PETTIT v. INDUSTRIAL ACCIDENT COMMISSION OF CALIFORNIA. (Civ. 3387.)

(District Court of Appeal, Second District, Division 2, California. July 10, 1920.)

192 Pacific. Reporter 109.

MASTER AND SERVANT - PETITION FOR CERTIORARI, NOT STATING MATERIAL EVIDENCE, DENIED.

A petition for cetiorari to review order of the Industrial Accident Commission on ground of want of evidence to warrant finding as to disability, not stating the material evidence relative to such point, as required by Supreme Court rule 26, subd. 4 (183 Pac. viii), will be denied. (For other cases, see Master and Servant, Dec. Dig. § 417[42].)

Application for certiorari by T. J. Pettit against the Industrial Accident Commission of California, to review an order of the Commission. Petition denied.

Archie D. Mitchell, of Ontario, for petitioner.

A. E. Graupner, of San Francisco. for respondent.

PER CURIAM. The petition, in substance and effect, is based upon a want of evidence sufficient to warrant the conclusion of the commission that petitioner's disability terminated September 8, 1919. No attempt is made to state "all the material evidence" relative to this point. The petition, therefore, fails to comply with the rules promulgated by the Supreme Court (subdivision 4, rule 26, 183 Pac. viii.)

Petition denied.

IROQUOIS IRON CO.

V. INDUSTRIAL COMMISSION et al. (No. 13215.)

(Supreme Court of Illinois. June 16, 1920. Rehearing Denied October 7,

1920.)

128 Northeastern Reporter 289.

6. MASTER AND SERVANT

COMPENSATION CLAIMANT EMANCIPATED BY ENLISTMENT HELD NOT A DEPEND

ENT.

Where an employee's minor son enlisted in the marines for a fouryear term, so that he would reach maturity before his enlistment expired, his emancipation from paternal control was brought about by his voluntary act of himself and his father, who consented, and the father was not under legal obligation to support the son when he received a fatal injury to entitle the son to compensation under the Workmen's Compensation Act.

(For other cases, see Master and Servant, Dec. Dig. § 388.)

Error to Circuit Court, Cook County; Oscar M. Torrison, Judge. Proceedings under the Workmen's Compensation Act by Raymond P. Olesen, administrator, for compensation for death of Peter W. Olesen, the employee, opposed by the Iroquois Iron Company, the employer. Compensation was awarded, the award confirmed by the circuit court, and the employer brings error. Reversed and remanded, with directions.

Knapp & Campbe, of Chicago (J. L. Earlywine, of Chicago, of counsel), for plaintiff in error.

Shelley B. Neltnor and Einar C. Howard, both of Chicago, for defendant in error.

THOMPSON, J. October 14, 1918, Peter W. Olesen was killed while in the employ of the Iroquois Iron Company, plaintiff in error. He left surviving him Mary Olesen, who obtained a divorce from him in 1914 on the ground of habitual drunkenness, Raymond P. Olesen, 22 years old, and Reginald W. Olesen, 20 years old. The elder son, as administrator of his father's estate, filed his application for compensation before the Industrial Commission, naming the widow as the beneficiary. At the hearing before the arbitrator the petition was amended, making the younger son the beneficiary. The arbitrator found that no amount was payable under paragraphs (a), (b), (c), or (d), of section 7 of the Compensation Act (Laws 1913, p. 335), and awarded the sum of $150 for burial expenses in accordance with paragraph (e) of that section. On the hearing on review the finding of the arbitrator was reversed, and the Industrial Commission found "that the deceased left him surviving a son, Reginald W. Olesen, whom the deceased was under legal obligation to support," and awarded to the applicant $3,500 compensation in accordance with paragraph (a) of section 7 of the act. On certiorari this decision of the Industrial Commission was confirmed by the circuit court of Cook county, and this court has granted leave to prosecute this writ of error to review that judgment.

The only question presented for review is whether deceased was 'under legal obligation to support" his son Reginald at the time of the injury which resulted in his death. When Mrs. Olesen obtained her divorce she was awarded the sole care, custody, and education of the children, and deceased was ordered to contribute and pay $5 each week toward the support of Reginald, who was then 15 years of age. Both the sons lived with the mother for a short time, and then Reginald went to live with his father. They roomed together, the father paying the room rent. During the summer of 1915 Reginald was employed at Field's. He kept all the money he earned and fully provided for himself. October 3, 1915, he enlisted with the United States marines for a period of four years. This enlistment was without the knowledge of the mother, but was with the father's consent. Deceased and the elder brother in June, 1918, each sent $30 to Reginald, who was stationed in Florida, to pay his fare home on a furlough. At another time they sent him $45 to help defray the expenses of a civilian physician when Reginald had his eye injured in the service. According to Reginald's testimony, his father sent him $10 a month in currency, but he had no letters or receipts covering the amounts, because, as he said, they were required to burn such things during the "flu" epidemic. His pay was $14.80 a month while he was a private. October 4, 1917, he was made a corporal, and his pay was increased to $36. A month later he was advanced to the rank of sergeant at $38 a month. The government furnished him his meals, clothing, and living quarters. The only things it was necessary for him to purchase

were toilet articles, such as tooth paste and soap. If he wanted extra food, his uniform pressed, or other extras not included in the army list, he was required to pay for these items with his own funds.

[1-7] It seems too clear to require argument that Reginald Olesen was not dependent upon his father for support, but the question of dependency is not controlling here. The question we are called upon to determine is whether the deceased was under legal obligation to support this son at the time of the injury. This question is not only new in this state, but seems to be one that has not had the attention of courts of last resort or other states that have been called upon to construe Workmen's Compensation Acts. Generally speaking, when a child arrives at the age of majority the parent is no longer under legal obligation to support him. On the other hand, the parent is usually under a legal obligation to support his minor children. When a child who is physically and mentally able to take care of himself voluntarily abandons the parental roof and leaves its protection and influence and goes out to fight the battle of life on his own account, the parent is no longer under legal obligation to support him. Hunt v. Thompson, 3 Scam. 179, 36 Am. Dec. 538. If a boy has attained an age at which he is capable of supporting himself, neither justice, reason, nor the law requires the parent to maintain him in idleness. Emancipation is inferred where the child contracts for his services and collects and uses his own earnings. Scott v. White, 71 Ill. 287; 20 R. C. L. 610; 29 Cyc. 1675. When a minor enlists in the military service of this country, he ceases to be a part of his father's family, and puts himself under the control of the government, and is consequently emancipated so long as this service continues. 21 Am. & Eng. Ency. of Law (2d Ed.) 1060; Com. v. Morris, 1 Phila. 381; Baker v. Baker, 41 Vt. 55; Gapen v. Gapen, 41 W. Va. 422, 23 S E. 579. Enlistment is a contract between the soldier and the government, which involves a change in his status, which cannot be thrown off by him at his will. In re Grimley. 137 U. S. 147, 11 Sup. Ct. 54, 34 L. Ed. 636. Emancipation works a severance of the filial relation as completely as if the child were of age. Whether there has been an emancipation is a question of fact, but what is emancipation is a question of law. The facts in this case are undisputed, and whether or not the deceased, in view of the undisputed facts in this record was under legal liability to support his son who has enlisted in the military service, is a question of law which this court must determine. Reginald Olesen was born July 21, 1898, and therefore would arrive at his majority before his term of enlistment expired. The emancipation of this son was brought about by the voluntary act of the parent and the child, and we think, both on authority and principle, it must be held that deceased was not under legal obligation to support his son at the time of the injury in question.

The judgment of the circuit court is therefore reversed, and the cause is remanded to the circuit court of Cook county, with directions to remand the cause to the Industrial Commission, with directions to confirm the finding of the arbitrator.

Reversed and remanded, with directions.

WABASH RY. CO. v. INDUSTRIAL COMMISSION et al. (No. 13258.) (Supreme Court of Illinois. June 16, 1920. Rehearing Denied October 7, 1920.)

128 Northeastern Reporter 290.

1. MASTER AND SERVANT - "EMPLOYMENT" WITHIN COMPENSATION ACT DEFINED.

Under Workmen's Compensation Act, the employment is not limited to the exact moment when the workman reaches his place of work, or to the exact moment when he ceases work, and it necessarily includes a reasonable time and space before and after ceasing actual employment, having in mind all of the circumstances.

(For other cases, see Master and Servant, Dec. Dig. § 375[2].)

(For other definitions, see Words and Phrases, First and Second Series, Employment.)

2. MASTER AND SERVANT - RAILROAD EMPLOYEE'S INJURY WHILE LEAVING AFTER DAY'S WORK HELD ONE "ARISING OUT OF AND IN COURSE OF EMPLOYMENT;" WITHIN COMPENSATION ACT.

Where a railroad roundhouse mechanic was killed by a switch engine after he had finished his day's work and while he was walking along the tracks on the railway premises to a point where, according to known custom, he intended to catch a train on which he and other employees were allowed to ride home, the accident was one" arising out of and in the course of the employment," within the Workmen's Compensation Act. (For other cases, see Master and Servant, Dec. Dig. § 375[2].)

(For other definitions, see Words and Phrases, First and Second Series, Course of Employment.)

Error to Circuit Court, Madison County; Louis Bernreuter, Judge. Application under the Workmen's Compensation Act for compensation by Julia Miller, as administratrix of the estate of Charles Miller, deceased, employee, against the Wabash Railway Company, employer. An award by the Industrial Commission in favor of claimant was on certiorari quashed by the circuit court an judgment entered for the employer, and the claimant brings error. Judgment of circuit court reversed. and award of Industrial Commission confirmed.

W. E. Hadley, of East St. Louis, for plaintiff in error.

Edward C. Kramer, Rudolph J. Kramer, and Bruce A. Campbell, all of East St. Louis (N. S. Brown, of St. Louis, Mo., of counsel), for defendant in error.

CARTER, J. Plaintiff in error filed an application for compensation under the Workmen's Compensation Act (Laws 1913, p. 335) for the death of her husband in 1917 on the premises of defendant in error, the Wabash Railway Company. The Industrial Commission entered an award in favor of the administratrix, but on review in the circuit court on writ of certiorari the record was quashed and judgment was entered in favor of defendant in error. The cause has been brought to this court by writ of error.

Charles Miller lived with his wife and two children in Venice, Madison county, Ill., and at the time of the fatal accident was working as a machinist in repairing engines in the company's roundhouse at Brooklyn, in the same county. Power-driven machinery was used in the roundhouse. He worked there from 7:00 a. m. to 4:00 p. m. each day, and on the day of his death finished work in the roundhouse at the usual time and started walking down between two switch tracks on the railway premises, apparently to take a train for home. when he was struck by a switch engine and injured, so that he died soon after he was taken to the hospital.

The evidence tends to show that frequently employees whose places of residence were on the line of defendant in error's railway in the direction of Venice, in going to and leaving their work at the roundhouse, took the company's trains, though they could, and sometimes did, take street cars in going from Brooklyn to Venice and other towns in the vicinity. In order to reach the train of the Wabash Railway Company the employees, after leaving the roundhouse, usually walked down what was known as the "rip track" (or, as sometimes called in the testimony, tracks 10 and 11) to a point in front of the yard office and switchman's shanty, and t was while going along this track that the deceased was struck. George Eckard, another employee, on the evening of the accident was walking down the rip track (10) to take a train and he saw the deceased struck by the switch engine and injured. This witness testified there was no path here different from other parts of the yard on the premises of the railway company, but the tracks were covered with cinders, and men walked either down one of the tracks, or as we understand, on the cinders, just outside of the tracks; that Miller had taken that particular train two or three times a week for the previous three months; and that witness had seen as many as 20 or more of the employees take the same train. There was other evidence in the record tendnig to support the testimony of Eckard that the employees frequently took this train and walked across the yard in the same way that the deceased walked. The foreman of the Wabash roundhouse testified that since Miller had been employed there in October, 1913, it was the custom of the employees to walk through the yard in the way he was walking and to ride on the train free, so far as witness knew. The evidence shows there was no contract with Miller relative to furnishing him transportation to or from his work. Some of the employees who had worked for the company over five years had passes. Miller had not worked for it that long. When he rode on the train he was not charged fare by the railway company, nor were any of the men who worked for the company. The conductor would simply go through the car, recognize the passengers who were railroad men, and pass them without tickets. There were no instructions from the railway authorities for the men to take that train and no orders of any kind in regard to the matter. The evidence also shows that when Miller did not take the train going to and from his work he took a street car, which ran every 10 or 15 minutes between Brooklyn and Venice.

[1, 2] The principal question here argued is whether Miller's accident arose out of and in the course of his employment. His work in the roundhouse was completed at 4 o'clock, and the evidence tends to show that he could take a street car to his home and thus avoid walking down the tracks in the yard of defendant in error, but it also appears by the weight of the evidence in the record that there was a custom on the part of many of the employees to go down the tracks to take a train, and that this custom was known to the officials of the railway company who were in charge of the work at the roundhouse. This court has held that an injury occurring to an employee while on his way to or from his work may or may not arise out of and in the course of the employment, de