Omaha Boarding & Supply Co. v. Indus. Comm'n

• Decision Date: 21 February 1923
• Docket Number: No. 14812.,14812.
• Citation: 306 Ill. 384,138 N.E. 106
• Parties: OMAHA BOARDING & SUPPLY CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

306 Ill. 384

138 N.E. 106

OMAHA BOARDING & SUPPLY CO.

v.INDUSTRIAL COMMISSION et al.

No. 14812.

Supreme Court of Illinois.

Feb. 21, 1923.

Error to Circuit Court, Cook County; Frank Johnston, Jr., Judge.

Proceedings under the Workmen's Compensation Act by Viola Conover for the death of her husband, John D. Conover, opposed by the Omaha Boarding & Supply Company, employer. An award of compensation by the Industrial Commission was set aside by the circuit court, and claimant brings error.

Affirmed.William A. Jennings, of Chicago, for plaintiff in error.

F. S. Howell, of Omaha, Neb., and Ernest A. Baughman, of Chicago, for defendant in error.

DUNCAN, J.

On August 10, 1920, plaintiff in error, Viola Conover, widow of John D. Conover, deceased, filed her petition before the Industrial Commission for compensation against the Omaha Boarding & Supply Company, defendant in error. The arbitrator selected made a finding that the Industrial Commission had no jurisdiction in the cause. On petition for a review the Industrial Commission set aside the decision of the arbitrator and awarded compensation under the Workmen's Compensation Act (Laws 1913, p. 335) at $100 per month for 37 months and $50 for one month, and found that the deceased left plaintiff in error as his widow, and a daughter aged six years as his only heir at law. Upon a writ of certiorari the record of the Commission was reviewed by the circuit court and quashed, and the award set aside, and this court allowed a writ of error for a further review.

The Omaha Boarding & Supply Company is a corporation organized under the laws of the state of Nebraska for the purpose of ‘the taking of contracts for the equipping of boarding outfits and furnishing board and other supplies for laborers employed by railroads, railroad contractors, and other persons or corporations, and furnishing laborers for the same,’ with the right to own real and personal property in connection with said business. It had been admitted to do business in this state and had an office rented at No. 6 Canal street, in Chicago, in which the clerical work was done in the taking of contracts for equipping boarding outfits and furnishing board and other supplies for laborers employed as aforesaid. It also had an office on the first floor of a building at No. 611 West Madison street, rented November 5, 1919, in which were stored, under and back of the counters and in the rear of the office, skillets, pots, chinaware, cups, tin plates, platters, soup bowls, mattresses, coal stoves, desks, and other equipment of similar character used in its boarding and lodging camps. This latter place is a room about 18 x 20 feet, and it referred to in the evidence as the office and storeroom, and in which it conducts its business as an employment agency. It also has a similar storeroom rented in Omaha, Neb., of the same character as the one above described, which is approximately 20 x 40 feet. These are the only storerooms that it had at the time of the accident. It established various boarding camps on railroads and other places where laborers congregated for work in this state and in Indiana, for the purpose of boarding and furnishing supplies to such laborers. The reilroad companies furnished the temporary buildings for the camps on the railroads, which were generally railroad cars. The camps were shifting or on the move constantly as the work of the laborers shifted, and the railroad companies moved the boarding cars on the railroads, together with all the camp equipment and the employees conducting the boarding houses or places or working therein for defendant in error. Defendant in error had boarding cars and temporary buildings at Gary, Ind., constructed by the parties for whom the laborers worked that it boarded. Three of the houses so constructed were about 22 x 50 feet, and these are the only houses that the evidence discloses defendant in error used for its purposes aforesaid. It had nothing to do with the work for which the laborers were employed by the railroads or by other contractors, except to maintain and operate the boarding houses and camps and move the camps from place to place for the purpose of feeding the laborers. It hired some of the laborers working for the contractors, but did that in its capacity as an employment agency and for the contractors. In conducting its business of boarding and lodging, it, of course, furnished the dishes, bedding, food, cooks, waiters, etc.

John D. Conover was employed by defendant in error as manager of its camps. His duties were to visit the camps and supervise the placing, opening, and operation of them and of the removal of the same from place to place. On November 25, 1919, Conover took a cook and the cook's wife to one of the camps at Barrington, Ill., about 35 miles from Chicago. They were taken in an automobile owned by W. W. Freeland, one of the officers of the company, and the automobile was driven by Harry Everndon, who was an employee of defendant in error but was then on his vacation. After leaving the cook and his wife at the camp, Conover loaded two or three packages of burlap sacks and some papers and blanks into the automobile, all of which belonged to defendant in error, and with the driver started for Chicago, where he lived. On their way to Chicago, after dark and while it was showing and raining, the automobile struck the abutment of a culvert, or something like that, and ran out of the road and struck a tree. There was a crash and a flash of fire and Conover was hurt and the automobile badly damaged. A garage man was called, who took Conover to Chicago in another automobile, and they arrived at his home about 12 o'clock that night. A doctor was called, who dressed and sewed up his wounds, which consisted of several cuts on the head and arms and bruises and skinned places on his body and legs. His stomach was bruised and injured in the accident, and shortly afterwards a knot formed on the left side of his abdomen. He wore a silk elastic belt for a while and later used a truss. Conover returned to his work on the following Monday, six days after his injury, and remained in the employment of defendant in error in the same capacity in which he had been...