Swift & Co. v. Indus. Comm'n

• Decision Date: 13 December 1932
• Docket Number: No. 21408.,21408.
• Citation: 183 N.E. 476,350 Ill. 413
• Parties: SWIFT & CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

350 Ill. 413

183 N.E. 476

SWIFT & CO.

v.INDUSTRIAL COMMISSION et al.

No. 21408.

Supreme Court of Illinois.

Oct. 22, 1932.

As Modified on Denial of Rehearing, Dec. 13, 1932.

Error to Circuit Court, St. Clair County; Henry A. Miller, Judge.

Proceeding under the Workmen's Compensation Act by Florence Hutmacher and others, claimants, for the death of Carl Hutmacher, employee, opposed by Swift & Co., employer. To review a judgment vacating and setting aside an award of the Industrial Commission in favor of claimants, they bring error.

Judgment reversed, and award confirmed.

Edgar P. Holly, of East St. Louis, for plaintiffs in error.

Pope & Driemeyer, of East St. Louis, for defendants in error.

ORR, J.

Carl Hutmacher, a traveling salesman for Swift & Co., died as a result of injuries received while driving the company's car on the evening of October 23, 1928. He was survived by his widow, Florence Hutmacher, and two minor children. An application for an adjustment of claim under the Workmen's Compensation Act was filed, and on a hearing before an arbitrator an award in favor of the widow and children was made in June, 1929, in the sum of $16 per week for a period of 278 weeks and 1 week at $2, in accordance with paragraph (a) of section 7 of the Workmen's Compensation Act then in force (Smith-Hurd Rev. St. 1931, c. 48, § 144(a). Following a review by the Industrial Commission, this award was approved and confirmed on January 18, 1930. Swift & Co. then caused the case to be taken by certiorari to the circuit court of St. Clair county, where, after a delay of nearly 2 years, an order was entered on January 4, 1932, vacating and setting aside the award of the Industrial Commission. In order that the case might be brought here for review, a writ of error was then awarded by this court to the petitioners.

The sole question at issue is whether Hutmacher's death resulted from an accident arising out of and in the course of his employment.

It is shown by the record that Hutmacher had been in the employ of Swift & Co. (herein called the company) for several years, selling their commodities, collecting accounts, and making regular reports. The company furnished him with an automobile, and paid for the gasoline and other expenses connected with its operation. He had both verbal and written instructions that the automobile was to be used only in the furtherance of company business. His contract of employment was verbal, and was made in the East St. Louis office of the company. By its terms he was assigned to territory in the extreme southeastern portion of Indiana, with headquarters at New Albany, Ind., where he made his home. To a certain extent he was governed in his calls on the trade by route sheets furnished him by the company. For some months prior to the date of the accident, he had received urgent and repeated instructions to collect an overdue account of a customer named McIntosh, at Marengo, Ind. With reference to this collection, he had received a letter from the credit department of the company, dated September 21, 1928, stating: ‘In view of the manner in which you have handled this account we want you to endeavor to effect immediate collection of the entire account of $236.59, and if you are unable to do so, let us know why not.’ On October 23, 1928, the date of the accident, a telegram was also sent by the company to him, reading, ‘McIntosh Marengo wire results mail details quick.’ This telegram was never delivered to Hutmacher, but shows that at that time he was fully authorized by his employer to make this particular collection. The evidence shows that for some time prior to the date of the accident the debtor, McIntosh, was engaged in the erection of a building at Hardinsburg, some eight or nine miles southeast of Paoli, Ind., and on state highway No. 150. During his absence from Marengo, the business of McIntosh was left in charge of his wife. Several weeks prior to October 23 Mrs. McIntosh had told Hutmacher, referring to the past-due account: ‘I told him that he could go over where John [McIntosh] was working, [at Hardinsburg,] and he said that he could but that it was out of his territory.’ The evidence shows that on October 23 Hutmacher called on Mrs. McIntosh at their place of business in Marengo, but she did not place any order with him on that date. McIntosh was at Hardinsburg that day, but his wife did not tell Hutmacher the hours her husband remained there. On Monday, October 22, 1928, Hutmacher began his usual itinerary in the trade territory assigned to him. He was accompanied by one Watkins, a soap salesman also employed by Swift & Co. Watkins did not make these trips regularly, but had been requested by the company to go with Hutmacher during that week. On Monday and Tuesday, October 22 and 23, Hutmacher called on his customers, took orders for goods, and received payment for a number of orders, which were later accepted and filled by the company. After being employed all day Tuesday on his employer's business, Hutmacher discovered that he had forgotten his brief case and remembered that he had left it at the hotel in English where he and...