Chicago Circular Advertising Serv., Inc. v. Indus. Comm'n

• Decision Date: 25 October 1928
• Docket Number: No. 18176.,18176.
• Citation: 163 N.E. 408,332 Ill. 156
• Parties: CHICAGO CIRCULAR ADVERTISING SERVICE, Inc., v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

332 Ill. 156

163 N.E. 408

CHICAGO CIRCULAR ADVERTISING SERVICE, Inc.,

v.INDUSTRIAL COMMISSION et al.

No. 18176.

Supreme Court of Illinois.

Oct. 25, 1928.

Error to Superior Court, Cook County; Joseph B. David, Judge.

Proceedings under the Workmen's Compensation Act by James Hunter, employee, opposed by the Chicago Circular Advertising Service, Inc., employer. To review an order confirming an award of compensation, the employer brings error.

Reversed and remanded with directions.

Schoen & Green, of Chicago, for plaintiff in error.

DUNCAN, J.

On February 22, 1924, while in the employ of plaintiff in error, James Hunter, defendant in error, sustained an accidental injury by slipping on the ice and snow on a sidewalk in the city of Chicago, and as a result thereof suffered a fracture of his left leg a few inches above the ankle. On May 25, 1925, he filed with the Industrial Commission his application for adjustment of claim for conpensation. The case was heard before an arbitrator on August 14, 1925. The arbitrator entered an award in favor of the employee for $7.50 a week for 64 6/7 weeks for temporary total incapacity and $7.50 a week for 62 1/2 weeks for permanent and complete loss of 50 per cent. of the use of the left foot. On review before the Industrial Commission on petition of the employer the case was submitted on the record made before the arbitrator, and the decision of the arbitrator was sustained. On certiorari proceedings the superiorcourt of Cook county entered an order confirming the award. A writ of error has been awarded by this court for a review of the record.

On the hearing before the arbitrator the following stipulations were entered into by plaintiff in error and defendant in error: Defendant in error's average weekly wage before his injury was $15; that he had no children under 16 years of age; that no compensation had been paid to him for his alleged injury, and that no medical services had been furnished to him by plaintiff in error.

Plaintiff in error contends in this court that under the Compensation Act it cannot be held to be operating under that act in its employment of defendant in error unless it was so operating by virtue of subsection 3 of section 3 of the act (Smith-Hurd Rev. St. 1925, c. 48, § 139), and that the evidence in the record shows clearly that it was not operating under the provisions of subsection 3. It further contends that no demand or claim for compensation was made by defendant in error, and that if such demand or claim had been proved, the evidence in the record does not sustain the award of compensation for temporary total incapacity.

Only two witnesses testified before the arbitrator-James Hunter for himself, and George P. Jensen, president and general manager of plaintiff in error. There is no substantial difference between these two witnesses upon any matters concerning which they both testified. There is no conflict in their evidence. The substance of their evidence, including their cross-examination, is the following:

James Hunter was born in Belfast, Ireland. He came to this country when he was six months old. He is a laborer and 52 years of age. He went to work for plaintiff in error about a year before he testified before the arbitrator. He did not work for it steadily, and began work about three months or more before he was injured. When injured he was distributing circulars for his employer while traveling on foot from house to house in Chicago. There was ice on the pavement and snow on the ice. As he was traveling and delivering the circulars his foot slipped and caused him to fall on the sidewalk at Thirty-First street and Homan avenue. He did not know at first how severely he had injured his leg. The foreman of his employer and several others of his men were with Hunter when he was injured, and they helped him to arise. He undertook to walk but could not do so. The foreman saw that he was hurt pretty badly, and said, ‘Just take it easy; don't try to follow us.’ Later, Hunter told the foreman that he ought to go and see a doctor. The foreman told him to take a street car to the county hospital-to go to the conductor and ask him and he would tell him how to go to the hospital. He went to the county hospital on a car, where they examined his foot and informed him that he had a fracture-a Pott's fracture two or three inches above the ankle. His foot was kept in a plaster cast a few days over two months. He was in the county hospital three or four days and was then transferred to Oak Forest, where he remained for a year and three months on account of his injury. His leg was very much swollen and was very painful during the first six months that he was at Oak Forest. They put liniment on his leg, and that is about all they did for it. He was not treated by a physician while at Oak Forest. The nurses sometimes put liniment on his foot and manipulated it and rubbed it. A few weeks before he left Oak Forest he was able to walk a little bit, but it hurt him to do so. He has done no work since his injury, and hasn't been able to work. He could work sitting down if he had some writing to do. He writes a very good hand and believes he could do some form of light work. He saw a small auto truck that his employer was using to take circulars to the places where he and his associates were to begin delivering them. He and his associates sometimes got circulars from dry goods stores and other customers of his employer and then delivered the circulars on foot. He did not know whether the truck belonged to his employer. He never observed any automobile that belonged to his employer. On the morning that he was injured he received the circulars that he was distributing when injured from some store, and he had been working about an hour or more distributing the circulars when he was injured. He was never informed by either the manager or foreman that it was his duty, in working for his employer, to use the truck in making deliveries, and there is no evidence in the record that he did so use it. The positive evidence of Jensen is that the company did not on the day of Hunter's injury, or within three months preceding that date, own and operate an automobile truck in its business. The inspector of the company did operate a Ford coupé for the use of its inspector. Hunter was not the inspector, and no one other than the inspector was authorized to use the car, and the inspector had no authority to use the car for conveying handbills, circulars, or other advertising matter in making deliveries. Hunter and all of his associates carried the circulars in cloth bags for distribution and delivered them on foot to housewives at their residences. They distributed no circulars in bulk to factory buildings or other places.

[1] No claim or...