City of Pekin v. Indus. Comm'n

• Decision Date: 04 December 1930
• Docket Number: No. 19613.,19613.
• Citation: 341 Ill. 312,173 N.E. 339
• Court: Illinois Supreme Court
• Parties: CITY OF PEKIN v. INDUSTRIAL COMMISSION et al.

341 Ill. 312

173 N.E. 339

CITY OF PEKIN

v.INDUSTRIAL COMMISSION et al.

No. 19613.

Supreme Court of Illinois.

June 20, 1930.

As Modified on Denial of Rehearing Oct. 8, 1930.

Motion to Set Aside Order Denying Rehearing Denied Dec. 4, 1930.

Commissioner's Opinion.

Error to Circuit Court, Tazewell County; Joseph E. Daily, Judge.

Proceedings under the Workmen's Compensation Act by Hulda Strope for the death of John Strope, her husband, claimant, opposed by the City of Pekin, employer. Finding of Industrial Commission setting aside award of arbitrator was reversed and remanded by the circuit court with direction to confirm award of arbitrator, and the employer brings error.

Reversed.C. I. Martin, Corp. Counsel, R. L. Russell, and William A. Potts, all of Pekin, for plaintiff in error.

Henry Mansfield and David J. Cowan, both of Peoria, and Robert R. Reynolds, of Rock Island, for defendant in error.

PARTLOW, C.

Defendant in error, Hulda Strope, the widow and administratrix of the estate of John Strope, deceased, on June 2, 1926, filed her claim for compensation against plaintiff in error, the city of Pekin, on account of the death of her husband; she being the only person dependent upon him for support. There was a hearing before an arbitrator, who made an award against plaintiff in error. On review the Industrial Commission set aside the award, and found that while the deceased on January 1, 1926, sustained an accidental injury which resulted in his death, the injury did not arise out of and in the course of his employment. A writ of certiorari was sued out of the circuit court of Tazewell county, the finding of the Industrial Commission was reversed, and the cause remanded, with directions to confirm the award of the arbitrator. The case comes to this court on a writ of error.

Plaintiff in error maintains a wagon bridge, with a length of about 900 feet, over the Illinois river at Pekin. It has several spans, one of which is about 300 feet long and is over the channel of the river. This span is so built that it can be opened to allow boats to pass. On the south side of this span, and about in the middle of it, is a cabin or house about 8 by 12 feet for the use of the bridge tenders. It is heated by a stove and has in it a table, a telephone, and the controls for the electric motor which moves the draw. The bridge is lighted by electricity at night. The roadway is 18 feet wide, but vehicles are allowed to move in only one direction at a time across the draw span. The deceased was about sixty-five years of age and was in good health. From May 7, 1923, until the time of his death, he was one of the bridge tenders on this bridge. He acted as a watchman, directed traffic, and swung the draw on the approach of boats. He had nothing to do with keeping the bridge in repair or in oiling the machinery. His hours were from 5:30 o'clock in the evening until about the same hour next morning. On the evening of December 31, 1925, he went to work as usual. About 11 o'clock that night Carl Rasmussen, who lived in a houseboat on the river at the west end of the bridge, crossed the bridge and saw the deceased in the cabin, eating lunch. About 2 o'clock the next morning Rasmussen heard a knock on his back door. He found the deceased at the door. He was wearing a hat and had a flash-light. He said he was sick, and Rasmussen took him into the house and gave him a chair. Deceased said he had a pain in his right side and in his head. Rasmussen asked him if he had been struck by an automobile or had been slugged, and he said he had not. Rasmussen asked him if he had fallen, and he replied, ‘I don't know what happened.’ Rasmussen put him in bed and went to the cabin and called a doctor by telephone. When Rasmussen entered the cabin he found deceased's overcoat lying on the floor between the door and the stove. Nothing in the cabin had been disturbed. Dr. Balcke went to Rasmussen's houseboat about 3:30 o'clock that morning. He found the deceased had a large abrasion and bruises on his left temple, there was a swelling extending upward towards the top of his head and down over the ear on the same side, there was a fracture at the base of the skull, there was an abrasion on the left wrist, and bruises and fractured ribs on the right side. The doctor called the police station of plaintiff in error, reported that deceased had been seriously injured, and requested the police to notify his family. About 7:30 o'clock that morning deceased was taken in an ambulance to the home of his son, where he died a few hours later. He had $13 in bills in his clothes after he was injured. When he went to work that evening he wore a cap of heavy material. U. E. Bloompot, the day bridge tender, on the morning of January 1, 1926, found a cap on the metal sleeper of the bridge below the floor under the cabin. There were openings in the floor of the bridge at this point through which the cap might have fallen, but it was not identified as the cap worn by the deceased. Formal notices in writing of the injury, the death, and the claim for compensation were served on the city clerk and city attorney of plaintiff in error on May 18, 1926.

Plaintiff in error contends that the deceased was a city official and not an employee of the city, and that the city was not liable under the exception in section 5 of the Workmen's Compensation Act (Smith-Hurd Rev. St. 1929, c. 48, § 142). Defendant in error contends that the ordinance which purports to create the office of bridge tender is invalid; that it does not prescribe the duties of the office and attempts to delegate that right to the bridge committee; and that, even if the ordinance is valid, bridge tenders are not city officials within the meaning of the Compensation Act.

Section 5 of the Workmen's Compensation Act provides that the term ‘employee,’ as used in the act, shall be construed to mean every person in the service of the state, county, city, town, township, incorporated village or school district, body politic, or municipal corporation therein, under appointment or contract of hire, express or implied, oral or written, except any official of the state, or of any county, city, town, township, incorporated village, school district, body politic, or municipal corporation therein. Section 2 of article 6 of the Cities and Villages Act (Smith-Hurd Rev. St. 1929, c. 24, § 85) provides that every city council shall have power to provide for the election or appointment of such officers ‘as may by said council be deemed necessary or expedient.’ Section 3 of the same article (section 86) provides that the city council may by ordinance not inconsistent with the provisions of the Act, prescribe the duties and define the powers of all such city officers, together with the term of any such office, provided that the term shall not exceed two years.

Section 1 of chapter 6 of the ordinances of the city of Pekin provides that the mayor, by and with the advice and consent of the city council, at the first regular meeting of the council after the commencement of each municipal year, shall appoint three bridge tenders, each of whom shall be a citizen of the United States, a qualified elector residing within the city limits, and shall hold his office for the term of one year and until his successor is appointed and qualified. Article 2, chapter 14, of the same ordinance contains seven sections. The first section provides that there is created the office of three city bridge tenders, who shall be known as No. 1, No. 2, and No. 3, who shall be appointed and hold office as hereinbefore provided. Section 2 provides that each bridge tender shall, before entering upon the duties of his office, take an oath and execute a bond in the penal sum of $200, to be approved by the city council, for the faithful performance of the duties of his office. Section 3 provides that two or more of said bridge tenders shall be on duty at all hours and shall be subject to suspension or removal from office in certain instances. Section 4...