Landon v. Indus. Comm'n, 19933.

• Decision Date: 25 October 1930
• Docket Number: No. 19933.,19933.
• Citation: 173 N.E. 49,341 Ill. 51
• Parties: LANDON v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

341 Ill. 51
173 N.E. 49

LANDON
v.
INDUSTRIAL COMMISSION et al.

No. 19933.

Supreme Court of Illinois.

Oct. 25, 1930.

Commissioner's Opinion.

Error to Circuit Court, Cook County; Otto Kerner, Judge.

Proceeding under the Workmen's Compensation Act by John Cleary, opposed by F. Landon, trading as the Landon Cartage Company. The award of the Industrial Commission was set aside by the circuit court, and claimant brings error.

Affirmed.

ORR, J., dissenting.

[341 Ill. 52]

[173 N.E. 50]

Sarsfield Collins and James R. Quinn, both of Chicago, for plaintiff in error.

Brundage & Gorman, of Chicago, for defendant in error.

PARTLOW, C.

John Cleary filed his application with the Industrial Commission for an award against F. Landon, trading as the Landon Cartage Company, on account of personal injuries. The evidence was heard by an arbitrator, who made [341 Ill. 53]an award in favor of the applicant, finding, among other things, that he had lost 35 per cent. of the use of his right leg. The Industrial Commission, on review, confirmed the award. Upon certiorari proceedings in the circuit court of Cook county the award was set aside, and the case comes to this court on a writ of error.

Cleary was employed by Landon as a truck driver. On February 22, 1928, he and three other truck drivers were sent from Chicago to Elk Grove, their trucks being loaded with iron. The trucks were unloaded about 5 p. m. and started for Chicago. There was snow on the ground and the road was slippery. Cleary was driving the rear truck. Shortly after leaving Elk Grove his truck went into the ditch and he received an injury to his head. He testified that the claim for compensation was not based upon that injury. He secured a ride in an automobile and overtook the three drivers, who were ahead of him. He informed them of his accident and they went back and tried to get the truck out of the ditch, but did not succeed. They all went to a near by filling station and telephoned to Landon for instructions. He told them to leave the truck in the ditch, put lights on it, and he would attend to it the next morning. He told the three drivers to come to the garage with their trucks and said that Cleary would be checked out and for him to go home. This conversation took place between 6 and 7 o'clock p. m. The three drivers went back to the truck in the ditch, put lights on it, and Cleary remained at the oil station. Cleary had the option, if he saw fit, to ride into Chicago in any of these three trucks, but he told his fellow servants that he did not intend to ride with them because he intended to beat them into Chicago. He testified that he had no money with him at that time, but there is no evidence that he made application to his fellow drivers for money to take him into Chicago. The...