{ "id": 2847978, "name": "McHugh-Brighton et al., Appellants, vs. The Industrial Commission et al.-(John L. Vuich et al., Appellees.)", "name_abbreviation": "McHugh-Brighton v. Industrial Commission", "decision_date": "1969-01-29", "docket_number": "No. 41383", "first_page": "52", "last_page": "58", "citations": [ { "type": "official", "cite": "42 Ill. 2d 52" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "285 Ill. 595", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4924696 ], "opinion_index": 0, "case_paths": [ "/ill/285/0595-01" ] }, { "cite": "297 Ill. 392", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5041645 ], "opinion_index": 0, "case_paths": [ "/ill/297/0392-01" ] }, { "cite": "292 Ill. 16", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4980509 ], "pin_cites": [ { "page": "25-26" } ], "opinion_index": 0, "case_paths": [ "/ill/292/0016-01" ] }, { "cite": "33 Ill.2d 314", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2884400 ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0314-01" ] }, { "cite": "15 Utah 2d 20", "category": "reporters:state", "reporter": "Utah 2d", "case_ids": [ 8860300 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/utah-2d/15/0020-01" ] }, { "cite": "259 N.Y.S.2d 947", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1963, "opinion_index": 0 }, { "cite": "23 App. Div. 222", "category": "reporters:state", "reporter": "A.D.", "year": 1963, "opinion_index": 0 }, { "cite": "132 N.E.2d 273", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "126 Ind. App. 703", "category": "reporters:state", "reporter": "Ind. App.", "case_ids": [ 1360389 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ind-app/126/0703-01" ] }, { "cite": "334 Ill. 390", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5221362 ], "opinion_index": 0, "case_paths": [ "/ill/334/0390-01" ] }, { "cite": "384 Ill. 616", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2489931 ], "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/ill/384/0616-01" ] }, { "cite": "402 Ill. 606", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2617711 ], "weight": 3, "pin_cites": [ { "page": "614" }, { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/ill/402/0606-01" ] } ], "analysis": { "cardinality": 584, "char_count": 10576, "ocr_confidence": 0.766, "pagerank": { "raw": 2.1556177583398034e-07, "percentile": 0.7691714845151204 }, "sha256": "b5315d7f7e20dc63b768bd04e75d40fdf9dde2b5d1718d4afd090884d79edd00", "simhash": "1:52552297e79d571a", "word_count": 1764 }, "last_updated": "2023-07-14T15:08:33.608403+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "McHugh-Brighton et al., Appellants, vs. The Industrial Commission et al.\u2014(John L. Vuich et al., Appellees.)" ], "opinions": [ { "text": "Mr. Justice Schaefer\ndelivered the opinion of the court:\nJohn L. Vuich, the claimant, was injured while working as a carpenter during the construction of the Marina City apartments in the city of Chicago. An arbitrator for the Industrial Commission awarded him compensation from the James McHugh Construction Company (McHugh), and found that the Argonaut Insurance Company (Argonaut) was the insurer of the workmen\u2019s compensation liability of McHugh. The Industrial Commission and the circuit court of Cook County affirmed this decision. On this appeal, the award is contested by McHugh, Argonaut, and the Brighton Construction Company (Brighton), all three of whom contend that Vuich was an employee of a joint venture consisting of McHugh and Brighton, and not an employee of McHugh. Argonaut also contends that if McHugh, and not the joint venture, was the claimant\u2019s employer, its policy of insurance does not cover the claimant\u2019s injuries. McHugh disputes this contention.\nOn February 1, 1961, McHugh was awarded the contract for the construction of the two sixty-story buildings and appurtenant structures, known as Marina City. McHugh is a self-insurer under the Workmen\u2019s Compensation Act. On March 2, 1961, McHugh entered into a joint venture agreement with Brighton. Thereafter, Argonaut issued its Workmen\u2019s Compensation and Employers\u2019 Liability policy naming \u201cJames McHugh Construction Company and Brighton Construction Compan)', a joint venture,\u201d as the insured.\nThe claimant began work at Marina City on Thursday, October 24, 1963, and he worked there until the morning of October 30, 1963, when he was injured by a fall through a hole in the floor to a concrete surface, twenty feet below. That his severe injuries occurred in the course of his employment has never been disputed, and no question is raised in this court as to the extent of those injuries.\nThe claimant filed his application for adjustment of claim on January 29, 1964, naming McHugh as his employer, and Argonaut as its insurer. The controversy as to the identity of his employer apparently arose after he had filed a civil action to recover for his injuries. On April 26, 1965, a second application for adjustment of the claim was filed by Argonaut, which alleged that the claimant was employed by a joint venture composed of McHugh and Brighton. The claimant then amended his original application to allege in the alternative that either McHugh, or a joint venture consisting of McHugh and Brighton, was his employer. The matter proceeded to a hearing on this amended application, and the application of Argonaut was dismissed.\nThe basic position of the appellants on the issue of the identity of the claimant\u2019s employer is that when he started to work at Marina City, he became the employee of whatever person, firm or corporation \"owned and controlled the Marina City job.\u201d And since McHugh had entered into the joint venture with Brighton for this construction project before the claimant started work, it follows that the joint venture became the claimant\u2019s employer. Upon this thesis, no circumstance other than the fact that the claimant went to work on a job \u201cowned and controlled\u201d by the joint venture is significant in determining the identity of his employer.\nIt is true, as the appellants emphasize, that the claimant testified that during the ten years he had worked as a carpenter in the Chicago area he had never inquired into the nature of the ownership of the numerous construction firms for which he worked, and that he followed the orders of the foreman to whom he was assigned. His employment on the Marina City job, however, had not followed the usual pattern. Approximately four weeks prior to his accident he went to work for McHugh on a construction job on the south side of Chicago. As his work there neared completion, his foreman told him to report for work for a day or so at another McHugh project in a north side factory, and when that job was done, to report for work at Marina City, where there was a couple of weeks work, \u201cand when I was through there, there was another location, and by spring they should have a permanent location for-me.\u201d After he completed one day\u2019s work in the factory, his supervisor there, Tom McHugh, directed him to A1 Phelan, a foreman at Marina City, and told him that several weeks employment would be available there. Phelan was employed by the McHugh-Brighton joint venture at the time of the accident, but he has continued as a regular employee of McHugh.\nThe claimant testified that the only sign he saw at the job site was one on the front of the project office which bore the McHugh name. Other witnesses testified to the presence of other signs with the legend \u201cMcHugh-Brighton.\u201d Most employees on the Marina City job wore hardhats. Some hats bore the name McHugh; others bore no name. While the claimant was paid with checks bearing names of both firms, he did not receive his first check until he was in the hospital as a result of the fall for which he now seeks compensation.\nThe claimant defends the arbitrator\u2019s conclusion that he was an employee of the McHugh company, individually, on the basis that upon being transferred to the Marina City project, he was not informed that he had become an employee of McHugh-Brighton and, therefore, did not consent to employment with the joint venture.\nThe definition of \u201cemployee\u201d in the Workmen\u2019s Compensation Act makes it clear that the basis of the relationship is a \u201ccontract for hire, express or implied, oral or written, * * (See Ill. Rev. Stat. 1963, ch. 48, pars. 138.1 (a)2, (b)2.) The existence of such a relationship is determined by an application of the principles that govern other contracts. (Crepps v. Industrial Com. (1949), 402 Ill. 606, 614.) One does not enter the employ of another without at least an implied acquiescence in the relationship. As has been pointed out, \u201cto thrust upon a worker an employee status to which he has never consented * * * might well deprive him of valuable rights under the compensation act, notably the right to sue his own employer for common-law damages.\u201d 1A Larson, Workmen\u2019s Compensation Law \u00a7 47.10, pp. 753-54. See also id. \u00a7 48.10, pp. 812-16.\nThe evidence before us does not indicate that the finding of the arbitrator, the commission and the circuit court was against the manifest weight of the evidence. (See Crepps v. Industrial Com., 402 Ill. 606, 608; Fransen Construction Co. v. Industrial Com., 384 Ill. 616, 624; Allen-Garcia Co. v. Industrial Com., 334 Ill. 390.) The testimony did not establish that the claimant was, or should have been, aware of any change in his employment status when he left the job controlled solely by McHugh and commenced work.on.the McHugh-Brighton Marina City project. Me-Hugh\u2019s supervisory employees had directed him from one McHugh project to another, and then to Marina City. In these shifts, McHugh\u2019s degree of participation in the Marina City construction was not distinguished from its control of any of its other jobs.\nThe appellants emphasize that it was the claimant\u2019s past practice to accept employment without inquiry into the legal nature of his employer and to indicate his acceptance by commencing to work. But as he moved from job to job in the past he was aware of the termination of his previous employment, for new employment was found only upon his own initiative. His move to the new job in this case, however, was at the direction of agents of McHugh. To say that his commencing to work at Marina City amounted to consent to employment with the joint venture begs an essential question, for he was not aware that he was offered new employment.\nThe appellants cite cases from other jurisdictions in which a joint venture was found to be the employer of an injured employee. (See, e.g., Baker v. Billingsley (1956), 126 Ind. App. 703, 132 N.E.2d 273; Fallone v. Misericordia Hospital (1965), 23 App. Div. 222, 259 N.Y.S.2d 947; Cook v. Peter Kiewit Sons Co. (1963), 15 Utah 2d 20, 386 P.2d 616.) In none of these, however, were the courts concerned with the issue that is determinative upon the peculiar facts of the present case, the consensual basis of the employment relationship. The decisions cited are instructive with respect to the liability of parties to joint ventures under various statutes, but the conclusion that the claimant was an employee of McHugh makes it unnecessary to consider the status of joint ventures under the Illinois Workmen\u2019s Compensation Act.\nArgonaut contends that unless the claimant was an employee of the joint venture its policy of insurance does not cover his claim. We agree with McHugh, however, that the policy covers the individual liability of both joint venturers. It provides that \u201cIf the insured is a partnership or joint venture, * * * this policy applies to each partner or member thereof * * * only while he is acting within the scope of his duties as such partner or member.\u201d The precise nature of McHugh\u2019s relationship with the claimant is, of course, irrelevant to the question whether it was acting \u201cwithin the scope of [its] duties\u201d as a joint venturer. In making that determination, we need only consider whether the work being performed when the injury occurred furthered the purpose of the joint venture. That it did has not been questioned\nIn this court the appellants contend that the introductory language of paragraph (e) of section 8 requires that the award of 445\u00bd weeks compensation for the employee\u2019s multiple specific losses be reduced to conform to the limitations of paragraphs (b) and (h) of section 8. (Ill. Rev. Stat. 1963, ch. 48, pars. 138.8(e), (b), (h).) It is not suggested that this contention was raised and passed on at any previous stage of the proceedings. It will therefore not be considered for the first time upon review. Zion Industries, Inc. v. Industrial Com., 33 Ill.2d 314; Bristol & Gale Co. v. Industrial Com., 292 Ill. 16, 25-26; Odin Coal Co. v. Industrial Com., 297 Ill. 392; Storrs v. Industrial Com., 285 Ill. 595.\nThe judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.", "type": "majority", "author": "Mr. Justice Schaefer" } ], "attorneys": [ "Klohr, Braun, Lynch & Smith, of Chicago, (Mark A. Braun, of counsel,) for appellants.", "Van Duzer, Gershon, Jordan & Petersen, of Chicago, (John B. Van Duzer and Horace W. Jordan, of counsel,) for appellee John L. Vuich.", "Arthur O. Kane, of Chicago, for appellee McHugh Construction Co." ], "corrections": "", "head_matter": "(No. 41383.\nMcHugh-Brighton et al., Appellants, vs. The Industrial Commission et al.\u2014(John L. Vuich et al., Appellees.)\nOpinion filed January 29, 1969.\nRehearing denied March 25, 1969.\nKlohr, Braun, Lynch & Smith, of Chicago, (Mark A. Braun, of counsel,) for appellants.\nVan Duzer, Gershon, Jordan & Petersen, of Chicago, (John B. Van Duzer and Horace W. Jordan, of counsel,) for appellee John L. Vuich.\nArthur O. Kane, of Chicago, for appellee McHugh Construction Co." }, "file_name": "0052-01", "first_page_order": 62, "last_page_order": 68 }