Philadelphia & Reading Coal & Iron Co. v. Indus. Comm'n

• Decision Date: 20 February 1929
• Docket Number: No. 18403.,18403.
• Citation: 165 N.E. 161,334 Ill. 58
• Parties: PHILADELPHIA & READING COAL & IRON CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

334 Ill. 58

165 N.E. 161

PHILADELPHIA & READING COAL & IRON CO.

v.INDUSTRIAL COMMISSION et al.

No. 18403.

Supreme Court of Illinois.

Feb. 20, 1929.

Error to Circuit Court, Cook County; Harry M. Fisher, Judge.

Proceedings under the Workmen's Compensation Act by Anna Marek for compensation for the death of Alex Marek, employee, opposed by the Philadelphia & Reading Coal & Iron Company, employer. The circuit court set aside an order of Industrial Commission denying compensation, and awarded compensation, and employer brings error.

Judgment reversed, and award set aside.

Hoag & Ullmann, of Chicago (George M. Burditt, of Chicago, of counsel), for plaintiff in error.

J. W. Koucky, of Chicago, for defendant in error.

DUNCAN, J.

Defendant in error, Anna Marek, on February 18, 1926, presented to the Industrial Commission her application for compensation for the death of her husband, Alex Marek, an employee of plaintiff in error, the Philadelphia & Reading Coal & Iron Company, alleging that on January 20, 1926, ‘while carrying sacks of coal and loading them on wagons he sustained internal injuries,’ and that his death resulted from such accidental injury received in the course of his employment. A hearing was had before an arbitrator, who found that defendant in error was not entitled to recover compensation. On her petition the case was reviewed by the Industrial Commission, which approved and confirmed the decision of the arbitrator. The record was reviewed by the circuit court of Cook county on certiorari proceedings, and that court, on March 31, 1927, set aside the decision of the Industrial Commission, and entered judgment in favor of defendant in error for $3,750, payable in installments of $14 per week for 267 6/7 weeks. This court allowed a writ of error.

Alex Marek had on the day of his injury been employed by plaintiff in error at its coal yard at Irving avenue and Thirteenth street, in the city of Chicago, for twelve years or more. He was given by the company a house on its premises, with light and fuel, so it would have some one in its yards in case of fire or other casualty. He was 54 years old. He was a laborer, and his usual occupation was tending a conveyor of anthracite coal, but since October, 1925, the company had not had anthracite coal at Chicago, and after that date Marek worked with bituminous coal, which was kept in piles in the yard and supplied to dealers, who sent their wagons to the yard for it. The coal was loaded in the wagons loose or put in bags with handles on each side, and then loaded into the wagons. He began his work at 7 o'clock a. m., and usually worked ten hours, having a half hour off at noon for lunch. He also usually had ten minutes for lunch about 9 a. m. and 3 p. m. When the coal in bags was to be loaded in the wagons, two men, one on each side of the bags, lifted them by their handles into the wagon to the driver. The bags of coal weighed from 80 to 100 pounds each. On January 20, 1926, Marek went to work as usual and worked until about 2 or 3 o'clock in the afternoon. The evidence is conflicting as to the hour he quit work. At that time he and Frank Kasper, another employee of plaintiff in error, had just finished loading a wagon with bags of coal. Marek asked Kasper to look after the coal shovel and the fork, and walked toward his home, which was from 70 to 100 yards away. Kasper testified for defendant in error that it was about 3 o'clock when Marek quit, and that he did not know why he went home. In response to the question, ‘How did he walk?’ he said, ‘He went good.’ Witness also said that there was nothing unusual in Marek's appearance or actions on that day. Marek walked to the back porch of his home, and Anna Marek testified that he sat down on a box on the porch and struck a match to light his pipe; that he told her he did not feel well, and, while she was getting a glass of water he fell from the box and died shortly afterward. She also stated that she saw him coming toward the house, and that he was stooped and appeared to be very tired and was pale in the face, and that he tried to talk but could not do so. She said he went to work that morning about 7 o'clock, and that he seemed all right at that time, the same as on prior mornings.

Patrick Kennedy, foreman in the coal yard, called as a witness first by defendant in error and later by plaintiff in error, testified that at 3 o'clock witness told Marek to help put a load of coal in a wagon; that, as soon as the wagon was loaded, Marek ‘lit his pipe and went over to see if his wife was at home’; that he walked over to his house, and in a short while his wife ran around the corner of the house calling for Marek's half-brother, who ran over to the house, followed by witness. Marek looked good and healthy on the morning of January 20, 1926. Witness talked to him, and noticed nothing unusual in his appearance.

John Konen, a witness for plaintiff in error and a clerk in its office, testified as follows: He kept the records of the coal loaded in plaintiff in error's yard. On January 15, and to and including January 20, 1926, Marek and other employees were loading soft coal in the yards of plaintiff in error. On January 15 they loaded 31 tons and 1,100 pounds; on January 16, 31 tons and 900 pounds; on January 18, 41 tons and 1,500 pounds; on January 19, 23 tons and 600 pounds; and on January 20, 31 tons and 700 pounds. He was unable to state how much of the coal was loaded in bags on those days or...