Dur-Ite Co. v. Indus. Comm'n

• Decision Date: 18 September 1946
• Docket Number: No. 29459.,29459.
• Citation: 394 Ill. 338,68 N.E.2d 717
• Parties: DUR-ITE CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

394 Ill. 338

68 N.E.2d 717

DUR-ITE CO.

v.INDUSTRIAL COMMISSION et al.

No. 29459.

Supreme Court of Illinois.

Sept. 18, 1946.

Error to Superior Court, Cook County; Ulysses S. Schwartz, judge.

Proceeding for compensation under the Occupational Diseases Act by Frank Holmes, employee, opposed by the Dur-Ite Company, employer. The employee died, and his widow, Madge Holmes, filed her application for adjustment of claim with the Industrial Commission. An arbitrator awarded compensation, the Industrial Commission affirmed the award, and the superior court confirmed the decision of the commission. To review such decision, the employer brings error.

Reversed and remanded with directions.

Klohr & Merrick, of Chicago (Hubert C. Merrick, of Chicago, of counsel), for plaintiff in error.

Augustine J. Bowe, William J. Bowe, and John D. Casey, all of Chicago, for defendant in error.

WILSON, Justice.

Frank Holmes filed an application for the adjustment of compensation with the Industrial Commission, charging that on or about March 31, 1938, he became permanently disabled from the occupational disease of silicosis at Martinez, California, and that, at the time of his disablement, he was engaged in repairing a tunnel. The arbitrator found that the Industrial Commission was without jurisdiction since the last exposure to the hazards of an occupational disease took place in the State of California, and not in this State. The record could not be completed owing to the death of the court reporter who took a substantial portion of the testimony, and the Industrial Commission granted Holmes's petition for a trial de novo. Evidence was heard by one of the commissioners but, before the Industrial Commission reached a decision, Holmes died on March 20, 1941. Thereafter, on April 9, 1941, Madge Holmes, the widow of Frank Holmes, filed her application for adjustment of claim with the Industrial Commission charging the approximate date of disablement was April 1, 1938, that the place of disablement was California, and that, at the time of disablement, Holmes was engaged in sandblasting and drilling in concrete-repair of concrete structures, and that the general nature and character of his illness was pneumocosis and silicosis. By stipulation, portions of the record on the first hearing and the record on the second hearing before a single commissioner were admitted in evidence. An arbitrator awarded compensation, the Industrial Commission affirmed the award, and the superior court of Cook county confirmed the decision of the commission. We have granted a writ of error for a further review.

The employer, the Dur-Ite Company, is engaged in the business of rehabilitating and waterproofing cement structures such as bridges, viaducts and tunnels. Holmes was first hired by the corporation in June, 1936. From the effective date of our Workmen's Occupational Diseases Act, October 1, 1936, it is agreed that Holmes worked from October 1 to October 7, on the Roosevelt Road viaduct, in Chicago; from October 8 to November 13 on the North Avenue viaduct, in Milwaukee, Wisconsin; from November 16 to December 2, on the Sixth Street bridge, in Milwaukee; December 3 and 4, again on the Roosevelt Road viaduct, Chicago; December 6 to 16, on the Sixth Street bridge, Milwaukee; from July 16 to October 10, 1937, on the North Avenue viaduct, in Milwaukee; October 11 to November 10 on the Roosevelt Road viaduct in Chicago, and from November 25, 1937, to April 1, 1938, on the Franklin turnnel, Glen Frazer, California.

The nature and character of Holmes's employment in Illinois on and after October 1, 1936, was stipulated in detail. The work on the Roosevelt Road viaduct in Chicago consisted of general construction. The next work done in Illinois was on December 3 and 4, and consisted solely of waterproofing and involved no reconstruction. Holmes did not work again in Illinois until October 11, 1937. His work on October 11, 12, 13, 14, 15, 17, 20, 25 and 26 and November 10 consisted solely of waterproofing. Holmes himself testified that his duties on the Roosevelt Road project in the fall of 1937 consisted of waterproofing and that there was no dust in this type of work. It also appears that, during this period, Holmes worked for about two months in the fall of 1936 and about three months in the summer and fall of 1937 on bridge and viaduct jobs in Milwaukee, Wisconsin, and that, in 1936, his work consisted of chipping concrete and drilling, and, in 1937, first, in chipping and breaking concrete, and, later, in supervising the breaking job. Both chipping and drilling produce dust. Holmes was not employed between November 10 and 25, 1937, when he commenced work on the Franklin tunnel in California.

The California project was a railroad tunnel one mile 279 feet in length, eighteen feet high and thirteen feet wide. Holmes's work consisted of drilling and forcing a liquid or semiliquid compound into the holes drilled by others. The air in the tunnel was cloudy and dusty as a result of drilling, chipping and sandblasting operations. When Holmes was working between other scaffolds and an exhaust fan, the dust from the operations on the other scaffolds would be pulled past him. Sometimes the men would stop work, waiting for the air to clear. The testimony discloses that Holmes had no physical complaints when he went to California but that, in January, 1938, he noticed shortness of breath and consulted a doctor in Martinez, who examined him and gave him two prescriptions. Holmes testified that, as he continued to work, his condition became worse, and that he observed loss of strength and developed a cough. March 31, 1938, he stopped work and returned to Illinois. On April 5, 1938, Holmes consulted Dr. Beck in Chicago, who obtained a history to the effect that he had been in good health until approximately two months prior thereto. Holmes was hospitalized for a short time and, thereafter, remained under treatment in his home until his death. The employer concedes sufficient medical evidence was adduced upon which to base a finding that Holmes died as a result of silicosis. The medical opinions of the two physicians who attended Holmes, it may be observed, rest principally upon the exposure in California.

Seeking a reversal, plaintiff in error, the Dur-Ite Company, advances as its principal contention the proposition that the Illinois Workmen's Occupational Diseases Act is not extraterritorial in its application. Defendant in error, Madge Holmes, maintains, on the other hand, that the issue of extraterritoriality of the statute is not presented for decision. Her argument is that where a contract of employment is made in this State, and part of the exposure to the hazard of an occupational disease is in Illinois, our statute controls the rights of the parties, irrespective of the fact that part of the exposure was beyond the territorial limits of this State.

From the stipulated facts, it appears that Holmes worked five days in Illinois commencing October 1, 1936, two days in December, namely, December 3 and 4, and the next ten days in October and one day in November, a total of eighteen working days. Even if the time be calculated by including each day from October 1 to 7, inclusive, December 3 and 4, 1936, and October 11 to and including November 10, 1937, the total period would be forty days' employment in Illinois, twenty days less than the period of sixty days' employment in this State required to constitute a last exposure to silicosis. On the other hand, the exposure in both Wisconsin and California was much more prolonged and substantial. Section 6 of the statute (Ill.Rev.Stat.1945, chap. 48, par. 172.6,) requires proof that the employee has contracted a disease the inception or aggravation of which is fairly traceable to the hazards of the employment with the employer from whom compensation is claimed. Section 25 ordains that an employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease (other than silicosis and asbestosis) when, for any length of time, he is employed in an occupation or process in which the hazard of the disease exists. This section also provides that the only employer liable for compensation in silicosis cases shall be the last employer in whose employment the employee was last exposed during a period of sixty days or more after the effective date of the statute. Section 25 does not dispense with the requirements of section 6 that there be a showing of some causal connection between the disease or its exaggeration and the employment with the employer sought to be charged. Palmer House Co. v. Industrial Com., 388 Ill. 542, 58 N.E.2d 595;Ferguson & Lange Founderies, Inc. v. Industrial Com., 380 Ill. 185, 43 N.E.2d 684;Liberty Foundries Co. v. Industrial Com., 373 Ill. 146, 25 N.E.2d 790.

Defendant in error relies, however, upon Central Pattern & Foundry Co. v. Industrial Com., 374 Ill. 300, 29 N.E.2d 511, and Morris Metal Products Co. v. Industrial Com. 370 Ill. 292, 18 N.E.2d 899. In the case last cited, the only question presented and decided was whether the provisions of section 25 of the act required exposure of sixty working days to justify recovery. The court held that where an employee has worked for sixty days or more, and has been exposed to the hazards of silicosis during a portion of the time, the period constitutes a last exposure despite the fact he may not have been exposed to such hazards on each on the sixty working days. In the Central Pattern & Foundry case, a question of fact was presented as to whether the employee was in employment with his last employer against whom he sought to recover compensation sixty days after the effective date of the statute. Favorable decisions to the employees in these two cases do not aid defendant in error here for the adequate reason that, according to the most liberal construction of the facts, Holmes was employed in Illinois only a total...