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(146 N.E.) (315 Ill. 341)

dustrial Commission of Illinois an application DAVIS, Director General of Railroads, V. IN- for compensation against the Southern Rail. DUSTRIAL COMMISSION et al.

way Company. The Director General was (No. 16466.)

not made a party, but thereafter from time (Supreme Court of Illinois. Feb. 17, 1925.) to time made payments of amounts due un

der the Compensation Act. This continued I. Railroads Om51/2, New, vol. 6A Key-No. until August 1, 1921, when payments were Serios-Conditions prescribed by government stopped. The amount due up to August 1 was for bringing actions on claims arising out of paid on September 23, 1921. The total pay, federal control of railroads must be strictly ments amounted to $1,489.85. Further paycomplied with. Since United States cannot be sued without defendant in error on the 15th day of Febru.

ment being refused by the Director General, its consent, and cases arising out of federal control of railroads are claims against United ary, 1922, filed a petition in the original cause States, federal government had power to pre- then pending before the Industrial Commisscribe conditions under which actions might sion against the Southern Railway Company be brought on such claims, and such conditions for a hearing on the original petition. Such must be strictly complied with.

hearing was bad on March 8, 1922, at which 2. Estoppel 62(2)

time a motion was made to substitute as No estoppel against United States,

respondent “James C. Davis, Director Gen. There can be no estoppel against United eral of Railroads, as Agent, under section 206 States,

of the Transportation Act of February 28, ·

1920, in control of Southern Railroad." Ob3. Railroads m51/2, New, vol. 6A Key-No. Se-jection was made to this order, and a motion ries-Petition for compensation against rail

was filed to dismiss the cause on the ground road company instead of against Director General held not action pending at termina- that the original petition filed with the In

dustrial Commission on October 13, 1919, was tion of federal control.

against the Southern Railway Company, Petition for compensation for injuries filed against railroad company in 1919 not naming while at the time of the injury that railroad Director General of Railroads as party was

was operated by the Director General of Rail. not an action, suit, or proceeding pending at roads of the United States Railroad Administermination of federal control within Transpor- tration; that the cause was not brought tation Act Feb. 28, 1920, $ 206 (U. S. Comp. I against him, nor was it brought against the St. Ann. Supp. 1923, & 1007144cc), and substi- designated Agent provided by the Transportution of agent designated by President was unauthorized, and, claim not having been filed tation Act, within two years after February against such agent within period limited in 28, 1920, as required by paragraph (a) of secact, Industrial Commission was without juris- tion 206 of that act (U. S. Comp. St. Ann. diction to enter an award.

Supp. 1923, § 1007144CC). The arbitrator

denied the motion, and substituted plaintiff Error to Circuit Court, St. Clair County;

in error as defendant to the original petiGeorge A. Crow, Judge.

tion, and on April 14 entered an award in Proceeding under the Workmen's Compen- the sum of $13.26 per week for a period of sation Law by Christ Schaefer, claimant for 53 weeks for temporary total incapacity and personal injuries, as against Southern Rail- the sum of $13.26 per week for a period of way Company, opposed by James C. Davis, 12242 weeks, as provided by paragraph (e) Director General of Railroads, substituted. of section 8 of the Compensation Act (SmithAn award of the Industrial Commission for Hurd Rev. St. 1923, c. 48, § 145), for the reaclaimant was affirmed, and the Director Gen- son that the injury sustained caused pereral brings error. Reversed.

manent loss of 70 per cent. of the use of the Edward C. Kramer, Rudolph J. Kramer, left leg. The total amount of this award Bruce A. Campbell, and Roland H. Wiechert, was $2,327.13, of which $1,489.85 had been all of East St. Louis, for plaintiff in error. paid, leaving an unpaid balance of $837.28.

Silas Cook, of East St. Louis, for defend. The arbitrator's award was confirmed by the ant in error.

Industrial Commission and the circuit court

of St. Clair county, and the cause comes STONE, J. On May 27, 1919, defendant in here on writ of error. error, while in the line of his employment, Plaintiff in error urges that the motion to was injured by the Southern Railway Com- dismiss made before the arbitrator should pany while it was under the control of the have been allowed, for the reason that the federal government as provided by the Fed-cause of action was commenced against the eral Control Act of August 29, 1916 (U. S. Southern Railway mpany and not against Comp. St. $ 1974a). The road was at that time the Director General of Railroads of the operated by the Director General of Railroads United States Railroad Administration un. of the United States Railroad Administration. der the Federal Control Act of 1916, Compensation not having been paid, defendant against plaintiff in error, as Agent, under the in error, on October 13, 1919, filed with the In-) Transportation Act, within the time required

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

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by that act. It is not disputed that the like all sovereign powers, has power to deny Director General, under the Railroad Admin- | the right to institute a suit against it. This istration, and the Director General, as Agent, being true, the government had power to preunder the Transportation Act, together paid scribe the terms and conditions under which defendant in error the sum hereinabove set actions might be brought on claims arising forth.

out of federal control of railroads, and when Paragraph (a) of section 206 of the Trans- so prescribed the same must be strictly comportation Act is as follows: Actions at law, plied with. In the absence of such permissuits in equity and proceedings in admiralty sion the government is immune from suit, based on causes of action arising out of the and such immunity would constitute a compossession, use or operation by the President plete defense. Aside from the grant of perof the railroad or system of transportation mission to bring actions for injuries against of any carrier under the provisions of the the United States, neither the state nor fedFederal Control Act, or of the Act of August eral courts had jurisdiction to entertain such 29, 1916, of such character as prior to fed- actions. Tempel v. United States, 248 U. S. eral control could have been brought against | 121, 39 S. Ct. 56, 63 L. Ed. 162; United States such carrier, may, after the termination of v. Nederlantsch, 254 U. S. 148, 41 S. Ct. 72, federal control, be brought against the agent 65 L. Ed. 193; Hill v. United States, 149 U. designated by the President for such purpose, S. 593, 13 S. Ct. 1011, 37 L. Ed. 862; Missouri which agent shall be designated by the Presi- | Pacific Railroad Co. v. Ault, 256 U. S. 554, dent within thirty days after the passage of 41 S. Ct. 593, 65 L. Ed. 1087; Western Union this act. Such actions, suits, or proceedings Tel, Co. v. Poston, 256 U. S. 662, 41 S. Ct. may, within the periods of limitation now 598, 65 L. Ed. 1157; Dahn v. Davis, 258 U. prescribed by state or federal statutes, but s. 421, 42 S. Ct. 320, 66 L. Ed. 696; Hans v. not later than two years from the date of the State of Louisiana, 134 U. S. 1, 10 S. Ct. 504, passage of this act, be brought in any court | 33 L. Ed. 842. which, but for federal control, could have [2] When the cause of action arose in this had jurisdiction of the causes of action from case, the railroad and the train causing time to time arising against such carrier. the injury were in the exclusive possession,

The order of the arbitrator substituting control, and management of the United States the plaintiff in error for the Southern Rail-government under an act of Congress. The way Company was entered on March 8, 1922, federal government was subject to liability. more than two years after the passage of Its designated agent was the only proper section 206 of the Transportation Act, but party defendant to an action against the defendant in error contends that the original government. Missouri Pacific Railroad Co. petition against the Southern Railway Com- v. Ault, supra. When this railroad was pany was, in effect, a petition filed against returned to the Southern Railway Company the Director General of Railroads under the by the federal government under the TransUnited States Railroad Administration, pred- portation Act, it was provided by that act ecessor of plaintiff in error, and that under that the President designate an agent who paragraph (a) of section 206 of the Trans- should represent the government for purportation Act the substitution of the plain- poses of suit in all causes of action which tiff in error was proper. The language of had arisen during federal control of railthat paragraph is as follows:

roads. Plaintiff in error was so designated.

The petition filed in this case was not such
“Actions, suits, proceedings, and reparation as would affect liability of the government
claims, of the character above described pend- for the injury complained of, but was filed
ing at the termination of federal control shall against the railroad company. It follows
not abate by reason of such termination, but that at the time of the passage of section 206
may be prosecuted to final judgment, substi-
tuting the agent designated by the President of the Transportation Act no suit or action
under subdivision (a)."

of which the government was bound to take
cognizance had been filed, and the fact that

the Director General voluntarily paid comThe principal question in the case there- pensation to defendant in error under the fore is whether or not the petition for com- latter's petition filed against the Southern pensation filed on October 13, 1919, against Railway Company does not, as is argued by the Southern Railway Company, constituted counsel for defendant in error, constitute an an action, suit, or proceeding pending at the estoppel against the government, for the suftermination of federal control, within the ficient reason that there can be no such thing contemplation of section 206 of the Trans- here as estoppel against the government. portation Act.

Consent to sue was given by act of Congress, [1] Cases arising out of the federal control and the conditions imposed must be literally of railroads are in reality claims against the complied with. Hans v. State of Louisiana, United States. No one has a right to bring supra. Those conditions were not met by an action or suit against the federal govern- filing a petition for compensation against ment, unless that right be given by the gov- the railway company, and such petition conernment. The United States government, stituted no action against the government.

(146 N.E.) It is urged by defendant in error that he fendant the agent designated by the Presitook the earliest opportunity to make the mo- dent under the provisions of the Transportion to substitute plaintiff in error for the tation Act. This right was denied, and the Southern Railway Company, and that there- New York Court of Appeals sustained the fore it cannot be said that the limitation order of the lower court. A writ of certiorari of the Transportation Act bad run against was denied by the Supreme Court of the him. Since, as we have seen, there was no United States in that case. 263 U. S. 706, cause of action against the government, and 44 S. Ct. 34, 68 L. Ed. 516. To the same efthe Director General was in no wise a party fect are Dubied v. Pennsylvania Railway Co., to the original petition for compensation, 235 N. Y. 572, 139 N. E. 739, and Weil v. there was no one for whom the Director New York Central Railroad Co., 235 N. Y. General, as Agent, under the Transportation 570, 139 N. E. 738. Act, could be substituted. Defendant in er- Defendant in error cites Payne v. Hayes, ror had ample opportunity, after the pay- 25 Ga. App. 730, 104 S. E. 917, and Lanier ment of compensation was stopped, to file v. Pullman Co., 180 N. C. 406, 105 S. E. 21, a proceeding against the proper agent or rep-as sustaining his contention that he has resentative of the federal government. This here a right of substitution. The former of was not done, and he cannot now complain these cases holds that the Director General because the limitation of the Transportation under Railroad Administration or Agent unAct prevents further opportunity.

der the Transportation Act may be made In Fahey v. Davis, 224 Mich. 371, 195 N. a party defendant by amendment, but it is W. 46, it was held that the Transportation not authority for the proposition that suit Act of 1920, terminating federal control of against the railroad is suit against the Dirailroads on March 1, 1920, and authorizing rector General. The effect of the limitation suits arising out of federal control to be of section 206 of the Transportation Act brought thereafter against an agent designat was not discussed. In the latter case it was ed by the President within the time limited held that the question of misjoinder or nontherein, and authorizing the substitution of joinder of proper parties was not properly such agent for the Director General in suits raised in the case and was not decided. The pending at the time of the termination of statute of limitations was likewise not infederal control, did not apply to actions volved. It holds that a railroad may be brought against a railroad prior to termina- sued under the Act of Congress of March 21, tion of federal control. It was held that 1918 (40 U. S. Stat. p. 456 (U. S. Comp. St. such cases could not be said to be pending at 1918, U. $. Comp. St. Ann. Supp. 1919, 88 the time of such termination within the 311534a-311534p]), just as it could be sued meaning of that statute, and the substitution prior to federal control, and that when it of the agent designated by the President for was sued it was incumbent upon the Directhe railroad was not authorized.

tor General to defend the suit and to pay any In the case of Davis v. Chrisp, 159 Ark. judgment against the railroad out of income 335, 252 S. W. 606, suit was brought against from that railroad which may have come the Missouri Pacific Railroad Company on into his hands, but that holding does not account of injuries sustained while the rail. constitute authority for the position of deroad was under federal control. The suit fendant in error that a suit against the railwas brought within two years after the in- road is a suit against the government. jury. After the two years had expired, [3] We are of the opinion that for the reaplaintiff secured an order substituting James sons herein before given the petition for comC. Davis, Agent under the Transportation pensation filed against the Southern Railway Act, as defendant. Defendant pleaded the Company on October 13, 1919, did not conlimitation of the Transportation Act.

The stitute a cause of action against the govlower court held the statute of limitations ernment, and therefore no right of substituinapplicable, and a judgment was entered tion of plaintiff in error as party defendant against Davis as Agent. This judgment was existed, and defendant in error not having reversed by the Supreme Court of Arkansas filed a claim against the Director General or on the ground that the statute of limitations the Agent designated by the President in had run, and the Supreme Court of the Unit- accordance with the limitation provided by ed States denied a petition for certiorari. acts of Congress, the Industrial Commis263 U. S. 710, 44 S. Ct. 36, 68 L. Ed. 518. sion was without jurisdiction to enter the In Fischer v. Wabash Railway Co., 235 N.

1. award, and the circuit court erred in conY. 568, 139 N. E. 738, suit was brought firming the same. against the railroad company while it was The judgment of the circuit court is thereunder federal control. After March 1, 1922, fore reversed. plaintiff sought to substitute as a party de- Judgment reversed

(315 Ill. 352)

(1) The plaintiff in error contends that the SOLAR-STURGES MFG. CO. V. INDUSTRI. | accidental injury which was the basis for the AL COMMISSION et al. (No. 16464.) award did not arise in the course of the em

ployment. Holmes was a salesman employed (Supreme Court of Illinois. Feb. 17, 1925.)

by plaintiff in error to sell in the city of Chi1. Master and servant 375(1)-Injury to cago and Lake county, Ind., the products of salesman returning from buying cigars for his employer, consisting of ice cream cans and customer held compensable as "arising out of tubs. His compensation consisted of a salaand in course of employment."

ry of $30 a week and certain commissions Injury to salesman struck by car as he was and allowances based upon the business done returning from purchasing cigars to give to by him. His average earnings were $62.73 prospective customer held to "arise out of and in course of employment,” within Workmen's dent. Holmes worked under the direction of

a week during the year preceding the acci. Compensation Act.

a sales manager, but he had no ised work. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Course ing hours. He did not report to his employ. of Employment.]

er's office daily except by telephone, but

started from his own home and made calls 2. Master and servant 405(6) Evidence

upon his customers as he saw fit. On the mornheld to justify award of compensation.

ing of January 10, 1923, he left his home Evidence as to injury and loss of earning to call on a customer at 1800 Cornelia avenue, capacity caused thereby held sufficient to justify took a street car, and got off at the northaward for permanent partial disability under west corner of Lincoln and Cornelia avenues, Workmen's Compensation Act, & 8.

the nearest point reached by the car to 1800 Error to Circuit Court, Cook County; Har- Cornelia avenue, which was one block west ry M. Fisher, Judge.

and on the same side of the street, so that Proceeding under Workmen's Compensa- he was not required to cross the car track tion Act by Charles E. Holmes, claimant, op to reach his destination. However, his emposed by the Solar-Sturges Manufacturing ploger allowed him an expense account, to Company, employer. From judgment modi- be used, among other things, in buying cigars fying Industrial Commission's decision con- for his customers, and he crossed the street firming award of arbitrator, the employer and car track to a store and there bought brings error. Affirmed.

some cigars, some of which he expected to use Moloney & Postelnek, of Chicago, for plain with the Certified Ice Cream Company, the tiff in error.

customer at 1800 Cornelia avenue. As he was Bulkley, More & Tallmadge, of Chicago, coming back over the car tracks after leaving for defendants in error,

the store, he was struck by a street car and

received the injury for which the award was DUNN, J. Charles D. Holmes, a salesman made. The injury received under these ciremployed by the Solar-Sturges Manufactur- cumstances "arose out of and in the course ing Company, was struck by a street car of his employment." Minois Publishing & and injured on January 10, 1923. Claim was Printing Co. v. Industrial Com., 299 Ill. 189, made for compensation and was refused on

132 N. E. 511; McNaught v. Hines, 300 III. the ground, among others, that the accident 167, 133 N. E. 53; Porter Co. v. Industrial did not arise out of and in the course of the Com., 301 Ill. 76, 133 N. E. 652. employment. An application for adjustment [2] The plaintiff in error contends that the of claim was filed, claiming compensation un- award was based merely upon a prospective der paragraph (e) of section 8 of the Com- loss of earnings and not upon an actual expensation Act (Smith-Hurd Rev. St. 1923, c. isting loss. Holmes was totally disabled for 48. & 145) for 50 per cent. loss of the use of work 4 weeks, and in the 2934 weeks followboth legs. The application was referred ing his return to work for the same employer to an arbitrator, who made an award under and at the same work he earned $1,447.99, or paragraph (d) of section 8 of $14 per week approximately $50 a week. His employer, for four weeks of temporary total disability, the plaintiff in error, then changed the basis $14 per week for 26394 weeks of permanent of his compensation to a salary of $60 a partial incapacity, and $139.45 for medical, week, plus 10 cents for each call reported. surgical, and hospital services. Upon review This method of compensation had been in the award was confirmed by the Industrial use nearly four months before the hearing by Commission. The circuit court of Cook coun- the Commission, and therefore when that ty on certiorari found that the record was hearing was had Holmes was actually earnfree from error except as to the amount and ing or being paid as much as he was paid period of weekly payments, which were mod for his services before the injury. However, ified and fixed at $9.50 a week for 38845 the 2934 weeks in which Holmes earned after weeks, A writ of error was issued on the the accident about $50 a week included the petition of the Solar-Sturges Manufacturing time from February to august 31—the sea. Company to review this judgment.

son during which the evidence shows his For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(146 N.E.) earnings in the previous year greatly ex- tion I can't move without holding it and fetchceeded his monthly earnings from September ing it around. If I undertook to put my weight 1 to January 1, being nearly twice as much on the leg in that position I couldn't stand on by the week. The sales manager of the plain- taking hold of something to get hold of.

it. I am able to walk up and down stairs by tiff in error testified on the hearing on re

* My condition is not getting any better. view in December, 1923, that the change in During the last two or three weeks I have not the method of fixing Holmes' compensation been as well as I was before.

. Prior to made on September 1, 1923, was made on a the accident of January 10, 1923, I did not basis then adopted for fixing the compensa- have any pain along the spine or in the back tion of all salesmen on an estimate of what or body. Now I have a great deal of pain right each would be worth to the company; that here in the spine of the back and on each side. experience had shown that in comparison I mean each side of the backbone-not in the with the other salesmen Holmes was not side of the body. It seems to be up there six

or eight inches (indicating) and the greater earning the compensation so determined; weakness there (indicating). It is just about that be bad been with the plaintiff in error in the center part, and I have pain in that vifor a long time, and if he had been a new cinity most of the time since the accident and or younger man his salary would have been it is still there. I have never had anything immediately reduced after the experience of of that kind before the accident." the first three months, September, October, and November, and that the sales manager Dr. Toeller attended Holmes at the hosand the president bad decided to change pital, and testified that Holmes was brought Holmes but did not want to tell him so until into the hospital and when the doctor saw after the holidays. From the evidence it is him he was in a semiconscious condition. apparent that after the accident Holmes' There was a marked amount of pain in the earning capacity was decreased considerably, lower cervical region of the spine as well as for in the most productive months he was in the dorsal, lower dorsal, and lumbar. His able to earn an average of only about $50 a right knee was considerably swollen, and he week, whereas in the preceding year, which complained of pain in the left knee, which included the least productive months, he had was also somewhat swollen. There was a earned more than $62 a week and in the head injury of some kind but no fracture of more productive months had earned nearly the skull or bleeding from eyes or ears. The $78 a week. The result of the new method pupils of the eyes were fixed and did not reof compensating him demonstrated that he act to light and accommodation. The doctor was not able to earn as much as before the testified further: accident or sufficient to justify his employer

"The prognosis in a case of this kind is rathin paying him as much, and the employer er doubtful. It will be very hard for me to give had already determined to make a change an honest prognosis here. A man of Mr. with reference to him.

Holmes' age that receives a blow on the head Holmes was 62 years of age. He was which causes semiconsciousness, and the injury struck by the street car at about 9 o'clock to his spine and knees, in my opinion will go in the morning and rendered unconscious. along indefinitely, and I wouldn't want to say When he regained consciousness he was in that Mr. Holmes in three or six months or å the X-ray room at the Ravenswood Hospital year from now will be what I would like to

have him be. * * My testimony concernand he remained in that hospital 10 days. ing pain in certain portions of his vertebæHe was unable to walk when he was taken first the cervical and then the dorsal and the home. On February 7 he reported to his lumbar region-is based upon the subjective employer and for a time worked probably complaints of the patient. There was no exan hour a day, being taken around to his ternal evidence of pain there. The only obcustomers by his son in an automobile for jective symptom of injury was the swelling of about 2 weeks. When the case was heard the knee and the fact that his pupils did not before the arbitrator, May 25, 1923, Holmes react to light and accommodation, and the testified:

wound, which I am not positive of to-day, to

his head." "I was able to go up and down the elevated stairs without difficulty. Now I have consid- Dr. Swift examined Holmes on May 23, erable difficulty in going up and down the ele, 1923, and testified: vated stairs and I am mighty careful how I get on the street cars.

At the present time I "I found the following objective symptoms: have got a weakness in my limbs here and my A scar an inch and a half long on the back two knees here that were injured at that time of the head, right occipital region; the right -especially this right knee is weak, and leg, knee fourteen and three-fourths inches in cirand that is the reason why I cannot get up cumference, the left fourteen inches. There and down the elevated steps or any other steps, is no disfigurement where the scar is, because and the weakness in the back. I have a numb- it is above the hair line and covered with hair. ness below the knees here---a partial numbness. He had crepitation over the external semilunar The right is the one that is affected the worst. cartilage in the right knee. X-rays show an There is some swelling there. If I am around osteoarthritis of the lumbar spine. Objectivethe city too long, of course it hurts me, and if ly I believe that is all I can testify to. I beI happen to get the right leg in a certain posi- lieve the reason for the difference of the left

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