Math Igler's Casino, Inc. v. Indus. Comm'n

• Decision Date: 18 September 1946
• Docket Number: No. 29434.,29434.
• Citation: Math Igler's Casino, Inc. v. Indus. Comm'n, 394 Ill. 330, 68 N.E.2d 773 (Ill. 1946)
• Parties: MATH IGLER'S CASINO, Inc. v. INDUSTRIAL COMMISSION et al.
• Writing for the Court: WILSON
• Court: Illinois Supreme Court

394 Ill. 330

68 N.E.2d 773

MATH IGLER'S CASINO, Inc.

v.INDUSTRIAL COMMISSION et al.

No. 29434.

Supreme Court of Illinois.

Sept. 18, 1946.

Error to Circuit Court, Cook County; Harry M. Fisher, Judge.

Proceeding under the Workmen's Compensation Act by August Favila, employee, opposed by Math Igler's Casino, Inc., employer. To review a judgment confirming a decision of the Industrial Commission awarding employee compensation, the employer brings error.

Reversed and remanded, with directions.

Angerstein & Angerstein, of Chicago (Thomas C. Angerstein, George W. Angerstein, Charles Wolff, William L. Daily, and G. E. Winders, all of Chicago, of counsel), for plaintiff in error.

Sol Andrews and Abraham B. Litow, both of Chicago, for defendant in error.

WILSON, Justice.

August Favila filed and application with the Industrial Commission for the adjustment of compensation, charging that he suffered an accidental injury when a fellow employee accidentally struck him in the eye with a soup ladle while employed by Math Igler's Casino, Inc. An arbitrator awarded compensation, the Industrial Commission affirmed the award, and the circuit court of Cook county confirmed the decision of the commission. We have granted the employer's petition for a writ of error, and the record is submitted for a further review.

The facts are not in dispute. On June 11, 1944, Favila was an employee in the kitchen of a restaurant known as Math Igler's Casino, in Chicago, and owned and operated by Math Igler's Casino, Inc. Joe Avila was employed in the kitchen of the same restaurant. On the day named, Favila appeared at his place of employment about twelve o'clock noon. Upon entering the kitchen he greeted the other employees. Avila answered, ‘Hello, Gus,’ in a friendly manner. Favila repaired to the basement where he changed from his street clothes into his uniform, returned to the kitchen, went to a coffee urn, and proceeded to make coffee for himself and some of the other employees. Avila, who was peeling potatoes at a place some thirty feet distant from the coffee urn, asked Favila why he was working that day, and the latter answered, ‘Ask the chef.’ According to Favila, when the coffee was brewed, he and other employees, including the waitresses, drank the coffee and ate some rolls in leisurely fashion. Avila did not join the group but continued peeling potatoes. On a shelf above the sink where he was working there was a long wooden soup ladle. After Favila had finished his repast, he went to an icebox located about eighteen feet from Avila, still engaged in the process of peeling potatoes. Avila had no work or duties to perform around this icebox. Favila opened the door of the refrigerator and, while standing in a stooped over position, Avila, armed with the soup ladle, walked quickly toward him and, without saying a word, struck Favila with the ladle in the region of the left eye, knocking him to the floor. The injuries suffered caused Favila to lose the vision in his left eye permanently. After striking Favila, Avila, again without saying a word, walked to the back of the kitchen and went downstairs. The chef, Alexander Christ, summoned the police, but before the officers arrived, Avila, now dressed in his street clothes, and without comment to anyone, departed. From the testimony of Favila, it appears that he had known Avila for more than two years prior to the day of the assault; that they were good friends; that Avila's query as to why he was working on the day of the attack was made in a friendly way, and that his reply was likewise in a friendly tone. Favila testified, further, that Avila's assault upon him came as a complete surprise; that he knew of no reason why Avila should strike him; that he had never signed a complaint against Avila; that he had later returned to the restaurant several times, but that Avila was not present and, to his knowledge, had never been back to work at the restaurant. The physical details and attending circumstances of Avila's assault upon Favila are also contained in a statement of Christ, the chef. His statement, admitted in evidence by stipulation, amply corroborates Favila's testimony.

The employer, the plaintiff in error, contends that the assault upon Favila, the defendant in error, had no connection whatever with the work in which he and his assailant were engaged and that, accordingly, the injuries sustained in the assault are not within the contemplation of the Workmen's Compensation Act. Defendant in error directs attention to what he describes as a salient factor. Referring to the conversation previously narrated between Avila and himself, he insists, ‘This particular conversation is the whole structure of this case because we consider that it was this conversation that was the only cause that brought about the injuries.’ Upon this basis, he contends that an injury arises out of the employment if it can be seen to have followed the natural incident of the work and to have been contemplated by a reasonable person, familiar with the whole situation, as a result of the exposure occasioned by the nature of the employment.

Since the facts are uncontroverted, the decisive issue as to whether the injuries of the defendant in error arose out of and in the course of his employment is a question of law. Illinois Country Club, Inc. v. Industrial Com., 387 Ill. 484, 56 N.E.2d 786;Farley v. Industrial Com., 378 Ill. 234, 37 N.E.2d 787. The decision of the Industrial Commission and the judgment of the circuit court upon the question of law presented are not binding upon this court. Ervin v. Industrial Com., 364 Ill. 56, 4 N.E.2d 22. The Workmen's Compensation Act requires that an accidental injury, to be compensable, must arise out of as well as in the course of employment, the phrases ‘arising out of’ and ‘in the course of’ the employment, being used conjunctively in the statute. Borgerson v. Industrial Com., 368 Ill. 188, 13 N.E.2d 164. Favila's injury was received in the course of his employment. To be entitled to compensation, the burden rested upon him to prove further that his injury arose out of his employment. The words ‘arising out of’ refer to the origin or cause of the accident and are descriptive of its character. The mere fact that an employee is present at the place of injury because of his employment is insufficient unless the injury itself is a result of some risk of the employment. In short, an injury arises out of the employment when, upon consideration of all the circumstances, there is apparent to the rational mind a causal connection between the conditions under which the work is required to be performed and the resultant injury. Illinois Country Club, Inc. v. Industrial Com., 387 Ill. 484, 56 N.E.2d 786. Conversely, it is settled that if an injury is caused by reason of some factor unrelated to the nature of the employment, it does not arise out of the employment, and an injury not fairly traceable to the employment as a contributing, proximate cause, and which comes from a hazard to which the employee would have been equally exposed apart from the employment, does not arise out of his employment, as the causative danger must be peculiar to the work and not common to the neighborhood and the public. Chicago Hardware Foundry Co. v. Industrial Com., 393 Ill. 294, 65 N.E.2d 778;Great American Indemnity Co. v. Industrial Com., 367 Ill. 241, 11 N.E.2d 9;Spiller v. Industrial Com., 331 Ill. 401, 163 N.E. 406, 60 A.L.R. 1397;Boorde v. Industrial Com., 310 Ill. 62, 141 N.E. 399;Weis Paper Mill Co. v....