(70 Ind. App. 49) KIPFER et al. v. POLSON. (No. 9826.) APPEAL AND ERROR 635(3)—QUESTIONS DENCE. Where the questions presented by the appeal require a consideration of all the evidence, and the bill of exceptions affirmatively shows that the evidence is not all in the record, the judgment must be affirmed. Appeal from Circuit Court, Marshall County; Smith N. Stevens, Judge. Action between James E. Kipfer and another and Edward W. Polson. Judgment for the latter, and the former appeal. Affirmed. W. B. Hess and Chas. Kellison, both of Plymouth, and Hays & Hays, of Sullivan, for appellants. H. A. Logan, L. M. Lauer, and J. W. Kitch, all of Plymouth, for appellee. REMY, J. Each of the questions properly presented by this appeal would require for its determination a consideration of all the evidence. The bill of exceptions affirmatively shows that the evidence is not all in the record. Under such circumstances the judgment of the trial court is conclusive, and on the authority of Thorne v. Indianapolis Abattoir Co., 152 Ind. 317, 52 N. E. 147, the judgment in this case is affirmed. (70 Ind. App. 713) 2. MASTER AND SERVANT 417(3)—WorkMEN'S COMPENSATION-CERTIORARI-SUFFICIENCY OF RETURN. Return to writ of certiorari commanding Industrial Board to certify to the court a complete record of proceedings whereby the board, under Workmen's Compensation Act, § 9, had commuted compensation to lump sum, on claimant's petition therefor, must show what notice of the proceedings was given employer, and must contain the testimony upon which board's decision was based, in order that employer may not be deprived of its right to a judicial review of the proceedings. CARTWRIGHT, J. The Industrial Board awarded compensation to defendant in error, Martina Lipnick, administratrix of the estate of Andrew Lipnick, deceased, on account of his death while in the employment of plaintiff in error, the Tazewell Coal Company. On September 12, 1917, plaintiff in error filed its verified petition in the circuit court of Tazewell county, alleging that on July CHILDS et al. v. GOETCHEUS et al. (No. 9747.) (Appellate Court of Indiana. April 25, 1919.) Appeal from Superior Court, Delaware Coun-2, 1917, defendant in error, Martina Lipnick, ty; Harry H. Orr, Special Judge. Action by Laura B. Childs and another against James Roy Goetcheus, trustee, and others. Judgment for defendants, and plaintiffs appeal. Affirmed. Timothy S. Owen, of Muncie, for appellants. McClellan, Hensel & Guthrie, of Muncie, for appellees. PER CURIAM. Judgment affirmed. (287 Ill. 465) TAZEWELL COAL CO. v. INDUSTRIAL COMMISSION et al. (No. 12623.) (Supreme Court of Illinois. April 15, 1919.) 1. MASTER AND Servant 397-WORKMEN'S COMPENSATION — JURISDICTION PRESUMP TION. - There is no presumption of jurisdiction in favor of a body exercising a limited or statutory jurisdiction, such as the Industrial Board. filed her petition for payment of the compensation in a lump sum, and upon a hearing an order was made on August 21, 1917, by which the compensation was commuted to a lump sum of $3,093.74, and notice of the order was received by plaintiff in error on August 25, 1917, that no notice of the filing of the petition was given to plaintiff in error, and it had no notice of the pendency of the petition and no opportunity to appear and oppose, by evidence or otherwise, the commutation of the award to a lump sum, and that the Industrial Board had no jurisdiction of the cause or the person of the plaintiff in error. The petition prayed for a writ of certiorari commanding the Industrial Board to certify to the court a full and complete record of the proceedings. The writ was issued and a return was made certified as a full and complete record, which showed a petition for the commutation of the compensation to a lump sum and alleging facts upon which the petition was based. Concerning jurisdiction For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and the basis for the finding and order of the prives a party of any review of the proceedboard the record is as follows: "The said board having given proper notice to the parties hereto, and said matter now coming to be heard, the board, upon proper showing of the parties hereto, and having made careful inquiry and investigation of said matter, and being fully advised in the premises, doth find that it is for the best interest of the parties hereto that compensation be paid in a lump sum." The court quashed the writ of certiorari, dismissed the petition, rendered judgment for costs against plaintiff in error, and certified that the cause was one proper to be reviewed by this court. [1, 2] Section 9 of the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, § 134) provides that upon a petition to the Industrial Board, if, upon proper notice to the interested parties and a proper showing made before the board, it appears for the best interest of the parties that the compensation be paid in a lump sum, the board may order commutation to an equivalent lump sum. The statute does not prescribe the character of notice which shall be given, or the length of time or manner of service, but only that there shall be proper notice. The record does not show any rule or regulation of the board as to what is regarded as proper notice, or what notice is to be given, which would be subject to judicial review to determine its reasonableness. Kettles v. People, 221 Ill. 221, 77 N. E. 472. The Constitution affords protection against the imposition of any liability without notice and an opportunity to be heard. There is no presumption of jurisdiction in favor of a body exercising a limited or statutory jurisdiction, such as an Industrial Board. Nothing is taken by intendment in favor of such jurisdiction, but the facts upon which the jurisdiction is founded must appear in the record. The record filed in return to the writ does not show what notice was given to plaintiff in error, or what method of informing plaintiff in error of the proceeding was adopted or regarded proper by the Industrial Board, and the record fails to show jurisdiction over plaintiff in error or any authority of the board to hear and decide the question presented by the petition. Plaintiff in error had a right to a judicial review of the proceeding, and the record must show that the board acted upon evidence and contain the testimony upon which the decision was based, in order that the court may determine whether there was any evidence fairly tending to sustain the order. Forschner & Co. v. Industrial Board, 278 Ill. 99, 115 N. E. 912. The record contains no fact or evidence upon which the order was founded but only the conclusion of the board that it was for the best interest of the parties that compensation be paid in a lump sum. Such a record practically de ing. The judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. (288 Ill. 39) BARRETT CO. v. INDUSTRIAL COMMIS- (Supreme Court of Illinois. April 15, 1919.) 1. MASTER AND SERVANT 405(1) — WORKMEN'S COMPENSATION ACT-NOTICE OF ACCIDENT. Where the only notice of an accident given an employer was by the injured person at a time which he estimated to be from a month to 2 months after the accident, there was no evidence from which it could be found that notice was given within 30 days. 2. MASTER AND SERVANT 398-WORKMEN'S COMPENSATION ACT-NOTICE OF ACCIDENT. The Workmen's Compensation Act requires that notice of an accident be given the employer within 30 days, and this requirement is jurisdictional. Error to Circuit Court, Peoria County; C. V. Miles, Judge. Proceedings by L. O. Eagleton, administrator, under the Workmen's Compensation Act, to obtain compensation for the death of Henry Keefe. Opposed by the Barrett Company, the employer. There was an award by the Industrial Commission, which was set aside by the circuit court, and the claimant brings error. Affirmed. Roscoe Herget, of Peoria, for plaintiff in error. Frank M. Cox, of Chicago, and George W. Sprenger, of Peoria, for defendant in error. DUNN, J. Henry Keefe died on December 19, 1916, and a claim for compensation for his death was presented under the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, §§ 126-152i) against the Barrett Company. The arbitrator found that notice of the accident was not given to the employer, and demand for compensation was not made upon it within the time required by the provisions of the act. The Industrial Commission reviewed this decision and made an award in favor of the claimant. Upon a writ of certiorari the circuit court of Peoria county set aside the finding of the commission, and the claimant has sued out a writ of error to reverse this judgment. [1, 2] No one saw the supposed accident in which the deceased received his injury. There is no evidence in the record of such accident except the statements of the de For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes AGENCY-AUTOMOBILES-LIABILITY OF OWN- An automobile is not so dangerous an ceased made to the foreman under whom, 2. MASTER AND SERVANT 300-DANGEROUS he worked and the superintendent of the defendant in error's plant. The deceased was a paper maker and millwright, and had been employed by the defendant in error for 17 years. His death occurred from infection of his right hip and bone, which there is evidence tending to show had been caused by an external injury which did not break the skin. Dr. Trewyn began treating him some time in September. W. R. Holmes was the foreman under whom the deceased worked, and he testified that Keefe quit work on Saturday, September 23d; that he had complained for 3 or 4 weeks of having rheumatism, and on September 23d Holmes told him he had better stay home the next day and when he got well to come back. About a week later Keefe told him that he had been struck on the hip by a rag truck pushed by a negro employé of the defendant in error while he was engaged in his work. He could not state how long before the 23d the deceased told him he got struck, but as near as he could state it was a month or 6 weeks. He could not say whether it was less than a month. Hennessy, the su perintendent of defendant in error, testified that Keefe came down to see him and said, that he thought for a long time his trouble was rheumatism, but that he believed now it was due to being squeezed between the truck and the beaters. He said that the truck was moved or being pushed by some one and crowded him in between the truck and the beaters. He did not fix the time or any approximate time. He gave the approximate time as a month or 2 months. As to the time he had been struck by the truck he could not remember himself. This was all the evidence in regard to when the accident occurred. The statute requires that notice of the accident be given the employer within 30 days, and this requirement is jurisdictional. Bushnell v. Industrial Board, 276 Ill. 262, 114 N. E. 496. Since there is no evidence in the record from which it can be found that notice was given to the employer within 30 days after the accident, the Industrial Commission was without jurisdiction, and its award was properly set aside. The relation of master and servant is not established by the mere fact that the purpose for which the father purchased the automobile was the pleasure of the family, and he is not liable for the death of a third person caused by the negligent driving of his own son, whom he permitted to use the automobile for the son's own pleasure. Cartwright, Farmer, and Carter, JJ., dissent ing. Error to First Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; Kickham Scanlon, Judge. Annie Marie Christiansen, deceased, against Action by Ben H. Arkin, administrator of Seth H. Page, for damages for wrongful death. From a judgment of the Appellate Court affirming a judgment of the circuit court in favor of the plaintiff and against the named defendant, the latter brings certiorari. Reversed and remanded. Landon & Holt, of Chicago (Robert N. Holt, of Chicago, of counsel), for plaintiff in error. Thomas D. Nash and J. A. Arkin, both of Chicago (Michael J. Ahern, of Chicago, of counsel), for defendant in error. DUNN, J. On June 24, 1914, Annie Marie Christiansen, a little girl 31⁄2 years old, was run over by an automobile on one of the streets of the city of Chicago and received injuries from which she died. Her administrator brought suit to recover damages for her death against George J. Page, the driver of the car, and Seth H. Page, its owner. On the trial the plaintiff dismissed the action as to George J. Page and recovered a judgment for $1,700 against Seth H. Page, who appealed to the Appellate Court, where the judgment was affirmed. Upon the petition of Seth H. Page a writ of certiorari was awarded, and the record has been brought to this The judgment of the circuit court is af- court for review. firmed. Judgment affirmed. (287 III. 420) ARKIN V. PAGE. (No. 12529.)* George J. Page is the son of Seth H. Page, and in June, 1914, was 20 years old. At the time of the accident he was on his way from his home to the Lewis Institute for the purpose of seeing if he could register in a course of study at the summer school. He was alone in the automobile, which he had taken from the garage at his home without telling (Supreme Court of Illinois. April 15, 1919.) anybody that he was going to take the car out or that he was going to the Lewis Institute. He had not talked with his father A parent is not liable for the tort of his about going to the school or the question of minor child merely from relationship. paying tuition, which he expected to pay him For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Reversing 212 Ill. App. 282. self out of money of his own which he had in [bile by a member of the family while using the bank. The automobile belonged to his it for some personal purpose of his own? father and was bought in 1911. The family consisted of the father and mother, the young man, and his sister. George had learned to drive a car the year before the automobile was bought, and during the first year that his father owned the car he was the only one of the family who drove it. Later both his father and sister learned to drive. In June, 1914, all the members of the family drove the car except the mother, and when she went out in it one of the other members of the family would drive. George had the whole mechanical care of the car. The father knew that George was in the habit of taking out the car, and, though he had not said either that he might or might not take it out at any time, he did not object to his taking it out, and it is to be inferred that George took the car whenever he wanted to, when it was not in use. The defendant asked the court to instruct the jury to find a verdict in his favor, and it is argued that there is no evidence in the record of any negligence in the management of the car. Other questions also are argued; but the important question in the case is whether, assuming that negligence was shown in the driving of the machine, the plaintiff in error is liable for that negligence. This question has arisen in many cases and the decisions of the courts have been directly contrary, though all agree that the liability, if any, must rest upon the relation of master and servant between the driver of the automobile and the owner; that is, upon the fact that the driver of the automobile was at the time engaged in doing the owner's business. Those courts which have held the owner liable have done so on the theory that, when a father has bought an automobile for the pleasure of the family, he has made it his business to furnish entertainment for members of his family, and therefore, when one of them was permitted to use the automobile, even for his own personal and sole pleasure, he was carrying out the purpose for which it was owned and so was using it in the owner's business, who was therefore the principal and liable for the agent's neglect. Such was the view of the Supreme Court of Washington in Birch v. Abercrombie, 74 Wash. 486, 133 Pac. 1020, 50 L. R. A. (N. S.) 59, which holds that a daughter driving, for her own pleasure, her father's car, kept for the use of the family, is his servant, for whose negligence in operating the car he is liable. It was said that such use of the car was in furtherance of the very purpose for which the car was owned and was used by one of the persons by whom it was intended that purpose should be carried out, and that the car was in every just sense being used in the owner's business by his agent. [1, 2] A parent is not liable for the tort of his minor child merely from the relationship. There is no evidence or claim that George J. Page was not a competent chauffeur. An automobile is not so dangerous an agency as to make the owner liable for injuries caused by it to travelers on the highway, regardless of who furnishes a vehicle for the customary con"It seems too plain for cavil that a father, the agency of the driver. Danforth v. Fishveyance of the members of his family, makes er, 75 N. H. 111, 71 Atl. 535, 21 L. R. A. (N2 their conveyance by that vehicle his affairS.) 93, 139 Am. St. Rep. 670; Steffen v. Mc- that is, his business-and any one driving the Naughton, 142 Wis. 49, 124 N. W. 1016, 26 L. vehicle for that purpose with his consent, exR. A. (N. S.) 382, 19 Ann. Cas. 1227; Jones v. press or implied, whether a member of his famHoge, 47 Wash. 663, 92 Pac. 433, 14 L. R. A. ily or another, is his agent. The fact that only (N. S.) 216, 125 Am. St. Rep. 915. The ownone member of the family was in the vehicle er of an automobile who merely permits anat the time is in no sound sense a differentiating other to use it for his own purposes is not within the general purpose of the ownership that circumstance abrogating the agency. It was liable for the negligence of the borrower in any member of the family should use it, and the use of the machine. Hartley v. Miller, the agency is present in the use of it by one as 165 Mich. 115, 130 N. W. 336, 33 L. R. A. (N. well as by all. In this there is no similitude S.) 81. The owner of an automobile is not to a lending of a machine to another for such liable for an injury occasioned by the neg-other's use and purpose unconnected with the ligent use of the machine by his servant if general purpose for which the machine was the servant was at the time at liberty from owned and kept." the service of his master and not engaged in doing his master's business but was pursuing his own interests exclusively. Reilly v. Connable, 214 N. Y. 586, 108 N. E. 853, L. R. A. 1916A, 954, Ann. Cas. 1916A, 656; Slater v. Advance Thresher Co., 97 Minn. 305, 107 N. W. 133, 5 L. R. A. (N. S.) 598. Other cases in which, under varying conditions, a parent has been held liable for the negligence of his child in the operation of the parent's car owned and used for the family convenience and pleasure, are McNeal v. McKain, 33 Okl. 449, 126 Pac. 742, 41 L. R. A. [3] The liability of Seth H. Page, if any, (N. S.) 775; Stowe v. Morris, 147 Ky. 386, must rest upon the agency of George J. 144 S. W. 52, 39 L. R. A. (N. S.) 224; Kayser Page. Is the owner of an automobile, who v. Van Nest, 125 Minn. 277, 146 N. W. 1091, has provided it for the use of his family for 51 L. R. A. (N. S.) 970; Davis v. Littlefield, their pleasure, liable for an injury caused 97 S. C. 171, 81 S. E. 487; Griffin v. Russell, through the negligent driving of the automo- 144 Ga. 275, 87 S. E. 10, L. R. A. 1916F, 216, for himself, is really carrying on his father's business, and that his father, as principal, should be liable for the result of the son's negligent manner of furnishing the entertainment to himself. It is said in the case of Hays v. Hogan, supra, that Ann. Cas. 1917D, 994; King v. Smythe, 140 | agent of his father in furnishing amusement Tenn. 217, 204 S. W. 296, L. R. A. 1918F, 293; Crittenden v. Murphy (Cal. App.) 173 Pac. 595. In some of these cases the child was driving with other members of the family, so that the question is not exactly the same as that presented here and in Birch v. Abercrombie, supra, and the distinction is noticed "The creation of the relation of master and in McNeal v. McKain, supra, where, in refer- servant should not be based upon the purpose ring to the case of Daily v. Maxwell, 152 Mo. which the parent had in mind in buying the App. 415, 133 S. W. 351, which held that automobile and the permissive use by a member where a father purchases an automobile for of his family. One might keep an automobile the use of his family and their pleasure and for the use of the members of a club, the his minor son uses the car for his own pleas students of a certain school, the residents of ure, having in it neither any members nor a certain town, or for the general public; yet any guests of his father's family, the rela- who will say, in case he permits such persons tion of master and servant exists in the oper- party, that the relation of master and servant to use the machine and they injure a third ation of the car by the son for his own existed, and that, in using the automobile for pleasure, the Supreme Court of Oklahoma one of the purposes for which it was bought, says that it is not to be understood as ap- the club man or the student, or a member of proving the length to which the rule is ex- the general public, was in the business of the tended in that case, since it was not essen-owner, and that he is therefore, liable for their tial to determine that question in order to dispose of the case before the Oklahoma court. The doctrine of Daily v. Maxwell, supra, and of other cases in the Missouri Court of Appeals, was later overruled by the Supreme Court of Missouri in Hays v. Hogan, 273 Mo. 1, 200 S. W. 286, L. R. A. 1918C, 715, Ann. Cas. 1918E, 1127, as unsound in principle and unsupported by the weight of authority; the court saying that "After a careful consideration of all the authorities cited, we have reached the same conclusion, and hold that the mere ownership of an automobile purchased by a father for the use and pleasure of himself and family does not render him liable in damages to a third person for injuries sustained thereby, through the negligence of his minor son while operating the same on a public highway, in furtherance of his own business or pleasure; and the fact that he had his father's special or general permission to so use the car is wholly immaterial." The cases cited by the defendant in error fully sustain the rules of law under which he claims the right to recover. On the other hand, there are many authorities which hold precisely the contrary. The doctrine announced in Hays v. Hogan, supra, which has just been quoted, is in accordance with the rules of law declared in Doran v. Thomsen, 76 N. J. Law, 754, 71 Atl. 296, 19 L. R. A. (N. S.) 335, 131 Am. St. Rep. 677; Van Blaricom v. Dodgson, 220 N. Y. 111, 115 N. E. 443, L. R. A. 1917F, 363; Parker v. Wilson, 179 Ala. 361, 60 South. 150, 43 L. R. A. (N. S.) 87; McFarlane v. Winters, 47 Utah, 598, 155 Pac. 437, L. R. A. 1916D, 618; Blair v. Broadwater, 121 Va. 301, 93 S. E. 632, L. R. A. 1918A, 1011; Loehr v. Abell, 174 Mich. 590, 140 N. W. 926; Cohen v. Meador, 119 Va. 429, 89 S. E. 876; Linville v. Nissen, 162 N. C. 95, 77 S. E. 1096. It seems rather a fantastic notion that a son in using the family automobile to take a ride by himself for pure pleasure is the acts." The proposition announced is that a father, by the furnishing of the means of amusement to his family, has made their amusement his business, so that each member of the family, in using for his own personal enjoyment, upon his own initiative, any of the means so furnished, though engaged exclusively in the pursuit of his own peculiar ends, without the direction, control, advice, consent, or knowledge of any other person, is still engaged, as agent, in carrying on the business of another. If the son is his father's agent to amuse himself with an automobile, he must also be a like agent for his own amusement with bicycles, horses, and buggies, guns, golf clubs, baseballs and bats, row boats and motor and sail boats, if these should happen to be provided, and if, in carrying on his father's business by the use of any of these articles, as his father's agent, to amuse his father's son, he should negligently injure any one, his father would be liable as principal. Such a refinement of reasoning has not been recognized until since the advent of the automobile or in the case of any other instrumentality. A parent who has permitted his child to have firearms or use horses for his own amusement has not been held liable for the child's negligence in using them as the father's agent. He has been held liable only for his own fault and not for the child's, and accordingly, where a son was driving a horse for his own amusement and not in his father's business, the father was not liable for his negligence. Brohl v. Lingeman, 41 Mich. 711, 3 N. W. 199; Maddox v. Brown, 71 Me. 432, 36 Am. Rep. 336. Where one was injured by the negligent use of a gun by a child, the parent was held liable, not for the child's negligence, but his own in permitting the gun to come into the possession of one who was incompetent to use it. Meers v. McDowell, 110 Ky. 926, 62 |