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Iowa-ill. Elec. Co. v. Industrial Com.

OPINION FILED NOVEMBER 27, 1950.

IOWA-ILLINOIS GAS & ELECTRIC COMPANY, PLAINTIFF IN ERROR,

v.

THE INDUSTRIAL COMMISSION ET AL. — (KENNETH ROBISON, DEFENDANT IN ERROR.)



WRIT OF ERROR to the Circuit Court of Rock Island County; the Hon. RAY I. KLINGBIEL, Judge, presiding.

MR. JUSTICE GUNN DELIVERED THE OPINION OF THE COURT:

The respondent, Kenneth Robison, was injured February 28, 1947, by falling from a second-story window, and at the time was the employee of John Bondar, working upon windows in the office of Iowa-Illinois Gas & Electric Company, hereafter referred to as petitioner. He had been loaned by Forest Benford, his regular employer, to John Bondar. He filed the application against the petitioner, and Benford, and Bondar. A hearing was had, and the arbitrator held all three liable for compensation. The petitioner, alone, appealed to the Industrial Commission, where the arbitrator's decision was affirmed, and later confirmed by the circuit court of Rock Island County. The petitioner has been allowed a writ of error out of this court for a review of the case.

The facts disclose that Kenneth Robison was a window washer in the regular employ of Forest Benford. John Bondar, another window washer employer, had a contract to wash windows for petitioner at a fixed price per week. Getting behind in his work Bondar borrowed Robison from Benford to assist him, and took him to petitioner's building to help in washing windows. Bondar's contract covered only show windows on the ground floor and certain windows on the second floor, and on February 28, 1947, while washing a window on the second floor, the respondent fell to the street, and was injured.

There is no doubt but Robison was the employee of an independent contractor. Neither of Robison's employers in the window washing business carried compensation insurance, and the proceeding was therefore filed against the petitioner upon the theory that it was liable under section 31 of the Workmen's Compensation Act. (Ill. Rev. Stat. 1949, chap. 48, par. 168.) The circuit court held that the petitioner was engaged in the business of "maintaining a structure," and was also engaged in "electrical work," and therefore comes within the provisions of section 31.

The facts which are claimed to show petitioner was engaged in "maintaining a structure," are as follows: Petitioner owns and leases buildings for the manufacture and sale of gas and electricity as a public utility. It has an office and retail building in Moline, Illinois, which it leases from the Deere estate. It does not occupy the entire building. The firm of DeVoe & Raynolds Corporation (herein referred to as DeVoe) also leases space in the Deere building. In 1942 petitioner subleased from DeVoe the basement portion of the premises occupied by it at a rental of $30 per month. In 1945 DeVoe notified petitioner that it would need the basement portion so leased for its own storage, and would terminate the sublease. However, an arrangement was made between petitioner and DeVoe whereby petitioner let DeVoe sublease a part of petitioner's space on the second floor for its storage, and petitioner was allowed to retain the basement. A charge of $12 per month was made DeVoe for the room subleased to it, thus reducing the net amount paid to DeVoe to $18 per month. The room subleased by petitioner constituted two per cent of the space on the second floor. These circumstances are claimed to put the petitioner in the business of "maintaining a structure," because it is receiving rental from a part of the property it uses in its utility business.

The other claim of liability to pay compensation for the injury sustained by respondent is that by reason of petitioner conducting a public utility it is in the "business of electrical work," as specified in subsection 2 of section 3 of the Workmen's Compensation Act. (Ill. Rev. Stat. 1949, chap. 48, par. 139.) The provisions of the pertinent statutes applicable to the present case are section 31, and subsections 1 and 2 of section 3 of the Workmen's Compensation Act. Section 31 provides:

"Anyone engaging in any business or enterprise referred to in sub-sections 1 and 2 of section 3 of this Act who undertakes to do any work enumerated therein shall be liable to pay compensation to his own immediate employees in accordance with the provisions of this Act, and in addition thereto if he directly or indirectly engages any contractor whether principal or sub-contractor to do any such work, he shall be liable to pay compensation to the employees of any such contractor or sub-contractor unless such contractor or sub-contractor shall be insured, in any company or association authorized under the laws of this State to insure the liability to pay compensation under this Act, or guaranteed his liability to pay such compensation." Ill. Rev. Stat. 1949, chap. 48, par. 168.

The sections to which section 31 refers are as follows:

"Sec. 3. The provisions of this Act hereinafter following shall apply automatically and without election to * * * all employers and all their employees, engaged in any department of the following enterprises or business which are declared to be extra hazardous, namely:

"1. The erection, maintaining, removing, remodeling, altering or demolishing of any structure * * *.

"2. Construction, excavating or electrical work * * *." Ill. Rev. Stat. 1949, chap. 48, par. 139.

There are certain exceptions to these provisions, not pertinent to the case.

In simple language, the statute first seems to provide that anyone who is engaged in the business of "maintaining a structure," and who undertakes to do such work through a contractor or subcontractor, shall be liable to pay compensation to the employees of any such contractor or sub-contractor injured in the performance of the work, unless such contractor shall have provided insurance to pay compensation. The obvious and apparent reason for this statute is to prevent employers in these certain occupations from having their work done by contractors without liability, when otherwise they would be liable to pay compensation if their employees performed it.

The first question that engages our attention is whether petitioner was in the "business" of "maintaining a structure," and this must be determined from general principles, since no reference is made to ...


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