Cole v. Indus. Comm'n
| Decision Date | 21 October 1933 |
| Docket Number | No. 21929.,21929. |
| Citation | 187 N.E. 520,353 Ill. 415 |
| Parties | COLE et al. v. INDUSTRIAL COMMISSION et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Kankakee County; Arthur W. De Selm, Judge.
Proceeding under the Workmen's Compensation Act by Zelah Thews, for the death of her husband, Fred Thews, opposed by Nelson J. Cole and others. An award in claimant's favor was confirmed by the Industrial Commission and the circuit court, and Nelson J. Cole and others bring error.
Reversed, and application dismissed.
J. L. Burden, of Chicago, and Frank J. & James T. Burns, of Kankakee, for plaintiffs in error.
Charles W. Kurtz, of Kankakee, for defendant in error.
On June 22, 1931, Fred Thews sustained an accidental injury arising out of and in the course of his employment by plaintiffs in error, Nelson J. Cole, Harvey S. Cole, and Norman A. Cole, copartners doing business under the name of Nelson J. Cole & Sons, herein called the employers. The injury occurred in Kankakee county, Ill., where the employers were engaged in the construction of drainage works. As a result of the injuries the employee died the day following the injury. An application for compensation was filed with the Industrial Commission by defendant in error, Zelah Thews, widow of the deceased, for the benefit of herself and her two minor children. An award in her favor entered by an arbitrator was confirmed by the Industrial Commission and by the circuit court of Kankakee county on review. This court has allowed a writ of error for a further review of the record.
The only defense advanced by the employers to the claim for compensation, and the only reason assigned in this court for reversal of the judgment of the circuit court, is that the rights of defendant in error and the liability of the employers are governed and limited by the Workmen's Compensation Act of Indiana.
There is no dispute about the facts and they are substantially as follows: The employers reside in Indiana and are engaged in the business of contracting. They have offices in several cities, but the central headquarters of the firm is at Ligonier, Ind. The deceased and his family were residents of Indiana and the contract of employment was made there. In the year 1930 the deceased was engaged by the employers in work being done by them in Indiana. That work was completed in December of 1930. In 1931 the employers had no work in Indiana but contracted to do work in Kankakee county, Ill. The employers hired the deceased to work for them on that job. He started to work about the 21st day of May, 1931, at Wakarusa, Ind., where certain machinery of the employers was then located. He repaired the machinery and helped load it on a railroad car to be shipped to Illinois for use there. He worked at Wakarusa for about four days, and thereafter, until he was injured, worked for the employers in Kankakee county, in this state. The employers, prior to the accident, had obtained a policy of insurance in the Ocean Accident & Guaranty Corporation, Limited, covering their liability to pay compensation under the Workmen's Compensation Act of the State of Indiana, and had also taken out a policy of insurance issued by the Great American Indemnity Company covering their liability to pay compensation under the Workmen's Compensation Act of Illinois. Both of these policies of insurance were in force at the time of the accident to the employee.
In the circuit court a stipulation was entered into between the parties that at the time of the death of the deceased the employers were insured by the Ocean Accident & Guaranty Corporation against liability under the Indiana Workmen's Compensation Act; that there was pending before the Industrial Commission of Indiana a petition filed by the Great American Indemnity Company to have compensation awarded to defendant in error for the death of deceased under the Indiana law; that some of the proceedings in that case were had after the award to defendant in error was made by the Industrial Commission of Illinois; that said proceedings stood in abeyance pending the decision of the circuit court in this case; that in the proceeding in Indiana, Nelson J. Cole testified to certain facts, his testimony being set out in the stipulation; that at the time of decedent's employment, and at all times subsequentthereof, there was in force and effect in Indiana a Workmen's Compensation Act (Burns' Ann. St. Supp. 1929, § 9465); and that section 20 of said act is as...
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