Int'l Harvester Co. of New Jersey v. Indus. Bd. of Illinois

• Decision Date: 20 February 1918
• Docket Number: No. 11592.,11592.
• Citation: 282 Ill. 489,118 N.E. 711
• Parties: INTERNATIONAL HARVESTER CO. OF NEW JERSEY v. INDUSTRIAL BOARD OF ILLINOIS et al.
• Court: Illinois Supreme Court

282 Ill. 489

118 N.E. 711

INTERNATIONAL HARVESTER CO. OF NEW JERSEY

v.INDUSTRIAL BOARD OF ILLINOIS et al.

No. 11592.

Supreme Court of Illinois.

Feb. 20, 1918.

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

Proceedings for workmen's compensation by James F. Bishop, administrator of the estate of William C. Sain, deceased, against the International Harvester Company of New Jersey. An award was confirmed by the circuit court, and the employer brings error. Reversed.

Philip S. Post and David A. Orebaugh, both of Chicago (Edgar A. Bancroft, of Chicago, of counsel), for plaintiff in error.

Francis Borrelli and Richard J. Finn, both of Chicago, for defendant in error.

CRAIG, J.

James F. Bishop, as administrator of the estate of William C. Sain, deceased, filed his petition with the Industrial Board of this state for compensation for accidental injuries sustained by his intestate, which resulted in his death, while in the employ of plaintiff in error, engaged in assembling farm machines in the state of Michigan. The accident occurred by the jitney bus in which the deceased was riding from Grand Blanc to the neighboring town of Flint to take a train for Detroit being struck by a train at a railroad crossing about seven miles from Grand Blanc. The Industrial Board allowed compensation. On certiorari to the circuit court of Cook county the order of the Industrial Board was affirmed. On motion of plaintiff in error a certificate that the cause was a proper one to be reviewed by this court was granted, and the present writ of error has been sued out pursuant to such certificate.

There is practically no controversy as to the facts. The deceased was an employé of plaintiff in error in its factory located in the city of Chicago, where it manufactures various kinds of agricultural machinery. The machines were not assembled at the plant, but were shipped to the local dealer ‘knocked down,’ and were set up by employés sent out by plaintiff in error. In April, 1915, arrangements were made by the International Harvester Company of America, a Wisconsin corportion affiliated with plaintiff in error, with offices at Detroit, Mich., by which during slack times, employés from plaintiff in error's factory would be lent to it for the purpose of assembling and setting up the various kinds of farm machinery sold to local dealers in the state of Michigan. The salaries of such employés were paid by plaintiff in error and their expenses while in Michigan by the Wisconsin corporation. The headquarters of the latter company were maintained at Detroit, and deceased's employment was in towns within a radius of from 75 to 80 miles of that city. He received $70 a month and his expenses. He would be sent to the local implement dealers in the various towns in that territory, with others, to assemble the machines so they would be ready for operation in the fields. It is admitted that all employés of plaintiff in error, including the deceased, in the plant in Illinois are under the Workmen's Compensation Act of this state. On Saturday, November 11, 1915, deceased was engaged in assembling corn binders at Grand Blanc, Mich., where he had been sent by the Detroit office. Three binders were at that place for assembling. Two of them had been assembled by about 3 o'clock in the afternoon, when the deceased went into the store of the local dealer to whom the machines had been consigned, and told him he was going to Detroit to spend Sunday and would return on Monday and finish the job. His tools were left at Grand Blanc, and he took a jitney bus for the neighboring town of Flint to take a train for Detroit. As the bus was crossing a railroad track about seven miles from Grand Blanc it was struck by a train and Sain and two other passengers were killed.

The Industrial Board found that the general rule was for the employés engaged in that kind of work to report when a job was finished, and that it was the custom of the employes engaged in such work to come into Detroit every Saturday evening and remain over Sunday, and that their expenses on such trips were paid by the company; that the deceased had charged up his railroad fare and supper the evening of the day of the accident in his regular expense account, and that the charge for his jitney bus was added to his expense account by some one at the Detroit office after his death; also, that no complaint was made of the custom of the employés returning to and staying over Sunday in Detroit. It further appears that the deceased was a member of the Employés' Benefit Association, an organization maintained by plaintiff in error and its employés for the benefit of such of its employés as sustain injuries not covered by the Workmen's Compensation Act of the state. Under the rules and regulations of the association its beneficiaries were only entitled to benefits out of such fund for such accidents as did not arise out of and in the course of the employment. Deceased was 27 years of age, unmarried, and left him surviving as his sole beneficiaries his father and his mother, who received $1,552.82 out of this fund, and executed a release, discharging the company from all further liability.

It is assigned as error that the Industrial Board erred in not crediting the above amount on the award allowed by it. This assignment of error, however, is not argued in the briefs filed in this court, and is therefore deemed waived. Glos v. Davis, 216 Ill. 532, 75 N. E. 208;City of Springfield v. Coe, 166 Ill. 22, 46 N. E. 709.

The other grounds urged for a reversal of the judgment are: First, that the Workmen's Compensation Act of this state does not apply to accidental injuries or deaths occurring outside of the state; second, that the accident in which the deceased was killed was not one arising out of and in the course of his employment. If either of these grounds is good, the judgment of the circuit court sustaining the decision of the Industrial Board should be set aside.

The evidence heard by the Industrial Board is in the record, and an examination of this evidence discloses that the only testimony relied upon to sustain the finding of the Industrial Board...