Mississippi River Power Co. v. Indus. Comm'n

• Decision Date: 27 October 1919
• Docket Number: No. 12317.,12317.
• Parties: MISSISSIPPI RIVER POWER CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

289 Ill. 353

124 N.E. 552

MISSISSIPPI RIVER POWER CO.

v.INDUSTRIAL COMMISSION et al.

No. 12317.

Supreme Court of Illinois.

Oct. 27, 1919.

Error to Circuit Court, Hancock County; Harry M. Waggoner, Judge.

Proceeding by Cora L. Hayward, under the Workmen's Compensation Act, to obtain compensation for the death of her son, Orin Hayward, opposed by the Mississippi River Power Company, the employer. From a judgment of the circuit court, setting aside an award, the applicant brings error. Reversed and remanded, with directions.

Thompson, J., dissenting.

Scofield, Hartzell & Califf, of Carthage, Hoffman & Hoffman, of Chicago, and Hollingsworth & Blood, of Keokuk, Iowa, for plaintiff in error.

O'Harras, Wood & Walker, of Carthage, for defendant in error.

DUNN, C. J.

Orin Hayward, a lineman in the employ of the Mississippi River Power Company, was killed on April 16, 1916, by an electric shock received from the company's line. On the application of his mother, Cora L. Hayward, to the Industrial Commission, an award was made to her, which the circuit court of Hancock county on a writ of certiorari set aside, and she has sued out a writ of error to review the judgment.

The deceased was a young unmarried man, and was survived by his father, mother, and two sisters. It is claimed that he contributed to his mother's support, and that his death occurred in the course of his employment, and arose out of it. The defendant in error denies both these claims and insists that no claim for compensation was made within six months, that the proceeding cannot be maintained by the plaintiff in error in her own name, and that section 2 of the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, §§ 126-152i) is unconstitutional. The constitutional question is decided adversely to the defendant in error in Victor Chemical Works v. Industrial Board, 274 Ill. 11, 113 N. E. 173, Ann. Cas. 1918B, 627.

There was testimony that the deceased had contributed various sums of money to his mother's support during the four years prior to his death. The fact that she had made a will in his favor is not material. There is no evidence that the will was the result of an agreement to give him all her property or of any agreement.

The company has a transmission line, on which a current of 110,000 volts is conducted, from Keokuk, Iowa, to St. Louis. The line is carried on steel towers from 50 to 55 feet high. The accident happened at a substation, where the wires are brought down to a lower tower known as a switch rack. The ground in the immediate vicinity was fenced to keep people out. On the top of the rack were three switches to disconnect different lines. The rack was about 12 by 30 feet. Six men went upon the rack and were at work 20 or 30 feet above the ground. On one side of the rack the wires and cables had been cut out, so that there was no current, but on the other side of the rack was a live wire carrying electricity, which was 14 feet from the dead line. A man could work safely within 4 to 6 feet of the live wire, but not closer. Hayward was not an expert lineman, but was working as a helper to one Eckstrom, bringing up tools, handing them to Eckstrom, and taking the tools Eckstrom was not using. Charles Cote was the only person who saw the actual occurrence. He stated that the general purpose on the tower was repairing it; that it was not working well, and they gave it a general overhauling; that when the electricity struck Hayward it jumped about 15 feet and came over to where he was; that Hayward was at work next to the live line, but he could not tell how close; that Hayward was not at the place where he had been working, but had moved about 10 feet, and Cote did not know what he was doing there.

The defendant in error relies upon the case of Dietzen Co. v. Industrial Board, 279 Ill. 11, 116 N. E. 684, Ann. Cas. 1918B, 764. Hayward had been directed not to go over to the live side, and the defendant in error regards this prohibition as of the character referred to in that case, quoting from Elliott on Workmen's Compensation Acts, as limiting the sphere of employment and not merely dealing with conduct within that sphere. Hayward was employed in repairing the tower, and the prohibition against going near the live wire referred to his conduct in doing that work. There is no evidence that he had undertaken to do anything outside of his employment. While no one testified to the particular act he was doing at the time he was struck, if he was doing anything, it is evident that he was on the tower for the purpose of doing his work in the course of his employment, and his contributory negligence in carelessly failing to observe the direction not to go near the live wire does not relieve his employer from liability to make compensation. The theory of the defendant in error is that Hayward deliberately disobeyed orders and walked across the rack into the field of the live wires. The conclusion may fairly be drawn from the evidence that through his inexperience or carelessness he moved too close to the live wires, and in such case the determination of the commission concludes the court.

Section 24 of the Workmen's Compensation Act provides that no proceedings for compensation shall be maintained unless claim for compensation has been made within six months of the accident. The claim was filed with the Industrial Commission and notice was served upon the defendant in error within that time. It is not essential that a claim shall have been made previous to presenting the claim to the commission, provided that the latter claim shall have been presented and the employer notified within the 6 months.

Section 18 of the Workmen's Compensation Act provides that--

‘All questions arising under this act, if not settled by agreement of the parties interested therein, shall, except as otherwise provided, be determined by the Industrial Board.’

Section 19 provides that--

‘Any disputed questions of law or fact upon which the employer and employé or personal representative cannot agree, shall be determined as herein provided. (a) It shall be the duty of the Industrial Board, upon notification that the parties have failed to reach an agreement, to designate an arbitrator.’

The manner in which the notification shall be given and the person by whom it shall be given are not expressly stated in the act, but section 16 provides that--

‘The board may make rules and orders for carrying out the duties imposed upon it by law, which rules and orders shall be deemed prima facie reasonable and valid; and the process and procedure before the board shall be as simple and summary as reasonably may be.’

Section 19 provides that the petitioner may elect to have the dispute determined by a committee of arbitration by filing with the board his election in writing with his petition, and the other party by filing his election in writing within five days of notice to him of the filing of the petition. It also provides that the applications for adjustment of claim, and other documents in the nature of pleadings filed by either party, together with the decisions of the arbitrator and of the industrial board, and the statement of facts or stenographic reports provided for shall be the record of the proceedings of said board. Section 7g (which was section 7f in the amendment of 1915) provides that compensation to be paid for an injury which results in death shall be paid, at the option of the employer, either to the personal representative of the deceased employé or to his beneficiaries and that a payment to the personal representative shall relieve the employer of all obligation as to the distribution of such compensation, and the personal representative shall make distribution pursuant to the order of the court appointing him. In Smith-Lohr Coal Co. v. Industrial Com'n, 286 Ill. 34, 121 N. E. 231, we held that this provision of the statute applied only to cases where the employer paid the compensation voluntarily, without a hearing and determination before an arbitrator or the Industrial Commission. The personal representative mentioned in this provision is clearly the administrator of the deceased employé or the executor of his will. The defendant in error insists that the same meaning must be given to the term ‘personal representative’ in section 19, and that only the administrator of the deceased employé or the executor of his will can present a claim for compensation to the Industrial Commission.

The term ‘personal representative’ ordinarily means the executor or administrator, but its use in section 19 does not determine who is entitled to file the petition with the Industrial Commission. The Workmen's Compensation Act by section 6 takes away all right to recover damages for the death of an employé who is covered by the provisions of the act, and section 11 declares that the compensation provided by the act shall be the measure of the responsibility of the employer who is within its terms. The compensation for an injury resulting in death is fixed by section 7. At the time of this accident, if the employé left a widow, child or children whom he was under legal obligation to support, the compensation was a sum equal to four times the average annual earnings of the employé, not less than $1,650 and not more than $3,500. If there was no widow or child whom the employé was under a legal obligation to support at the time of his injury, but he left any parent, grandparent, or other lineal heir to whose support he had contributed within four years previous to the time of his injury, the compensation was a sum equal to four times the average annual earnings of the employé, but not less than $1,650 and not more than $3,500. If no amount was payable to the relatives mentioned and the employé left collateral heirs, such a percentage of the above amounts was payable as the deceased's average annual contribution to the support of such collateral dependent heirs during two...