Northwestern Yeast Co. v. Indus. Comm'n

• Citation: 37 N.E.2d 806,378 Ill. 195
• Decision Date: 18 November 1941
• Docket Number: No. 26212.,26212.
• Parties: NORTHWESTERN YEAST CO. v. INDUSTRIAL COMMISSION et al.
• Court: Supreme Court of Illinois

378 Ill. 195

37 N.E.2d 806

NORTHWESTERN YEAST CO.

v.INDUSTRIAL COMMISSION et al.

No. 26212.

Supreme Court of Illinois.

Nov. 18, 1941.

Error to Circuit Court, Cook County; Robert A. Meier, Jr., Judge.

Proceeding under the Workmen's Compensation Act, Smith-Hurd Stats. c. 48, § 138 et seq. by Ida Larson, claimant, for the death of Bertil O. Larson, employee, opposed by the Northwestern Yeast Company, employer. To review a judgment affirming an award of the Industrial Commission granting compensation, the employer brings error.

Judgment reversed, and award set aside.Angerstein & Angerstein, of Chicago, for plaintiff in error.

J. S. Cook, of Chicago, for defendant in error.

STONE, Justice.

A writ of error was allowed to review the judgment of the circuit court of Cook county affirming an award entered by the Industrial Commission in favor of defendant in error, mother of deceased, Bertil O. Larson. Larson was an employee of plaintiff in error and on July 13, 1939, at about 6:43 A. M. was found lying in an alleyway about fifteen feet south of the south wall of one of the buildings of plaintiff in error's plant used for the manufacture of yeast. The building was known as building ‘C.’ He was taken to a hospital and died a short time thereafter. No question of fact is involved in the case as there has been no dispute in the evidence. The question presented here therefore is one of law, as to whether the facts support the award. Mt. Olive & Staunton Coal Co. v. Industrial Comm., 374 Ill. 461, 30 N.E.2d 32;Scott v. Industrial Comm., 374 Ill. 225, 29 N.E.2d 93;Scholl v. Industrial Comm., 366 Ill. 588, 10 N.E.2d 360, 112 A.L.R. 1254;Ervin v. Industrial Comm., 364 Ill. 56, 4 N.E.2d 22.

The facts are that on the morning of July 13, 1939, Larson was seen to enter building ‘C’ at 6:30. He was not seen again until found in the alley. One of the windows on the seventh floor of building ‘C,’ directly over where his body lay, was open, and on an aisle or hallway running along the south wall, on that floor, was found a package of lunch wrapped in a newspaper. The record does not show to whom the lunch belonged but counsel assume that it belonged to Larson. There were no marks on the windowsill to indicate the passing of a body through the window and no one was seen or known to be on the seventh floor at that time. It also appears from the evidence that plaintiff in error, in its business of manufacturing yeast, has four buildings more or less united. Three of them, including building ‘C,’ are seven stories in height. The plant at that time was working overtime, the men starting at 7 o'clock A. M. instead of the customary time of 8 o'clock.

It appears from the testimony of the witness Daniels, an employee of plaintiff in error, that his duties were to check the windows on the seventh floor of building ‘C’ every hour to see that the proper temperature was maintained on that floor for the drying of yeast cakes which were brought there by trucks and arranged on that floor in trays; that it was required that the temperature be kept at about 92 degrees, and in order to so regulate it the business of the witness was to see that all the windows on that floor were closed at the bottom and opened somewhat at the top. He testified that on the morning of July 13 he made his last round of inspection at 6:05, checking the windows on the seventh floor of building ‘C,’ and found them all closed at the bottom. At that time the elevator in building ‘C,’ was not on the seventh floor. After deceased was found in the alleyway this witness went to the seventh floor and found the window on that floor, directly above where deceased lay, open at the bottom, with both upper and lower sashes raised to the top. He also found that the elevator had been brought up to that floor, though no one was working on that floor at the time.

It was the practice of the employees to come to the second floor of building ‘C’ and punch the time clock which stood on the stairway landing on that floor. A rule was in force prohibiting workmen punching the clock more than fifteen minutes before time to start to work. After punching the clock the employees went to the locker rooms on the third floor of building ‘C’ and changed from their street clothes to those they wore while working. No one saw deceased doing anything between the time he was seen to enter the plant at 6:30 and when he was found lying in the alleyway. He had not punched the clock and had not changed his clothes but was still in his street clothes.

The evidence showed that the sill of the open window on the Seventh floor of this building was 34 inches above the floor and that the width of the sill to the outside of the wall was 14 1/2 inches. The window was 53 1/2 inches wide, and when the bottom window sash was raised as far as it would go the bottom of that sash was 74 inches from the floor. The aisle or passageway alongside the window on that floor was wide and the floor was smooth. There were no objects in the passageway.

The evidence also is that the duties of the deceased were changed from time to time; that on July 12 he worked on a yeast press in another building and wheeled trucks of yeast to the elevator in building ‘C,’ to be taken to the seventh floor. The last instructions given him by the acting foreman were on the night of July 11, when he was told to operate the presses in building ‘N,’ and that he had no different duties to perform on July 13. The evidence is that he had no business on the seventh floor of building ‘C’ on the morning of July 13. Nothing in connection with his operation of the presses required his going to that floor of building ‘C,’ and no trucking of the yeast could take place until after the yeast had been pressed, which the evidence shows was not finished before 9:30 or 10 o'clock each morning. The deceased was twenty-five years old, approximately 5 feet 10 inches in height and weighed approximately 175 pounds.

The errors assigned present the questions whether defendant in error has established that the death of deceased was due to an accidental injury and if so whether such injury arose out of and in the course of the employment of the deceased. Also the amount of the award is questioned. The burden of proving that Larson's death was due to an accidental injury which arose out of and in the course of his employment, was upon the defendant in error. Byram v. Industrial Comm., 333 Ill. 152, 164 N.E. 145;Atlas Brewing Co. v. Industrial Comm., 314 Ill. 196, 145 N.E. 387;United States Fuel Co. v. Industrial Comm., 310 Ill. 85, 141 N.E. 401;Wisconsin Steel Co. v. Industrial Comm., 288 Ill. 206, 123 N.E. 295. Defendant in error's counsel argue that a finding of fact by the Industrial Commission may be based upon circumstantial evidence from which a reasonable inference supporting the finding may be deduced, though there be no...