Brimie v. Belden Mfg. Co.

• Decision Date: 20 February 1919
• Docket Number: No. 12458.,12458.
• Citation: Brimie v. Belden Mfg. Co., 287 Ill. 11, 122 N.E. 75 (Ill. 1919)
• Parties: BRIMIE v. BELDEN MFG. CO.
• Court: Illinois Supreme Court

287 Ill. 11

122 N.E. 75

BRIMIE

v.BELDEN MFG. CO.

No. 12458.

Supreme Court of Illinois.

Feb. 20, 1919.

Error to First Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; Merritt W. Pinckney, Judge.

Action by Paul K. Brimie against the Belden Manufacturing Company.Judgment for plaintiff was affirmed by the Appellate Court, and defendant brings certiorari.Affirmed.

Wilkerson, Cassels & Potter, of Chicago (Ralph F. Potter, of Chicago, of counsel), for plaintiff in error.

Amos W. Marston and Charles C. Spencer, both of Chicago, for defendant in error.

CARTER, J.

This was an action by the defendant in error, Paul K. Brimie, against plaintiff in error, the Belden Manufacturing Company, for personal injuries.Defendant in error obtained a verdict in the circuit court of Cook county for $3,200, on which judgment was entered.On appeal to the Appellate Court the judgment was affirmed, and the cause has been brought here on petition for certiorari.

Plaintiff in error was engaged in the manufacture of insulated wire.A part of its equipment consisted of a certain rubber heating or mixing machine.This consisted of two rollers 16 inches in diameter, arranged horizontally and with a space between the rolls of about three-eighths of an inch.The rolls were operated by power, so that the top surfaces turned toward each other, somewhat like an ordinary clothes wringer, one roll at 20 revolutions per minute and the other at 16.This machine was used to heat and mix the rubber.The rolls were artificially heated when first operated in the morning, but during the rest of the day the friction between the rubber and the rolls from the different speeds at which the rolls turned generated sufficient heat to make the rubber plastic.The rubber was fed in pieces by hand from the top between the two rollers, and until properly heated the operator would reach in with his left hand at the bottom of the rollers and take the pieces of rubber out as they came through.This process was repeated until the entire mass became sticky, when it would adhere to one of the rollers, after which the operator cut it off.Defendant in error's hand was drawn in between the rollers and injured while feeding this machine.He had been employed by plaintiff in error in this work for about 2 1/2 days before the injury, which occurred on December 16, 1912.Before being so employed he had no experience in this character of work.

This action was brought under section 3 of the Workmen's Compensation Act in force May 1, 1912(Laws 1911, p. 316), which permitted an employé to maintain a civil action against the employer, provided the injury was caused by the intentional omission of the employer to comply with the statutory safety regulations.The right of defendant in error to maintain this action depended, not only upon his proving that his injury was caused by the intentional omission of plaintiff in error to properly guard said rollers and machinery as provided by the Factory Act, but also that said intentional omission was committed by an elective officer or officers of plaintiff in error.Von Boeckmann v. Corn Products Refining Co., 274 Ill. 605, 113 N. E. 902.On the trial several witnesses testified on each side as to the practicability of guarding this machine.Those for the plaintiff in error testified that it was not practicable, and that they knew of no practical guard ever used on a machine of that kind for the protection of the operator; while several of the witnesses for defendant in error testified it was practicable, and that they had seen machines of similar character guarded and protected, stating by whom such machines were owned and in what city located.So far as we find from the record there was no attempt on the part of plaintiff in error to contradict this evidence that such machines so located had practical safety guards in use.There can be no question from this record that the president of the plaintiff in error corporation had full knowledge of the condition of this machine, that it was unprotected and dangerous and that several employés had been injured in operating it before defendant in error was employed.Section 3 of the Workmen's Compensation Act here under discussion provides that if the injury to the employé ‘was caused by the intentional omission of the employer to comply with statutory safety regulations.’ nothing in the act shall affect the civil liability of the employer.The words ‘intentional omission,’ as so used, would seem to mean that the person charged with such intentional omission ‘knowingly or consciously omitted to comply with’ the statutory safety regulations.The lexicographers state that the word ‘willful’ is synonymous with ‘intentional,’ and this court has so held.Gillett v. Wiley, 126 Ill. 310, 19 N. E. 287,9 Am. St. Rep. 587;Chicago City Railway Co. v. Olis, 192 Ill. 514, 61 N. E. 459.In Odin Coal Co. v. Denman, 185 Ill. 413, it was stated at page 418, 57 N. E. 192, at page 194(76 Am. St. Rep. 45).

‘An act consciously omitted is willfully omitted, in the meaning of the word ‘willful,’ as used in these enactments of our Legislature relative to the duty of mine owners.'

See, also, to the same effect, Peebles v. O'Gara Coal Co., 239 Ill. 370, 88 N. E. 166, andCarterville Coal Co. v. Abbott, 181 Ill. 495, 55 N. E. 131.

The record shows that a special interrogatory was submitted to the jury on behalf of plaintiff in error upon which the jury specially found that the president of the plaintiff in error corporation, prior to the time of the injury, intentionally omitted to comply with the statutory safety regulations applicable to the machine operated by the defendant in error at the time he was injured.The principal arguments in the briefs center about this special interrogatory and finding.It has been held by this court that the defendant is conclusively bound by a special finding of fact such as is here involved, unless error has been assigned thereon, and the question has also been raised on the motion for a new trial.Avery v. Moore, 133 Ill. 74, 24 N. E. 606;Pennsylvania Coal Co. v. Kelly, 156 Ill. 9, 40 N. E. 938;Empire Laundry Machinery Co. v. Brady, 164 Ill. 58, 45 N. E. 486;Voigt v. Anglo-American Provison Co., 202 Ill. 462, 66 N. E. 1054.No motion was made by plaintiff in error to set aside this special finding of fact in the trial court, nor was any error assigned thereon, either in the Appellate Court or this court.It is, however, contended here that the question was preserved by motion made by plaintiff in error in the trial court requesting that court to direct a verdict for plaintiff in error, and was also preserved in the motion for new trial by the general objection that the verdict was contrary to the weight of the evidence.Under the rulings of this court neither of these points can be sustained.

Counsel for plaintiff in error argue that the special finding is wholly unsupported by the evidence, and that therefore, under the rulings of this court in Pate v. Blair-Big Muddy Coal Co., 252 Ill. 198, 96 N. E. 849, andYarber v. Chicago & Alton Railway Co., 235 Ill. 589, 85 N. E. 928, the motion to direct a verdict raised the question as to whether the special interrogatory and finding were supported by the evidence.We can not agree with counsel that there is no evidence in the recordthat tends to show that the machine in question could be properly safeguarded.As already stated, there was evidence to the effect that it could be safeguarded, given on behalf of defendant in error.This being so, the verdict of the jury and the judgment of the trial court,...