Jackson v. Indus. Bd. of Illinois

• Decision Date: 05 December 1917
• Docket Number: No. 11279.,11279.
• Parties: JACKSON v. INDUSTRIAL BOARD OF ILLINOIS et al.
• Court: Illinois Supreme Court

280 Ill. 526

117 N.E. 705

JACKSON

v.INDUSTRIAL BOARD OF ILLINOIS et al.

No. 11279.

Supreme Court of Illinois.

Oct. 23, 1917.

Rehearing Denied Dec. 5, 1917.

Error to Circuit Court, Vermilion County; John H. Marshall, Judge.

Proceeding under the Workmen's Compensation Act by Mary Hoskins, administratrix of Nathaniel Ramey, deceased, to obtain compensation for his death. Compensation was awarded in the sum of $573.20, and the award confirmed by the Industrial Board and by the circuit court, and William J. Jackson, receiver, the employer, brings error. Affirmed.

H. M. Steely and H. M. Steely, Jr., both of Danville, for plaintiff in error.

L. A. Cranston, C. H. Beckwith, and Acton & Acton, all of Danville, for defendants in error.

DUNCAN, J.

On a petition filed with the Industrial Board on September 29, 1915, by Mary Hoskins, administratrix of the estate of Nathaniel Ramey, deceased, an award of $573.20 was entered by the arbitrators, the same to be paid in weekly installments. The Industrial Board confirmed the award. A judgment was rendered by the circuit court of Vermilion county confirming the award, and a proper certificate having been made by that court, this writ of error was sued out of this court.

The essential facts in this case are not in dispute. The plaintiff in error is receiver of the Chicago & Eastern Illinois Railroad Company, and is engaged in both intrastate and interstate commerce by the operation of the said railroad, which extends from Chicago, through Bismarck and Danville, Ill., and Terre Haute, to Evansville, Ind. Between Chicago and Danville the line is double tracked, the east track being used for north-bound trains, and the west track for south-bound trains. Plaintiff in error had in his employ a gang of painters, including the deceased, who painted buildings, bridged, and everything required to be painted along the railroad from Villa Grove north on the St. Louis division, from Terre Haute to Chicago, and from Brazil, Ind., to La Crosse, Ind., and on some spur tracks extending from the main lines. The paint gang had with them a bunk car, in which they slept; a cook car, in which they cooked and ate their meals, in one end of which was the office of the foreman; a flat car, on which they carried ladders, tools, and a three-wheeled hand car, called a ‘speeder’; and a box car, in which they kept paints, oils, brushes, and other supplies. On October 2, 1913, this paint gang was located at Bismarck, a station nine miles north of Danville, their cars being stationed on the side track, near the passenger depot. On said date all the gang except the foreman and the cook were engaged in painting the outside of a two-story interlocking tower. The tower housed the levers which handled the interlocking plant of a branch road or cut-off that ran southeast, and also the levers that operated the signals on posts both north and south of the tower, known as the ‘home’ and ‘distance’ signals. On said last date, the supply of paint at the tower being exhausted, the deceased, Nathaniel Ramey, had gone to the box car at Bismarck to get some paint, and was returning to his work at the tower on the south-bound track on the speeder when a fast train bound from Chicago to Evansville approached him from the north. He stopped the speeder, removed the paint, and was apparently in the act of lifting the speeder from the track when the train struck the speeder, completely demolishing it and killing the deceased, either by striking him with the pilot beam or driving the speeder against him.

The administratrix, through her attorneys, properly stamped and sent by registered mail a formal notice of the accident dated November 1, 1913, with a statement of claim, under the Workmen's Compensation Act, to the receiver of said railroad at his correct address. On November 6, 1913, the general attorney for plaintiff in error wrote a letter to the attorneys for the administratrix in which he acknowledged receipt of the said notice sent to the receiver, and stated that the notice had been referred to him, and that the claim agent of the receiver would call on the attorneys for the administratrix within the course of a couple of weeks. This letter of the general attorney starts off with this sentence:

‘Your letter of the 3d inst. and notice sent to Messrs. W. J. Jackson and Edwin W. Winters, receivers, both with reference to claim arising from the death one Nathaniel Ramey, have been referred to me.’

The claim agent did call on the attorneys after they had received the general attorney's letter and discussed with the attorneys for the administratrix the matter of settlement of said case. The notice mailed to the receivers, as aforesaid, was produced by plaintiff in error at the hearing before the committee of arbitration on demand of the attorneys for the administratrix. The evidence does not disclose more definitely what day said notice was mailed to the receiver, and does not disclose what day the claim agent, Fowler, called on the attorneys of the administratrix with a view to a settlement of the cause.

On March 28, 1914, the administratrix of Ramey began a suit under the federal Employers' Liability Act for damages for causing the death of Ramey, in the circuit court of Vermilion county, against plaintiff in error. Plaintiff in error demurred to the declaration as amended and set out a number of special causes of demurrer, one of which was that the declaration, and each count thereof, failed to show that Ramey at the time of his death was engaged in interstate commerce. The court sustained the demurrer, announcing, in substance, that the basis or ground of his decision was that the declaration showed that the deceased was not engaged in interstate commerce at the time he was killed. The administratrix elected to stand by her declaration, judgment was entered by the court on demurrer against her in bar of her suit, and she prayed for but did not perfect an appeal from said judgment. Shortly thereafter the petition was filed before the Industrial Board. On the hearing before the Industrial Board parol testimony was introduced to show that the circuit court sustained the demurrer to said declaration because it decided that the facts stated in the declaration showed the deceased was not engaged in interstate commerce at the time he was killed.

Plaintiff in error contends in this court that the notice of the accident and claim for compensation was not served on him within six months after the accident, so far as the evidence shows. There is...