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tributed. • Upon such pupil having no , of such a contention, and we are of the opinfurther use in school for the books so issued to ion that none can be found. The authorities him or her and the same being returned to said seem to be uniform that a board of education board in reasonably good condition, due allow- has no power to furnish text-books to the puance being made for the usual and ordinary pils at public expense without specific authorwear or tear, thereupon the deposit made by such pupil, his or her parent, parents or guard-ity so to do. Annotations, 17 A. L. R. 299; ian shall be returned to such pupil or his or 45 L. R. A. (N. S.) 972. A system of schools, her parent, parents or guardian. In the event which permits all persons of school age reany book or books issued to any such pupil siding in the district to attend classes and reupon being returned to such board shall dis- ceive instruction in the subjects taught, withclose unreasonable wear and tear during the out a tuition charge, provides free schools, time such books have been in the hands and and the fact that the parents of pupils financustody of such pupil such deposit or such part cially able to do so are required to provide thereof as shall be necessary to cover such their children with text-books, writing mateunreasonable use, wear and tear shall be retained by said board and used in rebinding, re- rials, and other supplies required for the perpairing or replacing such book or books.” sonal use of such pupils does not change the

character of the school. The amount of the deposit required varied [3, The real question in this case is the according to the grade in which the pupil proper interpretation of section 4 of the Free was enrolled, the deposit for the first and sec- Text-Book Act, which reads: ond grades being 50 cents, the third grade 75 cents, the fourth grade $1.25, the fifth to each district, shall make such legal rules and

“The governing body, however designated, of eighth grades, inclusive, $1.50, and the high regulations as they deem proper for the care school grades $2.

and preservation of text-books so furnished Plaintiffs in error thereafter filed in the at public expense." circuit court of Winnebago county their petition for writ of mandamus, directed to the Under this section the board of education board of education, commanding it to issue is not only authorized, but is required, to text-books without requiring the deposit to make rules and regulations to prevent the be made The petition alleged that E. L. negligent or willful destruction of the textSegar had a son 16 years old, attending the books owned by the district. When the Lincoln School, in the eighth grade; that board of education exercises its discretion in Carl Fradine had a daughter 11 years old, the matter, the courts will not interfere with attending the John Nelson School; that the judgment of the board, unless by arbiArvid B. Gustafsop had a son 9 years old, at-trary and discriminatory action it abuses the tending the Brown School, in the fifth grade; power granted. Wilson v. Board of Educathat Frank Grimmitt had children attending tion, 233 Ill. 464, 81 N. E. 697, 15 L. R. A. (N. the public schools in the city of Rockford; S.) 1136, 13 Ann. Cas. 330. that these children enrolled in said public The total cost of one set of text-books schools and requested their teachers to issue for each of the 12 grades in the public to them text-books; that the teachers de- schools of Rockford is $62.9112, and the maxmanded the deposit of the sum fixed by the imum deposit required to guarantee the propresolution of the board of education, and up-er use of these books is $2. When the child on the refusal of the pupils and their parents enters school in the first grade, the deposit to make such deposits they were denied the required is 50 cents. At the end of the first free use of the text-books provided for their year, if the books are returned in a reasonrespective grades. The board of education ably good condition, the pupil or its parents filed its answer, admitting the facts alleged, are entitled to have the amount of the deand claiming the right to require the deposit posit returned. If they do not desire to have under the provisions of section 4 of the Free the deposit returned at the end of the first Text-Book Act (section 518). The case was year, the child can go through the second submitted for hearing upon the petition and grade without an additional deposit being the answer thereto, and judgment was en-made. If the 50-cent deposit is left with the tered in favor of the board of education. school board, the pupil is required to deposit . This writ is prosecuted to review that judg- only 25 cents additional when he receives his ment.

text-books for the third grade. When he en[1, 2] Plaintiffs in error cite, in support of ters the fourth grade an additional deposit their contention that the resolution adopted of 50 cents is required, and upon entering the by the board of education is void, section 1 | fifth grade 25 cents more is added. No furof article 8 of the Constitution of this state. ther deposit is required until the pupil is While they do not point out in what respect ready for high school. When he enters high this section of the Constitution is transgress- school, he must add 50 cents to the $1.50 aled, we assume it is their position that provi- ready on deposit, and nothing further is desion for a system of free schools is not made manded of him until he graduates, if he takes until text-books are provided at public ex- proper care of the text-books loaned to him. pense for the use of pupils attending the pub It is difficult to conceive of a regulation lic schools. No authority is cited in support which will tend to preserve the text-books

1, and we

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(148 N.E.) loaned that would be more reasonable than ant for compensation, opposed by the Sinclair e found

the one established by the resolution in ques- Refining Company, employer. Award of the tion. If the pupil or his parents are not Industrial Commission was affirmed in the

financially able to provide the deposit, the circuit court, and the employer brings error. e without se resolution provides for the issuance to such | Affirmed. ations is pupil of the text-books without the deposit.

George A. Schneider, of Chicago, for plain2. ATS The resolution is in harmony with the spirit tiff in error. Tsons de and letter of the Free Text-Book Act, and is

Parker & Bauer, of Effingham, for defendto attendent a valid rule and regulation.

ant in error. e subjets The judgment of the circuit court is afprorida firmed.

STONE, J. Defendant in error was awardpareats Judgment affirmed.

ed compensation for injuries received while re rejet

in the employ of plaintiff in error. The it-booke o

facts of the injury are not disputed. The s require

controverted questions were, whether at the s dues :

time of the accident, the relation of employer (317 III. 541) SINCLAIR REFINING CO. V. INDUSTRIAL and employee existed, and, if so, whether

COMMISSION et al. (No. 16647.) the correct method of computing annual ads: (Supreme Court of Illinois. June 18, 1925.) earnings of the applicant was used by the

Commission. 1. Master and servant 367–Plumber held Plaintiff in error contends that defendant SUCI "employee" of oil company.

in error was an independent contractor, and Relation of employer and "employee" held therefore not under the operation of the Com. -books

to exist, within Workmen's Compensation Act, $ pensation Act. Defendant in error was en5, par. 2, between plumber engaged by oil com- gaged in the plumbing business in Effingham.

pany to install pumps rented to retailers, He had a shop of his own and did work by board de

though plumber when not so engaged did plumb- the hour. Plaintiff in error is engaged in the ing work for others either by hour or on con

business of refining and selling oil, gasoline, tract, where company's superintendent was in control of work and had authority to hire or

and greases at wholesale and retail. Dedischarge plumber.

fendant in error had been at various times {Ed. Note.--For other definitions, see Words engaged by L. J. Nickham, superintendent of and Phrases, First and Second Series, Em- , plaintiff in error at Effingham. In each inployee.]

stance his employment was for the purpose

of installing pumps and underground tanks, 2. Master and servant C405(6)-Annual

which were rented by plaintiff in error to reearnings of plumber held shown.

tailers in gasoline. Defendant in error was In proceedings for an award under Work. not continuously engaged with plaintiff in men's Compensation Act, annual earnings of injured plumber, not engaged throughout the error in such work, and, when not so engag. Fear, with employer, held słown, where he ed, did plumbing work for others, either by testified without dispute that he received 90 the hour or on contract. His usual method cents an hour for his services, and that his of work when employed by plaintiff in error average earnings were $2,400 per year.

was to furnish a helper, tools, shovels, etc.,

and to go to the place where the pump and 3. Master and servant 385(1)-Plumber tank were to be installed, and there perform held entitled to have annual earnings based on usual scale of wages received in business times assist his helper in burying the tank

the necessary services as plumber, and at independent of employment.

In proceedings under Workmen's Compen- into which the gasoline was to be put from sation Act, plumber who was

plaintiff in error's wagons. The evidence

not engaged throughout the year with defendant held en- shows, without dispute, that Nickham was, titled to have his annual earnings based on

as he characterized it, "the boss" on these usual scale of wages he received in the busi- jobs; that he could employ and discharge ness, independent of his employment with de- defendant in error at any time during the fendant under Workmen's Compensation Act, course of the work of installing a pump and $ 10, subds. (a), (c), (d), where it did not ap tank in case he thought defendant in error pear that persons in the plumbing business was not doing the work properly. The pumps were employed by defendant in the same loca- and tanks were furnished by plaintiff in error. tion, or what the earnings arising from neighboring employments of the same kind during No materials were furnished by defendant in the year were, and plumber's testimony that error other than an elbow or short bit of pipe bis income amounted to $2,400 a year was un

where the pump could not be otherwise fitted. Even this material was seldom furnish

ed. Defendant in error employed his helper Error to Circuit Court, Effingham County; and charged 50 cents an hour for his servWilliam B. Wright, Judge.

ices. He received 90 cents an hour. On the Proceeding under the Workmen's Compen- morning of May 4 he and Nickham, pursuant sation Act by Frank J. Freepartner, claim-) to an engagement made with Nickham on

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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the day previous, started to a nearby town, of gasoline. It was its business to rent the to repair a pump used by a customer of pumps, install them, and have them returned plaintiff in error. They were in Nickham's to it when their use by the customer ceased. car. While driving on the road a man by the Nickham testified that at the request of name of Kuhns drove his car so negligently plaintiff in error he procured orders for the on the public highway that he ran into Nick- rental of the pumps. This afforded means ham's car, with the result that defendant in for furthering the business interests of plainerror sustained injuries.

tiff in error in the sale of gasoline and oils. [1] It is contended, first, that, under para- | It can scarcely be doubted, therefore, that graph 2 of section 5 of the Workmen's Com- the installation of the pumps was in the pensation Act (Smith-Hurd Rev. St. 1923, c. course of the regular trade and business of 48, § 142), it must be held that defendant in plaintiff in error. One of the principal conerror was not an employee of plaintiff in er- siderations which determine whether a workror at the time of the accident. Section 5 er is an employee or an independent contracprovides as follows:

tor is the matter of the right to control the “The term 'employee' as used in this act, dustrial Com., 290 111. 521, 125 N. E. 286:

manner of doing the work. Cinofsky v. Inshall be construed to mean:

SecondEvery person in the service of another under Meredosia Drainage District v. Industriai any contract of hire, express or implied, oral Com., 285 Ill. 68, 120 N. E. 516; Decatur or written, * but not including any per- Railway & Light Co. v. Industrial Board. son who is not engaged in the usual course of 276 Ill. 472, 114 N. E. 915. It is undisputed the trade, business, profession or occupation of that Nickham was in control of the work of his employer.”

installing the pumps and could discharge de. Plaintiff in error contends that it is this defendant in error's employment was entire

fendant in error at any time. The fact that paragraph which prevents a finding that de- ly under the control of plaintiff in error's fendant in error was its employee at the superintendent, taken with the fact that the time of the injury; that under the facts in employment was a part of the trade or busithe case he is excluded from the term "em-ness of plaintiff in error, establishes that the ployee." This question has never been directly pass

relation of employer and employee existed.

[2, 3] It is also contended by plaintiff in ed upon in this state. In Uphoff v. Industrial Board, 271 Ill. 312, 111 N. E. 129, L. R. showing the amount of compensation to which

error that there is no competent evidence A. 1916E, 329, Ann. Cas. 1917D, 1, it was hela that an injury received by a workman is no such evidence as to his annual earn

defendant in error is entitled, because there hired by a farmer to erect a hroom corn shed on his farin was not received in the usual been raised on the hearing before the arbi

ings. This question appears not to have course of the business of the farmer, for the reason that the building of the broom corn

trator or commission. Defendant in error shed was not a part of the farmer's business, testified, without objection, that he is a but was merely an unusual incident to it. plumber by trade; that he gets 90 cents an In Holbrook v. Olympia Hotel Co., 200, Mich. hour for his services; that his average earn597, 166 N. W. 876, the owner of a hotel was

ings for the year amounted to $200 per held not to be pursuing his business, within month, or $2,400 per year. This amounts to the meaning of the Compensation Act, in

more than the total of the 300 work days per causing rooms to be occasionally painted and year allowed by the Compensation Act, when decorated, though it was usual to have such computed at 90 cents per hour for an 8-hour work done from time to time. In Skates v. day. There was no contradiction of this eriJones & Co., 3 B. W. C. C. 460, it was held dence on cross-examination of defendant in that one in the business of manufacture, who error on the matter, however, and no atcontracts with a boilermaker to replace an tempt made to determine the number of old boiler with a new one, is not liable to hours he worked each day, or whether he pay compensation to one of the workmen lost any time. He testified that he earned employed ly the boilermaker; that while he $2.400 per year, and that is undisputed. required the work to be done he had not held It is contended, however, that, since dehimself out as a boilermaker; that it was fendant in error was not engaged throughout not a part of his trade or business to install the year with plaintiff in error, he is not enboilers; and therefore the injury did not oc

titled to have is annual earnings based on cur while the employee was engaged in the the usual scale of wages he receives in the usual course of trade of the defendant. business independent of his employment with

The above cases are cited by plaintiff plaintiff in error. in error as authority for the proposition that By section 10 of the Compensation act defendant in error was not an employee but (section 147) the basis of computation of an independent contractor. In this case it compensation is declared to be: seems clear from the record that the installation of the pumps was as much a part of the basis of the annual earnings which the in

“(a) The compensation shall be computed on the business of plaintiff in error as the sale jured person received as salary, wages or earn

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(148 N.E.) ings if in the employment of the same employ- , 3. Wills On 320_Trial of issue submitted in er continuously during the year next preceding will contest is governed by same rules as the injury.

(c) If the injured person govern trial of issue at law before jury. has not been engaged in the employment of the

Trial of issue required to be submitted to same employer for the full year immediately jury in will contest is governed by same rules preceding the accident, the compensation shall

as govern trial of an issue at law before a jury. be computed according to the annual earnings which persons of the same class in the same 4. Appeal and error Om 520(1)-At law, moemployment and same location (or if that be tions made in cause, to become part of recimpracticable, of neighboring employments of ord, must be incorporated in bill of excepthe same kind) have earned during such period. tions signed by judge. (d) As to employees in employments in which

At law, motions made in cause, to become it is the custom to operate throughout the part of record, must be incorporated in bill of working days of the year, the annual earnings, exceptions signed by judge. if not otherwise determinable, shall be regarded as 300 times the average daily earnings in 5. Appeal and error m520(4) Motion for such computation."

continuance, and affidavits and papers on

which based, must be brought up by bill of The record shows that during the year pre

exceptions. ccding the injury defendant in error had

Motion for continuance in suit at law, and been engaged by plaintiff in error on fifteen affidavits and papers on which it is based, must different jobs. It is conceded that he did be brought up by bill of exceptions, in order not put in his whole time in the employment to merit review of trial court's action on moof plaintiff in error. The record does not tion. disclose that persons in the same class of 6. Exceptions, bill of 38–Failure to file employment as defendant in error were em

bill of exceptions at term at which ruling on ployed by plaintiff in error in the same lo

motion for continuance was made held to precation, nor is there evidence of the earnings clude consideration. arising from neighboring employments of the

Failure to file bill of exceptions at term at same kind during the year. Defendant in which ruling overruling motion for continuance error testified that his income amounted to was made held to preclude consideration of $2,400 per year. There was no attempt to such ruling. qualify his testimony in that particular 7. Wills Ow324(2)—Whether testatrix was of and there is no other evidence in the record

sound mind and memory held for jury. on that matter. It is not shown that at 90

Whether testatrix was of sound mind and cents per hour he could not have earned $2,400 in a year of 300 work days allowed memory held question for jury. by the statute. The evidence does not show 8. Wills Cm53(1)-Exclusion of papers writ. the number of hours he put in. He testified ten prior to execution of contested instrument that he earned that amount. We are unable held not error. to say that the Commission did not correctly Exclusion of papers written five years becompute the award.

fore execution of will, contested on ground of There is no error in the record, and the mental incapacity, held, not error. judgment of the circuit court will be af

9. Evidence 370(4)-When hospital records firmed.

are admissible stated. Judgment affirmed.

A hospital record is admissible on the DE YOUNG, J., took no part in this de- same basis as books of account, and before

it can be admitted in evidence all persons who make entries in it are required to testify to their correctness.

cision.

(317 Ill. 561)

10. Wills C384-Appellants held not entitled KIMBER v. KIMBER et al. (No. 16129.) to complain of admission of hospital record,

in absence of showing of injury. (Supreme Court of Illinois. June 18, 1925.)

Proponents of will, contested on ground of 1. Appeal and error om 544(1)-Procedure by want of testamentary capacity, held, not entitled, which case reaches its place on trial calendar in absence of showing of prejudice, to comIs not part of proceedings in course of trial. plain of admission in evidence of a hospital

Procedure by which case reaches its place record containing notations on it by others on trial calendar is not included in issues pre

than physician who testified concerning the Bented by pleadings, and hence is not part of record. proceedings in the course of the trial, as re 11. Witnesses En 171–Testimony of legatees spects necessity for bill of exceptions.

against their interest held competent. 2. Evidence ww42_Supreme Court may not Where legatees, who were not heirs, were take judicial notice of rules of practice of called by contestant and testified against their superior court.

own interest, their testimony as to acts of Supreme Court may not take judicial notice testatrix and conversations with her was comof rules of practice of superior court.

petent, and should not have been stricken. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

12. Wills 322—Admission or exclusion, on Appeal from Superior Court, Cook County;

rebuttal, of documents not introducible in Timothy D. Hurley, Judge.
chief, held largely within trial court's dis-
cretion.

Bill by George A. Kimber against Marie

Elizabeth Kimber and others to set aside Admission or exclusion, on rebuttal, of

will. documents not introducible in chief, held, largely

From an adverse decree, the Home within trial court's discretion.

Bank & Trust Company and another, as ex

ecutors and trustees, appeal. Affirmed. 13. Wills 54(5)-When prior will of testatrix is not admissible, on issue of soundness

Cheney & Peterson, of Chicago (David G. of mind and memory when executing con- Robertson, of Chicago, of counsel), for aptested will, stated.

pellants. A prior will of testatrix is not admissible, Wyman; Hopkins, McKeever & Colbert, of to show that she was of sound mind and mem- Chicago (Vincent D. Wyman, Charles E. ory at the time of the execution of a contested Carpenter, and Austin L. Wyman, all of Chiwill, unless the provisions of the two are in cago, of counsel), for appellee. substantial conformity, and the former will was executed when testatrix is conceded to have

DE YOUNG, J. Sarah A. Clarke, a widow been of sound mind and memory.

70 years of age, died at Chicago on January 14. Wills C-322—Proponent must offer in chief 25, 1922. She had been married three times. all evidence relating to issue of testamentary George A. Kimber, a son by her first marcapacity.

riage, was her only child and heir at law. In will contest, proponent must offer in On December 14, 1921, while temporarily chief, not only evidence making prima facie residing at the home of Thomas G. Perkins case, but all other evidence relating to issue of and Nellie Perkins, his wife, in Chicago, she testamentary capacity.

executed an instrument which purported to 15. Wills E322—Exclusion of testimony of be her last will and testament.

witnesses as to soundness of mind of testa By this instrument she gave to her son a trix, offered as rebuttal, held not abuse of lot in Rosehill Cemetery; to Alfred C. Clarke, discretion.

the brother of her deceased husband, a vaExclusion of testimony of witnesses as to cant half lot in Forest Home Cemetery; to soundness of mind of testatrix, offered as re- Marie E. Kimber, the wife of her son, buttal, held not abuse of discretion, where the George, $1; to Ruth Kimber, her grandtestimony would merely have been corroborative daughter, $1; to Thomas G. Perkins, her of appellants' case in chief.

mandolin and $3,000; to Nellie Perkins, the 16. Wills Em324(3)–Submission of issue of wife of Thomas, her cedar chest, with its undue influence held justified.

contents, and $1,000; to Clara Povett, her Submission of issue of undue influence held packing case, with its contents, and $1,000 ; justified, where there was evidence which might to Fannie Bashan, $500; to Jack Ward, the son justify inference of undue influence.

of Florence and Ernest Ward, $500; to Mrs.

Richardson, $1,000; and to the Home Bank 17. Wills C-386—That evidence does not sus- & Trust Company and J. Henry Krause, as tain charge of undue influence held not ground trustees, $23,000 for the following purposes : for reversal and new trial, where evidence (1) To pay to her son, George A. Kimber, supports finding of mental incapacity.

during his life, the net income from $20,000; In contest seeking to set aside will on (2) to pay to her grandson, John E. Kimber, ground of testamentary incapacity and undue when 30 years of age $3,000 with its accuinfluence, that evidence does not sustain charge of undue influence held not ground for reversal mulations; and (3) to divide upon the death and new trial, where evidence supports finding of her son the same $20,000, and, in case her of mental incapacity.

grandson should not attain the age of 30 18. Trial Cum 191(2)-Instruction held not to

years, the sum of $3,000, with its accumulaassume testatrix was induced to execute in tions, equally between John Morris, her strument.

brother, Jane Morris, the widow of her deInstruction that, if testatrix was so far in- ceased brother, David, and Lydia Field and fluenced by unsoundness of mind as to be un- Martha Field, her sisters, all of Birmingham, able rationally to comprehend nature and effect England, and Thomas A. Morris, her brother of will, “and was thereby led to make the will of Chicago. as she did,” jury must find against will, held The instrument authorized the trustees to not to assume testatrix was induced to ex- make investments and reinvestments in their ecute the instrument in question.

discretion, and to manage, sell, convey, lease,

or incumber the trust estate, or any part 19. Trial 296(2)-Instruction on issue of mental incapacity held not prejudicial error.

thereof, the same as the testatris might do, Instruction on issue of mental incapacity

if living. It gave the residue of the estate held not prejudicial error, in view of instruc- to the brother, sisters, and sister-in-law betions given in behalf of appellants, fully in- fore mentioned, in equal parts. J. Henry forming jury on subjects of requisite capacity Krause and the Home Bank & Trust Comto make will and the burden of proof.

pany were nominated executors, surety upon For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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