Armour & Co. v. Indus. Comm'n

• Decision Date: 15 December 1937
• Docket Number: No. 24162.,24162.
• Court: Illinois Supreme Court
• Parties: ARMOUR & CO. v. INDUSTRIAL COMMISSION et al.

367 Ill. 471

11 N.E.2d 949

ARMOUR & CO.

v.INDUSTRIAL COMMISSION et al.

No. 24162.

Supreme Court of Illinois.

Dec. 15, 1937.

Error to Superior Court, Cook County; John P. McGoorty, Judge.

Proceeding under the Workmen's Compensation Act by Henrietta Holmes, claimant, for the death of her husband, John Holmes, employee, opposed by Armour & Co., employer. Judgment affirming an award of the Industrial Commission and another in favor of claimant, did the employer brings error.

Affirmed.Charles J. Faulkner, Jr., Walter C. Kirk, and John P. Doyle, all of Chicago, for plaintiff in error.

Norman Peters, of Chicago, for defendants in error.

FARTHING, Chief Justice.

An arbitrator, the Industrial Commission and the superior court of Cook county found that Henrietta Holmes was entitled to compensation on account of the death of her husband, John Holmes, which occurred June 23, 1935. The cause is here by writ of error.

On February 10, 1935, John Holmes and his employer, Armour and Co., were operating under the provisions of the Workmen's Compensation Act, Smith-Hurd Ill.Stats. c. 48, § 138 et seq. Holmes had worked in the refrigerating plant of that company for several years as an engineer. He went to work at 11 o'clock Saturday night, February 9, and when another engineer, Patrick Murphy, came to relieve him shortly before 7 o'clock Sunday morning, Murphy noticed ammonia fumes in the building. As Murphy approached the ammonia pumps, Holmes ran towards him and told Murphy that the 2-inch suction line had broken. Holmes then had a gas mask ‘hanging on his body, not on his face.’ Holmes shut off the main suction value and Murphy shut off the main discharge valve. It was Holmes' duty to make an entry of the break in the logbook and to report any injuries that occurred, and Murphy's duty to do these things if Holmes was unable to make such entry and report. Murphy made the entry in the logbook. Shortly after 7 o'clock that morning, Adam Wilson, an electrical engineer employed by the same company, found Holmes lying on the floor of the building, about 150 feet from the broken ammonia pipe. Holmes was then wearing his gas mask. Wilson picked him up and took him out into the fresh air. The gas mask was removed and Holmes vomited. When Holmes reached his home, he was having difficulty with his breathing and had a cough. He had been in good health prior to this, with the exception of 6 weeks' illness about October, 1934. After February 10, his appetite was not good; he slept poorly and had to be propped up with pillows to aid his breathing. He lost weight, became sick, was sent home from the plant March 26; spent 3 weeks in the West Side Hospital; remained at home for a few weeks and then was sent to the Cook County Hospital where he died after 13 days.

The parties stipulated that the questions in dispute were: Did John Holmes sustain an accidental injury which arose out of and in the course of his employment, resulting in his death, and was notice given to Armour and Co., within the time required by the Workmen's Compensation Act?

John Home, also called Scotty, was the deceased's foreman. He testified that he knew about the break in the ammonia suction pipe, but denied having a conversation about the accident with James Holmes, the brother of deceased.

James Holmes testified that for several years he, also, had been employed by Armour and Co. as an engineer in its refrigerating plant. In 1935 he was the employee representative of the company union. He testified that he not only told the foreman, Home, about the ammonia fumes overcoming the deceased, but he complained to the foreman that other engineers were there who did nothing to help the deceased. He said this conversation took place the latter part of February or early in March, 1935. His cross-examination showed he was uncertain as to the exact date.

The situation here is somewhat like that in Savin v. Industrial Comm., 342 Ill. 41, 173 N.E. 802. We held there that the evidence was sufficient to justify the finding of the arbitrator and commission that notice had been given in accordance with the statute and that we would not disturb such a finding unless it was against the manifest weight of the evidence. Plaintiff in error relies on our holding in Bushnell v. Industrial Board, 276 Ill. 262, 114 N.E. 496, to support its contention that the proof of notice in this case is insufficient. However, in Consumers Co. v. Industrial Comm., 364 Ill. 145, 148, 4 N.E.2d 34, 36, 107 A.L.R. 811, in discussing the matter of notice, we said: ‘On the authority of Haiselden v. Industrial Board, 275 Ill. 114, 113 N.E. 877, and Bushnell v. Industrial Board, 276 Ill. 262, 114 N.E. 496, it is urged that there was no notice of the accident within 30 days after it happened, that this want of notice is jurisdictional, and, that for this reason there can be no recovery.’ We then pointed out that the widow of the deceased employee had suggested in a conversation with a Mr. Baker, another employee of the company, within 30 days after her husband had disappeared, that he might have fallen into the river and drowned. After calling attention to the provisions of the section on notice, and stating that none of its provisions can be ignored in arriving at its true meaning, we referred to our holding in Raymond v. Industrial Comm., 354 Ill. 586, 188 N.E. 861, to the effect that the central throught and intention of the Legislature was that such latitude and liberality in the matter of notice should be indulged as is consistent with the protection of the employer against unjust concealment of claims.

In New Staunton Coal Co. v. Industrial Comm., 328 Ill. 89, 94, 159 N.E. 283, 285, we said: ‘Where the employer has that knowledge without notice or demand, as provided by section 24 [Smith-Hurd Ill.Stats. c. 48, § 161 and note], the object and purpose of that section has been accomplished, and giving the formal notice is unnecessary to give the commission jurisdiction of the case.’ There is no concealment suggested in the case before us. The testimony was sufficient...