Schwartz v. Indus. Comm'n

• Citation: 379 Ill. 139,39 N.E.2d 980
• Decision Date: 11 March 1942
• Docket Number: No. 26334.,26334.
• Parties: SCHWARTZ et al. v. INDUSTRIAL COMMISSION et al.
• Court: Supreme Court of Illinois

379 Ill. 139

39 N.E.2d 980

SCHWARTZ et al.

v.INDUSTRIAL COMMISSION et al.

No. 26334.

Supreme Court of Illinois.

Jan. 20, 1942.

Rehearing Denied March 11, 1942.

Error to Circuit Court, Cook County; George W. Bristow, Judge.

Proceeding under the Workmen's Compensation Act by Gloria Schwartz and another, claimants, opposed by the Herlee Household Appliances, Inc., employer, and the Industrial Commission and others. To review a judgment of the circuit court which reversed a decision of the commission and entered the judgment for an award in favor of the claimants, the employer brings error.

Judgment of circuit court reversed and decision of Industrial Commission confirmed.Ross & Berchem, of Chicago, for plaintiffs in error.

Louis N. Blumenthal and Edward M. Platt, both of Chicago, for defendants in error.

SMITH, Justice.

This is a writ of error granted by this court to review the judgment of the circuit court of Cook county. The case arises under the Workmen's Compensatior Act. Ill.Rev.Stat. 1941, c. 48, § 138 et seq. It involves a claim for compensation on account of the death of Martin L. Schwartz. There is no material dispute as to the facts in this case. The claim was originally heard by an arbitrator of the Industrial Commission. The arbitrator found that Martin L. Schwartz, the deceased employee, did not sustain accidental injuries arising out of and in the course of his employment, and that the injuries sustained by him which resulted in his death did not arise out of and in the course of his employment by plaintiff in error. On appeal, the Industrial Commission confirmed the decision of the arbitrator and ordered that such decision stand as the decision of the commission. Defendants in error removed the case to the circuit court of Cook county by certiorari. That court reversed the decision of the commission and entered judgment for an award in favor of defendants in error, Gloria Schwartz and Leona Schwartz, children of said deceased, in accordance with the provisions of the Workmen's Compensation Act.

The case was heard before the arbitrator upon evidence submitted by defendants in error alone. No evidence was offered by plaintiff in error. No further evidence was offered by either party on the hearing before the Industrial Commission.

The evidence discloses that on June 12, 1937, and for some time prior thereto, plaintiff in error was engaged in the operation of a retail store. Martin L. Schwartz was employed in that business as a salesman. He also discharged some duties as manager, or assistant manager, of the store. He took care of orders, deposited money in the bank and otherwise handled the operation of the business, doing whatever was necessary in that respect. He also had some supervision over other employees and assisted them in closing sales whenever his help was needed. It was the custom to keep the store open on Saturdays until midnight. Deceased was on duty on Saturdays continuously from the time the store opened in the morning until it closed at night. Food was not served to the employees and no place was provided for them to either obtain or eat their meals. They were at liberty to go out for their meals. Plaintiff in error had no control, and gave no instructions to the employees as to when or where they should obtain their meals or food, while on duty. They were at liberty to obtain their meals at any place of their own selection. When the deceased went out for lunch, or dinner, he would always leave word where he was going so he might be reached if his assistance was needed or his presence required at the store.

On June 12, 1937, he informed another salesman in the store that he was going to the Marquis restaurant, and stated that if he was needed for any help at the store they could reach him at that place. He left the store for that purpose, about 4:30 or 5 o'clock. His fiancee joined him at the store. They proceeded to the restaurant which was about one-half block distant from the store. He ate his meal and returned to the store about 5:30. Both he and his fiancee became ill, apparently from food poisoning. His fiancee ate a smaller portion of food and her illness soon subsided. The deceased, however, when he returned to the store was ill and looked pale. During the evening he showed considerable improvement. The following Monday he returned to the store but was still ill. The physician who attended him testified that he first saw the deceased on Tuesday, June 13, at the hospital; that he was in a condition of shock, and that it was impossible to make a diagnosis of his heart condition because of circulatory shock. He saw the deceased again on Thursday and his condition was improved. The following day, which was Friday, his condition was the same. He was found dead about 2:30 Saturday morning. The physician testified that the cause of death as circulatory failure and shock caused by acute gastroenteritis.

It was stipulated at the hearing before the arbitrator that both the employer and employee were under the Workmen's Compensation Act and subject to its provisions. It was further stipulated that the only question involved was whether the deceased sustained an accidental injury arising out of and in the course of his employment, and whether notice thereof was given.

The record shows that the employer had no control over the deceased as to where he should eat his meals, nor was he given any instructions as to where he should procure them. He was free to go to any place of his own choosing. No one told him when to go, where to go, or how to go. He paid for his own meals. They were not furnished by the employer.

The deceased left surviving defendants in error Gloria Schwartz and Leona Schwartz, his children. He was divorced from Rose Schwartz, his former wife, who was the mother of these children. The Industrial Commission having found that the deceased did not sustain accidental injuries arising out of and in the course of his employment by plaintiff in error, the question to be determined is whether or not the circuit court properly set aside the decision of the Industrial Commission and found that the deceased did sustain accidental injuries which arose out of and in the course of his employment, and in entering an award in favor of the surviving children of the deceased.

It is well settled that the courts may not, on review of an award made by the Industrial Commission, disturb factual determinations of that body, unless the decisions be manifestly against the weight of the evidence. Rosenfield v. Industrial Comm., 374 Ill. 176, 29 N.E.2d 102;Rodriguez v. Industrial Comm., 371 Ill. 590, 21 N.E.2d 741;Olympic Commissary Co. v. Industrial Comm., 371 Ill. 164, 20 N.E.2d 86;Abell Chevrolet Co. v. Industrial Comm., 370 ill. 460, 19 N.E.2d 361;Green v. Industrial Comm., 337 Ill. 514, 169 N.E. 202;Donk Bros. Coal & Coke Co. v. Industrial Comm., 325 Ill. 193, 156 N.E. 344. The rule is likewise that the petitioner has the burden of establishing by clear and convincing evidence that the accidental injury arose out of and in the course of the employment. Rosenfield v. Industrial Comm., supra; Boyer Chemical Co. v. Industrial Comm., 366 Ill. 635, 10 N.E.2d 389, 113 A.L.R. 264; MirificProducts Co. v. Industrial Comm., 356 Ill. 645, 191 N.E. 203;Harding Co. v. Industrial Comm., 355 Ill. 139, 189 N.E. 21;Jersey Ice Cream Co. v. Industrial Comm., 309 Ill. 187, 140 N.E. 862;Mix Dairy Co. v. Industrial Comm., 308 Ill. 549, 139 N.E. 926. An injury to be compensable must arise from a risk reasonably incidental to the employment and not one to which the public generally is subjected. A risk is incidental to the employment when it belongs to or is connected with what an employee has to do in fulfilling his contract of service. White Star Motor Coach Lines v. Industrial Comm., 336 Ill. 117, 168 N.E. 113;Weis Paper Mill Co. v. Industrial Comm., 293 Ill. 284, 127 N.E. 732. It is not sufficient that an...