Fittro v. Indus. Comm'n

• Decision Date: 12 November 1941
• Docket Number: No. 26107.,26107.
• Citation: Fittro v. Indus. Comm'n, 377 Ill. 532, 37 N.E.2d 161 (Ill. 1941)
• Parties: FITTRO v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

377 Ill. 532

37 N.E.2d 161

FITTRO

v.INDUSTRIAL COMMISSION et al.

No. 26107.

Supreme Court of Illinois.

Sept. 15, 1941.

Rehearing Denied Nov. 12, 1941.

Error to Circuit Court, Coles County; George W. Bristow, Judge.

Proceeding under the Workmen's Compensation Act by Louella Fittro, claimant, opposed by the Board of Education of School DistrictNo. 100, employer, for the death of James E. Fittro, employee.To review a judgment of the Circuit Court which reversed a decision of the Industrial Commission and ordered the employer to pay compensation, employer brings error.

Affirmed.

SHAW, J, dissenting.Craig & Craig, of Mattoon, for plaintiff in error.

Harry I. Hannah and Thomas R. Figenbaum, both of Mattoon (Roger Fruin, of Paris, of counsel), for defendants in error.

SMITH, Justice.

This is a writ of error granted by this court to review a judgment of the circuit court of Coles county.The judgment of the circuit court reversed the decision of the Industrial Commission and ordered plaintiff in error to pay compensation to defendant in error for the death of her husband, James E. Fittro.

The facts are not in dispute.James E. Fittro was employed by plaintiff in error as janitor of the Lincoln school in Mattoon, Illinois.His ordinary duties consisted of cleaning and firing the furnace, making minor repairs, and performing whatever odd jobs might be required of him by the principal in the ordinary conduct of the school.He was sixty-three years of age and was of average size and appearance for his age.On December 15, 1938, Fittro went to work about six o'clock in the morning, which was his usual hour to report for duty.A Christmas entertainment was to be held in the school building that evening.Fittro put a Christmas tree on a base in the auditorium during the forenoon.In the afternoon he helped others trim the tree and string lights thereon.In doing this he was required to work on a stepladder, as the tree was about 10 feet in height.There were two boilers installed in the basement of the building.On the day in question, the weather was moderate and only one boiler was in use.About 6:00 o'clock P.M. he returned to his home and ate his dinner.He looked tired but otherwise appeared to be in his usual health.He remained at his home about one hour and then went back to the school building with his wife.When he reached the school building he first went upstairs and then to the basement, evidently for the purpose of attending to the furnace.Among other things he was required to do that evening, before or during the performance, was to move a number of chairs into the room where the entertainment was held.

When the entertainment was over, shortly after 9:00 o'clock in the evening, defendant in error saw her husband return to the basement.She waited for him about fifteen minutes.When he did not return she went to the basement and found him dead.The superintendent of the school and a physician were summoned.They found Fittro in a reclining position, sitting on a ramp or incline which was about 6 feet long and 4 feet wide.This ramp was used in wheeling coal in a wheelbarrow from the coal room to a pit where the boilers were located.His glasses were on and he was in a half-reclining, relaxed position, due to the position of the ramp; his legs were spread apart; his hands were at his side; his pipe which he had been smoking had fallen from his mouth and lay beside him; the wheelbarrow used by him in moving coal from the coal room to the furnace was at the foot of the ramp and against the front of the furnace; the furnace doors were open; there were only two or three small lumps of coal in the wheelbarrow; there was fresh coal on the fire in the furnace; there was no evidence of any external injury.The physician examined Fittro as soon as he arrived and determined that he was dead.Fittro had shown no previous illness subsequent to July, 1938, when he had a cataract removed from his eye.At the time of this operation he underwent a routine physical examination preliminary to the operation which was, in all material respects, negative.Dr. Summers who examined Fittro shortly after his death, testified that in his opinion he died from an attack of myocarditis, meaning a heart condition that weakens the heart muscles.That the immediate cause of death was acute dilation of the heart and that he did not find any secondary or contributing cause.At the hearing before the arbitrator, Dr. Nolan, whose qualifications were stipulated, testified that when the heart is weak it suddenly loses its elasticity and remains dilated because the muscles have lost their power to contract.He further testified that if a person was affected with diseased or weakened blood vessels that might result in an acute dilation of the heart in the performance of his usual duties.In response to a hypothetical question, Dr. Nolan testified that in his opinion death was caused by an acute dilation of the heart.He further testified that acute dilation of the heart might be brought on by heavy work, or hard work, or any undue or unusual exertion.In answer to a further hypothetical question, embracing the facts surrounding the death of Fittro, he expressed the opinion that death was caused by an acute dilation of the heart brought about by fatigue and over-exertion.That the fatigue and voer-exertion was caused by a nervous strain resulting from the work he had been required to do on the day in question.

The arbitrator found that Fittro did not sustain an accidental injury arising out of and in the course of his employment.On review, the Industrial Commission affirmed the decision of the arbitrator.No additional evidence was heard on the hearing before the commission.On certiorari, the circuit court of Coles county entered an order setting aside the decision of the commission, and found that Fittro sustained accidental injuries arising out of and in the course of his employment, and made an award in favor of defendant in error, in accordance with the provision of section 19(f)(2) of the Workmen's Compensation Act. Ill.Rev.Stat.1939, chap. 48, par. 156(f)(2).

It is conceded that both plaintiff in error and Fittro were subject to the provisions of the Workmen's Compensation Act, and that Fittro was, at the time of his death, at a place where the performance of his duties under his employment required...