Big Muddy Coal & Iron Co. v. Indus. Bd. of Illinois

• Decision Date: 21 June 1917
• Docket Number: No. 11218.,11218.
• Citation: 279 Ill. 235,116 N.E. 662
• Court: Illinois Supreme Court
• Parties: BIG MUDDY COAL & IRON CO. v. INDUSTRIAL BOARD OF ILLINOIS et al.

279 Ill. 235

116 N.E. 662

BIG MUDDY COAL & IRON CO.

v.INDUSTRIAL BOARD OF ILLINOIS et al.

No. 11218.

Supreme Court of Illinois.

June 21, 1917.

Error to Circuit Court, Williamson County; D. T. Hartwell, Judge.

Proceedings by Owen Purvis for workman's compensation, opposed by the Big Muddy Coal & Iron Company, employer. To review a judgment of the circuit court quashing a writ of certiorari to review the order of the Industrial Board awarding compensation, the employer brings error. Affirmed.

Barr & Feirich, of Carbondale, for plaintiff in error.

George R. Stone, of Marion, for defendants in error.

CRAIG, J.

This is a writ of error to review the judgment of the circuit court of Williamson county quashing a writ of certiorari sued out by plaintiff in error to review the order of the Industrial Board of Illinois awarding to the claimant, Owen Purvis, as compensation, the sum of $2.78 per week for a period of 401 weeks from May 28, 1915, for partial permanent disability sustained by him while in the employ of the plaintiff in error. No question is made but that all proceedings had were in proper form. The sole questions raised are questions of law, viz.: (1) That there is no competent evidence that the injury sustained is a permanent one; (2) that the board allowed the claimant compensation for a disability not due to an injury sustained by him while in the employ of plaintiff in error.

The evidence shows that the claimant was injured February 16, 1915, in jumping from a pick truck in order to avoid a bar which had fallen across the entryway along which he and a companion were riding in the mine. At the time of the accident he had been in the employ of the plaintiff in error approximately 1 1/2 months. In jumping from the pick truck his feet caught in something and threw him against some bars, causing a contusion on the right side extending down to the groin, and internal injuries, from which he was suffering at the time of the hearing. He was totally disabled from the time of the accident to May 28, 1915. At the time of the accident he was earning $11.56 per week. The Industrial Board found he was temporarily totally disabled from the time of the accident to May 28, 1915, and from such date is partially permanently disabled by reason of such injury, but that he is able to earn in some employment other than the one in which he was then engaged an average of $6 per week. The board ordered that he recover from plaintiff in error the sum of $2.78 per week from May 28, 1915, for a period of 401 weeks, it being a sum equal to one-half of the difference between what he was earning at the time of the accident and what the board found he would be able to earn in his present condition in some other employment.

At the time of the accident the claimant was 61 years of age. He was apparently a strong able-bodied man, and had worked continuously in the mine at hard labor at various jobs for some weeks before that time. A few days after the accident he began to pass blood in his urine, and on examination it was found he had a tumor of the bladder of some 5 or 6 months' standing. Prior to the accident plaintiff in error had never suffered any ill effects from it, and did not know of its presence. Since the accident he continually suffers pain in his back and side, walks in a stooped position, and uses a cane. The doctor who examined him, while he testified that the injury was not permanent, further testified that he probably would not recover from his present difficulty without an operation, and that, taking the claimant's condition as it is, he doubted if he would ever completely recover; that there was no means of separating the injury to his side and back from that of the tumor; that the injury to the back keeps up the condition of the bladder; that if he were not operated on the condition in his back would not improve much, but that if it were not for the tumor the other injuries would probably heal; that the condition of his back and side was sympathetic, owing to the close connection between the nerves of the pelvic organs and the back. This evidence is sufficient to make the finding of the Industrial Board that the claimant had sustained a partially permanent disability binding on this court. While not of the most satisfactory character, it is nevertheless competent evidence upon which the board might make such finding. It is not the province of this court to review and weigh the evidence. The only question before us is, Was there any competent evidence to sustain the finding of the Industrial Board? If so, its finding is conclusive upon this court. We have repeatedly held that in the absence of fraud this court is bound by the decision of the Industrial Board upon all questions of fact, and that we can only examine the record for the purpose of ascertaining whether or not there is any competent evidence therein to support such finding of fact by the Industrial Board. Victor Chemical Works v. Industrial Board, 274 Ill. 11, 113 N. E. 173;Munn v. Industrial Board, 274 Ill. 70, 113 N. E. 110;Parker-Washington Co. v. Industrial Board, 274 Ill. 498, 113 N. E. 976;Kerens-Donnewald Coal Co. v. Industrial Board, 277 Ill. 35, 115 N. E. 225. For the reasons given, we think the first point made by plaintiff in error is not well taken.

By paragraph (d) of section 8 of the Workmen's Compensation Act (Hurd's Stat. 1913, p. 1209), it is provided that:

‘If, after the injury has been sustained, the employé as a result thereof becomes partially, though permanently incapacitiated from pursuing his usual and customary line of employment, he shall, except in the cases covered by the specific schedule set forth in paragraph (e) of this section, receive compensation, subject to the limitations as to time and maximum amounts fixed in paragraphs (b) and (h) of this section, equal to one-half of the difference between the average amount which he earned before the accident, and the average amount which he is earning or is able to earn in some suitable employment or business after the accident.’

There can be no question but that Purvis was injured, and that he is unable to pursue his usual and customary line of employment since such injury. This much seems to be conceded by plaintiff in error, who insists, however, that since the evidence shows that at the time of the accident Purvis was also suffering from a tumor of the bladder, which was not due to the injury complained of, and which condition is a contributing cause to his present incapacity, in allowing compensation for the injury sustained at the full amount provided...