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Luby v. Industrial Com.

OPINION FILED SEPTEMBER 15, 1980.

JOSEPH A. LUBY, APPELLEE AND CROSS-APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (FRANK C. ABT, APPELLANT AND CROSS-APPELLEE).



Appeal from the Circuit Court of Cook County, the Hon. Richard L. Curry, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 26, 1980.

The claimant, Joseph A. Luby, filed an application for adjustment of claim with the Industrial Commission seeking compensation from the respondent, Frank C. Abt, doing business as Lake View Ice Cream Company, for the fracture of a hip in an accident on June 18, 1975. The arbitrator made an award in favor of the claimant. On review the Commission, without hearing additional testimony, set aside the award. It expressly found that the relationship of employee and employer existed between the claimant and the respondent at the time of the accident, but that the claimant had failed to prove that his injury had been sustained in the course of employment. The circuit court of Cook County reversed the Commission's decision and reinstated the award. The respondent has appealed pursuant to Rule 302(a) (73 Ill.2d R. 302(a)), and the claimant has cross-appealed.

The respondent contends that the Commission's finding that the claimant was an employee of the respondent was contrary to the manifest weight of the evidence. The claimant challenges, on the same ground, the Commission's finding that no compensable accident occurred. We turn first to the question of the claimant's status.

The respondent is a Chicago distributor of ice cream products. He testified to his manner of operation as follows: The products sold by the respondent consist of ice cream bars of various kinds, referred to collectively as "ice cream novelties," which are sold to the public through individual vendors operating pedal-driven carts along city streets. All of the respondent's products are marketed in this manner. The carts are owned by the respondent. The respondent testified that they do not bear the name of Lake View Ice Cream Company, but this was disputed by the claimant.

In 1975 the respondent's vendors numbered about 180. The respondent did not engage a person as a vendor in advance, nor for any fixed period of time. The vendor was engaged on a daily basis to sell ice cream during that day, and there was no commitment by either the respondent or the vendors that the latter would work any given number of days a week. The respondent testified that many vendors worked only one day a week, and the claimant testified that he himself operated a cart only one or two days a week.

The working hours during the day were likewise not rigidly prescribed by the respondent. The respondent requested vendors to arrive at his place of business between 10 a.m. and 2 p.m. to pick up their carts, and they were also asked to return before nightfall, but conformity to these hours was not insisted upon. The respondent had only some 40 carts, however, so that a vendor who reported for work late in the day would run the risk of being unable to work that day.

When a person applied to the respondent to be taken on as a vendor for the first time he was handed a document captioned "Consignment Agreement," which he was required to sign before being given a cart. The respondent offered into evidence 152 copies of such agreements which had been signed in 1975 by vendors who first worked for the respondent during that year. The respondent was unable to locate in his files any such agreement signed by the claimant. The latter testified, however, that he had seen this document or one similar to it when he first came to work for the respondent in 1973, and that he had signed it.

The agreement purports to grant the vendor the privilege of obtaining the respondent's products "on consignment." It provides that all merchandise shall be paid for on the day received, but that unsold merchandise may be returned with the vendor being credited for the purchase price; that the purchase price will be "our current wholesale price"; that the respondent will rent the vendor a cart at a charge of 10 cents a day. The agreement closes with the following statement:

"You are to vend or dispose of the merchandise consigned to you.

We are not to be liable for damages or injuries to you or to third persons; you shall not hold yourself out to the public as an employee of this Company, and no employment of you by us has ever been made or contemplated."

When a vendor arrived at the respondent's place of business for work he would stock his cart with an assortment of various ice cream novelties, the selection being left to him. A record was made of the number of each item taken, and the vendor was debited for each item taken at a price set by the respondent. The vendor was also informed of the price at which the respondent suggested each item be sold to the public. These prices also appeared on the cart. Vendors were not instructed to follow any particular route or to confine their operations to any specific part of the city.

Upon returning at the close of the day to the respondent's office each vendor would turn in his unsold merchandise to the respondent, and would be credited for each item at its wholesale price. He was required to turn over to the respondent 70% of the proceeds received from sales, retaining 30% for himself. These figures were arrived at by the respondent on the assumption that the vendor had made all his sales at the suggested resale price. The claimant testified that in 1975 the daily amount which he received ran from $10 to $15. Vendors ...


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