Kensington Steel Corp. v. Indus. Comm'n

• Decision Date: 16 March 1944
• Docket Number: No. 27524.,27524.
• Citation: 53 N.E.2d 395,385 Ill. 504
• Parties: KENSINGTON STEEL CORPORATION v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

385 Ill. 504

53 N.E.2d 395

KENSINGTON STEEL CORPORATION

v.INDUSTRIAL COMMISSION et al.

No. 27524.

Supreme Court of Illinois.

Jan. 18, 1944.

Rehearing Denied March 16, 1944.

Error to Circuit Court, Cook County; John Prystalski, Judge.

Proceeding under the Workmen's Compensation Act by Alfred Dalla Valla, claimant, opposed by the Kensington Steel Corporation, employer. To review a judgment confirming an award by the Industrial Commission to claimant for injuries received, the employer brings error.

Judgment reversed; award set aside.McKenna & Harris, of Chicago (James J. McKenna, and B. S. Quigley, both of Chicago, of counsel), for plaintiff in error.

Augustine J. Bowe, William J. Bowe, and John D. Casey, all of Chicago (Bernard F. Martin, of Chicago, of counsel), for defendant in error.

FULTON, Justice.

This cause comes here on writ of error granted to review the judgment of the circuit court of Cook county confirming an award entered by the Industrial Commission to the defendant in error, Alfred Dalla Valla, for injuries received to his hand while in the employ of the plaintiff in error, Kensington Steel Corporation.

Dalla Valla began working for plaintiff in error on June 20, 1940, as a millwright helper and later became a truck driver. A millwright helper was an assistant to the millwright in the repair of machinery in case of breakdown. About a week before Dalla Valla was injured, one of the truck drivers in the plant desired to exchange work with him and become a millwright helper. Upon inquiring from his superiors, Dalla Valla was told that if it was all right with the other man who wanted to change, it was all right with the officials. Dalla Valla then worked as a truck driver, hauling sand to the loaders in the sand mill and from the sand mill to the mullors. These trucks were gas-powered and had a sort of bucket in front which held about 500 pounds of sand.

At the time of the injury, the defendant in error was working nights and had driven the truck until about 12 o'clock when he stopped 10 or 15 minutes for lunch. He resumed his trucking until approximately 2:00 A. M. when he went over to a stove to get warm and while there heard a speed mullor making a racket or clunking noise. He testified that this mill made a clunking noise when it started out, a sort of thump, and that this indicated to him that a rubber bumper inside had gotton loose and fallen to the bottom of the mill. He further testified that once before, as a millwright's helper, he had helped the millwright fix that particular machine; that he had heard that noise before and, therefore, went over to the machine and told the operator that the bumper should be gotten out and fixed. The operator then shut the machine off and Dalla Valla pushed the button to make sure the machine was shut off. He testified that the operator of the machine had not finished making a batch of sand at the time the machine was shut off and that he heard the operator ‘cuss' and shut off the machine. Dalla Valla then opened the door and reached into the machine to get the rubber bumper out of the bottom. The machine was still coasting at the time and the hand of the defendant in error was seriously injured. It was impossible to see inside of the machine, same being entirely closed in. Dalla Valla further testified that he was told how to do his work by John Trumball and Maurice Langham, who were night and day foremen. Besides having worked on this particular machine, he had worked on other similar machines in the factory. He admitted not having repaired any of the machinery himself, but in each case assisted the millwright, who was responsible; that if anybody had trouble with the machine he would tell Dalla Valla who would in turn tell the millwright. He further admitted that, at the time of the injury, being a truck driver, his work was of such a nature that he had nothing whatever to do with the repair of any machines, but when he was a millwright's helper he had assisted in working on this type of machine and, at the time of the injury, because of his previous experience, he thought he would go over to the machine and see what was the matter with it.

John Hovancek, who was operating the machine at the time of the injury, testified that he shut the machine off because he was through mixing a batch of sand; that when the machine started it made a jerking noise and at the time he shut it off it was not making any noise whatsoever and that nothing was wrong with it; that Alfred Dalla Valla came over to him and told him something was wrong with the machine and something should be done about it; that Dalla Valla then told him something about the rubber part of the shaft which was all torn up and Hovancek told him that he had already reported it but that they had not had that particular part, at the time, for repair and further that it had nothing to do with the operation of the machine. He further said that the machine was operating perfectly in spite of the washer that was torn.

James Carter testified that he worked on the machine in the daytime and that nothing was wrong with it as far as he knew; that it didn't make any particular noise except when it was stopping.

John M. Trumball, the master mechanic, testified that he supervised all mechanics and any repairs that were done; that he always sent a millwright or a machinist to do the repairs and that Dalla Valla, prior to becoming a truck driver, had been a millwright's helper; that whenever he worked on a machine defendant in error was under the supervision of a millwright or machinist and only did what he was told; that when Dalla Valla became a truck driver, he was out of Trumball's jurisdiction entirely; that he never authorized truck drivers to repair machines and that it was not customary for persons outside of his department to make repairs on a machine, nor had he ever authorized anyone not in his department to make repairs on machines. He admitted that Dalla Valla might have helped repair this particular machine, but that the particular washer involved was doing no harm and was not changed. When Trumball hired defendant in error he told him what he was supposed to do. Trumball further testified that the noise caused by the machine was as it picked up speed and had nothing to do with the operation of the machine, being merely the vibration of two speed wheels. He had never told Dalla Valla not to go near this particular machine.

The foreman of the truck department testified that no one in his department ever repaired machines. Ted Lesinski testified he looked at the machine immediately after the accident and saw the defendant in error's fingers in the machine and that nothing else was wrong with it.

Maurice Langham, the night-shift foreman, testified that he repaired machines with a helper and had Dalla Valla as a helper while he was in his department; that he instructed him what to do and that Dalla Valla did not do anything without his instructions; that he never let a helper do a job on a big machine without supervision. He admitted that a millwright helper did do certain things without the millwright and that he had not instructed Dalla Valla where the line was drawn as to what he could do and what he could not do and just assumed that a helper should not do a major job; that he had never instructed Dalla Valla not to touch any machine.

It is the contention of the plaintiff in error that Dalla Valla was merely curious and, without authority and against general orders and custom, left his job as a truck driver in the plant of the Kensington Steel Corporation to do something that was outside of the sphere of his present employment; that nothing in the record shows there was any emergency or any need of repair to the machine in question and that the fact that the machine was still running when he stuck his hand in the machine indicated a lack of capacity to handle or repair such a machine.

The theory of the defendant in error is that an employee, who, in an emergency, either real or apparent, acts on a sudden impulse to conserve the interest of his employer, does not depart from the course of his employment when the act performed was not forbidden by his superiors.

The facts in this case are largely in agreement. Dispute exists only as to whether or not the machine actually was in need of repair. Dalla Valla contends that the machine needed repair, whereas all of the other witnesses were of the opinion that the machine was in good working order in spite of the rubber washer that had fallen to the bottom of the machine. It is clear that the defendant in error knew from his...