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Phipps v. Cohn

OPINION FILED DECEMBER 20, 1985.

CHARLES PHIPPS, PLAINTIFF-APPELLEE,

v.

ARNOLD COHN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County; the Hon. Roger M. Scrivner, Judge, presiding.

JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

This appeal arises out of a conversion action brought by plaintiff Charles Phipps against defendant Arnold Cohn. At a bench trial in the circuit court of St. Clair County, the defendant was found to have converted personal property of Phipps by and through his agents and employees. The trial judge entered judgment in favor of Phipps for $3,250 plus costs of $49.20. We affirm.

The facts are as follows:

Thomas Felis, an employee of Cohn, testified that David Martin, Sr., came into his office looking for work for himself and his son. Martin, Sr., had previously spoken with Cohn. Felis told Martin, Sr., that he had one small job for him that consisted of removing a bed and table from a house and raking a yard. Felis stated that he knew David Martin, Jr., would be doing some of the work. Felis gave Martin, Sr., a list of instructions to give Martin, Jr. Martin, Jr., was to carry out those instructions, return to Felis, and then be paid. Included in the list of instructions were: "c) Interior of house to be cleaned; clear out all old clothes, furniture, toys, boxes, rags, garbage and anything of any nature not part of originally built house." Handwritten on the bottom of the page were additional instructions to "Take bed and table out of 1422 North 52nd, and take to 620 North 7th Street, and stay there until new tenants move in."

Phipps, who lives at 1422 North 54th Street, stated that on June 16, 1981, he was driving home and a friend flagged him down and asked him why he was moving. Phipps immediately returned home and discovered that a truck and a car containing his household goods had just departed. Apparently the movers had broken a window to get into the house. A neighbor told Phipps that the man who lived across the street from Phipps had moved the furniture.

Phipps then flagged down a passing police car driven by Officer Calvin Hammond of the Washington Park police department and informed him that someone had removed all of his household goods from his home.

Officer Hammond apprehended Ollie Rone, a neighbor of Phipps. Rone indicated that he had helped another individual by the name of David Martin, Jr., remove personal property from the house of Charles Phipps and that they working for Mr. Cohn. Rone also stated that he had bought some of Phipps' property for $62 and that those items were in his possession.

Officer Hammond then located David Martin, Jr., and took both Martin, Jr., and Rone to the police station, where he prepared a report.

At the police station both men indicated that they were working for Arnold Cohn. Officer Hammond testified that he called the office of Arnold Cohn to verify their story, and he was told that he would have to contact Mr. Cohn on his beeper. Officer Hammond dialed the beeper number and Cohn answered the phone, identifying himself. Officer Hammond explained the situation and asked Cohn if Martin and Rone were employed by him. Cohn answered affirmatively, and Officer Hammond asked him if he sent them to the residence to clean it. Cohn said yes he did send them to clean it, but apparently they went to the wrong address. Cohn told Officer Hammond that he would take care of the matter and stated that he would get in touch with Phipps and return the furniture and compensate Phipps for any damage.

The furniture was never returned, and no compensation was ever paid to Phipps by Cohn.

Cohn at trial denied speaking with Officer Hammond on June 16, 1981, and also denied that Martin, Jr., was supposed to clean out the house. He stated that the Martins were only supposed to give him a bid on cleaning out the property located at 1422 North 52nd.

Cohns' first contention is that Phipps failed to show that a principal-agent relationship existed between Cohn and the individuals who removed the furniture from Phipps' house.

• 1 The question of whether a principal-agent relationship existed is one of fact, to be decided by the court or the jury. (Krug v. Machen (1974), 24 Ill. App.3d 526, 531, 321 N.E.2d 85, 89.) A principal is liable for acts committed within the scope of authority by an agent and not for acts of an independent contractor. (Dumas v. Lloyd (1972), 6 Ill. App.3d 1026, 1030, 286 N.E.2d 566, 569.) The classic test as to whether a contractor is independent or a mere servant depends upon his right to control the manner and the method in which the work is carried on independent of supervision and direction by his employer. Gunterberg v. B & M Transportation Co. (1975), 27 Ill. App.3d 732, 738, 327 N.E.2d 528, 533.

• 2 The trial court found that a principal-agent relationship existed, and that Martin, Jr., and the other individuals were ...


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