Schmitt v. Indus. Comm'n

• Decision Date: 21 November 1945
• Docket Number: No. 28847.,28847.
• Court: Illinois Supreme Court
• Parties: HINCKLEY & SCHMITT v. INDUSTRIAL COMMISSION et al.

391 Ill. 577

63 N.E.2d 729

HINCKLEY & SCHMITT

v.INDUSTRIAL COMMISSION et al.

No. 28847.

Supreme Court of Illinois.

Nov. 21, 1945.

Error to Circuit Court, Cook County; Julius H. Miner, Judge.

Proceedings under the Workmen's Compensation Act on the claim of Jacob Mueller, employee, opposed by Hinckley & Schmitt, employer. To review a judgment on certiorari confirming an award by the Industrial Commission in favor of employee, employer brings error.

Affirmed.

Angerstein & Augerstein, of Chicago (Thomas C. Angerstein, George W. Angerstein, and Charles Wolff, all of Chicago, of counsel), for plaintiff in error.

Arthur A. Wolf, Scott J. Vitell, and Leo S. Karlin, all of Chicago, for defendant in error.

GUNN, Justice.

Jacob Mueller made application for adjustment of a claim against Hinckley & Schmidt (herein referred to as petitioner), claiming compensation for accidental injury suffered in the course of his employment. The accident took place September 8, 1942. The arbitrator decided the issues in favor of Mueller (herein referred to as respondent), which was confirmed on petition for review, with an increase in the amount of the award, and upon certiorari confirmed by the circuit court of Cook county.

The facts in the case are undisputed, but it is contended by petitioner that such facts show the accidental injury for which respondent is claiming compensation did not arise out of and in the course of his employment; that by reason of the facts being undisputed the question presented is one of law. Farley v. Industrial Comm., 378 Ill. 234, 37 N.E.2d 787;Puttkammer v. Industrial Comm., 371 Ill, 497, 21 N.E.2d 575.

The facts are as follows: September 8, 1942, respondent for a great many years had been an employee of petitioner as a driver of one of its trucks used in hauling and delivering beverages, soft drinks and mineral waters. On the same date his son was likewise a driver of one of petitioner's trucks. Each driver had his regular truck and his own route, and took care of the same. The trucks were loaded at a platform in petitioner's plant. A driver about to leave on his route would call one of the checkers to see that the load was correct before the driver left the plant, and the latter would know to whom he was delivering by looking at the check sheets. The driver did not have to punch a time clock, but each man would take his truck out in the morning, and when he returned from his route in the afternoon, after delivering his load, would see what orders had come in from customers on his route, and was then through for the day, and could go home, irrespective of the hour.

Respondent describes the employment as follows: ‘On them wagons or trucks, we have no real hours at all. Each man takes care of his route and returns to his place. We have no clock to punch in, no time to punch out. When we are through, if it happens two o'clock, three o'clock, four o'clock, we go home.’ The loading platform would not accommodate all of the trucks at one time. Sometimes trucks standing in the driveway would be driven out into the street when necessary so drivers who wished to do so could leave early, and after such early drivers had left the drivers of the trucks standing in the street would drive their trucks back from the street into the premises. Sometimes the trucks returning in the afternoon would be loaded for the next day's delivery; and in the case of the respondent, on the afternoon of September 7, 1942, he had his truck loaded for the deliveries he was to make September 8. On the morning of the 8th respondent rode to work with his son Jack, who was also a truck driver. They rode in the car of the son, with the son driving, and arrived at petitioner's place of business about 7:40 in the morning. When they arrived at the place of business the truck of the son was parked out on the street in front of petitioner's plant. There was no place to park the son's car in which respondent and the son had driven to work. Respondent got out of the passenger car of the son, and in attempting to move the truck of the son fell and was injured. The occurrence is described by respondent as follows: ‘I came down with the son; my son's truck was out in front of the place, and I got in to pull it in the garage, to back it in, you know, and in getting on the truck I slipped.’ In answer to the question as to why he started to put his son's truck into the garage he answered: ‘Well, I took it in-he had his car there. There was no place to park; so I took it in, so he could move in that space. I was going to take it in the plant. In fact, I did not move it; I fell of of it when I went to get on. * * * There is too many trucks to put agin the platform, and we have two or three of them outside. They take them out so some of the boys who get out real early, they move them so the men can pull up into the plant.’ In his written statement made March 9, 1943, he stated: ‘On Tuesday, September 8, 1942, about 7:50 a.m., I was coming to work. I saw Jack Mueller's truck, my sons, at the curb and I started to get in it to move it forward so that I could park my own 1937 Pontiac at the curb. I had hold of the handle with my right hand. I stepped up on the fender plate; my right foot slipped and I fell to the curb on my left side holding onto the handle with my right hand.’

Petitioner contends that the above facts clearly disclose the respondent was not injured in the course of his employment; that it comes within the rule of the street accident, the danger of which applies to the public at large, and that the accident occurred before he had entered upon his employer's premises, and before he had assumed his duties as an employee. The respondent contends that while attempting to move the truck to be used later by his son he was performing a duty connected with the loading of the truck, which would have to be done by someone, and that therefore it comes within the course of his employment by being of benefit to his employer, and the fact he was creating a parking space was only incidental to such employment.

It has been many times held injuries suffered while an employee is going to or returning from the employer's premises do not arise out of or in the course of the employment, so as to entitle him to compensation. Payne and Dolan v. Industrial Comm., 382 Ill. 177, 46 N.E.2d 925;Northwestern Yeast Co. v. Industrial Comm., 378 Ill. 195, 37 N.E.2d 806;Puttkammer v. Industrial Comm., ...