Hales & Hunter Co. v. Industrial Commission

• Decision Date: 20 May 1964
• Docket Number: No. 38337,38337
• Citation: Hales & Hunter Co. v. Industrial Commission, 198 N.E.2d 846, 31 Ill.2d 139 (Ill. 1964)
• Court: Illinois Supreme Court
• Parties: HALES & HUNTER COMPANY, Appellant, v. The INDUSTRIAL COMMISSION et al. (R. M. Everitt, Appellee.)

Page 846

198 N.E.2d 846

31 Ill.2d 139

HALES & HUNTER COMPANY, Appellant, v.The INDUSTRIAL COMMISSION et al. (R. M. Everitt, Appellee.)

No. 38337.

Supreme Court of Illinois.

May 20, 1964.

Kohler & Merrick, Chicago (Hubert C. Merrick, Chicago, and Terrance J. Van Driska, Chicago, of counsel), for petitioner.

Jack L. Sachs, Chicago, for respondents.

SOLFISBURG, Justice.

This petition for writ of error was taken from the order of the circuit court of Cook County confirming an award of the Industrial Commission in favor of the claimant, R. M. Everitt, and will be considered as a direct appeal under Supreme Court Rule 28-1, Ill.Rev.Stat.1963, c. 110, § 101.28-1.

The claimant, R. M. Everitt, originally initiated proceedings under the Workmen's Occupational Diseases Act to recover compensation for an alleged occupational disease and disablement said to have resulted from dissecting sick chickens in Florida.At the close of proof claimant amended his application to one under the Workmen's Compensation Act alleging an accidental injury in Florida.The arbitrator dismissed the proceeding under the Workmen's Occupational Diseases Act and entered an award for permanent total disability and pension and for medical, surgical and hospital services under the Workmen's Compensation Act.The arbitrator's award was confirmed by the Industrial Commission on review and by the circuit court of Cook County.

Claimant was employed by Hales & Hunter Company of Chicago, Illinois, from 1936 until his retirement May 1, 1960, as a salesman and trouble-shooter for the sale of chicken feed.As part of his employment, he performed autopsies on a large number of diseased chickens and alleged that while performing such autopsies he contracted a fungus infection of his lungs and became permanently disabled.The application under the Workmen's Compensation Act alleged that he sustained an accidental injury on March 30, 1960, and the place of accident is alleged as Florida.

The record indicates that the claimant, Everitt, killed and dissected chickens, slitting the gizzard and making visual and olfactory inspection to determine if diseased chickens had mycotic fungus or a condition known as 'water belly'.This determination was required because 'water belly' was traceable to defective feed supplied by Everitt's employer while mycotic fungus was not.

Beginning in 1957 this phase of his employment increased.Early in 1957 Everitt consulted Dr. Hampton who discovered a shadowy area in his right lung, but Everitt did nothing about it.From 1957 to his retirement on May 1, 1960, Everitt lost forty pounds and his general physical condition was deteriorating.He became very ill in July, 1960, and was hospitalized.

Dr. Hampton was of the opinion that Everitt had a fungus infection of the lung in 1957 and diagnosed his condition in August, 1960, as a fungus disease of the lung.He stated that it is the type of disease that takes quite a while to develop, and a person may harbor the organism for months or years and then suddenly become fulminant and invasive.Dr. Hampton was of the opinion that the disease originated in Everitt's employment.

The employer urges reversal of the award contending that the evidence in the record totally fails to prove an accidental injury in the course of employment, that the required notice was given, or that there was a contract of hire in Illinois bringing the case under the jurisdiction of the Industrial Commission.

We first consider whether or not the record contains evidence of an accidental injury to the employee.The meaning of 'accidental...