Hayes v. Marshall Field & Co., Gen. No. 45930

• Court: United States Appellate Court of Illinois
• Writing for the Court: TUOHY; SCHWARTZ, P. J., and ROBSON
• Citation: 351 Ill.App. 329,115 N.E.2d 99
• Parties: HAYES v. MARSHALL FIELD & CO. et al.
• Docket Number: Gen. No. 45930
• Decision Date: 29 September 1953

Page 99

115 N.E.2d 99 351 Ill.App. 329 HAYES
v.
MARSHALL FIELD & CO. et al. Gen. No. 45930. Appellate Court of Illinois, First District, Second Division. Sept. 29, 1953.

Page 100

Askow & Stevens, Chicago (Irwin J. Askow and Richard James Stevens, Chicago, of counsel), for appellant.

Robert A. Wilbrandt, Chicago, for Leonard Mulder.

McNamara, Voigt, Greene & Nordstrand, Chicago (William Greene, Chicago, of counsel), for Marshall Field & Co.

[351 Ill.App. 331] TUOHY, Justice.

Plaintiff, Jennie Hayes, brought suit against her employer, Marshall Field and Company, and a fellow employee, Doctor Leonard Mulder, for damages occasioned by injury from a dust particle which lodged in her eye and aggravated by Mulder in attempting to remove the same. From an order dismissing the complaint on the ground that plaintiff's common-law right of action was superseded by the Illinois Workmen's Compensation Act, plaintiff appeals.

The material facts, set forth in the complaint and the affidavits pro and con on the motions to dismiss the complaint, establish that on December 20, 1949, plaintiff was employed by defendant Marshall Field and Company as a clerk in a basement floor department; that defendant Dr. Leonard Mulder was employed by Marshall Field and Company as a staff physician in its medical department located in the store receiving an hourly rate compensation, and his duties consisted of rendering first aid medical services to injured employees of the company; that while plaintiff was at work upon the premises she passed a woman in a janitress' outfit who was waving a duster over her head, and shortly afterwards plaintiff felt something in her eye; that she was directed to Dr. Mulder's office for treatment; that Mulder started to explore her right eye with a metal instrument 'when I suddenly felt something pierce my eye'; that as a result she lost the sight of the eye.

The motions to dismiss were sustained on the ground that plaintiff's injury resulted from an accident which arose out of and in the course of her employment by the defendant Marshall Field and Company and was barred by section 6 (now section 5) of the Workmen's Compensation Act (Ill.Rev.Stat.1949, chap. 48, par. [351 Ill.App. 332] 143), for the reason that plaintiff and both defendants were subject to and bound by said Act.

Plaintiff contends that, insofar as Marshall Field and Company is concerned, the injury is not compensable under the Workmen's Compensation Act for the reasons (1) that the dust particle which lodged in the eye was not caused as a result of any peculiar hazard of employment, and (2) that an injury received from medical treatment

Page 101

does not arise out of the course of employment and is not compensable under the Act.

Our Supreme Court in a number of cases involving similar facts has held that an injury such as the plaintiff received is compensable under the Workmen's Compensation Act of this State. In General Electric Co. v. Industrial Commission, 411 Ill. 401, 104 N.E.2d 257, the Supreme Court affirmed an award in favor of an employee for an eye injury where the evidence showed that the employee was cleaning the face of a drill press when a foreign object, the nature of which he did not know, struck him in the left eye; that on the following day it became painful and eventually it was necessary to surgically remove the eye. Although in that case the employee did not know the source of the particle which struck him, the award in favor of the employee was sustained. In City of Chicago v. Industrial Commission, 389 Ill. 592, 60 N.E.2d 212, claimant was employed as a license investigator. While proceeding about his duties he stubbed his toe in thepping up to a sidewalk and filed a claim. The Supreme Court in sustaining the claim said 389...