Baer's Express & Storage Co. v. Indus. Bd. of Illinois

• Decision Date: 06 February 1918
• Docket Number: No. 11428.,11428.
• Court: Illinois Supreme Court
• Parties: BAER'S EXPRESS & STORAGE CO. v. INDUSTRIAL BOARD OF ILLINOIS et al.

282 Ill. 44

118 N.E. 412

BAER'S EXPRESS & STORAGE CO.

v.INDUSTRIAL BOARD OF ILLINOIS et al.

No. 11428.

Supreme Court of Illinois.

Dec. 19, 1917.

Rehearing Denied Feb. 6, 1918.

Error to Circuit Court, Cook County; Oscar M. Torrison, Judge.

Proceedings for compensation under the Workmen's Compensation Act by Richard Lynch for death of John Lynch, opposed by Baer's Express & Storage Company, the employer. Compensation was awarded by the Industrial Board, the award confirmed by the circuit court, and to review the judgment the employer brings error. Judgment reversed, and cause remanded, with directions to quash the proceedings of the Industrial Board.

Morse Ives and Harry D. Knight, both of Chicago, for plaintiff in error.

Bowe & Bowe and R. A. Cavanagh, all of Chicago, for defendants in error.

COOKE, J.

On April 20, 1914, John Lynch was kicked or trampled by a horse in the barn of Baer's Express & Storage Company, plaintiff in error, in the city of Chicago, receiving injuries from which he died on that day. The record discloses that at the time of his death Lynch was in the sixteenth year of his age. Richard Lynch, the father of the boy and as administrator of the estate of his deceased son, alleging that his son was in the employ of plaintiff in error and received his injuries in the course of his employment, presented his claim for compensation to the Industrial Board under the Workmen's Compensation Act. An award was made in favor of the claimant by the arbitrators, which was confirmed by the Industrial Board. On October 30, 1914, the plaintiff in error sued out the common-law writ of certiorari in the circuit court of Cook county to bring up the proceedings of the Industrial Board for review, and on March 30, 1915, the court held the proceedings of the Industrial Board to be null and void, and ordered that the same be quashed. On May 3, 1915, Richard Lynch, as administrator, one of the defendants in error here, filed another claim for compensation with the Industrial Board, which resulted in an award by the arbitrators amounting to $3,120. This award was confirmed by the Industrial Board. The statutory writ of certiorari was sued out of the circuit court of Cook county under the Workmen's Compensation Act as amended in 1915, the order of the Industrial Board making the award was confirmed, and the circuit court certified that the case is one proper to be reviewed by this court.

It is first contended that the decision of the circuit court on the common-law writ of certiorari declaring the proceedings and order of the Industrial Board to be null and void is res judicata of the matters presented in the second proceedings before the Industrial Board. The first proceedings were brought before the circuit court for review on the common-law writ of certiorari after the decision in Courter v. Simpson Construction Co., 264 Ill. 488, 106 N. E. 350, and at a time when the statute did not provide for any review of the action of the Industrial Board. The proceedings has in the circuit court upon the common-law writ of certiorari were in no wise governed by any of the provisions of the Workmen's Compensation Act. The court upon that review exercised only its common-law power, and its judgment had no further or other effect than the ordinary judgment on review by the common-law writ of certiorari. The court in that proceeding had no power to make any finding of fact, but was only empowered to examine the record presented for any defects appearing upon its face, and its judgment that the proceedings of the Industrial Board were null and void and should be quashed amounted only to a finding that those proceedings were to be held for naught, and that they became inoperative for all purposes just as though they had never been had. Sholty v. Dale Township, 63 Ill. 209. This left defendant in error Richard Lynch, as administrator, free to present his claim anew if he so desired. The former proceedings in the circuit court upon the common-law writ of certiorari are not res judicata of the matters presented upon the second claim made before the Industrial Board.

It is next contended that there is no evidence of such employment as the statute contemplates to render an employer liable under the act, but that, if there is any evidence of employment, it is that of casual employment only. The evidence relied upon by defendants in error as showing employment is vague and purely circumstantial. It does not appear that the deceased ever had regular employment preceding the day of his death. An older brother was engaged in the teaming business, and had employed the boy irregularly to drive for him during the latter part of the year 1913 and at irregular intervals during the year 1914 up until the time of his death. William Conway, a barber who lived in the vicinity of the boy's home, testified that he last saw him on Thursday or Friday before the day he was killed, and that the last time he saw him before that he went by his place of business driving a wagon which had the words ‘Baer's Express' printed on the body. He also testified that on Thursday or Friday before he was killed the boy told him he was working for Baer. Frank J. Carroll testified that on Thursday or Friday before the boy was killed he saw him at Milwaukee the Division streets driving a double team for Baer, and that the wagon had Baer's name on it. He also testified that he saw him again on the morning he was killed, about 10 minutes before 6 o'clock, within a block or two of Baer's barn, and going in the direction of the barn, and that the boy stated to him that he was going to work. These are the only witnesses who testified to ever having seen him working for plaintiff in error. The boy received his injuries at the barn between 8 and 9 o'clock on Monday morning. His mother testified...