dissenting:
In my judgment the trial court erred in finding that Brown is not liable for the damages caused by the negligence of Lenz. Consequently, I dissent from the majority opinion.
The five primary factors to be considered in determining whether Lenz was an independent contractor or an employee/agent are set out in the majority opinion. The testimony of Brown and Lenz indicates that Lenz had no contact with the Spiveys; that Brown determined where and how the fireplace and chimney would be installed; that Brown instructed Lenz as to where the chimney should go through the second floor, attic, and roof; that Brown purchased and delivered to the site all the materials and supplies necessary for the job; that Lenz left all unused materials at the site; that Lenz considered that Brown could terminate him at any time; that Brown was at the site when Lenz began his work and showed him where the construction was to go; that Brown inspected the work near its completion; that Brown helped Lenz install the top piece of the chimney; that Lenz kept a record of the hours he worked; that Lenz turned in his hours to Brown; and that Lenz was paid by the hour by Brown. These are all factors that support a conclusion that Lenz was an employee/agent of Brown, contrary to the finding of the trial court.
In Manahan v. Daily News-Tribune (1977), 50 Ill. App. 3d 9, 365 N.E.2d 1045, this court ruled that an employer’s right to control the manner and method of the work is the principal consideration, and not the exercise of that right. It is clear from the testimony that Brown did not leave the details of installation to Lenz, but rather that Brown planned the installation and obtained the lumber, chimney, firebox, sheet rock, and other materials, and that Brown inspected Lenz’ work “to see if it was done properly.” This testimony by Brown compels a conclusion that Lenz would have to do the work over if it did not satisfy Brown. That amounts to the right to control the work.
The judgment order entered in the trial court included the following:
“In short, none of the tests to determine whether a subcontractor situation exists are found to be in favor of plaintiff.”
That statement is erroneous and is contrary to the testimony of the witnesses.
The majority opinion states that “installation of fireplaces was only incidental to Brown’s main business.” However, Brown had one of his employees, Walter Petty, do the stone facing work necessary to complete the installation of the fireplace. Additionally, installation of this fireplace was part of the sales contract with the Spiveys who paid Brown one lump sum for the installed fireplace. Thus, installation of the fireplace was an integral part of the business transaction at issue here.
The totality of circumstances indicates that Lenz was an employee/ agent of Brown and that Brown is responsible for the damages resulting from the negligence of Lenz. I would reverse the order of the trial court dismissing Spivey’s cause of action against James Brown, doing business as Tri-State Stone & Brick Company, and I would direct that judgment be entered in favor of plaintiff.