Ervin v. Indus. Comm'n

• Decision Date: 07 October 1936
• Docket Number: No. 23447.,23447.
• Parties: ERVIN et al. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

364 Ill. 56

4 N.E.2d 22

ERVIN et al.

v.INDUSTRIAL COMMISSION et al.

No. 23447.

Supreme Court of Illinois.

June 10, 1936.

As Modified on Denial of Rehearing Oct. 7, 1936.

Error to Circuit Court, Williamson County; John M. Reid, Judge.

Proceeding under the Workmen's Compensation Act by Ellen Ervin, and minor child to recover for injuries which allegedly caused the death of Raymond Ervin, husband and father, claimants, opposed by the Southern Illinois Timber Company, employer. To review a judgment of the circuit court affirming the decision of the Industrial Commission denying compensation, claimants bring error.

Reversed and remanded, with directions.John R. Dean, of Danville, Leon A. Colp, of Marion, and Andrew B. Dennis, of Danville, for plaintiffs in error.

Ferrell & Hay and Stone & Fowler, all of Marion, for defendant in error.

HERRICK, Chief Justice.

This court granted a writ of error to review the judgment of the circuit court of Williamson county denying compensation to the widow and minor child of Raymond Ervin, deceased, for injuries received by him alleged to have caused his death while in the employ of the defendant in error, the Southern Illinois Timber Company.

The respondent, defendant in error here, operated a sawmill at the intersection of State Highway 149 with another public highway near Royalton, Ill. The plant consisted of the mill, with the usual machinery, tractor, and a small shanty, all in close proximity to, and about 200 feet from, the paved road. The deceased had worked about four or five months immediately prior to his death as an ‘off-bearer’ for the respondent and during the same period worked at night for the respondent as watchman at the mill. His duties required him to guard the property and see that nothing was carried away. A cot was provided in the shack in which he could sleep a portion of the time. He lived with his uncle, about one-quarter of a mile from the mill. So far as the record shows, the only sickness from which the deceased over suffered was an illness in the nature of a fever when he was a small child, which as an after-effect had caused an impediment in his speech. On September 27, 1934, the deceased had worked at the mill all day, had eaten his evening meal at his uncle's, and returned to the sawmill to assume his position as night watchman. No light or heat was provided at the mill. The evening in question was damp, chilly, and foggy, and Ervin built a fire on the ground close to the shanty. He had occasionally on previous evenings had a small fire burning on the premises, which fact was known to the respondent's foreman. So far as the record discloses, no one saw the deceased from the time he left his uncle's until about 10 o'clock that night. At about that time George Stafko, who had been at the uncle's home, was returning on foot to his own home at Royalton. As he walked along the highway in the neighborhood of the sawmill he heard cries coming from that vicinity. As he drew closer he recognized them as cries for help. He immediately ran to the mill and found Ervin lying in the fire on his back. Ervin asked him to take him off the fire; Stafko did and propped him against some timbers near by while Stafko went for help. He and Ervin's uncle reurned to the scene within a short time and found the watchman still lying against the timbers, as he was when Stafko left. Ervin could move his head and neck, his eyes were open, and he could talk but was unable to walk. His arms hung limp. His legs were rigid and bent. Dr. Tweady, of Royalton, soon arrived at the scene. The injured man was removed in the physician's car to the hospital. He could not sit in the car due to the stiffness of his lower limbs and he was semiconscious. The burns were quite deep, being classified as second and third degree, and extended from the hip line on the anterior portion of the body to below the knees. Ervin died about 1 o'clock the next day from the effect of the burns. His minor child was then ten years old.

A petition for compensation was filed by the widow with the Industrial Commission on October 19. On the hearing the arbitrator found the deceased sustained accidental injuries which arose out of and in the course of his employment on September 27, 1934, from which he died the next day, and entered an award in favor of the petitioner for $3,000, the amount of compensation, if any, to which she was entitled under the provisions of the Compensation Act. On the petition of the respondent for review the Industrial Commission set aside the decision of the arbitrator and found, amongst other things, ‘that the said Raymond Ervin did not sustain accidental injuries on the 27th day of September, 1934, and therefore the petitioner cannot recover compensation.’ For that reason, and none other, the petitioner was denied compensation. On writ of certiorari from the circuit court of Williamson county granted at the instance of the petitioner, the circuit court upheld the decision of the Industrial Commission. That judgment is brought here by the widow for review.

No evidence was offered by the respondent and there is no conflict in that offered by the petitioners, plaintiffs in error here. The sole issue for decision is whether the deceased sustained accidental injuries which arose out of and in the course of his employment. That he was injured and that such injuries were the proximate cause of his death were clearly proved.

It is earnestly insisted by respondent that the injuries were neither accidental nor did they arise out of and in the course of the employment of the deceased. In deciding the issue presented it is well to remember that the Workmen's Compensation Act (Smith-Hurd Ann.St. c. 48, § 138 et seq.) is a radical departure from the pre-existing laws applicable to the liability of the master for an injury received by the servant arising out of and in the course of his employment or for death resulting through the negligence of the master during such employment. The former legal doctrines of assumed risk, negligence of fellow servant, contributory negligence, and negligence of the master were severally rejected in the application of the new statute. The law was adopted as a result of the more modern thought that the workman, alone, should not bear the burden of his injury but that industry should contribute its part in carrying a portion of the financial loss sustained by the workman or his dependents through his injury or death. The statute is to be liberally construed. With these thoughts, we approach the determination of the issue presented.

The Legislature in adopting the act did not undertake to define the term ‘accident’ or the phrase ‘arising out of and in the course of his employment’ but left the interpretation thereof to the courts. The word ‘accidental,’ as used in the act, is a comprehensive term almost without boundaries in meaning as related to some untoward event. So far as our search reveals, no court has attempted to circumscribe the meaning of the word ‘accident’ as applied to different combinations of circumstances resulting in traumatic injuries to an individual although many definitions have been ascribed thereto. This court said in Arquin v. Industrial Comm., 349 Ill. 220, 223, 181 N.E. 613, 614: ‘The words ‘accident’ and ‘accidental injury’ as used in the Compensation Act are not technical, legal terms. Things which happen in the course of the employment unexpectedly and without the affirmative act or design of the employee, resulting in injury to him, may safely be said to cause accidental injury. Peru Plow Co. v. Industrial Comm., 311 Ill. 216, 142 N.E. 546. An ‘accident’ has been defined by the English courts in compensation cases as ‘any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence arising out of the employment.’ Fenton v. Thorley & Co., 5 B.W.C.C. 1.' Many decisions of this court and other courts of review of foreign jurisdictions support this meaning of the word ‘accident’ as used in the Compensation Act. ‘The words ‘arising out of’ and the words ‘in the course of’ are used conjunctively. * * * The words ‘arising out of’ refer to the origin or cause of the accident, and are descriptive of its character, while the words ‘in the course of’ refer to the time, place, and circumstances under which the accident takes place.' Mueller Construction Co. v. Industrial Board, 283 Ill. 148, 152, 118 N.E....