Ellsworth v. Indus. Comm'n

• Decision Date: 17 December 1919
• Docket Number: No. 12670.,12670.
• Parties: ELLSWORTH et al. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

290 Ill. 514

125 N.E. 246

ELLSWORTH et al.

v.INDUSTRIAL COMMISSION et al.

No. 12670.

Supreme Court of Illinois.

Dec. 17, 1919.

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

Proceeding under the Workmen's Compensation Act by Patrick Jefferson, employé, against J. J. Ellsworth and another, employers. The award of the Industrial Commission was on certiorari set aside, and the employé brings error.

Reversed and remanded, with directions.

William Gillespie, of Chicago, for plaintiff in error.

Ralph F. Potter, of Chicago, for defendants in error.

THOMPSON, J.

September 16, 1915, Patrick Jefferson, plaintiff in error, was employed J. J. Ellsworth and Harry McNair, partners, riding horses for exhibition purposes. A bucking horse which Jefferson was riding crashed into a fence, and both bones of Jefferson's left leg were broken immediately above the ankle, and his shoulder was injured. Jefferson made a lump sum settlement of his claim for $925, which included medical and hospital services. October 20, 1916, Jefferson filed his petition with the Industrial Board, in accordance with the provisions of paragraph (h) of section 19 of the Workmen's Compensation Act (Laws 1913, p. 350), claiming that the settlement was made under a misapprehension of certain facts, and that his disability had recurred and increased since the settlement was made.

On this review the Industrial Board found that at the time of the accident both parties were operating under and subject to the terms and provisions of the Workmen's Compensation Act; that Jefferson was earning $42 a week; that notice of the accident and claim for compensation had been made within the time prescribed by statute; that as a result of the accident Jefferson was temporarily totally disabled for a period of 28 weeks, and that following said period of temporary total disability he suffered a permanent partial disability; and awarded to Jefferson $3,500 in weekly payments of $12 and $200 additional for medical, surgical, and hospital services, and ordered that Ellsworth & McNair have credit for all sums already paid as compensation. The record was taken to the circuit court of Cook county by certiorari, and upon the hearing that court set aside the award of the Industrial Board, for the reason that the parties were not operating under the Workmen's Compensation Act in force at the time of the accident, and certified that the cause is one proper to be reviewed by this court.

The first question presented is whether Ellsworth & McNair had elected to come under the act. They were engaged in the commission business of buying and selling horses, and because of the nature of their business would not be bound by the act, unless an election to accept the act had been filed by them with the Industrial Board. On July 16, 1913, J. J. Ellsworth, one of the partners, wrote on the firm's letter head the following letter, signed with the partnership name and addressed to the Industrial Board at Springfield, Ill.:

‘This is to advise you that we have decided to embrace. the new Workingmen's Compensation Act, which took effect May 1, 1912. Kindly acknowledge receipt hereof and send us a copy of this act.’

This letter was received and answered by the labor department at Springfield on July 17, 1913, stating that the letter would be turned over to the Industrial Board as soon as it was appointed. After being confined in the hospital for about three weeks, Jefferson received from the Zurich Insurance Company $24, and every two weeks thereafter he received from the same company a check for $24, until the sum of $108 had been received by him. A representative of the Zurich Insurance Company came to Jefferson's home and offered to pay him $500 in settlement of his claim against Ellsworth & McNair, telling him that they were not operating under the act. Jefferson refused this settlement, and likewise a later settlement offered by the insurance company. Following the offer made by the insurance company, McNair, one of the partners, called on Jefferson at his home and told him that Ellsworth & McNair were not working under the Compensation Act. A petition prepared by the insurance company and addressed to the Industrial Board was presented to Jefferson, and he was requested to sign it....