American Manganese Steel Co. v. Indus. Comm'n

• Decision Date: 11 March 1948
• Docket Number: No. 30236.,30236.
• Citation: 399 Ill. 272,77 N.E.2d 689
• Parties: AMERICAN MANGANESE STEEL CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

399 Ill. 272

77 N.E.2d 689

AMERICAN MANGANESE STEEL CO.

v.INDUSTRIAL COMMISSION et al.

No. 30236.

Supreme Court of Illinois.

Jan. 22, 1948.

As Modified on Denial of Rehearing March 11, 1948.

Error to Circuit Court, Cook County; Benjamin P. Epstein, judge.

Proceeding under the Workmen's Compensation Act by Alex Modzelewski, employee, opposed by the American Manganese Steel Company, employer. On certiorari to the superior court the cause was remanded to the Industrial Commission to determine the extent of the employee's disability. Upon certiorari to the circuit court the award of the Commission was confirmed, and to review the judgment of the circuit court, the employer brings error, and the employee moves to dismiss the writ of error.

Motion denied and judgment of circuit court reversed and award set aside.

Angerstein & Angerstein, of Chicago, for plaintiff in error.

Orr, Lewis & Orr, J. W. Horwitz and Abraham B. Litow, all of Chicago (Warren H. Orr, Wallance W. Orr, Haskell F. Lamm, and Lester E. Williams, all of Chicago, of counsel), for defendant in error.

GUNN, Justice.

Alex Modzelewski filed his application for the adjustment of claim for compensation against the American Manganese Steel Co., claiming that he had been disabled by an occupational disease arising out of his employment of grinding steel castings, and inhaling emery dust and steel dust. A hearing was had before the arbitrator, who made a finding that he was not disabled and had not been exposed to an occupational disease by his employer, and that he was not entitled to compensation. The matter was heard before the Industrial Commission, where the finding of the arbitrator was confirmed. On certiorari to the superior court of Cook County the cause was remanded by that court, with the finding that the employee was permanently disabled, and ordering the commission to determine the extent of his disability, and to award compensation. Upon remandment the commission, without taking further testimony, found that the employee was totally and permanently disabled, and made an allowance for total permanent disability of $17.63 per week for a period of 266 weeks, and one week at $10.42, and thereafter a pension for life of $31.33 per month. Upon certiorari to the circuit court of Cook County the award was confirmed, and a petition for writ of error to this court was allowed.

The defendant in error has made a motion in this court to dismiss the writ of error, which has been taken with the case. The ground for this motion is that after the superior court had entered an order remanding the cause to the commission, with directions to ascertain the extent of his disability and to fix the award, the award, the plaintiff in error filed a petition for writ of error to this court, which was denied, and the contention is now made that because this writ of error was not allowed it is res judicata of the merits in this case.

We have held that, in respect to hearing petitions for certiorari from the orders of the Industrial Commission, the superior court and the circuit court are courts of equal jurisdiction. Eugene Dietzgen Co. v. Industrial Comm., 299 Ill. 159, 132 N.E. 541;Yellow Cab Co. v. Industrial Comm., 333 Ill. 49, 164 N.E. 164. It, therefore, follows that the case is in no different position than had it been originally begun by certiorari to the circuit court instead of the superior court. We have also held that the decision of the commission, made under the order and direction of the circuit court, is reviewable.

The decision made by the commission in this case was not its decision but the decision of the superior court, and such decision was not a final order, because the cause was remanded back to the Industrial Commission to carry out the decision. Under such circumstances was have held that the decision of the court confirming the orderof the commission, made under directions of the court under a former certiorari proceedings, is reviewable by this court. Gray Knox Marble Co. v. Industrial Comm., 363 Ill. 210, 2 N.E.2d 60;Brown Shoe Co. v. Industrial Comm., 374 Ill. 500, 30 N.E.2d 4. There is nothing in this proceeding which bars the plaintiff in error from having the rulings of the superior and circuit courts in this case reviewed. The motion is denied.

Modzelewski was a grinder of steel castings. He had worked for the American Manganese Steel Co. for 12 years, and for 20 years prior to that time had been a molder in a foundry of another concern. He quit work April 12, 1945, and claimed that he had silicosis. The evidence in this case discloses that he had a minor or incipient case of silicosis, but the evidence remains in doubt as to whether he was exposed to it in the plaint of the plaintiff in error, or elsewhere. The nature of the work was grinding steel castings made in the malleable plaint, after they had been annealed by heating in a furnace which brought them to a high degree of heat. After they came out of the furnace they were plunged into a tank of water and remained there about a half hour, and then were taken to the grinding department, where rust and inequalities and some particles of sand, left after being plunged into the tank and also being washed by a hydrowasher, remained.

Several weeks before Modzelewski quit he had an accident in which he suffered some broken ribs, and filed an application for compensation, but which had never been brought to trial. He described his symptoms as being tired, hard to breathe, and loss of weight, and called his doctor, who testified he had a light case of silicosis, and that he was disabled. This doctor did not take into consideration the foundry work which he had done...