Pittsburgh Coal Co. of Illinois v. Indus. Comm'n

• Decision Date: 28 October 1926
• Docket Number: No. 17403.,17403.
• Citation: 153 N.E. 630,323 Ill. 54
• Parties: PITTSBURGH COAL CO. OF ILLINOIS v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

323 Ill. 54

153 N.E. 630

PITTSBURGH COAL CO. OF ILLINOIS

v.INDUSTRIAL COMMISSION et al.

No. 17403.

Supreme Court of Illinois.

Oct. 28, 1926.

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

Proceeding under the Workmen's Compensation Act by Violet Berg, formerly widow of Mark Kelley, for the death of Mark Kelley, her husband, opposed by the Pittsburgh Coal Company of Illinois, employer. An award of the Industrial Commission for the plaintiff was confirmed by the circuit court, and the employer brings error.

Reversed, and award set aside.

Wilson, McIlvaine, and Hale & Templeton, of Chicago (J. F. Dammann, Jr., and L. S. Hardin, both of Chicago, of counsel), for plaintiff in error.

Jacob S. Cook and Frank T. Sharp, both of Chicago, for defendant in error.

DE YOUNG, J.

Violet Kelley filed and application with the Industrial Commission for the adjustment of her claim for compensation, which she charged arose out of an accidental injury, resulting in death, suffered on January 9, 1925, by her husband, Mark Kelley, while he was employed by the Pittsburgh Coal Company of Illinois and the Graham & Morton Transit Company. On the hearing before the arbitrator the application was amended by adding the Goodrich Transit Company as a respondent. The arbitrator found that Mark Kelley, the decedent, and the Pittsburgh Coal Company of Illinois, were, on January 9, 1925, operating under the provisions of the Workmen's Compensation Act (Smith-Hurd Rev. St. 1925, c. 48, §§ 138-172); that on that day the decedent sustained accidental injuries which arose out of and in the course of his employment; that notice of the accident was given and claim for compensation made upon the coal company within the time required by the act; that the earnings of the decedent during the year preceding the injury exceeded $1,456, and that his average weekly wage was in excess of $28; that he left surviving as his sole dependent Violet Kelley, his widow; that she was entitled to $14 per week for 267 6/7 weeks, as provided by paragraph (a) of section 7 of the act as amended, for the reason that the injuries sustained caused the death of Kelley; and that the Graham & Morton Transit Company and the Goodrich Transit Company were not liable for compensation. The award of the arbitrator was affirmed by the Industrial Commission. On review by writ of certiorari the circuit court confirmed the decision of the commission. This court allowed the coal company's petition for a writ of error, and the record is here for a further review.

On January 9, 1925, the Pittsburgh Coal Company of Illinois operated a coal dock situated between the north bank of the Chicago river, near its mouth, and a paralled street known as East North Water street, in the city of Chicago. The company's dock had a river frontage of about 600 feet, and ran over 300 feet north to the street. A short distance east of the dock a slip extended north from the river to a point beyond East North Water street, and then turned west at right angles for about half a mile to the docks of the Goodrich Transit Company. This slip was known as the Ogden or Lighthouse slip. Between the river and the slip East North Water street was approximately 40 feet wide. North of this street, and bounded on the east and north by Ogden slip, was the dock of the Coated Board Company. The Pittsburgh Coal Company was engaged in the business of supplying coal to steamboats in and about the Chicago Harbor. Coal was delivered to vessels at the company's dock, and also at other docks and places on the river and harbor by means of lighters. Among the coal company's customers were the Graham & Morton Transit Company and the Goodrich Transit Company, both of which operated steamboats between Chicago and ports on Lake Michigan. The boats of the Goodrich Transit Company were supplied with coal at their docks and never at the dock of the coal company. At the time of his death Mark Kelley had been employed by the Pittsburgh Coal Company about five years, first as a laborer, later as a fireman, and finally as a night watchman. As watchman he was on duty from 6 o'clock in the evening until 6 o'clock of the following morning. George Hallock, who had been employed by the coal companyfor 26 years, was Kelley's foreman. The boats of the Goodrich Transit Company in going to and from their docks at the west end of Ogden slip were required to turn the corner in the slip. This turn was made with difficulty when there was a strong wind from the west or south. To make the turn more readily under such conditions, a line was thrown from the passing vessel to a man on the dock of the Coated Board Company, and he would fasten the line to a hook on the dock. He was signaled of the approach of the vessel by the blowing of its whistle. Usually this occurred two or three times a week. An officer of the Goodrich Transit Company had made an arrangement with Hallock, the foreman of the coal company, more than a year prior to Kelley's death, to catch and handle the line for its steamers as they turned the corner of the slip. The Goodrich Transit Company paid Hallock, by its check, $6 per month for this service. When Hallock was otherwise engaged, he would ask some person to handle the line in his stead. At times he requested Kelley to do the work, and whenever Kelley performed it Hallock would indorse and deliver the Goodrich Transit Company's check to him. Kelley had done the work for about 4 months at the time of his death. The coal company was not a party to the agreement between Hallock and the Goodrich Transit Company, and the service was performed on the dock of the Coated Board Company. On the evening of January 9, 1925, Kelley reported for duty as usual at the coal company's dock. Shortly after 7 o'clock he received the signal from the Goodrich Transit Company's steamer Wisconsin, bound for Racine and Milwaukee. It was dark, and he proceeded with a lantern to the Coated Board Company's dock. A line was thrown from the steamer, but it was found that it would not be needed, and the master ordered that it be hauled aboard. When it was reported to him that he line was aboard, the steamer was started. A call for help immediately followed, and the enginewas stopped. As the boat slowed down, another call for...