Parker-Washington Co. v. Indus. Bd

• Decision Date: 24 October 1916
• Docket Number: No. 10749.,10749.
• Citation: 274 Ill. 498,113 N.E. 976
• Parties: PARKER-WASHINGTON CO. v. INDUSTRIAL BOARD et al.
• Court: Illinois Supreme Court

274 Ill. 498

113 N.E. 976

PARKER-WASHINGTON CO.

v.INDUSTRIAL BOARD et al.

No. 10749.

Supreme Court of Illinois.

Oct. 24, 1916.

Error to Circuit Court, Cook County; Oscar M. Torrison, Judge.

Proceeding by William J. Bowe under the Workmen's Compensation Act to recover for the death of Harry Crampton, opposed by the Parker-Washington Company. The award of the Industrial Board in favor of the claimant was confirmed by the circuit court on certiorari by the Parker-Washington Company, and the company brings error. Affirmed.Wilkerson, Cassels & Potter, of Chicago (Ralph F. Potter and Kenneth B. Hawkins, both of Chicago, of counsel), for plaintiff in error.

Augustine J. Bowe, of Chicago, for defendant in error.

CARTER, J.

Harry Crampton died in the city of Chicago from injuries received in an accident September 25, 1914. In the course of his employment by the Bessmer Teaming Company, Crampton was driving a two-horse team, hauling a load of crushed stone. While standing up and reaching over to whip the horses he lost his balance, fell under the wheels of the wagon, and was killed. The Parker-Washington Company, the plaintiff in error, is a corporation engaged in general contracting work, including street paving and tunneling. September 19, 1914, through its general superintendent, C. G. Larkin, it entered into a contract with the Bessmer Teaming Company under which the teaming company was to haul over 2,000 cubic yards of crushed stone from where it was being taken from a tunnel under construction on Seventy-Third street, in Chicago, and deliver it for paving purposes on certain streets which were being paved. The Bessmer Teaming Company was a partnership, of which A. W. Kenney was one of the two members. November 16, 1914, the widow, Anna Crampton, filed a claim with the Industrial Board against Kenney, and an award was granted amounting to $2,912, but no effort was made to recover thereon, apparently because Kenney was insolvent. January 13, 1915, claim was filed with the Industrial Board by William J. Bowe against the Parker-Washington Company. The board found that said company was at the time of the accident operating under the terms and provisions of the Workmen's Compensation Act; that Kenney and J. P. Bessmer were partners and subcontractors of the Parker-Washington Company at the time of the accident; that the wages of Crampton were $14 a week; that the accident arose in the course of his employment, and that the Parker-Washington Company was liable; and an award was granted of $2,912. This award was reviewed on writ of certiorari by the circuit court of Cook county and the finding of the Industrial Board confirmed. From the judgment of the circuit court the Parker-Washington Company sued out this writ of error.

Plaintiff in error has never elected to come within the provisions of the Workmen's Compensation act; neither has it given notice, as provided by the statute, that it would not come under the act; therefore if it is liable here it must be because the occupation, business, or enterprise in which it was engaged was extrahazardous, under clauses 2 and 3 of paragraph (b) of section 3 of the act. That section reads, in part, as follows:

‘The provisions of paragraph (a) of this section shall only apply to an employer engaged in any of the following occupations, enterprises or businesses, namely: * * * 2. Construction, excavating or electrical work. 3. Carriage by land or water and loading and unloading in connection therewith.’ Laws 1913, p. 339.

Plaintiff in error argues that it cannot come within clause 2 as it was not doing any construction work, but was merely engaged in hauling crushed stone to the place where another party was doing the construction work. Counsel for plaintiff in error seem to concede that if it was constructing a pavement it would come within the provisions of this clause of the act. The Industrial Board held, in effect, in its finding, that plaintiff in error was paving certain streets, for which the crushed stone was being hauled for a foundation. The contract which plaintiff in error entered into with the Bessmer Teaming Company for this hauling stated, in terms, that the Parker-Washington Company had a contract for paving those streets. Paragraph (f) of section 19 of the Workmen's Compensation Act makes the decision of the Industrial Board, if it acts within its powers, in the absence of fraud, conclusive upon the courts. The circuit court and the Supreme Court, in reviewing a proceeding of this kind, can only review questions of law. Whether legal evidence is offered to support the decision of the board, where such evidence is properly preserved for review here, is a question of law, but if there is competent or legal evidence to support the decision of the board, it is not within the province of the courts to pass upon its weight or sufficiency. Munn v. Industrial Board, 274 Ill. 70, 113 N. E. 110;Victor Chemical Works v. Industrial Board, 274 Ill. 11, 113 N. E. 173. As there was evidence in this record justifying the finding of the Industrial Board that the plaintiff in error was engaged in construction work, even though this evidence was controverted, we cannot inquire into this question of fact.

We are of the opinion, also, that the occupation, enterprise, or business in which plaintiff in error was engaged at the time of the accident, if it was not engaged in construction work but only in the hauling of this crushed stone, can fairly be held to come within the provisions of clause 3 of said paragraph (b)-that is, that it was engaged in a business or enterprise of carriage by land. The enterprise cannot be considered a mere incident to the general business in which plaintiff in error was engaged. It was the business or enterprise itself. The Legislature undoubtedly had in mind the danger run by workmen who have to handle property on a large scale in carriage by land or water. This conclusion is not in any way in conflict with the reasoning or finding in Uphoff v. Industrial Board, 271 Ill. 312, 111 N. E. 128. If it was only the hauling of one load of crushed stone by a farmer or business man who was not engaged in construction or contracting work generally, undoubtedly then the proper conclusion would be to hold the hauling of such single load a mere incident to the main business.

If plaintiff in...