Cinofsky v. Indus. Comm'n

• Decision Date: 17 December 1919
• Docket Number: No. 12771.,12771.
• Citation: 290 Ill. 521,125 N.E. 286
• Parties: CINOFSKY et al. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

290 Ill. 521

125 N.E. 286

CINOFSKY et al.

v.INDUSTRIAL COMMISSION et al.

No. 12771.

Supreme Court of Illinois.

Dec. 17, 1919.

Error to Circuit Court, Peoria County; C. V. Miles, Judge.

Proceeding by John Decker under the Workmen's Compensation Act to obtain compensation for the total loss of his left eye, opposed by William Cinofsky and another, the employers. There was an award of compensation by the Industrial Commission, which was affirmed by the circuit court, and the employers bring certiorari.

Affirmed.

Luther F. Binkley, of Chicago, for plaintiffs in error.

Shelton F. McGrath, of Peoria, for defendant in error.

CARTER, J.

John Decker was injured in the junk yard of plaintiffs in error October 25, 1917, the injury causing the total loss of his left eye. The arbitrator, after hearing, found that the applicant and the respondents were operating under the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, §§ 126-152i), and that the injury arose out of and in the course of the employment, and an award was entered in favor of Decker. On appeal to the Industrial Commission the arbitrator's decision was affirmed. A writ of certiorari was issued out of the circuit court of Peoria county, and the Industrial Commission's decision was there affirmed. The trial court certified that the cause was one not proper to be reviewed by the Supreme Court. A writ of error and supersedeas were procured from a judge of this court in vacation, and the case is now here for review.

Plaintiffs in error were engaged in carrying on a junk business in Peoria. They purchased old machinery, engines, boilers, and the like, which they stripped or took apart and put in proper shape for sale to foundries as old metal. This work was done in the yard of plaintiffs in error. Decker testified that he had worked, off and on, for plaintiffs in error for 13 years; that on October 25, 1917, the day he was injured, he appeared with John Ashcraft at their yard and asked for work; that he was told they expected certain railroad cars in, and when such cars reached the yard they could give him work by the day, but that there were some engines in the yard to be stripped, and that he would be paid, if he would do the work, $4 per engine, and to work on them until the cars were set; that this arrangement was made both with him and with Ashcraft. Decker testified that he and Ashcraft went to work stripping the engines until the cars in question should come in, and while so working, Decker holding a chisel and Ashcraft striking it with a sledge, a piece of steel flew off from the engine they were working on, hitting Decker in the eye making the subsequent removal of the eyeball necessary. Ashcraft who was working with Decker, testified substantially the same as Decker did as to their employment. Abe Cinofsky testified that Decker came around in the morning of the day of the injury and asked him if he had any work of this kind, and witness told him that he had, and Decker and Ashcraft went over and looked at the engines that were to be stripped, and Decker, as spokesman, made an offer of $3 for one and $4 for another; that there was no agreement to work by the day. William Cinofsky, the father, testified similarly to the son. He stated that he did not hire men by the day to tear down these machines; that it was done by contract; that he told Decker and Ashcraft he would give them so much apiece to strip these boilers, and they went to work at it. It is conceded by all the witnesses that neither Decker nor Ashcraft had tools with which to work at stripping the engines, and that these tools were furnished by plaintiffs in error.

Counsel for plaintiffs in error argues that the business or enterprise in which plaintiffs in error were engaged did not bring it within the classification set forth in section 3 of the Workmen's Compensation Act (section 128) as extrahazardous, and that as they had not elected to come under the act they could not be held liable thereunder, unless it is shown, as a matter of fact, that the business was extrahazardous. Hahnemann Hospital v. Industrial Board, 282 Ill. 316, 118 N. E. 767. This court held in this last case that a hospital conducted under certain conditions might be a hazardous business, while it would not be so under others. The mere receiving or buying of junk of a certain character might not be extrahazardous, but that was not the whole of plaintiffs in error's business. The evidence shows that they were operating a junk yard-that is, they were collecting, sorting and preparing junk and metals for market-and that in this work they were sometimes required to use shears driven by electric motor and an acetylene torch. There can be no question that the preparation of this junk for sale was a necessary part of the business, and that the work was of such a...