American Brake Shoe Co. v. Industrial Commission

• Decision Date: 29 September 1960
• Docket Number: No. 35718,35718
• Parties: AMERICAN BRAKE SHOE COMPANY, Plaintiff in Error, v. INDUSTRIAL COMMISSION et al. (Vukasin Berich, Defendant in Error).
• Court: Illinois Supreme Court

Page 256

169 N.E.2d 256

20 Ill.2d 132

AMERICAN BRAKE SHOE COMPANY, Plaintiff in Error, v. INDUSTRIAL COMMISSION et al. (Vukasin Berich, Defendant in Error).

No. 35718.

Supreme Court of Illinois.

Sept. 29, 1960.

Klohr, Merrick, Braun & Lynch, Chicago (Mark A. Braun, Chicago, of counsel), for plaintiff in error.

Bernard Fleischman, Chicago (William O Krohn, Chicago, of counsel), for defendant in error.

SOLFISBURG, Justice.

This court allowed a writ of error to review an order of the superior court of Cook County, affirming the decision of the Industrial Commission, which had been entered on direction of the circuit court.

The decision below are in the following sequence:

The arbitrator found that Vukasin Berich, hereinafter called petitioner, sustained accidental injuries arising out of and in the course of his employment with American Brake Shoe Company, hereinafter called respondent, and awarded compensation therefor. On review, the Industrial Commission found that the accidental injuries did not arise out of and in the course of the employment and held that the petitioner is not entitled to compensation.

On certiorari, the circuit court reversed the decision of the Industrial Commission and remanded with directions to affirm the decision and award of the arbitrator. The Industrial Commission, in accordance with that mandate, entered an order awarding compensation to petitioner, and the superior court affirmed, which order is now before us for review.

The application for adjustment of claim alleged that the petitioner, Vukasin Berich, was injured when 'unloading steel from a truck, and while he was engaged in said work, a fellow employee, engaged in horseplay, in which injured was not a participant, caused insured (sic) to be thrown to the ground, fracturing right ankle.'

Petitioner was the only person who testified as to how the accident happened and his version is therefore undisputed. His testimony is that on June 3, at approximately 12:45 P.M., he was loading a truck in building No. 2 on respondent's premises, when a man named Vlasic, who worked in building No. 24 (125 feet away), came up behind him, put his arm around him and pulled him back and swung him, and he (petitioner) fell. Petitioner did not see Vlasic before the incident occurred that day and had last seen Vlasic about three weeks before when they were changing clothes. Petitioner further stated that he did not say anything to Vlasic because he did not see him at the time of the accident. Petitioner did not put his hand on Vlasic in any way. After he fell, petitioner's leg pained him and he lay there 5 to 10 minutes before the checker came and picked him up.

On cross-examination, petitioner testified that he had worked for respondent about two and one-half years and occasionally saw Vlasic, who had worked there this entire period. Petitioner did not live in the same neighborhood as Vlasic and did not see Vlasic every day. He never wrestled with Vlasic before June 3, 1954, and did not have time to horseplay. Petitioner further testified that as long as he worked there, he didn't remember ever having horseplayed.

A doctor, witness for petitioner, was the only other person to testify and his testimony is immaterial for the purpose of this opinion.

Petitioner's testimony and cross-examination, although brief, has been set out in detail above because of the nature of the question presented to this court. That question is whether the commissioner's decision upon the facts of this case may be reversed and set aside. It is contended by respondent that it is not within the province of a court to disturb the findings of fact made by the Industrial Commission, unless manifestly against the weight of the evidence and that this rule applies even where the commission reaches a different conclusion than that of its arbitrator without having heard additional evidence. Esposito v. Industrial Comm., 1957, 12 Ill.2d 305, 306, 146 N.E.2d 65; Garbowicz v. Industrial Comm., 1940, 373 Ill. 268, 270, 26 N.E.2d 123; Rodriguez v. Industrial Comm., 1939, 371 Ill. 590, 593, 594, 21 N.E.2d 741. The contention of petitioner is that the only facts that could be found by the commission were those presented by petitioner, together with any reasonable inferences arising therefrom; and that the determination by the commission of the legal conclusion that petitioner's injury did not arise out of his employment presents a question of law properly reviewable by the courts. Chicago Hardware Foundry Co. v. Industrial Comm., 393 Ill. 294, 65 N.E.2d 778; Illinois Country Club, Inc. v. Industrial Comm., 387 Ill. 484, 56 N.E.2d 786; Farley v. Industrial Comm., 378 Ill. 234, 37 N.E.2d 787; Scott v. Industrial Comm., 374 Ill. 225, 29 N.E.2d 93; Gump Co. v. Industrial Comm., 411 Ill. 196, 103 N.E.2d 504; Kensington Steel Corp. v. Industrial Comm., 385 Ill. 504, 53 N.E.2d 395.

While the contentions of petitioner and respondent state general principles well founded in the law of our State, their application to the undisputed testimony of petitioner can only be determined after analyzing said testimony.

The application for adjustment of claim alleged, among other statements, injuries caused by a 'fellow employee, engaged in horseplay, in which injured was not a participant.' To allow a claim based on this allegation there must be direct evidence or circumstantial evidence in the record from which a logical and reasonable inference of horseplay can be drawn. An award cannot be predicated upon imagination, speculation or conjecture, nor upon a choice between two views equally compatible with the evidence. Northwestern Yeast Co. v. Industrial Comm., 378 Ill. 195, 37 N.E.2d 806; Rosenfield v. Industrial Comm., 374 Ill. 176, 29 N.E.2d 102. The burden is on the employee to prove not only that an injury occurred in the course of the employment but also that it arose out of the employment. Math Igler's Casino v. Industrial Comm., 394 Ill. 330, 68 N.E.2d 773; Le Tourneau, Inc. v. Industrial Comm., 396 Ill. 435, 72 N.E.2d 183; Chicago Hardware Foundry Co. v. Industrial Comm., 393 Ill. 294, 65 N.E.2d 778.

The fact that an injury occurred at the place of the employment does not prove that the injury arose out of the employment; but it...