[1] The plaintiff in error was engaged in no other business than the managing, maintaining, and keeping in repair some 12 or 15 buildings, most of which belonged to him. One or two belonged to members of his family. For this purpose he employed a man named Miller as foreman, who had authority to employ men to help him and to direct them in the performance of their work. All wages were paid by plaintiff in error. Miller testified he had worked for plaintiff in error more than 12 years, and that plaintiff in error also employs one or two painters. On August 16, 1915, defendant in error was at work under Foreman Miller painting and calcimining one of plaintiff in error's buildings. The building was a residence two stories high, stone front, with basement. In the course of his employment he received an injury to one eye which destroyed the sight.

Every employer enumerated in subdivision 1 of paragraph (b) of section 3 (section 128) is conclusively presumed to be subject to the act unless he elects to the contrary. Plaintiff in error made no election. Among the occupations, enterprises, or businesses enumerated in paragraph (b) are “the building, maintaining, removing, repairing or demolishing of any structure, except," etc. If plaintiff in error was subject to the act, it was because he was engaged in the occupation or business of maintaining buildings. He looked after renting the property and collecting the rent, and for the purpose of keeping it in good condition he had a regularly employed foreman and also employed such other help as was needed. He engaged in no work of any kind for others and was not a contractor or builder. All he did was look after and care for his property and that of his children. Lexicographers define “maintain”: “To hold or keep in any particular state or condition; in a state of efficiency or validity; to keep up." It would seem clear that plaintiff in error was engaged in the business or occupation of maintaining buildings within the usual and ordinary meaning of that term. If he had not been the owner, but had contracted to look after, maintain, and keep in repair the buildings for other owners, from whom he received compensation for his services, it could not reasonably be disputed that his business or occupation would come within the act. The fact that he was the owner and received his compensation from rents of the properties we think cannot relieve him from liability under the provisions of the Workmen's Compensation Act. The case here does not present the same question presented in Uphoff v. Industrial Board, 271 Ill. 312, 111 N. E. 128, L. R. A. 1916E, 329, Ann. Cas. 1917D, 1. What was held in the Uphoff Case was that the building of a shed or other structure by an owner who is engaged in another enterprise, occupation, or business does not bring him within tht legislative intent of the act. In Johnson v. Choate, 284 III. 214, 119 N. E. 972, it was held that the erection, maintaining, or repairing of a dwelling house by the owner, which is not his occupation or business, does not bring him within paragraph (b), but the owner of a large building rented as a lodge room, dance hall, and for offices, whose occupation is maintaining the building, is embraced within the terms of said paragraph. We are of opinion the contention that plaintiff in error was not engaged in an occupation subject to the act cannot be sustained.

[2, 3] The other objection argued in the brief of plaintiff in error is that no claim for compensation was made by the employee within six months after the accident, and Haiselden v. Industrial Board, 275 Ill. 114, 113 N. E. 877, Bushnell v. Industrial Board, 276 Ill. 262, 114 N. E. 496, and Conway Co. v. Industrial Board, 282 Ill. 313, 118 N. E. 705, holding that unless the claim for compensation is made within six months after the accident it will be barred, are relied on. To that contention defendant in error replies: (1) The question is raised for the first time in this court; that it was not raised before the Industrial Commission or before the circuit court and is not now covered by the assignment of error in this court; and (2) the employee, having returned to

the employment of plaintiff in error after the accident, was entitled, under paragraph (d) of section 8 (section 133), to present his claim for compensation within 18 months after he returned to such employment. Plaintiff in error insists the question was raised before the Industrial Commission in the petition to that body for review, and cites the statements in the petition that "the award is contrary to law," and "the award is contrary to the facts," in support of his claim. It is also claimed the question was raised in the circuit court by the motion to quash the return of the Industrial Commission. There is nothing in the abstract to indicate that the fact no claim was made within six months after the accident was raised before the Industrial Commission or in the circuit court. It is not sufficient that the question might have been raised under the general statement in the petition or the motion to quash that the award was contrary to the law and the facts. The opinion of the Industrial Commission contains a review of the facts and the commission's conclusions on the facts and the law, but no reference is made to any question having been raised that the claim for compensation was not made in time. The commission does refer in its opinion and findings to the other question raised that plaintiff in error was not subject to the act, and whether the circuit court's attention was called to the point now urged that the claim was not made within six months does not appear from the record. So far as disclosed by the record, the question is raised in this court for the first time. The objection is one that might be waived and must be held to have been waived by not being specifically raised below, and it is too late to raise the objection now for the first time. American Milling Co. v. Industrial Board, 279 Ill. 560, 117 N. E. 147; Chicago Packing Co. v. Industrial Board, 282 Ill. 497, 118 N. E. 727. The judgment of the circuit court is affirmed. Judgment affirmed.

SUPREME COURT OF ILLINOIS.

CRESCENT COAL CO.

V.

INDUSTRIAL COMMISSION et al. (No. 12265.)*

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -MEDICAL AND HOSPITAL FEES-DEDUCTION.

Under Workmen's Compensation Act, § 7, providing that payments other than for necessary medical, surgical, or hospital fees shall be deducted from amount payable on death, and section 8, providing that compensation for injury not resulting in death shall include medical, surgical, and hospital fees, not to exceed $200, the master cannot have the excess over $200, voluntarily paid, credited upon the death compensation, in absence of an agreement therefor.

(For other cases, see Master and Servant, Dec. Dig. § 386[2].)

Error to Circuit Court, Peoria County; Clyde E. Stone, Judge. Application by Tillie Nevitt, administratrix of the estate of John W. Nevitt, deceased, for workmen's compensation, opposed by the Crescent Coal Company, employer. An award was made, which the Industrial

* Decision rendered, Dec. 18, 1918. 121 N. E. Rep. 171.

Commission confirmed, and from a judgment of the circuit court, quashing a writ of certiorari to review the proceedings, the employer brings error. Judgment affirmed.

Weil & Bartley, of Peoria, for plaintiff in error.

J. Frank Lasley, of Peoria (Henson, Gilbert & Helmick, of Decatur, of counsel), for defendant in error.

DUNN, J. John W. Nevitt, an employee of the Crescent Coal Company, was injured in the company's mine on November 22, 1915, and died as a result of the injury on January 7, 1917. He left a widow and children, and, a disagreement having arisen as to the amount of compensation to which his beneficiaries were entitled, an application was filed by his administratrix with the Industrial Commission on March 3, 1917, for an award under the Workmen's Compensation Act. An award was made, which the Industrial Commission confirmed, and the circuit court of Peoria county quashed a writ of certiorari sued out to review the proceedings. A writ of error has been sued out to reverse that judgment.

The right to compensation is not questioned, but plaintiff in error insists that it should have credit for $544.10 paid by it for medical and hospital services and nurses. Section 7 of the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, § 132), provides that the amount of compensation to be paid for an injury to an employee resulting in death, if he leaves a widow, child, or children, shall be a sum equal to four times the average annual earnings of the employee, but not less than $1,650 and not more than $3,500, and any compensation payments other than necessary medical, surgical, or hospital fees or services shall be deducted in ascertaining the amount payable on death. Section 8 (section 133) provides the compensation for an injury not resulting in death shall include provision of first aid, medical, surgical, and hospital services, and also medical, surgical, and hospital services for a period not longer than 8 weeks, and not exceeding the amount of $200.

In Butler Street Foundry Co. v. Industrial Board, 277 Ill. 70, 115 N. E. 122, we held that the total amount which is to be awarded for first aid, medical, surgical, and hospital services is $200. The plaintiff in error expended $744.10 for hospital services, nurses, medicines, physicians, and surgeons in caring for the deceased in the illness resulting from his injuries, and no question is made but that the services rendered were necessary, and the amount fair, reasonable, and customary for the services performed. They were rendered with the knowledge and consent of the deceased and his wife, who is the administratrix, and the plaintiff in error insists that they should be regarded as a part of the compensation. It is not claimed, however, that there was any agreement that they should be so held. On the contrary, the widow stated that she was never told that the amounts were to be taken out of the compensation. If the plaintiff in error had paid the amount to the widow with the understanding that it was a part of the compensation, it would have been entitled to a deduction of it from future payments, even though it was also understood that the money was to be used for hospital, medical, and surgical purposes, and for nurses, or if it had paid the bills with the understanding that the amount was to be regarded as a part of the compensation it would have been entitled to a like deduction. The employer, however, is not entitled to a deduction for the payment of such expenses without such agreement. A payment made voluntarily or upon request must be regarded as having been made gratuitously, or in the expectation of saving the life of the employee or reducing his disability, and reducing the total compensation for which the employer would eventually be liable.

INDUSTRIAL COMMISSION et al. (No. 12276.)*

1. MASTER AND SERVANT-WORKMEN'S

ACT-REVIEW.

COMPENSATION

As the Industrial Commission has no jurisdiction to apply the Workmen's Compensation Act to persons not within its provisions, the evidence on the question of jurisdiction may, contrary to the general rule, be reviewed by the courts.

(For other cases, see Master and Servant, Dec. Dig. § 417 [7].)

2. MASTER AND SERVANT-WORKMEN'S ACT-"EMPLOYEE"-"CASUAL."

COMPENSATION

Under Workmen's Compensation Act, § 5, providing that the term "employee" shall not include any person whose employment is but casual, a carpenter who was temporarily employed as a helper on a transfer wagon held not an employee entitled to the benefit of the act; the term "casual" meaning irregular, etc.

(For other cases, see Master and Servant, Dec. Dig. § 362.)

(For other definitions, see Words and Phrases, First and Second Series, Casual; Employee.)

Error to Circuit Court, Peoria County; John M. Niehaus, Judge. Application by Joseph Marsh under the Workmen's Compensation Act for compensation for injuries received while in the employ of Thede Bros. and David Thede. There was an award in favor of applicant, and a writ of certiorari issued by the circuit court having been quashed, the employers bring error. Reversed and remanded, with directions.

MacChesney, Becker, Angerstein & Rollo, of Chicago, for plaintiffs in

error.

Clarence W. Heyl, of Peoria (Heyl & Heyl, of Peoria, of counsel), for defendant in error.

DUNN, J. Thede Bros. and David Thede were engaged in the transfer and storage business in the city of Peoria, and employed many regular teamsters and common laborers who were designated as helpers. Joseph Marsh, who was in their employ, was injured while moving a washing machine, and made application to the Industrial Board for an award for the injury. An award of $270, payable in weekly installments, was made. A writ of certiorari issued by the circuit court was quashed, * Decision rendered, Dec. 18, 1918. 121 N. E. Rep. 172.

and this writ of error was sued out to review the judgment of the circuit

court.

At the time of the injury section 5 of the Workmen's Compensation Act, provided that:

"The term 'employee' as used in this act shall be construed to mean * * every person in the service of another under any contract of hire, express or implied, oral or written, * * but not including any person whose employment is but casual or who is not engaged in the usual course of the trade, business, profession or occupation of his employer." Hurd's Stat. 1916, p. 1274, § 130.

It is claimed by the plaintiffs in error that the employment of Marsh was but casual, and that he was therefore not within the terms of the act. [1] While the sufficiency of the evidence before the Industrial Commission is not ordinarily subject to review, yet there is an exception to this when the question of the commission's jurisdiction is involved. The Industrial Commission has no jurisdiction to apply the act to persons who are not subject to its provisions, and the evidence certified in the record may be reviewed to determine the question of its jurisdiction. Hahnemann Hospital v. Industrial Board, 282 Ill. 316, 118 N. E. 767.

[2] The plaintinffs in error used 65 wagons in their business, and a man operating each wagon, with helpers only when they had heavy work. They kept regular men employed as helpers, and if they needed extra help for heavy work they picked them up as they found them, sending the extra men out to help on work that they were employed to do. Marsh was employed in this way on May 18, 1917, to help move a heavy furnace. He testified that he had been working as a carpenter for a long time, and on Friday, May 18, 1917, while waiting to see one Mehegan about a job, Thede came along and told him he might make a few dollars while he was doing nothing; that Thede was going to take a furnace out, and that it was heavy work. Marsh testified that it was a pick-up job, and he did not intend to stay there or become a regular employee. Thede asked him to take out the old furnace, and they did not get through with it on that day. Marsh was paid that day for that day's work. He came back the next morning, and the moving of the furnace was completed about 9 o'clock. He was then told to go with the teamster, and they started moving a washing machine, in which operation his hands were caught in the pulley and injured. He was employed for no definite time. He did not intend to become a regular employee and the plaintiffs in error did not intend him to be a regular employee. He understood that the employment was a pickup job, and they so understood it. He was not on the regular pay roll, though the clerk who worked on the pay roll testified that if he had known that Marsh was coming the next day he would have put his name on the pay roll in order to get the money from the bank, as Saturday was pay day. When that day's work was done there was no contract of hire, express or implied, oral or written, between the plaintiffs in error and Marsh, and he would no longer have been in their service, unless he had been again hired for another day or a longer time. In Aurora Brewing Co. v. Industrial Board, 277 Ill. 142, 115 N. E. 207, it was said:

"It would seem, however, that the Legislature intended the word 'casual' to be used as meaning 'occasional,' 'irregular' or 'incidental,' in contradistinction from stated or regular."

Several cases are cited in the opinion illustrative of the circumstances under which an employment should be regarded as casual, and under the principles announced in that case and the cases, cited, the employment of Marsh was not stated or regular, but was casual only.

The judgment of the circuit court will be reversed, and the cause remanded, with directions to quash the proceedings of the Industrial Commission.

Reversed and remanded, with direction.