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Westlund v. Kewanee Public Service Co.

JULY 17, 1956.




Appeal from the Circuit Court of Henry county; the Hon. LEONARD E. TELLEEN, Judge, presiding. Affirmed.


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 under ground 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. Jenkins was familiar with his 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 bill the 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 special finding, but the objection to a special finding in order to be effective must be specific, and a general objection in a motion for new trial that the verdict is contrary to the manifest weight of the evidence is not sufficient for that purpose: Brimie v. Belden Mfg. Co. (1919) 287 Ill. 11; Brant v. Chicago and Alton R.R. Co. (1920) 294 Ill. 606; Taake v. Eichhorst (1931) 344 Ill. 508; Rubottom v. Crane Co. (1939) 302 Ill. App. 58; Weinrob v. Heintz (1952) 346 Ill. App. 30. Other cases to the same effect are: Voigt v. Anglo-American Provision Co. (1903) 202 Ill. 462; Hartley v. Red Ball Transit Co. (1931) 344 Ill. 534; Avery v. Moore (1890) 133 Ill. 74; Empire Laundry Mach. Co. v. Brady (1896) 164 Ill. 58; Pennsylvania Coal Co. v. Kelly (1895) 156 Ill. 9. Ch. 110, Ill. Rev. Stats., 1953, par. 192, being section 68 of the Civil Practice Act in effect when this case was tried, provided in part:

". . . and if either party may wish to move for a new trial or in arrest of judgment, or for a judgment notwithstanding the verdict, he shall . . . file the points in writing, particularly specifying the grounds of such motion, . . ."

The defendant made no specific objection in the trial court to the special finding of fact by the jury, in answer to the defendant's special interrogatory, that the plaintiff was not an employee of the defendant; it raised no question as to such in its motion for new trial; it made no motion to set aside the special finding of fact; its general motions to direct a verdict did not preserve the question; the general objection in its motion for new trial that the verdict is contrary to the manifest weight of the evidence did not preserve the question; its motion for judgment notwithstanding the verdict does not at all refer to the special finding of fact; and its points in writing filed as its motion for new trial or for judgment notwithstanding the verdict do not particularly specify such special finding of fact and any objection thereto as a grounds of such motions. Accordingly, the defendant is conclusively bound by the special finding of fact by the jury on the special interrogatory that the plaintiff was not an employee of the defendant. That finding being unquestioned and it being substantially decisive of the essential facts upon which liability depends so far as this appeal is concerned, there could be no error in denying the defendant's motions for a directed verdict and for judgment notwithstanding the verdict.

But even if the defendant were not conclusively bound, under the circumstances, by the special finding of fact on the special interrogatory, we believe this case was properly submitted to the jury to determine whether the plaintiff was an employee of the defendant or an independent contractor. Although the facts and circumstances as to the relationship are virtually undisputed, they are not necessarily susceptible of a single reasonable inference, and, therefore, that question was not one only of law for the Court, but was a fact question for the jury, under proper instructions, and their verdict and answer to the special interrogatory indicates they have found he was not an employee, but was an independent contractor. There is substantial competent evidence to support that finding, — it is not an unreasonable inference from the evidence, — and it is not contrary to the manifest weight of the evidence.

[3-8] It is impossible or impracticable to lay down a hard and fast general rule by which the status of men working and contracting together can definitely be defined in all cases as employees or independent contractors; each case must depend on its own particular facts and circumstances; no one feature of the relationship is determinative, but all must be considered and construed together; the right to control the details, manner, and method by which the work is to be done is probably the principal consideration; if the person for whom the work is done retains such right to control the details, manner, and method, the relation of employer-employee ordinarily exists; an independent contractor is one who renders service in the course of an occupation, who undertakes to produce a given result or to do a specific piece of work or job for another party, but is not subject to the orders or control of the latter in respect to the details of the work, the details or methods being left to his discretion, and he representing the will of the person for whom the work is done only as to the results and not as to the means by which the job is accomplished; the manner of payment, whether by the piece, job, day, or hour, the right to discharge, the skill required, the furnishing of materials, equipment, and tools, are all of some significance, but no one circumstance is necessarily controlling; whether the party performing the service is engaged in a business apart from the regular business of the person for whom the work is done, and whether the work done is a part of the regular business of the person for whom it is done or is only incidental to his main business, are also factors; if the facts are undisputed, and the ...

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