McLaughlin v. Indus. Bd. of Illinois

• Decision Date: 05 December 1917
• Docket Number: No. 11000.,11000.
• Citation: 117 N.E. 819,281 Ill. 100
• Parties: McLAUGHLIN, Commissioner of Highways, v. INDUSTRIAL BOARD OF ILLINOIS et al.
• Court: Illinois Supreme Court

281 Ill. 100

117 N.E. 819

McLAUGHLIN, Commissioner of Highways,

v.INDUSTRIAL BOARD OF ILLINOIS et al.

No. 11000.

Supreme Court of Illinois.

Oct. 23, 1917.

Rehearing Denied Dec. 5, 1917.

Error to Circuit Court, Moultrie County; George A. Sentel, Judge.

Proceedings under the Workmen's Compensation Act by Ida Belle Hiler, administratrix, against George McLaughlin, Commissioner of Highways, to recover compensation for the death of her husband, Abraham Hiler, employé. The circuit court, after quashing the writ of certiorari to review proceedings of the Industrial Board awarding compensation, certified that the case was one proper to be reviewed by the Supreme Court. Judgment of the circuit court reversed.

Carter, C. J., and Farmer, J., dissenting.Whitley & Fitzgerald, of Decatur, and McLaughlin & Thompson, of Sullivan, for plaintiff in error.

M. A. Mattox, of Sullivan, J. B. Titus, C. R. Patterson and E. J. Miller, both of Sullivan, for defendants in error.

DUNCAN, J.

This case arose under the Workmen's Compensation Act of 1913, and comes to this court on a writ of error to review the judgment of the circuit court of Moultrie county, quashing a writ of certiorari to review the proceedings of the Industrial Board, in which Ida Belle Hiler, administratrix, was awarded $1,500 compensation for the death of her husband, Abraham Hiler.

On October 15, 1913, Abraham Hiler, while at work clearing obstructions from a new road being built under the direction of the three highway commissioners of the town of Marrowbone, Moultrie county, was killed by a fragment of a stump as the result of an explosion of dynamite used in the work of removing stumps from the road. Subsequently the township adopted the one commissioner system, and George McLaughlin was elected commissioner, and was so acting at the time the proceeding in this case was filed for compensation. Notice of the accident and of claim for compensation was given the three commissioners in office at the time the accident occurred and also to W. G. Younger. Subsequently a petition was filed against Younger alone, and the former petition against him and the commissioners was abandoned. An award against Younger was denied by the Industrial Board, and its decision was confirmed by the circuit court on writ of certiorari upon the ground that Younger was not the employer of Hiler. Thereafter the petition in this case was filed against the present acting sole commissioner, and the above award was made. The circuit court, after quashing the writ of certiorari, certified that the case was one proper to be reviewed by the Supreme Court.

One of the principal questions raised and discussed in the briefs is whether or not the Workmen's Compensation act applies to this character of a case, and, if so, whether or not it is a valid and enforceable act.

Section 1 of the act provides that any employer in this state may elect to provide and pay, under the provisions of the act, compensation for accidental injuries sustained by any employé arising out of and in the course of the employment. Section 2 provides that every employer engaged in an occupation, enterprise, or business enumerated in paragraph (b) of section 3 shall be conclusively presumed to have elected to provide and pay compensation under the act unless and until notice of his election to the contrary is filed with the Industrial Board, and unless and until he has given notice to his employés in the manner prescribed in the act. Each of the occupations, enterprises, or businesses enumerated in said paragraph (b) are thereby declared to be ‘extrahazardous,’ two of which are: (1) The building, maintaining, repairing, or demolishing of any structure; and (6) any enterprise in which explosive materials are manufactured, handled, or used in dangerous quantities. Section 4 of the act defines the term ‘employer,’ as used in the act, to mean, the ‘state and each county, city, town, township, incorporated village, school district, body politic, or municipal corporation therein.’

By the express language of the statute townships are subject to its terms and provisions, and, if engaged in any of the hazardous occupations enumerated in paragraph (b) of section 3, are conclusively presumed to have elected to provide and pay compensation under the act unless they have elected to the contrary. The township of Marrowbone gave no notice of its election in either particular, and must be presumed to be under the act if it was engaged, at the time of the accident to Hiler, in one of the occupations mentioned in paragraph (b) of section 3.

About a week prior to the accident, which occurred on October 15, 1913, L. A. Crockett, one of the three commissioners who had assigned to him the construction, maintenance, and repair of roads in a certain part of the road district, employed W. G. Younger to do some work on a new road about 40 rods from Crockett's house. Younger's employment, as stated by Crockett, was for plowing and grading the road and hauling stumps off of the same after they were pulled or blown out, and to do anything on the road he had for him to do. The roads on which they were working were the ordinary country roads, and the work in hand was the grading and repairing of the same. Younger was to receive 35 cents an hour for a man and a team, or $3.50 per day of ten hours. Younger employed and paid Hiler $1.50 a day, and Hiler had been working for Younger several months prior to the accident. Younger was in the regular business of teaming, including such work as transferring, hauling sand, filling in at bridges, and working on roads. Ches. Kennedy and Dan Rinaker were employed by Crockett to blow out the stumps on the new road. Younger was requested by Crockett to bring out some dynamite in his wagon for blowing out the stumps. While waiting for the blasting to be done so they could haul the stumps away, Younger and Hiler assisted in the preparations for the blasting. Hiler board a few holes under some stumps, and Younger lighted the fuse of one or two stricks of the explosive. Hiler was killed in a very short while after the blasting began.

It is argued by the attorneys for the administratrix of Hiler's estate that the work in which Hiler was engaged at the time he was killed was extrahazardous within the meaning of paragraph (b) of section 3, as the commissioners were building, maintaining, repairing, or demolishing a structure within the meaning of that section. We are not able to agree with that contention. A common public dirt road is no doubt a structure as commonly defined and understood, but it is certainly not a structure within the meaning of said act. Neither can it be said that the building or repairing of an ordinary public dirt road is an extrahazardous occupation within the meaning of said statute. If Hiler's occupation was an extrahazardous occupation within the meaning of the statute, it was bacause of the fact that the commissioners were using explosive materials in dangerous quantities while blasting out the stumps, and not by reason of the fact that they were building or repairing a structure. The building or repairing of a public road is not more dangerous, ordinarily, than the work of a farmer in plowing and cultivating his fields or in filling ditches to prevent the water from cutting and washing away the soil. There might be mentioned some constructions of public roads that would be extrahazardous, such as the building of permanent roads, wherein cement mixtures are formed and placed upon the roads and where rock is crushed and placed thereon. There may be occasional structures required on the roads the building and repairing of which would be extrahazardous within the meaning of said act, such as the building of turn bridges, or other bridges constructed at considerable height above streams or the surface of the earth. While that is true, it is also true that the building of small bridges and culverts, of all characters and sizes, could not reasonably be said to be the building of dangerous structures or an extrahazardous occupation within the meaning of the statute. Hiler was not engaged in the building of a bridge or of a permanent road, but was simply engaged in building or repairing an ordinary dirt road, but in an extraordinary way, at the particular instant he was killed, by the use of dynamite. With the blasting work omitted, all reasonable men would say that he was not engaged in an extrahazardous occupation. It was held by this court in Uphoff v. Industrial Board, 271 Ill. 312, 111 N. E. 128, L. R. A. 1916E, 329, that the Legislature only intended to include in said paragraph (b) such...