Mueller Const. Co. v. Indus. Bd. of Illinois

• Decision Date: 04 April 1918
• Docket Number: No. 11715.,11715.
• Citation: 283 Ill. 148,118 N.E. 1028
• Parties: MUELLER CONST. CO. v. INDUSTRIAL BOARD OF ILLINOIS et al.
• Court: Illinois Supreme Court

283 Ill. 148

118 N.E. 1028

MUELLER CONST. CO.

v.INDUSTRIAL BOARD OF ILLINOIS et al.

No. 11715.

Supreme Court of Illinois.

Feb. 20, 1918.

Rehearing Denied April 4, 1918.

Error to Municipal Court of Chicago; Oscar M. Torrison, Judge.

Proceeding under the Workmen's Compensation Act by Joseph Belanger, employé, to recover compensation from Mueller Construction Company, employer. Judgment of the circuit court affirmed decision of the Industrial Board awarding compensation, and the employer brings error. Affirmed.

Richard J. Lavery and Shepard, McCormick, Thomason, Kirkland & Patterson, all of Chicago, for plaintiff in error.

George E. Fidler, of Chicago, for defendant in error.

CRAIG, J.

This is a writ of error to review the judgment of the circuit court of Cook county affirming the decision of the Industrial Board of this state awarding defendant in error, Joseph Belanger, compensation for accidental injuries sustained by him while in the employ of plaintiff in error, the Mueller Construction Company. The accident occurred on the morning of November 19, 1914, by defendant in error being struck by an automobile while in the act of crossing Chicago avenue to telephone for material to be used in the remodeling of a building on which he was at work for plaintiff in error. The Industrial Board found defendant in error was permanently disabled, and allowed him, in addition to his first hospital and medical aid, compensation at the rate of $12 per week until a sum equal to $3,500 should be paid, and a pension of $280 per year after that, payable in monthly installments, as long as he lived.

The main grounds urged for a reversal of the judgment are: First, that the parties were not operating under the Workmen's Compensation Act at the time of the injury; second, that the accident did not arise out of and in the course of the employment; and, third, that the defendant in error was not wholly and permanently incapacitated from work.

At the time of the accident plaintiff in error was engaged in remodeling the Catholic cathedral at the corner of State and Superior streets, in the city of Chicago. Defendant in error was its foreman in charge of the carpenter work. As such foreman he ordered all materials, hired and discharged the men under him, and had full control of the work. In order to properly perform the duties of his position, it was customary for him to be at the building in the morning from 20 to 30 minutes before the other workmen, to order materials, look over the building, and in a general way make preparation for the day's work. The men under him reported at 8 o'clock in the morning and quit at 5 o'clock in the afternoon. He was paid by the hour, from 8 to 12 in the forenoon and from 1 to 5 o'clock in the afternoon. He received no extra pay for reporting in advance of the other men. On the afternoon of the day preceding the accident he had directed one of his men to telephone for lumber which he would need the first thing in the morning, and the man had reported to him that the lumber company would be unable to make the delivery before noon of the following day. No telephone had been installed in the building on which defendant in error was at work, and when the occasion arose for the use of one he was required to go elsewhere. During the three or four months he had been at work on the cathedral, he, or the men under his direction, had used some telephone in the vicinity a dozen or more times. Defendant in error on these occasions advanced the money to pay the phone charges, and the same was repaid to him by plaintiff in error when he turned in his expense account. This had been the practice during all the time he was at work on this job. On the day of the accident he reached the building at about 7:30 o'clock in the morning. At that time two of the other men who worked on the job were there. He opened the doors in the basement, where the tools were kept, and started to telephone to a lumber company for lumber for use in that day's work. He went north on Case street to Chicago avenue, which is about half a block from the building, and started to cross the latter street, when he was struck by an automobile and severely injured. The telephone he was expecting to use was in a saloon on the north side of Chicago avenue. He did not see the automobile before he was struck by it. As a result of the accident, his spine, ribs, shoulder, knee, and ankles were injured. He was confined to his bed about two weeks, after which time he was able to be up only for a short period each day for some time. At the time of the hearing three of his lumbar vertebrae were displaced, and he had ecchymosis of the left side, atrophy of the right leg at the thigh, and only the partial use of his right arm. There is no dispute but that he is totally and permanently incapacitated from doing the kind of work in which he was engaged when injured, or any kind of manual labor requiring lifting, climbing, or heavy physical exertion, although there is some testimony to the effect that he might do certain kinds of office work if it were not for the difficulty of keeping regular hours.

In support of the plaintiff in error's first contention two points are made: First, that the period of employment had not commenced at the time of the accident to defendant in error, and hence the accident did not occur in the course of his employment; and, second, that the injury received in crossing a public street was not one arising out of his employment, but arose from a hazard common to all people who use the public streets.

In support of the first contention it is urged that, as there is no proof the parties had filed their election to come under the act, but were brought under its provisions automatically because the enterprise in which they were engaged was one of those mentioned in section 3 of the act, there is no liability until the time for the actual commencement of work. The statute makes the employer liable for all accidental injuries sustained ‘arising out of and in the course of the employment.’ The words ‘arising out of’ and the words ‘in the course of’ are used conjunctively. In order to satisfy the statute, both conditions must concur. It is not sufficient that the accident occur in the course of the employment, but the causative danger must also arise out of it. The words ‘arising out of’ refer to the origin or cause of the accident, and are descriptive of its character, while the words ‘in the course of’ refer to the time, place, and circumstances under which the accident takes place. Fitzgerald v. Clarke & Sons, 1 B. W. C. C. 197; Dietzen Co. v. Industrial Board, 279 Ill. 11, 116 N. E. 684. By the use of these words it was not the intention of the Legislature to make the employer an insurer against all accidental injuries which might happen to an employé while in the course of the employment, but only for such injuries arising from or growing out of the risks peculiar to the nature of the work in the scope of the workman's employment or incidental to such employment, and accidents in which it is possible to trace the injury to some risk or hazard to which the employé is exposed in a special degree by reason of such employment. Risks to which all persons similarly situated are equally exposed and not traceable in some special degree to the particular employment are excluded. This intention is manifestby the act in confining its automatic provisions to certain hazardous employments enumerated in section 3 of the act. The employments included are restricted and have special reference to those that are dangerous to lives and limbs of those employed therein. The reason for the classification is that experience has shown that those engaged in such occupations are subject to special risks and hazards peculiar to those occupations not common to other employments, and that it is but just that society should be made to bear a portion of the burdens arising from the accidental injuries peculiar to the risks of those employments as a part of the cost of such business.

In Dietzen Co. v. Industrial Board, supra, on the authority of Moore v. Manchester Liners (1910) A. C. 498, we held an accident arises in the course of the employment if it takes place while the employé is doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time to do such thing, and that an accident arises out of the employment when it results from a risk reasonably incidental to the employment and arising from some cause ‘which might have been contemplated by a reasonable person when entering the employment as incidental to it.’ In speaking on this same subject the Supreme Court of Massachusetts in McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306, said that an injury may be said to--

‘arise out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a 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, then it ‘arises out of’ the employment, but it excludes an injury which cannot fairly be traced to the employment as a contributingproximate cause, and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have...