Mueller v. Elm Park Hotel Co.

• Decision Date: 15 November 1945
• Docket Number: No. 28619.,28619.
• Citation: 63 N.E.2d 365,391 Ill. 391
• Parties: MUELLER v. ELM PARK HOTEL CO.
• Court: Illinois Supreme Court

391 Ill. 391

63 N.E.2d 365

MUELLER

v.ELM PARK HOTEL CO.

No. 28619.

Supreme Court of Illinois.

Sept. 19, 1945.

Rehearing Denied Nov. 15, 1945.

Appeal from First Division Appellate Court, First District, on Appeal from Superior Court, Cook County; John F. Haas, Judge.

Action by Ruth Will Mueller against Elm Park Hotel Company for personal injuries sustained by plaintiff on defendant's premises. A judgment for plaintiff was reversed by the Appellate Court, and plaintiff was granted leave to appeal to review the judgment of the Appellate Court.

Reversed and remanded, with directions.

Hyman Smollar and Marion J. Hannigan, both of Chicago (Wendell H. Shanner, of Chicago, of counsel), for appellant.

Hinshaw & Culbertson, of Chicago (Oswell G. Treadway, of Chicago, of counsel), for appellee.

SMITH, Justice.

This case is here on leave to appeal granted to review the judgment of the Appellate Court for the First District. In the trial court, the superior court of Cook county, a verdict was returned in favor of appellant, who was the plaintiff in the case. A motion for judgment notwithstanding the verdict was denied. After requiring a substantial remittitur the trial court overruled an alternative motion for a new trial. Judgment in favor of the plaintiff was entered on the verdict. The Appellate Court reversed the judgment of the trial court without remanding the cause.

Appellee, Elm Park Hotel Company, was engaged in the operation of a hotel. One of the ground-floor rooms in the hotel was leased by it to Julia Orszulak, in which she operated a coffee shop. Appellant was employed by Julia Orszulak as a waitress in the coffee shop. She lived in a room in the hotel. Her hours of work were irregular. When requested by her employer to assist in serving breakfast, she would report for duty at 6:30 A.M. If she was not requested by her employer to assist in serving breakfast, she would report for duty at 9 or 10 o'clock in the morning. On the day in question she reported for work at 6:30 A.M. She worked until about 10 o'clock. She then went to her room in the hotel where she remained until about noon, when she returned to the coffee shop. At that time an employee of the hotel company was engaged in repairing the floor in the coffee shop. Because of the repairs being made, a notice was placed on the front door of the coffee shop that it was closed for repairs. She and her employer then sat down at a table some eight or ten feet distant from the place where the workman was engaged in repairing the floor. While seated in this position, a piece of steel broke off from the head of a hatchet which the carpenter was hammering with a hammer. The flying piece of steel struck and was imbedded in appellant's instep. This is alleged to have resulted in the injuries complained of.

The second amended complaint on which the case was tried alleged that appellant was on the premises of the hotel company as an invited guest. The complaint was an ordinary complaint based on commonlaw negligence. To this complaint appellee filed an answer. By the answer, after denying the allegations of the complaint, it alleged as a special defense that appellant was employed by Julia Orszulak and that both appellant and her employer, at the time of the accident, were subject to the provisions of the Workmen's Compensation Act. It further alleged that appellee was also comprehended within and bound by the provisions of that act; that the injuries received by appellant arose out of and in the course of her employment; that her only right of action was under the Workmen's Compensation Act against her employer, and that she could not maintain the action against appellee. A reply was filed to the answer, denying the allegations contained in the special defense. Upon the issues thus made, the cause was tried by a jury. The court submitted to the jury a special interrogatory as to whether the injuries to appellant arose out of, and in the course of, her employment. This interrogatory was answered in the negative by the jury.

The Appellate Court found that the only question necessary for it to consider was whether the remedy of the plaintiff was by an action at law or under the compensation act. It held that the burden was on appellantto prove that she and her employer were not under the compensation act or that the injuries did not arise out of and in the course of her employment. It found that she had not sustained that burden by competent evidence and for that reason it reversed the judgment of the trial court without remanding the cause. Inasmuch as this is the only question passed upon by the Appellate Court, it is necessarily the only question presented to this court for review. We think the Appellate Court erred in its conclusion on this question. The record contains no evidence whatever even tending to show that appellant and her employer were under and subject to the provisions of the Workmen's Compensation Act. There is no proof that they were engaged in an extra-hazardous occupation which would subject appellant to the provisions of the compensation act automatically, or that her employer had elected to be bound by the provisions of said act.

There was evidence offered concerning the character of the business in which appellant and her employer were engaged. It was shown that there were ordinary knives, coffee percolators, electric refrigerators and other utensils and implements used in the coffee shop, such as are ordinarily found in private homes. It was shown by undisputed evidence that there were no meat grinders, food choppers or other electric or power-driven appliances or equipment or other mechanical devices used in the coffee shop. The evidence was wholly insufficient to show that appellant and her employer were under the act. Therien v. Industrial Comm., 351 Ill. 166, 184 N.E. 277;Garren v. Industrial Comm. 340 Ill. 95, 172 N.E. 49. It is argued, however, by appellee, that there were certain ordinances of the city of Chicago requiring that restaurants be licensed, regulating certain equipment therein, and regulating the use of refrigerators. These ordinances, however, were not offered in evidence, nor is any reference to such ordinances found anywhere in the record, except in the argument of appellee. It is apparent that this is purely an afterthought. Such regulations as are asserted in the argument to be contained in the ordinances referred to, were wholly insufficient to bring the coffee shop, as a business, within the provisions of clause 8 of section 3 of the Workmen's Compensation Act. Ill.Rev.Stat.1943, chap. 48, par. 139. Those provisions of the compensation act apply only to an enterprise in which statutory or municipal-ordinance regulations are imposed for the protection and safeguarding of employees or the public therein. They refer to such regulations for the protection and safeguarding of employees or the public against accidental injuries or death. They do not refer to regulations of the character of those mentioned in the argument of appellee. Bowman Daity Co. v. Industrial Comm., 292 Ill. 284, 126 N.E. 596; City of Rock Island v. Industrial Comm., 287 Ill. 76, 122 N.E. 82;Dietrich v. Industrial Board, 286 Ill. 50, 121 N.E. 226. There was, therefore, no evidence even tending to show that appellant was engaged in an extra-hazardous occupation within the terms of the compensation act, or that her employer had elected to be bound by the provisions of the act.

But it is contended by appellee, and the Appellate Court so held, that the burden was on the plaintiff to show that she was not under the act. This is a misapprehension. As sustaining this contention, the appellee cites and relies upon Stevens v. Illinois Cent. R. Co., 306 Ill. 370, 137 N.E. 859. But that case is not authority for the contention made. The rule there announced is that where it appears from the complaint or the evidence that the plaintiff was employed in an extra-hazardous...