Athletic Ass'n of Univ. of Illinois v. Indus. Comm'n

• Decision Date: 11 November 1943
• Docket Number: No. 27032.,27032.
• Citation: 51 N.E.2d 157,384 Ill. 208
• Parties: ATHLETIC ASS'N OF UNIVERSITY OF ILLINOIS v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

384 Ill. 208

51 N.E.2d 157

ATHLETIC ASS'N OF UNIVERSITY OF ILLINOIS

v.INDUSTRIAL COMMISSION et al.

No. 27032.

Supreme Court of Illinois.

Sept. 21, 1943.

Rehearing Denied Nov. 11, 1943.

Error to Circuit Court, Champaign County; Frank B. Leonard, Judge.

Proceeding under the Workmen's Compensation Act by Douglas A. Phillips, claimant, opposed by the Athletic Association of the University of Illinois. To review an order confirming an award of the Industrial Commission granting compensation for injuries received by claimant while participating in an entertainment sponsored by the Athletic Association, the latter brings error.

Order reversed and cause remanded with directions to set aside the award of the Industrial Commission.

SMITH, C. J., dissenting.Sveinbjorn Johnson, of Urbana, and Busch & Harrington, of Champaign, for plaintiff in error.

Carson & Appleman, of Urbana, and Alroy S. Phillips, of St. Louis, Mo. (John Alan Appleman, of Urbana, of counsel), for defendant in error.

GUNN, Justice.

The circuit court of Champaign county confirmed an award of the Industrial Commission under the Workmen's Compensation Act in favor of Douglas A. Phillips and against the Athletic Association of the University of Illinois, because of injuries received by the former while participating in an entertainment sponsored by the latter. We have allowed a writ of error to this court.

The University of Illinois, a public corporation created by an act of the Illinois legislature, conducts the principal part of its functions at Urbana, Illinois. In connection with its educational activities different athletic sports are engaged in by the students, and competitive games had with students of other universities and colleges. Charges for admission of the public to some of these games are made, and to a large extent the expenses of such athletic sports are paid from this source.

In 1928 the Athletic Association of the University of Illinois was organized as a non-profit corporation for the purpose of administering intercollegiate athletics and intramurals. The former are contests between other colleges and universities, and known as varsity athletics. Intramurals are contests between different fraternities or organizations to which students of the university belong. The Athletic Association also administers all noncurricular recreational activities of the university. Through it the cost of intercollegiate games are paid from gate receipts charged the public. Its board of directors is nominated by the trustees of the university under the provisions of its charter.

Each year for many years past an entertainment known as ‘annual interscholastic circus' has been held at the University at the time of the annual track meet of the High School Athletic Association. The purpose of the circus is to afford entertainment of visitors and high school athletes attending the meet. The entertainers or performers are all students in the University. At the 1939 meeting, in addition to the regular displays of skill and strength by the students, a special feature was added known as the ‘Carnival Side Shows,’ put on by the Tribe of Illini and eleven other fraternities. The carnival was directed by the Tribe of Illini. The Athletic Association charged an admission of twenty-five cents to the carnival, of which the Tribe received five cents. The Tribe put on an act called water follies, which included a dive from a balcony into a swimming pool covered with burning oil. Phillips, a member of the Tribe of Illini, was injured in performing this stunt.

Douglas A. Phillips, nineteen years of age, had been a student at the university two years. He was a member of the swimming team, and had been awarded an ‘I’ as a member of a water polo team. He was a member of the Tribe of Illini, a voluntary association of present and former students, who had earned an ‘I’ by representing the university in athletic contests. The entertainment or circus for participants and visitors at the high school track meet was sponsored by the Athletic Association. Wendell Wilson was Director of Athletics of the university and vice-president of the Athletic Association. The performers were furnished by the student organizations, such as the Tribe of Illini, fraternities, and possibly other students. The university maintains a physical education department where instruction is given as a course of study, but this is distinct from the Athletic Association. The one teaches; the other supervises the contests and the income and disbursement from same.

The interscholastic track meet was an athletic event of high schools, no part of the university program, but held on its grounds and naturally preparation for the event would fall under the direction of the Director of Athletics. He assigned A. M. Jennings to be in charge of the circus. The latter suggested a water event, in the swimming pool in Huff Gymnasium, as one of the events. Both Jennings and Wilson were members of the Tribe of Illini. The former appeared before a meeting of the Tribe and asked if they would help put the circus over. The Athletic Association would sell tickets to the circus for twenty-five cents, and he said the Tribe could retain five cents out of each ticket sold. After some discussion the Tribe agreed to put on an event which included a fire dive to be performed by Phillips. The suggestion was made to the Tribe, not to any individual. The share of ticket money was to go to the Tribe, but no member thereof was paid. Phillips says he was not to be paid anything. The plan for the water feature was laid out by Dave Israel, a member of the Tribe, who asked Phillips to make the dive, to which he agreed. The Tribe received $33.85. Free admission tickets were given the performers and to members of the Tribe of Illini. On the published program it is shown the carnival was directed by ‘Tribe of Illini,’ and also gives the names of ‘members of Tribe of Illini co-operating,’ among which is that of respondent Phillips. Engraved cups were to be awarded to the three organizations putting on the best show.

At the time the Tribe was requested to take a part it was left to its discretion to perform such acts as deemed best, and no member of the Tribe was paid by it for the services rendered. Upon the evening of May 20, 1939, Phillips made the fire dive into the pool from an overhanging balcony, and in so doing his head struck the bottom of the pool, suffering severe and permanent injuries. Upon this somewhat complex state of facts the Industrial Commission held the Athletic Association was an employer and Phillips an employee, and awarded compensation, which was confirmed by the circuit court.

The briefs of the parties cover a wide range of subjects, but two points stand out which are determinative of the case. First: was the Athletic Association of the University of Illinois, under the circumstances, an employer in respect to conducting the circus and carnival; and second: if the Athletic Association may be deemed an employer, was Phillips an employee thereof at the time of his accidental injury, within the meaning of the Workmen's Compensation Act?

There is no dispute in the facts, and hence the questions for decision are those of law. The statute provides an employer shall be construed to be ‘every person, firm, public or private corporation * * * who has any person in service or under any contract for hire, express or implied, oral or written * * *.’ Ill.Rev.Stat.1941, chap. 48, par. 141. The term ‘employee’ means ‘every person in the service of another under any contract of hire, express or implied, oral or written, * * * but not including * * * any person who is not engaged in the usual course of...