Fischer v. Industrial Commission

• Decision Date: 18 January 1951
• Docket Number: No. 31615,31615
• Citation: 96 N.E.2d 478,408 Ill. 115
• Parties: FISCHER v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

Page 478

96 N.E.2d 478

408 Ill. 115

FISCHER v. INDUSTRIAL COMMISSION et al.

No. 31615.

Supreme Court of Illinois.

Jan. 18, 1951.

Thomas C. Angerstein, George W. Angerstein, Thomas K. Gifford, and Hassel B. Smith, all of Chicago, for plaintiff in error.

Theodore P. Nebel and Owens, Owens & Rinn, all of Chicago, for defendant in error.

WILSON, Justice.

Herman Fischer, hereafter referred to as the claimant, filed an application for adjustment of claim with the Industrial Commission, alleging that he sustained an accidental injury to his left wrist arising out of, and in the course of, his employment by Motor Cargo, Inc. An arbitrator found the injury was compensable and awarded compensation for temporary total incapacity and a twenty-five per cent permanent loss of use of the left hand. Upon review, the Industrial Commission found that the injury did not arise out of, and in the course of, the employment and dismissed the application for adjustment of claim. Thereafter, the superior court of Cook County reversed the decision of the Industrial Commission and reinstated the award made by the arbitrator. We have allowed the employer's petition for writ of error for a further review of the record.

Claimant, a dock hand, was injured in a fight with Paul Kimmel, his foreman, at about two-thirty in the afternoon on September 13, 1947. Claimant had two drinks of whiskey with his lunch and, after checking the cargo in a loaded truck, was given a number of bills of lading and instructed to load an empty truck with two men who had been working with him. Raymond Cuttill and two other dock hands were loading another truck in the same vicinity and the freight and parcels for the two trucks were mixed together on the loading dock.

Othe events preceding the injury are disputed. According to claimant, instead of loading his own truck, he assisted Cuttill in loading the other truck upon the theory that, once the freight for the other truck was removed, it would be easier to load his own truck. Claimant further testified that, while he was so engaged, Kimmel appeared and an argument ensued as to why he was not working on his own truck; that Kimmel used a swear word and grabbed the bills of lading from his hand; that he picked up some of the bills which had fallen to the floor and pushed them against Kimmel's chest but did not strike him; that, as he turned to leave, intending to quit work for the rest of the day, Kimmel punched him in the eye, knocking him over a low crate, and that he broke his wrist when he fell.

The testimony of Marshall Sigler, dock hand who was working on the other side of the loading dock, differed only to the extent that he stated claimant and Kimmel had been arguing for some time prior to the fight and that claimant tapped Kimmel on the chest or arm three or four times just before claimant handed over the bills of lading and Kimmel struck him.

Kimmel testified that, about one-thirty in the afternoon, he noticed claimant was not working; that his truck was empty, and that, from time to time, he would stand on the blades of the two-whell hand trucks used by Cuttill's men, sing, and, in general, obstruct and bother the dock hands trying to load the other truck. Although he asked claimant to work and repeated this request at intervals, claimant continued his horseplay, whereupon he asked for and received the bills of lading, told claimant to go home and come back the next work day, and started to load the truck assigned to claimant himself. About fifteen minutes later, claimant, who had not left the loading dock as instructed, approached him with threats, made fighting motions and finally struck him on the chest. He walked away and, upon his return a few minutes later and while he was bending over to load a piece of freight on a hand truck, claimant struck him twice in the chest. As he straightened up, he hit claimant a single blow, knocking him over a crate resulting in the injury to him and the end of the fight. It is undisputed that Kimmel was wearing glasses and did not remove them when he hit claimant.

Cuttill, the only other occurrence witness to testify, corroborated Kimmel in all material respects, particularly as to the facts that claimant was not helping him and was loading his own truck only intermittendly; that the fight occurred about fifteen minutes after Kimmel received the bills from claimant, and that claimant threatened Kimmel, took a fighting stance and hit Kimmel twice in the chest before Kimmel struck his one and only blow.

Although the facts are somewhat conflicting, the law is clear. An employer operating under the Workmen's Compensation Act is not an insurer of the safety of his employees at all times during the employment. Container Corp. v. Industrial Comm., 401 Ill. 129, 81 N.E.2d 571; Chicago Hardware Foundry Co. v. Industrial Comm., 393 Ill. 294, 65 N.E.2d 778. Under our statute, an accidental injury, to be compensable, must arise out of, as well as in the course of, the employment. Armour & Co. v. Industrial Comm., 397 Ill. 433, 74 N.E.2d 704; Math Igler's Casino, Inc., v. Industrial Comm., 394 Ill. 330, 68 N.E.2d 773. In general, an injury may be said to arise out of the employment when, upon consideration of all the attendant circumstances, there is apparent to the rational mind a causal connection between the conditions under which the work was performed and the injury. Jefferson Ice Co. v. Industrial Comm., 404 Ill. 290, 88 N.E.2d 837; Illinois Country Club, Inc., v. Industrial Comm., 387 Ill. 484, 56 N.E.2d 786. In short, the injury must have its origin in some risk connected with or incidental to the employment. Container Corp. v. Industrial Comm., 401 Ill. 129, 81 N.E.2d 571; Olson Drilling Co. v. Industrial Comm., 386 Ill. 402, 54 N.E.2d 452. On...