Nat'l Ice & Fuel Co. v. Indus. Comm'n

• Decision Date: 16 May 1944
• Docket Number: No. 27711.,27711.
• Citation: 387 Ill. 31,55 N.E.2d 91
• Court: Illinois Supreme Court
• Parties: NATIONAL ICE & FUEL CO. v. INDUSTRIAL COMMISSION et al.

387 Ill. 31

55 N.E.2d 91

NATIONAL ICE & FUEL CO.

v.INDUSTRIAL COMMISSION et al.

No. 27711.

Supreme Court of Illinois.

May 16, 1944.

Error to Circuit Court, Cook County; John Prystalski, Judge.

Proceeding under the Workmen's Compensation Act by Eugene Earl, employee, opposed by the National Ice & Fuel Company, employer. To review a judgment of the Circuit Court which affirmed an award of the Industrial Commission in favor of the employee, the employer brings error.

Affirmed.Raymond J. Moudry and Clarence S. Piggott, both of Chicago (Herbert J. Choice, of Chicago, of counsel), for plaintiff in error.

Sol Andrews, of Chicago, for defendant in error.

STONE, Justice.

Plaintiff in error, on writ of error allowed, seeks review of the judgment of the circuit court of Cook county, affirming an award of the Industrial Commission made to defendant in error, Eugene Earl, for an injury which it was held arose out of and in the course of his employment by plaintiff in error.

The facts are simple and not in dispute. On January 8, 1942, plaintiff in error, who was engaged in the coal business, employed Earl to shovel coal into the basement of a building of one of its customers. Both parties were operating under the provisions of the Workmen's Compensation Act. At the time of the injury complained of, the thermometer ranged from ten degrees below zero at 7 A. M. to five degrees above zero at 12 o'clock noon. Plaintiff in error's truck delivered a load of coal in the alley at the rear of the Walton Hotel in the city of Chicago. Earl rode to this place with the truck driver and between 7 and 8 o'clock began shoveling the coal into the basement of the hotel. Before entering upon this work he went inside the basement and opened the window of the coal chute, and he testified that he might have gone into the basement during the time he was shoveling, to ‘trim’ the coal back, that is, to shovel it back from the window. He wore heavy clothing, including a pair of gloves. The left-hand glove, however, had holes in the fingers. The shovel he used was what is commonly known as a scoop shovel, which was made of steel, the steel extending several inches up onto the wood handle. He shoveled the coal left-handed. In so doing the fingers of that hand, by reason of the holes in his glove, came in contact with the steel on the handle of the shovel. He worked for about four hours, returning to the yard about 12 o'clock noon, where he turned in the shovel. He then told a Louis Wagner, yard man, that because his hand was injured he would have to go and get it treated. He thereafter went to the county hospital where he remained for four days and was treated for frostbite of the fingers of the left hand. As the result of this frostbite he lost the first joint of the index finger of his left hand, and the other fingers of that hand were ankylosed or stiffened.

No question of notice is raised nor is it contended that the award made is excessive. It is not questioned that the injury arose during the course of his employment. The award made was confirmed by the circuit court of Cook county. The sole contention made here is that under the record made, Earl did not receive an injury which arose out of his employment; that he, by his employment and the instrumentalities used by him at that time, was subjected in nowise to an extraordinary or unusual risk, but that the danger of frostbite was one to which all persons in that locality were then subjected, and that, under the rule as announced by this and other courts, his injury was not compensable.

That rule, as announced by this court in Central Illinois Public Service Co. v. Industrial Comm., 291 Ill. 256, 126 N.E. 144, 13 A.L.R. 967, and other cases, is that if the employee, by reason of his employment, was exposed to a risk of being injured by the elements, which was greater than the risk to which the public in that vicinity was subjected, or if his employment necessarily accentuated the natural hazard from the elements, which increased hazard contributed to the injury, such injury was one arising out of the employment, although unexpected and unusual. This rule was again announced in Consumers' Co. v. Industrial Comm., 324 Ill. 152, 154 N.E. 423, 53 A.L.R. 1079, and in other cases. The opinions in the two cases cited discuss numerous cases of this country and England, applying this rule to injuries received from the elements. The cases...