Murrelle v. Indus. Comm'n
| Decision Date | 10 March 1943 |
| Docket Number | No. 26766.,26766. |
| Citation | 382 Ill. 128,46 N.E.2d 1007 |
| Parties | MURRELLE v. INDUSTRIAL COMMISSION et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Cook County; John Prystalski, Judge.
Proceeding under the Workmen's Compensation Act by Grace E. Murrelle, claimant, to recover compensation for the death of her husband, employee, opposed by the Organ Brothers Company, employer, and another. To review a judgment setting aside a decision of the Industrial Commission, which awarded compensation payable to a special fund held by the state treasurer, and entering the award in claimant's favor, the opponents bring error.
Affirmed.Thomas C. Angerstein and George W. Angerstein, both of Chicago , for plaintiffs in error.
Augustine J. Bowe, William J. Bowe, and John D. Casey, all of Chicago, for defendant in error.
This case arose under the Workmen's Compensation Act. Plaintiffs in error seek to reverse an award of compensation made by the circuit court of Cook county to Grace E. Murrelle, whose husband died as a result of being bitten by a dog. There is no question raised concerning the injury, or the causal connection between the injury and the death. We will therefore confine our statement of facts to those which bear on the three controverted questions, (1) Was deceased an employee of Organ Brothers Company, (2) Did the accident arise out of and in the course of the employment, and (3) Was Grace E. Murrelle legally married to deceased and hence entitled to compensation for his death.
The record shows that deceased was a lumber and building-material salesman, working for Organ Brothers Company, lumber dealers. He was employed in November, 1938, by Norman Rose, who was, at that time, sales manager of the company. Rose testified that deceased was under his direction and control. Instead of a salary, however, deceased was paid a commission of ten per cent of the purchase price of any lumber or materials sold by him. He had no fixed territory but was allowed to seek out his own prospects wherever he found them. He had an assistant, G. C. Smith, whom he paid out of his commissions. His cards, bill forms, and sales forms bore the name of Organ Brothers Company. He reported to the office every morning, and was paid weekly; social-security deductions were made by the company from his earnings, but it does not appear whether or not they were turned over to the government.
In June, 1939, Patrick Organ, president of the company, succeeded Rose as sales manager. Deceased continued the same arrangement with him. Organ testified concerning the manner in which deceased's work was done. The record shows that deceased was primarily concerned with customers who were doing remodeling, financed by Federal Housing Authority loans. He would estimate the total cost of the improvement, and make the customer a contract price, including labor and all materials, even though some of the materials might have to be purchased from others than the Organ Brothers Company. The proceeds of the F.H.A. loans would be paid over to the company, who would distribute it among the laborers and the various vendors of materials used. The portion retained by the company would be credited to deceased's sales, and he would receive his commission of ten per cent thereon. If his estimate was too low on materials, he took the loss. If it was more than the actual cost, the extra profit was his.
Plaintiffs in error contend that deceased was an independent contractor and not an employee. The facts are that the company received all the money from the various jobs and made all the disbursements. Deceased normally received only his fixed commission. It was only where there was a mistake in judgment on his part that his compensation varied from that of a regular commission on the selling price of the materials sold.
On September 18, 1939, deceased and G. C. Smith drove into the company's lumber yard about noon. One of their customers was short a few pieces of lumber, and they drove into the yard to pick it up and take it out to him. At that time the yard man was busy with a customer. While they waited for him, Smith went over and commenced to pet a watchdog which was chained in the yard. While he was petting the dog, deceased approached and the dog suddenly attacked him. Deceased's arm was severely lacerated, and although it was treated promptly, soon became severely infected. He died as the result of the injuries on November 18, 1939.
Grace E. Murrelle filed an application for adjustment of claim with the Industrial Commission on March 13, 1940, in which she alleged that she was the widow of the deceased. On the hearing before the abritrator, Organ Brothers Company raised the question of the legality of claimant's marriage to the deceased. On review before the commission, the company introduced evidence tending to show that deceased and claimant were never lawfully married. The evidence in the record bearing on this question is as follows: Claimant testified that she came to Chicago in 1918, after divorcing her first husband, in Duluth, Minnesota. She had one child, a son, by her first marriage. In Chicago she met Murrelle. In January, 1922, they were married in Waukegan, Illinois, by a justice of the peace. Mrs. Murrelle could not remember the name of the justice who married them, or the witnesses who were present; she stated that no license was issued before the marriage, but after the ceremony the justice gave them a license and that this license is now lost. No record of it appears in the county clerk's office under the name of either spouse.
Five justices from Waukegan township were called by plaintiffs in error. They testified that they never married anyone without a license during 1922. There were numerous other justices in the county. Several of these justices testified that they did not go to the trouble to write the names of the contracting parties in the marriage license. They expressed the opinion that marriages were valid even if the names were not correctly inserted in the licenses. The county clerk, who served as such during the year 1922, testified that he never issued any blank licenses. Three of his deputies testified similarly. All admitted, however, that during that period Waukegan established a reputation as a marriage center, with couples flocking in from surrounding territory for quick marriages, about twenty-five per cent coming from Chicago. Although all of the deputies and the clerk denied ever issuing licenses at their homes, they did admit they sometimes issued licenses at night and opened the clerk's office for that purpose. Like the justices, the clerk and deputies stated that they made no effort to verify the names given by the applicants.
Following the alleged marriage, Mrs. Murrelle and deceased lived together until his death. He supported her and also her son until the son became independent. No one appears to have questioned the validity of the marriage until plaintiffs in error raised the question in this case.
At the conclusion of the hearing before the arbitrator an award of $16.50 per week for 242 weeks and one week at $7.50 was made to claimant. The Industrial Commission, on review, found that an award was proper, but that claimant had failed to show that she was the widow of the deceased and entitled to compensation as such. The commission made an award of $400 to be paid to the special fund held by the State Treasurer, in accordance with the provisions of section 7(e) of the Workmen's Compensation Act, Ill.Rev.Stat.1941, c. 48, § 144(e). Claimant took the case to the circuit court for review by writ of certiorari. That court set aside the decision of the commission and entered an award in accordance with the...
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