allowing a liability for compensation to be created against persons not employers nor legislation providing that compensation awarded against persons not employers shall be immune from collateral attack, and that, though invalid for want of power if directly attacked, they immediately become valid and enforceable if such direct attack, for any reason, is not made within the short time allowed. Hence, whatever power the Legislature may have over such matters, it does not derive that power from this section, but obtains it from the general grant of legislative power found in article 4. But in my opinion it is entirely clear that the Legislature has made no attempt to exercise such power by any provision of the act under consideration. For these reasons I am of the opinion that the writ of mandate applied for should have been refused. We concur: Sloss, J,; Melvin, J. SUPREME COURT OF ILLINOIS. ILLINOIS CENT. R. CO. V. INDUSTRIAL BOARD ET AL. (No. 12075.)* 1. MASTER AND SERVANT - WORKMEN'N COMPENSATION ACTS-RIGHT TO COMPENSATION-FACT OF EMPLOYMENT. A workman who was instructed with the running of an electric motor for hauling switchmen through the yards, and was injured while so doing, was in the employ of the railroad, although he had not submitted to physical examination or been formally accepted as an employee, since such formalities could have been and were waived by putting the employee to work without observing them. (For other cases, see Master and Servant, Dec. Dig. § 361.) - 2. COMMERCE — INTERSTATE COMMERCE RAILROADS WORKMEN'S COMPENSATION ACT. Question whether the servant is entitled to compensation, depending on whether he was engaged in interstate commerce when injured, is to be determined by the character of the work being done at the instant of injury. (For other cases, see Commerce, Dec. Dig. § 27[5].) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACTS-RIGHT TO COMPENSATION-BURDEN OF PROOF. The employing railroad, being engaged in both interstate and intrastate commerce, to relieve itself of the obligation to pay compensation under the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, * Decision rendered, June 20, 1918. 119 N. E. Rep. 920. §§ 126-152i), had the burden of showing that at the time of the injury the servant was actually engaged in interstate commerce. (For other cases, see Master and Servant, Dec. Dig. § 403.) 4. COMMERCE — “INTERSTATE COMMERCE"-RAILROADS WORKMEN'S COMPENSATION ACT. A servant in switchyards operating a motor to carry switchmen back and forth, and injured while hauling switchmen who had been looking after cars of coal moving within the state, but because they belonged to the company subject to reconsignment to points without the state, was not engaged in interstate commerce. (For other cases, see Commerce, Dec. Dig. § 27[7].) (For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.) Error to Circuit Court, Marion County; James C. McBride, Judge. Proceedings by Lydia Webster, as administratrix of Claude F. Webster, deceased, for workmen's compensation, opposed by the Illinois Central Railroad Company, employer. The circuit court on writ of certiorari confirmed the award of the Industrial Board in favor of the claimant and certified the case to the Supreme Court. Judgment affirmed. Kagy & Vandervort, of Salem (W. W. Barr, of Carbondale, of counsel), for plaintiff in error. Noleman & Smith, of Centralia, for defendants in error. CARTWRIGHT, J. In January, 1916, the plaintiff in error, the Illinois Central Railroad Company, had a yard which was called the "south yard," near its station at Centralia. It was a yard on which cars moved by gravity, being brought at the south end to what was known as the "hump" and permitted to run north into different classification tracks and switches. In order to control the cars by brakes switchmen rode them down from the hump to the north end, a distance of about 4,000 feet, where they were turned into the several classification tracks and switches. Each switchman managed from two to five cars, and those who rode cars down were carried back to the hump by a gasoline motor for another trip. Claude F. Webster was operating the gasoline motor for carrying switchmen the night of January 8 and 9, 1916, and at about 4:15 a. m., as he was going north on track 17 to bring back to the hump three switchmen who had ridden cars down to the north end, he ran into a bad order car standing on the track and was killed. His mother, Lydia Webster, who was administratrix of his estate, claimed compensation for his death under the Workmen's Compensation Act, and the plaintiff in error defended on the grounds, first, that Webster was not in its employ when killed; and, second, that if in its employ he was engaged at the time in interstate commerce. The Industrial Board awarded compensation, and on a writ of certiorari from the circuit court of Marion county the record was brought to that court and the decision of the board confirmed. The court certified that the case was one proper to be reviewed by this court. Claude F. Webster was employed in the freight office of the plaintiff in error in Centralia, and he had a brother, William Webster, who was employed in the south yard in the office of Frank E. Hatch, the trainmaster. William Webster asked the trainmaster if he would give his brother, Claude, a chance to run the motor, and Hatch said that he would provided Claude could hold it. Hatch, the trainmaster, and Don Carlyle, the yardmaster, had charge of the employment of the men who ran the motorcars. The conversation with Hatch was in December, 1915, and the rule of the plaintiff in error on employment required a written application on a printed form containing various questions, and it required a physical examination. Claude signed such an application for employment as motorman. On Thursday, January 6, 1916, Carlyle, the yardmaster, asked William Webster if his brother still wanted the position as motorman, and being told that he did, said that he should come down the next day. Claude reported at the south yard next morning, and Bert Stewart, yard clerk, who was running the motorcar as an extra man, was instructed by Carlyle to teach Claude to operate the motorcar. Stewart and Claude rode and operated the motorcar all day Friday on track 17 from the hump to the north end; Stewart giving Claude instructions as to operating it. On Saturday Carlyle asked William Webster if his brother was fixed up and ready to go to work. William said that he was ready and was told that Claude should show up for work that night. Accordingly on Saturday night Claude reported for work at about 7:15, and from that time until the accident in the morning he ran the car the greater part of the time, Stewart would get on the car and run it for two or three trips and then Claude would run it two or three trips alone until about 11 o'clock, after which time. Claude would run the car about three-quarters of an hour, taking 8 or 10 minutes for a trip the full length of the yard, and then Stewart would get on the car and make two or three trips with him. The last time Stewart got on the car was about 3:15 or 3:30 in the morning, when he made three trips and left the car in charge of Claude. After that Claude operated the car until the accident at 4:15. There had been no physical examination as required by the written application, and no acceptance had been indorsed or written upon it. William Webster showed the application to W. R. Clements, who was employed in the office of the trainmaster, Hatch, and said that it was all ready but the physical examination, and Clements said that he did not know that that would make any difference, because he understood they were going to transfer him from one department to another. [1] The basis of the claim that Claude F. Webster was not in the employ of the plaintiff in error while running the motorcar for it is that there had been no physical examination or acceptance of the application by the proper authority, and that he was only learning to operate the car. The claim that he was only learning to operate the car is not in accord with the facts. The operation. of the car was intrusted to him most of the time during the night in which he was killed without any one with him, and necessarily Stewart, who had been directed to instruct him, considered him qualified to run the car and that further instruction was not necessary. Carlyle, the yardmaster, had asked William Webster if his brother was fixed up and ready to go to work and said he should show up for work that night. The assistant of Hatch, the trainmaster, who with Carlyle had charge of the employment of motormen, expressed the opinion that a compliance with the written application was not essential because Webster was to be transferred from one department to another. In any view of that matter, the examination and formal acceptance could have been waived by the plaintiff in error, and were waived by its representatives in charge of the work by setting Webster to work without it. [2-4] The second ground of defense was that Webster was engaged in interstate commerce, and that question is to be determined by the nature of the work being done at the time of the injury. Chicago, Rock Island & Pacific Railway Co. v. Industrial Board, 273 Ill. 528, 113 N. E. 80, L. R. A. 1916F, 540. The plaintiff in error was engaged both in interstate and intrastate commerce, and to relieve itself of its obligation to provide and pay compensation under the Workmen's Compensation Act it was incumbent upon it to show the fact that the work being done at the time of the injury was in interstate commerce. The operation of the motorcar for bringing switchmen back from the north end of the south yard to the hump was purely local in the breaking up of trains, which might contain cars for either class of commerce. At the time of the accident Webster was going to the north end to bring back to the hump three switchmen who had ridden down five cars loaded with company coal consigned from Duquoin to a point in this state, but being company coal the cars were subject to reconsignment and could be sent anywhere to supply the needs of the plaintiff in error. The only cars in the train shown to have been destined for any point out of the state were five cars of company coal destined for Dubuque, Iowa. Webster was not handling or engaged in any way in the movement of cars shown to have been employed at the time in interstate commerce, and there was no showing that the nature of the work he was doing at the time of the injury was any part of interstate commerce. The judgment is affirmed. Vol. II-Comp. 30. SUPREME COURT OF ILLINOIS. FRUIT INDUSTRIAL BOARD ET AL. (No. 11829.)* 1. MASTER AND SERVANT- WORKMEN'S COMPENSATION ACTS-REVIEW OF AWARD-PRESUMPTIONS. Where the alias writ of certiorari to review an award of compensation recited that application was made by præcipe on August 8th for writ of certiorari to review a decision of the Industrial Board on July 26, it would be presumed, in the absence of contrary showing, on appeal from a judgment of reversal upon the writ of certiorari, that the alias writ correctly stated the facts, and that the original præcipe was filed within the statutory period, but was not served according to law, which necessitated the issuance of the alias writ, so that the employer did not lose his right to review. (For other cases, see Master and Servant, Dec. Dig. § 418[5].) 2. MASTER AND SERVANT — WORKMEN'S COMPENSATION ACT-PERSONS SUBJECT-RETAIL COAL DEALERS — "CARRIAGE BY LAND.” A retail coal dealer who, as an adjunct of his business, hauled his own coal, and sometimes hauled coal for others, was not engaged in carriage by land as an extrahazardous occupation within Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, § 128) § 3, and claimant injured while hauling coal for such dealer was not entitled to compensation; the dealer not having elected to come under the act. (For other cases, see Master and Servant, Dec. Dig. § 361.) 3. MASTER AND SERVANT - WORKMEN'S COMPENSATION ACT-PERSONS SUBJECT-RETAIL COAL DEALERS. Where the employer was a retail coal dealer, and also occasionally did hauling for hire, and a servant was injured while hauling coal in the course of the regular business, it was immaterial whether the employer's occasional hauling constituted him a carrier for hire by land. (For other cases, see Master and Servant, Dec. Dig. § 361.) Error to Circuit Court, Macon County; W. K. Whitfield, Judge. Proceedings by John W. Green for workmen's compensation, opposed by Logan B. Fruit, employer. To review a judgment of the circuit court quashing on certiorari the decision of the Industrial Board awarding compensation, upon order certifying the case as proper to be reviewed by the Supreme Court, the applicant brings error. Affirmed. Chester A. Smith, of Decatur, for plaintiff in error. DUNCAN, C. J. Logan B. Fruit, defendant in error, was engaged in the retail coal business in the city of Decatur. He purchased coal by the carload and sold it by the ton, charging to his customers $2.50 per ton at his place of business, where the * Decision rendered, June 20, 1918. 119 N. E. Rep. 931. |