Kivish v. Indus. Comm'n

• Court: Illinois Supreme Court
• Writing for the Court: THOMPSON
• Citation: Kivish v. Indus. Comm'n, 312 Ill. 311, 143 N.E. 860 (Ill. 1924)
• Decision Date: 06 June 1924
• Docket Number: No. 15861.,15861.
• Parties: KIVISH et al. v. INDUSTRIAL COMMISSION et al.

312 Ill. 311

143 N.E. 860

KIVISH et al.

v.INDUSTRIAL COMMISSION et al.

No. 15861.

Supreme Court of Illinois.

April 14, 1924.

Rehearing Denied June 6, 1924.

Error to Circuit Court, Saline County; A. E. Somers, Judge.

Proceedings under the Workmen's Compensation Act by Mary Kivish and others for compensation for the death of Alex Kivish, opposed by the Harrisburg Colliery Company, employer. Decision of Industrial Commission denying award was confirmed by the circuit court, and claimants bring error.

Reversed and remanded, with directions.Charles T. Flota, of Harrisburg (J. B. Lewis, of Harrisburg, of counsel), for plaintiffs in error.

Miley & Combe, of Harrisburg (R. H. Davis, of St. Louis, Mo., of counsel), for defendants in error.

THOMPSON, J.

The circuit court of Saline county confirmed a decision of the Industrial Commission denying an award to plaintiffs in error for damages arising out of the death of Alex Kivish, and this court directed that the case be further reviewed on writ of error.

Vince Balog testified that he was working with Kivish in the mine of defendant in error on April 11, 1919; that Kivish was buried under a fall of coal; that another workman helped him take the coal off Kivish; that one piece was so large that both men were required to handle it; and that Kivish was hauled out of the mine in a coal car.

Dr. M. D. Empson, the company surgeon, testified that he examined Kivish immediately after he was injured; that he found his right knee wrenched and contused, his left thigh lacerated and contused, and his chest bruised; that the injured man coughed and spat blood; that he treated him regularly until June 1, 1919; that during all that time the patient suffered from his injuries, coughed and spat blood; that he saw the injured man on six different occasions after he discontinued calling on him regularly; that the patient did not improve much and was not much improved when he was taken to the hospital in January, 1920; that at that time he was weak and pale and his vitality low; that he gave him a sedative to check his cough; that the patient lost flesh and continued to grow weaker from the time he was injured to the time he was taken to the hospital; that the man was seriously hurt and that he never entertained any hope of a permanent recovery; that he did not see him after he was taken to the hospital in St. Louis, where he died; that he did not know the cause of his death, but that a man in his weakened condition would be more liable to contract disease and to succumb to it.

Mary Kivish, widow of deceased, testified that before her husband was injured he was a strong, healthy man, weighing about 170 pounds; that he was never sick before he was injured; that after his injury he was confined to his bed for more than three months and was never able to walk without crutches; that he lost weight and continued to grow weaker until he was taken to the hospital; that his entire body, except the right shoulder, was bruised, and that he continually complained of pain; that the company which insured the employer against liability paid compensation for about nine months and then refused to pay more unless her husband went to a hospital in St. Louis and consented to an operation; that they forced him to undergo an operation or surrender his right to compensation; that they took her husband to Dr. Niedringhaus, in St. Louis, who placed him in a hospital; that he was treated by the doctor at the request and expense of the insurance company; that she visited her husband at the hospital a week after he was taken there and again a week before he died; that her husband was in bed continuously while she was there, and that he told her his leg was not improving and that he had not been out of bed; that he spat blood from the time he was injured until he died; that they attached heavy weights to his foot to stretch his leg and piled weights on his knee to straighten it; that he suffered great pain from this treatment, and some of the weights were taken off the knee; that he told the nurse the weights would kill him if some of them were not taken off; that all the weights were taken off his leg when he became seriously ill, about February 1; that there was never a plaster of paris cast on his leg.

Andy Kish testified that he acted as interpreter in adjusting compensation between the insurance company and the injured employee; that the representative of ths insurance company told him to say to Kivish that they had paid him compensation for nine months without improvement and that they would not pay him another dime unless he went to the hospital to be treated; that the representative drew a check payable to Kivish for something more than $100, handed it to witness, and instructed him to hold it until Kivish was willing to go to the hospital; that he held the check for a few days to give Kivish time to consider the matter; that Kivish finally decided to go, and pursuant to his arrangement with the insurance company witness accompanied him to St. Louis to see Dr. Niedringhaus; that an X-ray examination was made, and the doctor then told witness to take Kivish to the Missouri Baptist Hospital; that the patient was so weak and crippled that witness had to help him on and off the trains; that when they walked along the street the patient would stop and cough and would have to rest before he could go on; that when he coughed he often expelled a dark substance which looked bloody; that the patient claimed that he was injured internally; that he visited the patient at the hospital; that he never saw a cast on hig leg; that the patient said he had never been out of bed and that they stretched his leg; that several weeks later he was called to the hospital and was told the patient was dying; that he found the patient lying in bed; that there were three doctors around him; that the patient said to him: ‘I...