickham was, as he characterized it, ‘the boss' on these jobs; that he could employ and discharge defendant in error at any time during the course of the work of installing a pump and tank in case he thought defendant in error was not doing work properly. The pumps and tanks were furnished by plaintiff in error. No materials were furnished by defendant in error other than an elbow or short bit of pipe where the pump could not be otherwise fitted. Even this material was seldom furnished. Defendant in error employed his helper and charged 50 cents an hour for his services. He received 90 cents an hour. On the morning of May 4 he and Nickman, pursuant to an engagement made with Nickham on the day previous, started to a nearby town to repair a pump used by a customer of plaintiff in error. They were in Nickman's car. While driving on the road a man by the name of Kuhns drove his car so negligently on the public highway that he ran into Nickham's car, with the result that defendant in error sustained injuries.

[1] It is contended, first, that, under paragraph 2 of section 5 of the Workmen's Compensation Act (Smith-Hurd Rev. St. 1923, c. 48, § 142), it must be held that defendant in error was not an employee of plaintiff in error at the time of the accident. Section 5 provides as follows:

‘The term ‘employee’ as used in this act, shall be construed to mean: * * * Second-Every person in the service of another under any contract of hire, express or implied, oral or written, * * * but not including any person who is not engaged in the usual course of the trade, business, profession or occupation of him employer.'

Plaintiff in error contends that it is this paragraph which prevents a finding that defendant in error was its employee at the time of the injury; that under the facts in the case he is excluded from the term ‘employee.’

This question has never been directly passed upon in this state. In Uphoff v. Industrial Board, 271 Ill. 312, 111 N. E. 128 L. R. A. 1916E, 329, Ann. Cas. 1917D, 1, it was held that an injury received by a workman hired by a farmer to erect a broom corn shed on his farm was not received in the usual course of the business of the farmer, for the reason that the building of the broom corn shed was not a part of the farmer's business, but was merely an unusual incident to it. In Holbrook v. Olympia Hotel Co., 200 Mich. 597, 166 N. W. 876, the owner of a hotel was held not to be pursuing his business, within the meaning of the Compensation Act, in causing rooms to be occasionally painted and decorated, though it was usual to have such work done from time to time. In Skates v. Jones & Co., 3 B. W. C. C. 460, it was held that one in the business of manufacture, who contracts with a boilermaker to replace an old boiler with a new one, is not liable to pay compensation to one of the workmen employed by the boilermaker; that while he required the work to be done he had not held himself out as a boilermaker; that it was not a part of his trade or business to install boilers; and therefore the injury did not occur while the employee was engaged in the usual course of trade of the defendant.

The above cases are cited by plaintiff in error as authority for the proposition that defendant in error was...