Westlund v. Kewanee Public Service Co.

• Decision Date: 17 July 1956
• Docket Number: Gen. No. 10905
• Citation: Westlund v. Kewanee Public Service Co., 136 N.E.2d 263, 11 Ill.App.2d 10 (Ill. App. 1956)
• Parties: Robert L. WESTLUND, Appellee, v. KEWANEE PUBLIC SERVICE COMPANY, a Corporation (Illinois Power Company, an Illinois corporation, Appellant).
• Court: United States Appellate Court of Illinois

Page 263

136 N.E.2d 263

11 Ill.App.2d 10

Robert L. WESTLUND, Appellee, v.KEWANEE PUBLIC SERVICE COMPANY, a Corporation (Illinois Power Company, an Illinois corporation, Appellant).

Gen. No. 10905.

Appellate Court of Illinois, Second District.

July 17, 1956.

Welch & Welch, Kewanee, for appellant.

Gregg A. Young, Kewanee, for appellee.

CROW, Justice.

The defendant, Illinois Power Company, successor to Kewanee Public Service Company, appeals from the verdict and judgment of $7,000 in favor of the plaintiff, Robert L. Westlund, in this action for personal injuries suffered in Kewanee.It is claimed by the defendant that (1)the plaintiff was on the day of the injury October 6, 1947, an employee of the defendant and not an independent contractor, and by reason thereof and the provisions of the Workmen's Compensation Act(Ch. 48, Ill.Rev.Stats., 1947, Par. 143), his common law right of action against the defendant employer had been abolished, and, hence, the Court should have allowed and not denied its motion, based on that point, to direct a verdict of not guilty at the close of all the evidence; and (2)the trial court erred in the giving and refusal of certain instructions.The defendant's motion for judgment notwithstanding the verdict, based also on the same point as its motion for a directed verdict, and its motion for a new trial, which raises, among other things, the questions as to the instructions, were also denied.A special interrogatory was submitted by the defendant and given to the jury, asking: 'Do you find from the preponderance of the evidence that the plaintiff, Robert Westlund, was an employee of the Kewanee Public Service Company at the time of the occurrence in question?'The answer of the jury was: 'No.'The defendant did not object in the trial court to the finding on that special interrogatory either in its motion for judgment notwithstanding the verdict, or its motion for new trial, or by motion to set aside the special finding, or otherwise.The special finding was consistent with and supported the general verdict.

The amended complaint, as amended, so far as material, alleged that the defendant was a public utility, engaged in constructing a gas main underground on October 6, 1947; prior to that date the defendant, by its agent, entered into an oral contract with the plaintiff by which he was to weld the joints in the pipe line; the plaintiff was to furnish all the welding equipment and do the welding work, and the defendant was to pay an overall charge of $5.50 an hour for the services of plaintiff and his equipment; while the plaintiff was in the ditch, welding, the supports holding the pipe already welded gave way when the welded sections of pipe were being lowered into the ditch; and the falling pipe hit the plaintiff on the head, injuring him.The negligence charged was that the defendant's servants selected improper wooden timbers for supports, there was an insufficient number of supports, and the defendant's servants were negligent in lowering the welded sections into the ditch.The defendant's answer and additional defense, so far as presently material, denied some of the alleged features of the oral contract, denied negligence, alleged the plaintiff was an employee of the defendant and his cause of action was abolished, and alleged the plaintiff assumed the risk involved.Other pleadings of the parties need not now be noted.

There is little dispute as to the facts.The plaintiff was on, and for some time before October 6, 1947, had been a welder by trade, had a welding shop at his home, and had a portable welding machine, which could be pulled by a jeep, so as to permit welding work at the scene of a job, as well as at his home.The plaintiff did general job welding, structural welding, ornamental iron work, and farm repair welding, serving the general public as they came to him.Several weeks prior to October 6, 1947, Arthur Jenkins, the gas superintendent of the defendant, came to the plaintiff's shop, told him the defendant was going to build a gas pipe line in a certain area of Kewanee, and would like him to do the welding.The plaintiff agreed.About a week before October 6, 1947, Jenkins called the plaintiff again to be sure he was going to do the work.There was no mention in their conversations as to what the plaintiff would be paid.The plaintiff expected to charge the customary rate for work of that nature, according to what materials and labor were required, and, with average material, $5.48 per hour was the rate.Kenkins was familiar with him methods of charging, and Jenkins testified they had no price agreement as to his rate of pay.Jenkins told him the job would last six or eight weeks.This job would terminate upon completion of the pipe line.This was the plaintiff's first job at welding a gas pipe line for the defendant, but he had previously done other small welding jobs for the defendant.On those other jobs he had sent a statement at the end of the month for the work done, and no deduction had been made from his compensation for social security or income withholding taxes.

On the day the plaintiff was injured he was near the corner of Dwight and Church Streets in Kewanee, pulling his portable welding machine with his jeep.He had helmet, gloves, electrodes, cables, work clothes, and gas and oil to run his machine,--equipment of the trade,--all of which were owned by the plaintiff, and none of which were owned or supplied by the defendant.The welding job was skilled work and required special tools, which the plaintiff supplied.Jenkins, the gas superintendent, with four other employees of the company, and a ditch digging machine, with an operator thereof, were also there.The plaintiff employed none of those men.They all were employees of the defendant.After the ditch was dug some four feet deep and twenty inches wide for a certain distance, 2 X 4 wooden timbers were placed by defendant's employees across it and then 4 inch steel pipes in approximately 20 foot sections were rolled onto the timbers to be welded together and afterwards to be lowered into the ditch.Two and sometimes three timbers were used to hold each section.The plaintiff then got into the ditch with the necessary parts of his welding equipment, and proceeded to weld the various sections of pipe together.The defendant's employees placed the pipe in position preparatory to the welding; that act of the defendant's employees was necessary for the plaintiff to proceed with his welding work; and he assisted them in lining up the pipe.The defendant's employees (with occasional help of the plaintiff) clamped the several sections of pipe together, and then the plaintiff welded them.

It was his job to direct the welding.Jenkins inspected the welding, watched it very closely to start out with, and determined that it was satisfactory, and at one time, in the forenoon, Jenkins had suggested or asked the plaintiff to make a little heavier welds, which he did.The plaintiff had had no conversation with Jenkins with reference to welding the underside of the pipe, which was the particular operation he was performing when injured, but in order to weld the underside he had to get down into the ditch.It was impracticable to roll the pipe in order to weld the underside.The selection of the method of getting the weld on the bottom of the pipe was determined by the plaintiff.

The plaintiff did not punch a time clock on this job, or report to a timekeeper; he was his own timekeeper.He started work when the defendant's employees had the pipe lined up, and he would quit when he had finished the balance they had lined up, and had no more work for him to do.He had to keep the welding done so that that part of the job would not slow up the ditch digging machine, because that machine was operating ahead of the plaintiff's welding work, but he could take care of other business and was free to come and go as he pleased as long as it did not hold up the pipe line job.Mr. Jenkins was the boss of the whole project.He set the general hours of work.

The defendant's employees and Jenkins, the superintendent, at the particular time in question were in the act of letting down by ropes some pipe lengths that had been welded, and pulling out the supporting 2 X 4's, at the northerly end of the ditch, about 400 feet north of where the plaintiff was welding, when they dropped a pipe length, the force and weight of which and of the other connected sections snapped the supporting timbers to the south, resulting in a length of pipe which the plaintiff was welding on at the time, at a point some 400 feet southwardly in the ditch, hitting him on the side of the head, causing a fracture.

After he sustained his injuries, the plaintiff billed the defendant for services, as far as he had gone, at the rate of $5.48 per hour for 7 hours, $38.36, the statement reading that it was from 'Bob's Welding Service', and he was paid, and apparently no deductions were made from his compensation for social security or income withholding taxes.The plaintiff had planned to billthe defendant for his services at the completion of the job, rather than to be paid each day or week.

A party is conclusively bound by a special finding of fact by a jury in answer to a special interrogatory submitted by him, unless specific objection thereto is made in or the question is raised in the trial court in the party's motion for new trial or motion to set aside the special finding of fact; the question is not preserved by the party's motion to direct a verdict, or by a general objection in his motion for new trial that the verdict is contrary to the manifest weight of the evidence; a special finding in and of itself, if properly objected to, is no more binding upon the party than is the general verdict, and he is entitled to question the correctness of the special finding upon a motion for new trial or motion to set aside the...