Armour & Co. v. Indus. Comm'n

• Decision Date: 18 September 1947
• Docket Number: No. 30042.,30042.
• Citation: 397 Ill. 433,74 N.E.2d 704
• Parties: ARMOUR & CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

397 Ill. 433

74 N.E.2d 704

ARMOUR & CO.

v.INDUSTRIAL COMMISSION et al.

No. 30042.

Supreme Court of Illinois.

Sept. 18, 1947.

Error to Circuit Court, Cook County; Harry M. Fisher, Judge.

Proceeding for adjustment under the Workmen's Compensation Act by James H. Pleasant, claimant, opposed by Armour & Company, employer, to recover for injuries to the claimant's eye. To review a judgment of the circuit court confirming an award of the Industrial Commission in favor of the claimant, the employer brings error.

Judgment reversed and the award set aside.

Frederick R. Baird, John P. Doyle, and G. R. Herr, all of Chicago, for plaintiff in error.

Temple & Wimbish, of Chicago (George N. Leighton, of Chicago, of counsel), for defendant in error.

STONE, Justice.

Defendant in error, James H. Pleasant, filed application for adjustment under the Workmen's Compensation Act, alleging injuries received in the course of his employment with Armour & Company, the plaintiff in error, resulting in the loss of his right eye. On hearing, the arbitrator denied the application on the ground that the claimant did not sustain accidental injuries arising out of and in the course of his employment. On review, the Industrial Commission set aside the arbitrator's decision and entered an award, which the circuit court of Cook county confirmed. The cause is here on petition for review. It is agreed that the sole issue presented is whether or not Pleasant suffered an accidental injury which arose out of and in the course of his employment.

Pleasant was employed as a meat checker by plaintiff in error. As such, it was his duty to check the weights of meats shipped in or out of the plant. He worked in a scale shanty near the railroad tracks. The checker and the men who loaded and unloaded the cars worked under the same foreman, a man named Joseph Petullo.

On the morning of March 23, 1943, one of the men, working at loading the cars, took sick and went home. The foreman then sent for one Marcus Fykes, a carpenter's helper and handy-man, also employed by plaintiff in error, and told him to take the place of the car-loader who had gone home. Fykes did not want to help unload the car because he had a sore finger, but the foreman insisted that he do the job. During this conversation, Pleasant was standing in the doorway of the scale shanty ten or twelve feet away.

Claimant's version of what happened at this point is that he said to Fykes: ‘Why argue with the foreman about the job. If you don't want to do it, it is better to go home than to stand a chance of losing your job arguing with the boss.’ Whereupon Fykes walked toward claimant, asking him what he had to do with it, mumbling other incoherent words and at the same time drawing out a hatchet which he wore on his belt. Pleasant testified that Fykes stopped about a foot and a half from where he stood in the doorway, and then struck him in the eye with the hatchet. On cross-examination he admitted that as Fykes neared him, he pushed Fykes away with his foot and ran into the scale shanty and shut the door; that he then intended to make a ‘get away,’ opened the door of the shanty to leave, and then was struck by the hatchet.

Petullo, the foreman, testified that Pleasant said to Fykes, ‘If you don't want to work, go on home;’ that he did not hear any other conversation, although there was an argument; that as Fykes neared the claimant, claimant kicked or pushed him with his foot, stepped in the shanty and closed the door. He testified that it was not until then that Fykes took out his hatchet, and that as claimant opened the door of the shanty, Fykes struck him. The hatchet Fykes carried in his belt was used by him in his work as handy-man, and was always carried by him.

William Johnson, another employee of plaintiff in error, testified that he was within eighteen feet of the scale shanty; that he saw Pleasant kick Fykes in the stomach and that Fykes fell back five or six feet against a truck, and Pleasant disappeared into the shanty and closed the door, and that when he opened the door again and started out, Fykes struck him. He testified that Fykes did not draw his hatchet until after he had been kicked. On rebuttal Pleasant testified that Fykes had the hatchet in his hand as he first approached the shanty and that he, Pleasant, pushed him off with his foot because he had the hatchet in his right hand in a swinging motion.

Thomas...