Scholl v. Indus. Comm'n

• Decision Date: 06 October 1937
• Docket Number: No. 24009.,24009.
• Citation: 10 N.E.2d 360,366 Ill. 588
• Parties: SCHOLL et al. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

366 Ill. 588

10 N.E.2d 360

SCHOLL et al.

v.INDUSTRIAL COMMISSION et al.

No. 24009.

Supreme Court of Illinois.

June 11, 1937.

Rehearing Denied Oct. 6, 1937.

Error to Circuit Court, Peoria County; Joseph E. Daily, Judge.

Proceeding under the Workmen's Compensation Act by Bertha Scholl, widow, and others, claimants, for the death of Fred Scholl, opposed by the Allen Lumber Company, employer. To review a judgment confirming an order of the Industrial Commission denying compensation, claimants bring error.

Reversed and remanded, with directions.Paul N. Holtgreve, of Peoria, for plaintiffs in error.

E. V. Champion and E. J. Lee, both of Peoria, for defendant in error.

ORR, Justice.

Fred Scholl, employed by the Allen Lumber Company as foreman at its mill in Peoria, was shot and killed, while on his way to work, by a former employee whom Scholl had discharged and who was then seeking re-employment. The arbitrator decided in favor of his widow, the petitioner, and entered an award in her behalf on April 18, 1932. Upon a review, the Industrial Commission set aside the findings and award, and, on certiorari, the circuit court of Peoria county confirmed the order of the commission denying compensation. This writ of error was awarded to review that judgment. The sole issue is whether the fatal injury arose out of and in the course of Scholl's employment.

The facts are not in dispute. At the time of his death Scholl had worked for the respondent corporation about two years and was foreman in charge of certain mill work. One Charles Greene had previously been employed by the company and had worked under Scholl's direction. It was part of Scholl's duties, as foreman, to hire and lay off the men at the mill. In the latter part of December, 1930, Scholl discharged Greene. The latter came back to the company office and told them he was going to lose his home unless he was re-employed. They referred him to Scholl, but Greene was not taken back to work. Greene wrote a letter early in January, 1931, to Albert Reush, an officer of the Allen Lumber Company, concerning his reemployment. He followed this up with another letter to Reush dated February 9, requesting a part time jub so he might have a chance to redeem his home. In this letter he said, ‘There are some peculiarities about Scholl which cause me to believe he had it in his craw against me, but I try not to feel that way as much as I can.’ A reply from the company to Greene dated February 11, 1931, was as follows:

‘Dear Mr. Greene:

‘Received your special delivery letter yesterday.

‘Regret to learn of your recent misfortune and hope that the future will be much brighter.

‘We are beginning to slacken up some in the mill, although we have been going 9 hours with 7 men up until this week.

‘In regard to putting you back on upstairs, that rests entirely with the foreman, Mr. Fred Scholl, and you will have to take this up with him.

‘Yours very truly,

‘Allen Lumber Company,

‘AR:MS

By ________.'

Reush testified that Scholl worked under his supervision; that Scholl's hours of employment were from 7 in the morning until 5 in the afternoon, except Saturday, when he worked only until noon; that Scholl ceased work at noon on Saturday, February 14, 1931, and that Scholl would have had the right to tell Greene to take his tools and leave the Allen Lumber Company on the Saturday afternoon previous to Scholl's death. It is undisputed that Greene had gone to Scholl's home on this previous Saturday afternoon (February 14) seeking reemployment, and when leaving had shaken his fists at Scholl in a threatening manner so as to cause Scholl's wife to step between the men.

On Monday morning February 16, between 6 and 7 o'clock, Greene met Scholl a short distance from the latter's home, on the route to the mill of the Allen Lumber Company, and invited him into his automobile. Greene testified that his sole motive in meeting Scholl that morning was to force the latter to put him back to work at the mill. He said he had a gun with him with the idea of bluffing Scholl or forcing an agreement. Soon after this, and while a number of blocks distant from the Allen Lumber Company, Greene shot and killed Scholl. Further details of the shooting and subsequent events are not material, although it appears that Greene was convicted of murder and sentenced to the penitentiary soon afterward. He was brought, as a prisoner in custody, to testify as a witness for petitioner at the hearing before the arbitrator.

We have repeatedly held that the Workmen's Compensation Act (Smith-Hurd Ill.Stats. c. 48, § 138 et seq.) should receive a liberal construction. Where, as here, compensation is claimed for accidental death and the facts are not in controversy, the issue whether the deceased received injuries which arose out of and in the course of his employment becomes, from the facts stipulated and proved, a question of law. Ervin v. Industrial Comm., 364 Ill. 56, 4 N.E.(2d) 22. The phrases ‘arising out of’ and ‘in the course of employment’ are used conjunctively. The words ‘arising out of’ refer to the origin or the cause of the accident while the words ‘in the course of employment’ refer to the time, place, and circumstances under which the accident occurs. Mueller Construction Co. v. Industrial Board, 283 Ill. 148, 152, 118 N.E. 1028, L.R.A.1918F, 891, Ann.Cas.1918E, 808;Arquin v. Industrial Comm., 349 Ill. 220, 223, 181 N.E. 613; Angerstein on Workmen's Compensation, p. 163. It is not alone sufficient that the injury be received by the employee in the course of his employment, but it must also arise while he was acting within the duties of his employment or in some act incidental thereto. Vincennes Bridge Co. v. Industrial Comm., 351 Ill. 444, 184 N.E. 603;Pittsburgh Coal Co. v. Industrial Comm., 323 Ill. 54, 153 N.E. 630. A well-accepted statement of when an injury may be said to arise out of the employment is found in Mazursky v. Industrial Comm., 364 Ill. 445, 449, 4 N.E.(2d) 823, 825, and cases there cited, as follows: ‘It arises 'out of’ the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of' the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental...