Krawiec v. Indus. Comm'n

Citation25 N.E.2d 27,372 Ill. 560
Decision Date07 February 1940
Docket NumberNo. 25226.,25226.
PartiesKRAWIEC v. INDUSTRIAL COMMISSION et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to Circuit Court, Cook County; Michael Feinberg, Judge.

Proceeding under the Workmen's Compensation Act by Nancy Krawiec, claimant, opposed by the City of Chicago Heights and the Chicago Heights Merchants and Citizens Protective Association, to recover compensation for the death of Paul Krawiec. To review a judgment of the circuit court confirming an award by the Industrial Commission denying compensation, the claimant brings error.

Reversed and remanded, with directions.McCarthy & Toomey, of Chicago (Frank A. McCarthy, John E. Toomey, and James C. O'Brien, Jr., all of Chicago, of counsel), for plaintiff in error.

Daniel D. Carmell and Walter F. Dodd, both of Chicago, for defendant in error City of Chicago Heights.

FARTHING, Justice.

Nancy Krawiec, widow of Paul Krawiec, made application under the Workmen's Compensation act, Ill.Rev.Stat.1939, c. 48, § 138 et seq., to the Industrial Commission for compensation for his death. She alleged that he sustained a fatal injury which arose out of and in the course of his employment. At the hearing before the arbitrator it was stipulated: (1) Respondent the city of Chicago Heights, was operating under and was subject to the provisions of the Workmen's Compensation act. (2) Decedent sustained an accidental injury on February 5, 1938, which resulted in his death on February 8, 1938. (3) On February 5, 1938, the relationship of employee and employer existed between Krawiec and respondent the Chicago Heights Merchants and Citizens Protective Association. (4) No compensation was paid. (5) During the year preceding February 5, 1938, the respondent association paid to decedent the sum of $1,387.05 for his services. The questions in dispute were, first, whether the injury arose out of and in the course of the employment of the deceased by the respondents, or either of them; second, whether the relationship of employee and employer existed between him and defendant in error the city of Chicago Heights, on February 5, 1938.

In the year 1935, a group of citizens and merchants met with the officials of the city of Chicago Heights, and asked for more police protection. The reply was that no more men were available, nor were there additional funds to pay more policemen. At a mass meeting, of later date, it was decided to organize and raise additional funds. The defendant in error association was incorporated and collected the needed money to pay the merchant police. The city requested the association to recommend appointees. In June of 1936, a vacancy occurred. The association recommended Paul Krawiec and he was appointed. His duties were the same as those of his predecessor and consisted chiefly in protecting the business premises, called the downtown district, but, in addition, he was authorized to perform all functions of a regular patrolman. The city of Chicago Heights paid him $25 per month and furnished a car. He was under the direction of a regular police captain or sergeant. On the morning of February 6, 1938, at 1:40 A. M., Krawiec was on duty with officer Leinen, engaged in making a night deposit of money for a bowling alley at the Citizens National Bank. This was a customary service for establishments required to remain open late hours. Krawiec drove the car to the curb in front of the bank on Halsted street, got out of the car, and walked toward the bank. As he approached the door, gunshots were heard, and one bullet struck him. Officer Leinen ran to Krawiec and lowered him to the sidewalk. He was taken to a hospital where he later died.

The evidence showed that on the morning of the accident officers Morey and Bielfeldt were in a restaurant, when they heard the crash of colliding automobiles on Halsted street. Running outside, they saw one car dragging another down the street. The first car broke loose, picked up speed and drove away, despite the shouts of the officers. Officer Bielfeldt ran for the squad car, but it was blocked by a taxi. Officer Morey then fired two shots at the fleeing car. One shot caromed off the street and struck the deceased.

The city of Chicago Heights had in force, February 5, 1938, an ordinance by section 1 of which there was established the police department of the city. By section 2 there was created the office of chief of police. Section 11 created the office of lieutenant of police, and section 14 provided for the appointment of police patrolmen. Section 15 ordained that the patrolmen should take the oath provided by law for city officers. The proof also showed that the appropriation ordinance of the city for the fiscal year May 1, 1937, to April 30, 1938, included an appropriation for salary of two merchant police at $25 per month. There was proof made of dependency and of hospital and medical bills necessarily incurred in the amount of $216.40.

The arbitrator found that the evidence failed to show that the association was operating under and subject to the provisions of the Workmen's Compensation act, and failed to show that the relationship of employee and employer existed between deceased and this defendant in error. The arbitrator further found that deceased was an official and not an employee of the city, and that the injury did not arise out of his employment. On review, the Industrial Commission confirmed the arbitrator's findings. On certiorari, the circuit court confirmed the decision of the commission and we granted a writ of error.

The first question is: Was Krawiec an employee or officer of the city? At common law a policeman was not an officer. The office exists, therefore, only when created by statute or municipal ordinance. Moon v. Mayor, 214 Ill. 40, 73 N.E. 408. The ordinance in question, after establishing a police department, goes on to create, by sections 2 and 11 thereof, the offices of captain and police lieutenants. The wording in both sections is certain and definite: ‘There is hereby created the officer of’ etc. Section 14 treats of police patrolmen, and ordains: ‘The city council shall annually, on the first Monday in May, in each year, appoint an operator and such number of police patrolmen as the council may, by resolution, determine to be necessary, who shall hold their office for one year, and until their successors are appointed and qualified, unless sooner discharged as herein provided.’

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26 cases
  • Beard v. Robinson
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 28 Septiembre 1977
    ..."officers" at common law, by statute or by municipal ordinance. For the latter proposition, Kent relied on Krawiec v. Industrial Commission, 372 Ill. 560, 564, 25 N.E.2d 27 (1939), which held that policemen of the City of Chicago Heights, Illinois were not made officers of the City by munic......
  • Freeman v. Augustine's Inc.
    • United States
    • United States Appellate Court of Illinois
    • 2 Marzo 1977
    ...under the Workmen's Compensation Act. Accord, Hudson v. Industrial Com., 387 Ill. 228, 56 N.E.2d 423 (1944); Krawiec v. Industrial Com., 372 Ill. 560, 25 N.E.2d 27 (1940); Stresenreuter, Inc. v. Industrial Com., 322 Ill. 187, 152 N.E. 548 (1926). In all of the cases finding that plaintiff w......
  • Jefferson Ice Co. v. Indus. Comm'n
    • United States
    • Illinois Supreme Court
    • 22 Noviembre 1949
    ... ... Krawiec v. Industrial Comm., 372 Ill. 560, 25 N.E.2d 27;Central Illinois Public Service Co. v. Industrial Comm., 291 Ill. 256, 126 N.E. 144,3 A.L.R. 967 ... ...
  • Kelly v. Chicago Park Dist.
    • United States
    • Illinois Supreme Court
    • 22 Marzo 1951
    ...of head attendant and attendant. We pointed out in Moon v. The Mayor, 214 Ill. 40, 73 N.E. 408, and again in Krawiec v. Industrial Commission, 372 Ill. 560, 25 N.E.2d 27, that at common law a policeman was not an officer, and that the office exists only when created by statute or municipal ......
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