Club v. Indus. Comm'n

• Decision Date: 05 October 1923
• Docket Number: No. 15307.,15307.
• Citation: 140 N.E. 871,309 Ill. 271
• Parties: INDIAN HILL CLUB v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

309 Ill. 271

140 N.E. 871

INDIAN HILL CLUB

v.INDUSTRIAL COMMISSION et al.

No. 15307.

Supreme Court of Illinois.

June 20, 1923.

Rehearing Denied Oct. 5, 1923.

Error to Circuit Court, Cook County; Lee W. Carrier, Judge.

Proceedings under the Workmen's Compensation Act by Francis Wilbern, claimant, opposed by the Indian Hill Club, employer. An award of compensation by the Industrial Commission was confirmed by the Circuit Court and the employer brings error.

Affirmed.Charles A. Scott, of Chicago (George A. Schneider, of Chicago, of counsel), for plaintiff in error.

Binkley & Mooney, of Chicago, for defendant in error.

DUNN, J.

Francis Wilbern, a boy 12 years old, who was a caddy at the golf course of the Indian Hill Club, was struck by an automobile as he was leaving the grounds of the club on August 12, 1920, and seriously injured. He presented a claim for compensation against the club, and the arbitrator upon a hearing found that he was not entitled to compensation because the parties were not working unde the provisions of the Workmen's Compensation Act (Hurd's Rev. St. 1921, c. 48, §§ 126-152i). On a petition for review, no other evidence being offered than that which was heard by the arbitrator, the Commission set aside his decision and awarded compensation at the rate of $7 a week for 235 weeks and $5 for one week, and thereafter an annual pension for life of $132, for the reason that the injury resulted in permanent total disability. The award was confirmed by the circuit court of Cook county and a writ of error was allowed to review that judgment.

It is first contended by the plaintiff in error that the club was not under the Workmen's Compensation Act. The Indian Hill Club is engaged in the operation and management of a country club and does not come within the classes of employers to whom the Workmen's Compensation Act appliesautomatically under the provisions of section 3 (section 128), but the first section of the act (section 126) provides that any employer who does not come within those classes may elect to provide and pay compensation under the act and thereby become bound by its terms and entitled to its benefits. The abstract shows that there was a stipulation by the petitioner and the respondent that on August 12, 1920, they were working under the provisions of the Workmen's Compensation Act; that the respondent had notice of the alleged injuries within 30 days of that date, and that demand for compensation was made in accordance with the statute. The record shows that at the hearing, in answer to the question of the arbitrator, ‘Can it be agreed that Francis Wilbern, the petitioner, and the Indian Hill Club, the respondent, were on the 12th day of August, 1920, working under and subject to the provisions of the Workmen's Compensation Act?’ the attorney for the plaintiff in error answered, ‘Yes.’ The word ‘Yes' is written in ink over the typewritten word ‘No.’ We act upon the record as it comes before us. The original transcript of the arbitrator filed with the Industrial Commission is a part of the record, was certified as correct by the official reporter, and approved by the attorneys for both parties. It shows on its face that it was agreed that the parties were working under the Workmen's Compensation Act. If it has been altered since it was certified and approved, that fact should have been brought to the attention of the Industrial Commission and of the circuit court, but it is not charged that it was so altered. The record shows the change, but it does not show that the change was not made by the stenographer before the transcript was certified and approved. Therefore, in the face of the agreement that the parties were working under the Workmen's Compensation Act, the question is not opne to consideration even though the claimant introduced evidence on that question as though it were in issue and the arbitrator found to the contrary of the agreement.

The plaintiff in error introduced no evidence, but contends that the evidence does not show any employment of the defendant in error. The defendant in error testified that he had been caddying for the Indian Hill Club for about two years; that on the morning in question he got out to the club about 7 o'clock in the morning and handed the caddy master his button, which was numbered 124. There were about 100 caddies there, and after he handed his button in he waited for his number to be called. The method was that the caddy master would put the buttons in a box and take them out one at a time and then the caddies would write down their numbers, and the order of the numbers was written on a piece of paper and hung up so that everybody could see it. The caddy master was the only personthe caddies had to report to. After they turned in their buttons, they waited until they were called out according to the numbers they had drawn. On this morning the defendant in error saw that his number was toward the end of the list, and about 10 o'clock he and four of the others started to go home. When they got nearly to the street, on the grass about three feet from the driveway on the club grounds, he was struck by an automobile which was using the private driveway of the club and received the injuries for which compensation was asked. A day's work at the club was about 8 hours-36 holes of golf. The pay was 25 cents an hour. The defendant in error worked about four days each week during vacation, and during school time he worked on Saturdays and Sundays. He began work in May and quit about October. This was the only time the caddies were employed. The caddy master stamped the time on a card for the caddy, who then at the locker house got the bag of the man he was caddying for and met him at the first tee and then went with him for 18 holes in the morning and after lunch for 18 holes in...