Johnston v. Indus. Comm'n

• Decision Date: 12 April 1933
• Docket Number: No. 21681.,21681.
• Citation: 185 N.E. 191,352 Ill. 74
• Parties: JOHNSTON v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

352 Ill. 74

185 N.E. 191

JOHNSTON

v.INDUSTRIAL COMMISSION et al.

No. 21681.

Supreme Court of Illinois.

Feb. 23, 1933.

Rehearing Denied April 12, 1933.

Error to Circuit Court, Cook County; H. Sterling Pomeroy, Judge.

Proceeding under the Workmen's Compensation Act by William F. Johnston, claimant, opposed by the Warren Teed Seed Company, employer. To review a judgment of the circuit court quashing a writ of certiorari to review the action of the Industrial Commission in setting aside an award made by the arbitrator, the claimant brings error.

Reversed and remanded, with directions.

James Clark Smith and Albert G. Miller, both of Chicago, for plaintiff in error.

Bernard F. Martin, of Chicago (Clyde C. Fisher, of Chicago, of counsel), for defendant in error.

STONE, Justice.

This cause is here on writ of error awarded by this court to review the judgment of the circuit court of Cook county quashing the writ of certiorari sued out of that court to review the finding of the Industrial Commission on plaintiff in error's application for conpensation under the Workmen's Compensation Act (Smith-Hurd Rev. St. 1929, c. 48, § 138 et seq.). The commission found that the parties to the proceeding were not operating under and subject to the provisions of the Workmen's CompensationAct of this state, and that the commission was therefore without jurisdiction. It thereupon set aside an award made by the arbitrator on hearing.

The facts are not in dispute, and are these: Defendant in error is engaged in the sale of garden seeds, and has its principal place of business in the city of Chicago. It has a branch office in Detroit, Mich. Plaintiff in error, Johnston, appeared at that branch office, and interviewed Harold A. Folsom, the branch manager, stating that he desired to become employed by the company. He signed the following instrument:

‘Received from the Warren Teed Seed Company, of Chicago, Illinois, one brief case and portfolio and other paraphernalia, which is subject to return upon their demand.

‘I understand that the following basis of payment is to take effect: If upon my first week in the field I produce $500 worth of business or more, my salary shall be $12.50 for that week, plus commission of three per cent, two per cent of which is to be payable upon acceptance of the order by the home office and one per cent when the entire order is paid for; also a $5 bonus on every $500 worth of business over $1,250 per week. After the first week's portion, if I fail to produce $1,250 worth of business weekly thereafter, the company reserves the right to hold back the payment of salaries for such week.

‘William F. Johnston.

‘Witness: H. A. Folsom.’

As will be noted, Folsom also signed the instrument as witness. A few days thereafter Johnston began working for the seed company, soliciting orders, which were sent to the office in Chicago and filled there. He continued in that employment until October 8, 1930, when he, with another salesman and Folsom, at the latter's direction, started from Detroit to Buffalo in plaintiff in error's automobile. The purpose was to solicit orders for the seed company in and around that city and elsewhere. While proceeding toward Buffalo, plaintiff in error's automobile left the road and overturned and he was injured. There is no dispute as to the extent of his injuries or as to notice to the seed company. The sole question in the case concerns the applicability of the Workmen's Compensation Act of this state.

[352 Ill. 76]Paragraph 2 of section 5 of the Workmen's Compensation Act (Smith-Hurd Rev. St. 1929, c. 48, § 142, par. 2) provides that the term ‘employee’ shall include ‘every person in the service of another under any contract of hire, express or implied, oral or written, including persons whose employment is outside of the State of Illinois where the contract of hire is made within the State of Illinois,’ etc. The applicability of the Workmen's Compensation Act of this state to this case depends, therefore, upon where the contract of employment was made. Counsel for plaintiff in error argue that it...