Irwin-Neisler & Co. v. Indus. Comm'n

• Decision Date: 02 December 1931
• Docket Number: No. 20535.,20535.
• Parties: IRWIN-NEISLER & CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

346 Ill. 89

178 N.E. 357

IRWIN-NEISLER & CO.

v.INDUSTRIAL COMMISSION et al.

No. 20535.

Supreme Court of Illinois.

Oct. 23, 1931.

Rehearing Denied Dec. 2, 1931.

Commissioner's Opinion.

Error to Circuit Court, Macon County; James S. Baldwin, Judge.

Proceeding under the Workmen's Compensation Act by Lewis M. Sawyer, opposed by Irwin-Neisler & Co. The award of an arbitrator allowing compensation was affirmed by the Industrial Commission and by the circuit court upon certiorari, and the employer brings error.

Judgment of circuit court affirmed.

Vail, Allen, Mills & Armstrong, of Decatur, for plaintiff in error.

McMillen, McMillen & Garman, of Decatur, for defendant in error.

PARTLOW, C.

Lewis M. Sawyer made application to the Industrial Commission for an award against Irwin-Neisler & Co., a corporation, on account of personal injuries. The evidence was heard by an arbitrator, who made an award in favor of the applicant. Upon review, the award was confirmed by the Industrial Commission and by the circuit court of Macon county upon certiorari, and the case comes to this court upon writ of error.

Sawyer was a chemist, and was in the employ of plaintiff in error in its laboratory in Decatur, Ill. By the terms of his employment he was entitled to a vacation of one week each year with pay. He spent his vacation in the summer of 1928 at Laporte and Peru, Ind. The vacation was to begin at the close of business on Saturday, August 18, and was to end at the opening of business on Monday, August 27. A day or two before starting on his vacation, Ernest T. Kirkland, president of plaintiff in error, asked Sawyer to stop in Lafayette, Ind., on the return from his vacation and make a survey among the druggists and physicians in that city to determine why a certain product was not selling better in Lafayette. Kirkland gave Sawyer for distribution some samples and circulars. According to the testimony of Kirkland, he asked Sawyer to do this work on company time the day following his vacation. He stated that it would have been necessary to have sent some one else to do the work if Sawyer had not done it. On Monday morning August 27, Sawyer left Peru and drove to Lafayette, where he interviewed druggists and left circulars. About 2:30 in the afternoon he started for Decatur and went the most direct route through Danville, Ogden, and Champaign. At Attica, Ind., he picked up an old man who asked to ride with him as far as Champaign. Shortly before they reached Ogden they made a sharp turn to the right on the paved highway, and the car tipped to the left and turned over. Sawyer put out his left had to protect himself from the impact, and his hand and arm were crushed. According to his testimony, no one else was on the highway, and he was going fifteen or twenty miles an hour. His explanation of why the car turned over was that he had new tires on the car which held straight to the pavement, that the pavement was of brick and was rough, and there was no load in the rear seat to hold the car down.

Sawyer testified that in making trips to Peru he always went and returned by way of Watseka, and he would have returned that way on this occasion if it had not been for the work in Lafayette, and that he would have returned on Sunday instead of Monday. It does not appear from the evidence that the route from Peru to Decatur is any shorter or any better through Watseka than through Lafayette and Danville. Subsequent to the accident, Sawyer made a report of his work in Lafayette to Kirkland, who sent a detail man to Lafayette to further investigate. Sawyer did not turn in an expense account for his investigation, but the evidence shows that, if he had done so, it would have been paid by his company. Although Sawyer was not a trained salesman, Kirkland testified he was particularly fitted for this investigation and had made several similar trips to Bloomington a few years before.

It is contended by plaintiff in error that the injury neither arose out of nor in the course of the employment. In order to recover, it was incumbent upon Sawyer to prove that the injury arose out of and in the course of the employment. United States Fuel Co. v. Industrial Com., 310 Ill. 85, 141 N. E. 401. The words ‘out of’ point to the origin of the cause of the accident, and the words ‘in the course of’ point to the time, place, and circumstances under which the accident occurred. The accident must result from a risk incidental to the employment and while the employee is doing that which he is reasonably required to do within the time of his employment and at the place where he may reasonably be expected to be while discharging the duties of his employment. Board of Education v. Industrial Com., 321 Ill. 23, 151 N. E. 499.

The first question is whether at the time of the accident Sawyer was in the course of his employment. The general rule is that an employment does not begin until the employee reaches the place where he is to work and does not continue after he has left the place of his employment. Shegart v. Industrial Com., 336 Ill. 223, 168 N. E. 288;Dambold v. Industrial Com., 323 Ill. 377, 154 N. E. 128. This rule, however, is not applicable where the duties of the employee necessarily take him away from the premises of the employer. Angerstein on Workmen's Comp. (Rev. Ed.) 1930, § 88. Under such circumstances the employer may still be liable if the employee is injured and the injury arises out of and in the course of the employment. Solar-Sturges Manf. Co. v. Industrial Com., 315 Ill. 352, 146 N. E. 572. Whether an employee who is on the way to or from his place of employment is in the line of his employment depends upon the circumstances of each case, and is largely a question of fact. In Porter Co. v. Industrial Com., 301 Ill. 76, 133 N. E. 652, the employee was a traveling salesman. He returned from his trip about 11 a. m. on an interurban car. The car passed near his home, where he stopped for lunch, after which he started to the office to make a report. While crossing the street to get a street car, he was struck by an automobile and injured. It was held that he was in the course of his employment, and that the stopping to eat his lunch was not sufficient, of itself, to take the accident out of the operation of the statute. In Mueller Construction Co. v. Industrial Board, 283 Ill. 148, 118 N. E. 1028, L. R. A. 1918F, 891, Ann. Cas. 1918E, 808, the duties of the employee required him to cross the street to telephone, and, while so doing, he was struck by an automobile...