Peru Plow & Wheel Co. v. Indus. Comm'n

• Decision Date: 19 February 1924
• Docket Number: No. 15754.,15754.
• Citation: 311 Ill. 216,142 N.E. 546
• Parties: PERU PLOW & WHEEL CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

311 Ill. 216

142 N.E. 546

PERU PLOW & WHEEL CO.

v.INDUSTRIAL COMMISSION et al.

No. 15754.

Supreme Court of Illinois.

Feb. 19, 1924.

Error to Circuit Court, La Salle County; Edgar Eldredge, Judge.

Proceeding under the Workmen's Compensation Act by Arthur Rouso, claimant, opposed by the Peru Plow & Wheel Company, employer. An award of the Industrial Commission was affirmed by judgment of the circuit court, and the employer brings error.

Reversed, and award set saide.R. P. Garrett, of Chicago, for plaintiff in error.

Lee O'Neil Browne, of Ottawa, for defendant in error.

STONE, J.

Defendant in error, Arthur Rouso, filed a claim with the Industrial Commission for compensation for injuries arising out of an accident alleged to have occurred in his employment with plaintiff in error. There is no controversy as to the relations of the parties; the questions in dispute being whether or not there was an accident, whether notice was given as required by law, and the nature and extent of the disability. No testimony was offered on behalf of plaintiff in error, either before the arbitrator or before the Commission on review; it being contended by it that the disability of Rouso was not an accident but a disease.

The record of evidence offered by the applicant shows that he is 34 years of age; that prior to the 17th day of February, 1921, when he first went to the hospital, he had worked for plaintiff in error for 5 years as a machinist, operating a lathe used in boring out or enlarging the inside of metal wheel hubs. Prior to that time he had been employed as a machinist in other shops and in the cement mills at Oglesby. The operation of the machine upon which be worked for plaintiff in error caused a fine metal dust to arise from the iron upon which he was working. This dust was sufficiently light to float in the air and was discernible in the sunlight. From this dust the clothes of workmen would turn yellow with rust. There being no appliances for the purpose of carrying this dust away, it was inhaled by the workmen. Rouso, at the time he quit working for plaintiff in error, on the 17th of February, 1921, was in what he characterized a ‘run down’ condition, unable to sleep or eat, coughing continually, occasionally raising blood, and frequently a mucous sputum which the medical witnesses termed mucopurulent; i. e., made up of mucous and pus. Rouso remained in the hospital for about 9 days. Thereafter he returned to the plant of the plaintiff in error and told the foreman under whom he worked and the cashier of the company that he did not know when he could come back to work, as the doctor had told him to stay away from work and go West. His testimony shows however, that he did return and try from time to time to work for a period of about 6 weeks thereafter but was unable to work more than a few days at a time. After about 40 days of work put in in this manner he quit permanently and went to a sanitarium near Ottawa, operated for the treatment of tuberculosis, at that time telling the foreman why he was quitting. His last work for plaintiff in error was on June 27, 1921. He testified that he was unable to work; that he was too weak and short of breath; that in the mornings at times he would be so weak that he was unable to move. From that time until the 1st day of July, 1922, he made no attempt to engage in employment, and the evidence shows he was unable to do so. During July, 1922, he was given a position as ticket taker for the Tri-Cities Charities, who were operating the scenic park known as Deer Park, near Ottawa. He was employed there for a period of 2 months, taking admission fees of visiting tourists at the entrance to the park and issuing tickets to them. For this work he was paid the sum of $3.25 per day. His work employed him 7 days a week. He testified on hearing before the Commission that he felt better than he had at the time of the hearing before the arbitrator, and was receiving no medical attention, but that he could not do any physical labor.

Dr. Roswell Pettit, who conducts the tuberculosis sanitarium near Ottawa, made a thorough examination of Rouso, using X-ray, sputum, and blood tests, and other tests known to the medical profession. He testified that Rouso was unable to work, and that he believed his condition was permanent. He also testified the condition found in his lungs could be produced by a hard, cutting dust, which would irritate the mucous membrane, but that soft dust, such as coal, chalk, or cement, would have little or no damaging effect. Dr. A. J. Roberts, director of the La Salle County Sanitarium at Ottawa, had Rouso under his observation for four months. He testified as to his condition and that he was unable to do any manual labor; that at the time of the hearing before the Commission he had seen no difference in his condition. Both physicians testified that they found no evidence of tuberculosis, but that Rouso had an inflammation of the lungs, probably due to breathing this dust. The record also shows that prior to 6 months before he quit work in February, 1921, he was never known to lose time by reason of sickness; that he was what some of the witnesses characterized as a ‘husky’ man; that during the 6 months prior to February 17, 1921, he had a hacking cough and lost flesh. The record does not disclose that anything unusual occurred in the work of Rouso at any time prior to February 17, 1921. The evidence also tends to show that it is not usual for men engaged in the occupation that Rouso was following to be affected by iron dust in the manner in which Rouso was affected, although it is shown by the medical testimony that the irritation set up in the lungs of Rouso by the iron dust was but a natural result of breathing hard, cutting dust.

The first question to be determined is whether or not this is an industrial accident or an occupational disease. An ‘accident’ has been defined by the English courts as any unexpected personal injury, resulting to the workman in the course of his employment, from any unlooked for mishap or occurrence arising out of the employment. Fenton v. Thorley & Co., 5 B. W. C. C. 1. It is the view of this court, as expressed in numerous cases, that the word ‘accident’ is not a technical legal term. No legal definition has been given or can be given which is both exact and comprehensive as applied to all circumstances. Those things which happen without design are commonly called an accident-at least in the popular acceptation of the word. Any event unforeseen, not expected by the person to whom it happened, is included in the term. In Matthiessen & Hegeler Zinc Co. v. Industrial Board, 284 Ill. 378, 120 N. E. 249, this court defined the term ‘accident’ as follows:

‘The words ‘accident’ and ‘accidental injury’ imply, and the provisions for notice to the employer within 30 days after an accident and his report to the Industrial Board of accidental injuries show, that an injury, to be accidental or the result of an accident, must be traceable to a definite time, place and cause, but if there is such a definite time, place and cause and the injury occurs in the course of the employment the injury is accidental within the meaning of the act and...