Yellow Cab Co. v. Indus. Comm'n

• Decision Date: 20 December 1928
• Docket Number: No. 18276.,18276.
• Citation: 164 N.E. 164,333 Ill. 49
• Parties: YELLOW CAB CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

333 Ill. 49

164 N.E. 164

YELLOW CAB CO.

v.INDUSTRIAL COMMISSION et al.

No. 18276.

Supreme Court of Illinois.

Dec. 20, 1928.

Commissioner's Opinion.

Error to Superior Court, Cook County; Joseph B. David, Judge.

Proceedings under the Workmen's Compensation Act by Ella Lewis Fetty for compensation for the death of Roy E. Fetty, opposed by the Yellow Cab Company, employer. To review an award of compensation, the employer brings error.

Reversed and remanded with directions.Henry L. Kane, of Chicago, for plaintiff in error.

John A. Bloomingston and James A. Tracy, both of Chicago, for defendant in error.

CROW, C.

This case comes to this court by writ of error to the superior court of Cook county to review a judgment of that court confirming an award of the Industrial Commission for compensation for the death of Roy E. Fetty, an employee of plaintiff in error. The injury resulting in death was received by Fetty while in the course of his employment as a taxi driver. The application for adjustment of compensation was filed by Ella Lewis Fetty, the mother of decedent, averring that the injury resulting in his death occurred on September 21, 1923; that surviving him were his father, mother, brother, and sisters, who were dependent upon him for support. An arbitrator assigned by the commission to hear the case filed his decision March 11, 1924, finding that petitioner was entitled to have and receive from respondent $150 for burial expenses, as provided in paragraph (e) of section 7 of the act, and that petitioner was not dependent on decedent for support. On review of the decision of the arbitrator, the Industrial Commission approved the report and finding on January 5, 1925. On July 30, 1925, the record of the commission was before the circuit court of Cook county upon certiorari, and an order was entered finding that Fetty left dependents entitled to compensation and ordering that the award of the commission be set aside and that the cause ‘be sent back to the commission with instructions to find from the evidence in the record as made, the amount of compensation to which the dependents are entitled and to make an award in favor of said dependents in accordance with their findings and to re-certify same to this court, the court retaining jurisdiction for that purpose.’ On February 24, 1926, the commission made a decision, without hearing further evidence, ordering respondent to pay to petitioner the sum of $12 per week for a period of 139 weeks, and the sum of $6 for one week, as compensation on account of the death of Fetty, payments to commence on the day after the accident. To review that decision, respondent sued out a writ of certiorari from the superior court on March 15, 1926. The cause came on for hearing upon the record of the commission filed as the return to the writ on January 25, 1927, and the superior court confirmed the award. The ground averred as the basis for compensation was the dependency of the petitioner, and the father, brother, and sisters of decedent, on him for support. Decedent was a son of petitioner by a former marriage.

There is no controversy as to the facts. The petitioner is a married woman living with her husband. He owns a homestead of 160 acres of land in cultivation in the state of Nebraska, worth $15,000. There is a mortgage on the land. His equity in the farm is worth approximately $8,000. He has horses, hogs, cattle, farm implements, an automobile, and a bank account. He pays all bills, including family expenses, by checks drawn against his account. He also has a savings account. A daughter teaches school at a salary of $70 a month. He borrowed $3,000 from the bank without security. Petitioner signs her husband's name to checks against his bank account. About the time of decedent's death the father was building a new home, costing $7,000; the old home having burned. It was insured. When decedent made application to respondent for a position he made a statement in writing as to his obligations, for the purpose of obtaining employment. He stated that no one was dependent upon him for support. This was only a few weeks before he received his fatal injury. With his application for employmenta signed statement was made by his brother, Homer, in which he stated that no one was dependent upon decedent for support and that he was not contributing to the support of any one that he knew of. At the inquest before the coroner Homer testified under oath that decedent had a high school education, that he had no one dependent upon him for support, and that he was not sending any money to his folks. The coroner asked him, ‘Did he send money to his folks-his mother?’ and Homer answered: ‘I don't know about that; I do not think so. At the hearing before the arbitrator Homer testified to various sums of money having been sent by decedent to his mother. The evidence shows that decedent was a chauffeurfor the Yellow Cab Company for about three months previous to his death. For 2 1/2 years he moved from place to place and did not have steady employment. One time he worked three months and another time seven weeks for the Western Electric Company. This was the work he did, except for the Yellow Cab Company, so far as the evidence discloses, for 2 1/2 years before his death. His room rent and meals were paid for by his friends. He borrowed money from time to time for gambling purposes, and generally lost it. One of his intimate friends, who lent him money and paid his room rent, testified that after he had worked for the Western Electric Company six weeks, beginning in January, 1923, he started hanging around a ‘gambling joint’ and picked up a few dollars now and then. That was the way he was making his living. He lived with witness at a hotel and did not pay his rent all the time. During three months witness paid his rent for five weeks and another companion paid it for the rest of the time. He paid witness $11 of the $25 he owed. Witness never talked to him about his folks, but he told witness they were ‘well off.’ When he drew his pay he paid witness what he owed him, with the exception of room rent, and went to a gambling house to try his luck at shooting craps. Another witness knew decedent for two years before his death. He borrowed money from witness eight or ten times. They were rooming together, and witness bought lunches for him on an average of two or three times a week. Sometimes he asked witness for money two or three times a week. From September, 1921, until April, 1923, he did not work except in a gambling place. He and witness were on friendly terms and went out every night. They would meet in the pool room. He got odd jobs around the pool rooms, for which he was paid $3 a day, and worked three or four days a week. Witness ‘would not say he was broke a few times-he was broke all the time.’ Other witnesses testified to the same effect. Rozanas, a mechanic for the Western Electric Company, knew decedent well and detailed his employments and failures. He corroborated the testimony of the other witnesses that decedent ‘was always broke.’ He gambled, and won and lost. The greater part of the time he lost. The money he borrowed he used to shoot pool. ‘Everybody helped him along.’ He bought only one suit of clothes. His brother testified that when decedent was short of money and could not pay for his room he lived at his home. He testified that decedent worked for the Western...