Banner Tailoring Co. v. Indus. Comm'n

• Decision Date: 22 December 1933
• Docket Number: No. 21767.,21767.
• Citation: 354 Ill. 513,188 N.E. 548
• Parties: BANNER TAILORING CO. et al. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

354 Ill. 513

188 N.E. 548

BANNER TAILORING CO. et al.

v.INDUSTRIAL COMMISSION et al.

No. 21767.

Supreme Court of Illinois.

Dec. 22, 1933.

Error to Circuit Court, Cook County; Martin H. Finneran, Judge.

Proceeding under the Workmen's Compensation Act by Jessie E. Hofeld for the death of her husband, Felix S. Hofeld, opposed by the Banner Tailoring Company and another. From a judgment of the Circuit Court confirming an award by the Industrial Commission in favor of claimant, the Banner Tailoring Company and another bring error.

Affirmed.

McKenna, Harris & Schneider, of Chicago (James J. McKenna and Abraham W. Brussell, both of Chicago, of counsel), for plaintiffs in error.

Sabath, Perlman, Goodman & Rein, of Chicago (Theodore E. Rein, Isidore Goodman, and Morton C. Chesler, all of Chicago, of counsel), for defendant in error.

SHAW, Justice.

The Banner Tailoring Company and the Bankers' Indemnity Insurance Company were granted this writ of error to the circuit court of Cook county to review a judgment of that court confirming an award of the Industrial Commission, which in itself had confirmed an award of an arbitrator allowing compensation at the rate of $15 per week for 296 weeks and 1 week at $10, as provided by paragrapha (a) of Section 7 of the Workmen's Compensation Act (Smith-Hurd Rev. St. 1933, c. 48, § 144), to Jessie Hofeld, the widow of Felix S. Hofeld. It was contended that his death was caused by an accident arising out of and in the course of his employment within the meaning of and as defined by the Workmen's Compensation Act, and such was the finding of the arbitrator, of the Industrial Commission, and of the circuit court.

The record shows that the deceased was a traveling salesman employed by the Banner Tailoring Company and that in the course of his employment he traveled from place to place in an automobile; that on July 27, 1931, he was found dead at the rear of his automobile, which was parked slightly off of the main traveled part of the highway on a detour on road 36 in Helt township, Vermilion county, Ind. It appears from the record that when he was found he had taken off his coat and hat, which were hanging on the side of the car, and that the right rear tire was blown out; that there was a jack hear the right rear wheel, off which the car had apparently rolled, and which jack had a handle about three and one-half feet long; that the ground sloped slightly at that place; and that the deceased, when found dead, had a severe bruise and mark across his right cheek and temporal bone. There was also evidence tending to show that the imprints in the dirt were such as to indicate that the car had rolled off the jack two or three times; that the brakes on the car were not set; and that when the car was later driven away by the coroner, he found the brakes to be in very poor condition.

There was a stipulation entered into by the parties before the hearing held by the arbitrator in which all of the bases of liability were admitted excepting only one question, which was stipulated to be the only point of dispute between the parties, as follows: ‘The only question in dispute in this case is whether there was an accident on the 27th day of July, 1931, arising out of and in the course of the employment, and whether the said accident caused the death of the said Felix S. Hofeld.’

The only medical witness called by either party was Dr. C. M. Zink, a physician and surgeon of Clinton, Ind., and also coroner of Vermilion county, Ind. He testified that he did not see the accident but came to the place on a call by the sheriff at about 4 o'clock in the afternoon. When he got there, the body was lying on the right side of the road and the car was parked as above indicated. The record is not clear as to just who first found the body of the deceased, although it indicates that two boys who were going swimming were the first to see it. The main facts as hereinabove indicated, however, are clearly to be found in the record and may be accepted as true. The doctor described the position of the jack, the length of the jack's handle, the marks in the ground indicating that the car had rolled off of it a time or two, and also testified that there was a mark on the face of the deceased about four or five inches long, extending from the cheek across the right temporal region, and that there was a bruise over the temporal region which was in that mark and the skin was broken there. He described it as looking like a black eye. He conducted two post mortem examinations. The first one was in the evening of the day of the accident, at about 5:30, at which time he opened up the chest and examined the heart and lungs, opened up the abdomen and...