{ "id": 2787086, "name": "Leroy Dowell, Plaintiff-Appellant, v. William H. & Nelson Cunliff Company, Defendant-Appellee", "name_abbreviation": "Dowell v. William H. & Nelson Cunliff Co.", "decision_date": "1975-03-07", "docket_number": "No. 74-181", "first_page": "388", "last_page": "395", "citations": [ { "type": "official", "cite": "26 Ill. App. 3d 388" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "106 N.E.2d 185", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "97 N.E.2d 325", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "408 Ill. 449", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2644080 ], "opinion_index": 0, "case_paths": [ "/ill/408/0449-01" ] }, { "cite": "47 Ill.2d 244", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905728 ], "pin_cites": [ { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0244-01" ] }, { "cite": "51 Ill.2d 522", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392694 ], "year": 1970, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0522-01" ] }, { "cite": "412 Ill. 279", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2663233 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/412/0279-01" ] }, { "cite": "21 Ill.2d 117", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2732590 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/ill-2d/21/0117-01" ] }, { "cite": "311 N.E.2d 161", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill.2d 113", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5406515 ], "weight": 3, "pin_cites": [ { "page": "117" }, { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0113-01" ] }, { "cite": "243 N.E.2d 40", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill.App.2d 80", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1601115 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/104/0080-01" ] }, { "cite": "295 N.E.2d 41", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "10 Ill.App.3d 625", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5400319 ], "pin_cites": [ { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/10/0625-01" ] }, { "cite": "295 N.E.2d 248", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "249" } ], "opinion_index": 0 }, { "cite": "10 Ill.App.3d 928", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5397171 ], "pin_cites": [ { "page": "929" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/10/0928-01" ] } ], "analysis": { "cardinality": 732, "char_count": 15637, "ocr_confidence": 0.709, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08443600379790482 }, "sha256": "218137bb60513caab9c8d940862c108bcb5ffeef0b623921929a77e8f88005d6", "simhash": "1:89754e8e8f95dd81", "word_count": 2658 }, "last_updated": "2023-07-14T18:35:11.694582+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Leroy Dowell, Plaintiff-Appellant, v. William H. & Nelson Cunliff Company, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE EBERSPACHER\ndelivered the opinion of the court:\nThe plaintiff, Leroy Dowell, brought this action in the circuit court of St. Clair County for injuries and damages sustained as a result of an incident that occurred while he was employed on a construction project. The plaintiff alleged that the injuries and damages were occasioned by the negligence of the defendant, William H. and Nelson Cunliff Company, a corporation, hereafter referred to as Cunliff, the general contractor, and the defendants, East St. Louis Stone Company, the owner of the project site, and the Illinois Power Company, as owner of certain electrical transmission lines.\nThe suit was filed on June 21, 1972. The defendant, Cunliff, filed its answer on August 2, 1972. On August 29, 1972, depositions were taken of the plaintiff and his coworker, Lloyd E. Meyer. Thereafter on February 3, 1973, the defendant, Cunliff, moved for summary judgment on the ground that the plaintiff was an employee of the defendant, Cunliff, at the time of the incident and was, therefore, limited in his recovery to the provisions of the Illinois Workmen\u2019s Compensation Act. This motion was granted by order entered on August 31, 1973. On October 1, 1973, the plaintiff filed a motion to vacate the order granting summary judgment. Attached thereto was the affidavit of Roy Taylor, president of Taylor Excavating Company, plaintiff\u2019s original employer, which stated in substance a series of facts upon which could be based a finding that the plaintiff remained in the employ of Taylor Excavating Company, and was not in the employ of defendant, Cunliff, at the time of the occurrence out of which this action grew. On December 28, 1973, the court below withdrew the original order granting the summary judgment and granted the plaintiff\u2019s motion to vacate. The stated reason was \u201cthat the plaintiff could still be in the employ of the Taylor Excavating Company and the facts of employment would be a question of fact for the jury to decide.\u201d\nThereafter, the defendant, Cunliff, filed a third-party complaint against the Taylor Excavating Company seeking indemnification for any judgment that may be entered against the defendant, Cunliff. The Taylor Excavating Company then filed a motion to dismiss, asserting that the plaintiff was, at all times pertinent hereto, under the exclusive direction of the defendant, Cunliff.\nThe defendant, Cunliff, then once again filed a motion for summary judgment. This motion reasserted the previously filed affidavits and depositions, and \u201c* * * further would point out to the Court in support of this Motion that the third party defendant, Taylor Excavating Company, Inc., a corporation, has, in substance and in fact, confessed the motion for summary judgment, which heretofore they had resisted through the Affidavit of their President, Roy Taylor.\u201d\nOn April 29, 1974, the court granted the defendant\u2019s motion for summary judgment, \u201cfor the reasons set forth therein.\u201d\nThe plaintiff thereafter requested, pursuant to Supreme Court Rule 302(a), that the trial court make an express finding that there was no just reason for delaying enforcement of or appeal from its order. This the court did by an amended judgment order. From the order granting defendant CunlifFs second motion for summary judgment, as amended, this appeal is brought.\nThe facts which precipitated this action are as follows. The plaintiff, a 39-year-old male, was an oiler on a crane crew. The crew consisted of the plaintiff and Lloyd E. Meyer as the operator of the crane. The crane was owned by the Taylor Excavating Company, and the two were \u201cemployed\u201d by Taylor in that they were orally leased by Taylor Excavating Company along with the crane to other contractors. The individuals were paid by and directed to report for work by Taylor Excavating Company.\nOn July 13, 1970, the plaintiff reported to Taylor Excavating Company and was directed to the site of the East St. Louis Stone Company at Dupo, Illinois. The plaintiff and Mr. Meyer took the crane on a Taylor Excavating Company truck and moved to the site. The crane had been disassembled for transporting over highways. The plaintiff arid the operator were assisting an ironworkers crew at the construction site in reassembling the crane when the plaintiff was injured.\nThe injury to the plaintiff occurred when the \u201cboom\u201d of the crane came in proximity to an electrical transmission line as the \u201cboom\u201d was being hoisted. It is alleged that the \u201cboom\u201d did not touch the line, but the electrical charge \u201carced\u201d and thereby injured the plaintiff. The plaintiff was knocked unconscious and was burned on the right index and middle fingers and the great toe on the right foot. The index finger and great toe were subsequently amputated. The plaintiff is seeking $200,000 in damages for those and lesser injuries.\nThe plaintiff alleges that at the time of the occurrence he was an employee of Taylor Excavating Company, and this assertion was denied by the defendant, Cunliff. The plaintiff testified in his deposition, among other things, that he had worked for Taylor for 12 years, that Taylor rents out the crane and the crew, that he, as operator, took signals (directions) from Cunliff ironworkers, that he had assisted the ironworkers in assembling the crane, that he had been told by one of the workers where not to park the crane for assembly, and that the ironworkers gave the signal to raise the boom when the injury was incurred.\nThe plaintiff stated that the ironworker\u2019s foreman was in charge of the rig and that Meyer, the operator, was his boss. He stated that in a sense he was working for Cunliff because he was \u201cunder their direction to do what they tell you to do.\u201d\nMeyer, testifying by deposition, stated that he was on Taylor\u2019s payroll, that the crane and crew were leased to Cunliff, that he had worked for Taylor for 15 years, that he operated the crane at the direction of the ironworkers, that he had seen no powerlines, and that the ironworkers gave the signal to raise the crane where the incident occurred.\nBy way of deposition, the following was asked and Meyer answered:\n\u201cQ. You say that the crane company, the Taylor Excavating Company, pays you and that is all you have to do with them when you go on the job?\nA. That is all unless we think we are overloaded. We can refuse to pick up a load if it is too much.\nQ. You do have some discretion?\nA. Your own good solid judgment.\nQ. If you were overloaded and there was a dispute and you said, T won\u2019t go on\u2019, would they have the power to say, \u2018You are fired, get off the job?\u2019\nA. I suppose they would, but usually, anybody with any good common sense when a man says you can\u2019t pick it up, you can\u2019t pick it up. Why turn a crane over on something if a man told you no.\u201d\nFinally, Meyer stated that he left the job that same day because he was nervous and that another crew had replaced him and the plaintiff.\nCharles H. Kennedy was job superintendent for the defendant and he supplied an affidavit which was given in support of the defendant\u2019s motion for summary judgment. Mr. Kennedy affirmed that the crane crew was part of the ironworkers crew, which he could direct and correct in details of their work, and \u201ccould have fired them and sent them back to Taylor Excavating Company, from whom we hired them, just as I could fire any of the men working under me and sent them back to the union hall.\u201d\nRobert Calhoun was the project engineer and assistant vice-president of defendant Cunliff. He also supplied an affidavit and stated therein that the equipment and employees \u201conce they come to our construction site are in the complete control of Cunliff.\u201d\nIn support of its motion to vacate, the plaintiff submitted an affidavit by Roy Taylor, president of Taylor Excavating Company, which in part affirmed:\n\u201c* * * the company enters into agreements, usually verbal, with other contractors whereby we agree to furnish equipment and men to operate the equipment to such other contractors for a rental fee, which covers the wages of the men and the rental of the equipment. This is common in the construction industry. Even on such occasions, we still consider the men to be our employees, and we expect them to do what we tell them above all others, since they are employed by us. I also know that if our machinery does any damage while being rented to any such other contractor for such a job, that we would be expected to pay for the damage caused.\u201d\nand later in the affidavit, \u201cThey remained regular employees of Taylor Excavating Company and subject to assignment or other jobs handled by us.\u201d\nThere can be no dispute as to when a summary judgment is appropriate. As has been said before:\n\u201cSummary judgment procedure is not designed to try an issue of fact but rather to determine whether one exists. If, upon examination of the record it can be fairly said that there does exist a triable issue of fact then the motion for summary judgment should be denied.\u201d Fletcher v. Boxx (5th Dist. 1973), 10 Ill.App.3d 928, 929, 295 N.E.2d 248, 249.\nThis rule may also be stated in other terms, as was done in. Weber v. Northern Illinois Gas Company (1st Dist. 1973), 10 Ill.App.3d 625, 635, 295 N.E.2d 41, 47:\n\u201cThe purpose of summary judgment procedure is not to try an issue of fact but rather to determine whether one exists [citation] and the record is to be tested under the same standard as a directed verdict: Does all the evidence, viewed in its aspect most favorable to the opponent, so overwhelmingly favor the movant, that any other verdict would not be permitted to stand? (Lumbermens Mutual Casualty Co. v. Poths, 104 Ill.App.2d 80, 243 N.E.2d 40.)\u201d\nThis appeal must, therefore, determine if there is a triable issue of fact presented on this record.\nThe plaintiff relies primarily upon the case of M & M Electric Co. v. Industrial Com. 57 Ill.2d 113, 311 N.E.2d 161. This case involves an electrician who was injured while working for his employer on the premises of another. The plaintiff there, McGinn, brought the action against M & M Electric and its workmen s compensation insurer based on an accident that occurred at a steel mill of Northwestern Steel. While on the job, Mc-Ginn fell almost 30 feet and suffered injury. M irM brought Northwestern in by way of a cross-claim alleging that Northwestern was a \u201cborrowing\u201d employer and therefore primarily liable.\nThe Industrial Commission found McGinn not to be a loaned employee. The circuit court reversed the decision of the Commission, holding that Northwestern was a borrowing employer \u201cas a matter of law.\u201d The supreme court reversed the circuit court, and the decision of the Industrial Commission was reinstated.\nThe court states at page 116:\n\u201cWe have previously recognized that the primary test for establishing a loaned-employee relationship is the right to control.\u201d\nAnd further:\n\u201cThere are many different considerations which may be applicable to the loaned-employee question. (See generally Restatement (Second) of Agency, section 220, p. 485 et seq.) Due to the large number of factors which may be relevant to any factual situation, we have held that generally the existence of the loaned-employee relationship is a question of fact, and therefore a question for the Industrial Commission. (Gundich v. Emerson-Comstock Co. (1961), 21 Ill.2d 117.) The test for whether or not a question is one of law or fact in such cases was set forth in Henry v. Industrial Com. (1952), 412 Ill. 279. At page 284 we stated: \u2018If the undisputed facts upon any issue permit more than one reasonable inference to be drawn therefrom, the determination of the issue presents a question of fact, and the conclusion of the commission in deciding the question will not be disturbed upon review; only if the undisputed facts are susceptible of but a single inference can the question be characterized as one of law [citations].\u2019 A court may reverse a decision of the Industrial Commission as to a finding of fact only when the decision is against tire manifest weight of the evidence. Wilson v. Industrial Com. (1972), 51 Ill.2d 522, 524; Wooldridge v. Industrial Com. (1970), 47 Ill.2d 244, 246.\u201d (57 Ill.2d 113, 117.)\nThen the court stated:\n\u201cMcGinn was a general employee of M & M, where he worked as an apprentice electrician. He was paid only by M & M, took work orders only from the M & M foreman, worked where assigned by M & M and traveled to and from work in an M & M truck. It is agreed that he never explicitly consented to become an employee of Northwestern. McGinn could not be considered an employee of Northwestern unless it can be shown that the very nature of the project gave control over him to Northwestern, and that he implicitly knew of and agreed to this change of control. Such circumstances were not shown by the evidence.\u201d 57 Ill.2d 113, 118.\nWe feel compelled to note that although the factual situation of M & M is not identical it is sufficiently close to require our finding that the facts of the present case are insufficient to find that, as a matter of law, the plaintiff was a loaned employee.\nThe defendant correctly points out that it did have control over the employee, but it is not agreed or certain as to the extent of such control. Thus, the question of whether the defendant, Cunliff, or Taylor Excavating Company was plaintiff\u2019s employer at the time of the injury complained of is a fact which can, under the circumstances of this case, be decided only by the jury.\nThe defendant urges that we consider as determinative the cases of American Stevedores Co. v. Industrial Com., 408 Ill. 449, 97 N.E.2d 325, and Henry v. Industrial Com., 412 Ill. 279, 106 N.E.2d 185. In these cases the supreme court reversed the Industrial Commission, holding that the employees were, as a matter of law, loaned employees. We find that the facts of those two cases are quite dissimilar to those of the present case. The court determined in both cases that the employer was only a conduit through which employees were supplied to the entity actually providing employment. Both of those cases were cited in the M