Int'l Sales Co. v. Indus. Comm'n

• Decision Date: 12 February 1937
• Docket Number: No. 23660.,23660.
• Citation: 365 Ill. 436,6 N.E.2d 861
• Parties: INTERNATIONAL SALES CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

365 Ill. 436

6 N.E.2d 861

INTERNATIONAL SALES CO.

v.INDUSTRIAL COMMISSION et al.

No. 23660.

Supreme Court of Illinois.

Feb. 12, 1937.

Error to Superior Court, Cook County; Archie G. Kennedy, Judge.

Proceeding under the Workmen's Compensation Act by Edna Fitzhenry, claimant, opposed by the International Sales Company, employer. To review an order by the Superior Court setting aside an award granted by the Industrial Commission, claimant brings error.

Reversed and remanded, with directions to reinstate findings of the Industrial Commission.McKenna, Harris & Schneider, of Chicago (Abraham W. Brussell, of Chicago, of counsel), for plaintiff in error.

Cassells, Potter & Bentley, of Chicago, (Ralph F. Potter and Claud D. Raber, both of Chicago, of counsel), for defendant in error.

SHAW, Justice.

The Industrial Commission awarded Edna Fitzhenry compensation for the permanent 50 per cent. loss of use of one leg, plus medical bills of $250 and a hospital bill of $410.70, and also compensation for temporary total incapacity for the period of 67 1/7 weeks. On certiorari the superior court set this award aside, and the cause is before us by writ or error, on leave granted.

Briefly, the facts are as follows: In the spring of 1927, while Edna Fitzhenry, who worked under the name of De Veaux, was a resident of Newark, N. J., she answered an advertisement in a local paper for a sales lady and met L. F. Kelly, a ‘crew manager’ for the International Sales Company. She testified that Kelly told her he would take her name and address and would let her know in a couple of days whether or not he could hire her; that the company was particular about who worked for it and that he would have to get her credentials from Chicago, or words to that effect; that some days later she came back and Kelly told her it was all right and gave her credentials to solicit magazine subscriptions. The paper which Kelly delivered to her was as follows:

‘International Sales Company, Inc.

‘Publishers' Representatives

‘608 So. Dearborn St., Chicago, Ill.

‘Special Cash Prize Offer.

‘This is to Certify That the Bearer Miss Edna De Veaux (whose signature appears below) is taking advantage of our special cash prize and is authorized to secure points by obtaining orders for new and renewal subscriptions to all publications as per our official receipts. Two thousand points within twelve weeks' time entitles the bearer to a cash prize of $500.00. Investigation shows the bearer is of good character and reputation, therefore worthy of the reward offered. Any courtesies extended will be greatly appreciated.

‘(Special Notice-Do not hesitate to give our representatives your subscriptions. We guarantee promptly to fill all orders as printed on our regular subscription cards.)

‘International Sales Company, Inc.

‘A. K. Smith, Sales Manager, [Signed]

‘Miss Edna De Veaux, [Signed]

‘Signature of Bearer

‘[Seal of International Sales Co.]

‘State of Illinois, County of Cook:

‘On this, the ___ day of _____, 192_, personally appeared before me the sales manager and acknowledged the above as his free and voluntary act.

‘Julia C. O'Brien, Notary Public, [Signed]

‘[Notarial Seal] Cook County, Illinois.’

The record further shows that Kelly himself possessed a document from the International Sales Company making him a duly authorized ‘crew manager,’ and conferring upon him, among other things, the power to place advertisements for solicitors in newspapers, magazines, etc., and to employ assistant solicitors to solicit and collect for magazine subscriptions on behalf of the company but to in no way pledge the credit or incur any obligation on behalf of the International Sales Company. After accepting the credentials above set forth, the plaintiff in error, with Kelly and other solicitors, worked through several cities in the East, including as the last one, Buffalo, N.Y., at which place she suffered a fall and severe injury to her leg. It is not questioned that the fall took place while she was working and in connection with her work, the only questions being as to whether or not she was employed by the International Sales Company and as to whether the contract of employment was made in the state of Illinois.

Alice K. Smith, secretary of the International Sales Company, testified as to the course of business of that company and as to its connection with Kelly. It was her testimony that any person who wished to buy subscription blanks came to the office of the company and paid cash in advance for them, whereupon they became his property, to do with as he pleased; that he could sell them himself or hire others to sell subscriptions, paying cash out of his commission, or pay those working for him on a commission basis; that Kelly purchased the subscription blanks with which he was working and was furnished with the purported appointment as ‘crew manager’ which is mentioned above, and was also given a supply of credentials to be given to solicitors such as the one received by Miss Fitzhenry; that these so-called credentials, which purported to be executed in Chicago after inquiry and on behalf of the International Sales Company were, in fact, passed out in blank and never come back to Chicago for approval at all. She testified that when Kelly collected for the magazine subscriptions he did not transmit any money to the International Sales Company at Chicago but simply the sales records, with the subscribers' names and addresses; that after the order blanks had been sent to the International Sales Company that company then collected the balance due on the subscriptions, sending bills to those subscribers, asking them to transmit the balance due, and the subscribers would remit to the International Sales Company direct. Kelly was not called as a witness, and his absence was not accounted for. There is no other...