Swift & Co. v. Indus. Comm'n

• Decision Date: 15 April 1919
• Docket Number: No. 12280.,12280.
• Citation: 122 N.E. 796,287 Ill. 564
• Court: Illinois Supreme Court
• Parties: SWIFT & CO. v. INDUSTRIAL COMMISSION et al.

287 Ill. 564

122 N.E. 796

SWIFT & CO.

v.INDUSTRIAL COMMISSION et al.

No. 12280.

Supreme Court of Illinois.

April 15, 1919.

Error to Circuit Court, Cook County; Oscar M. Torrison, Judge.

Proceedings under Workmen's Compensation Act by Frank Blum for compensation for injuries, opposed by Swift & Co., employer. Award of Industrial Board affirmed by circuit court, and employer brings error. Affirmed.

Thomas M. Coen and John E. Kehoe, both of Chicago, for plaintiff in error.

John A. Bloomingston, of Chicago, for defendant in error.

CARTER, J.

An application was filed with the Industrial Board on October 13, 1914, by Frank Blum, defendant in error, for adjustment of claim for injuries alleged to have been incurred by him while in the employ of Swift & Co. The arbitration committee decided that he was not entitled to compensation. On review the Industrial Board awarded compensation of $7.50 per week for a period of 416 weeks from April 10, 1914, and ordered that, if at the expiration of that time Blum were living, he should recover from the plaintiff in error a pension of $257.60 a year, payable semi-monthly, as long as he might live. The case was taken to the circuit court of Cook county by writ of certiorari, and the judgment of the Industrial Board was affirmed. The trial judge certified that the cause was one proper to be reviewed by this court, and it is here on writ of error.

At the time of the injury, April 3, 1914, Frank Blum was employed by Swift & Co. at its packing plant at the Union Stockyards in Chicago. At and before the time of the injury it was his duty, together with other employés in the steam-fitting department, to look after water pipe leaks in the different buildings, including that occupied by the pork department. The custom was, throughout these buildings, in case of pipe leaks and other matters where repairs were needed, to blow a whistle, in response to which an employé of the steam-fitting department would come. Frank Nieukirk was foreman of sewing and tying in the smoked meat room on the fourth floor of house No. 19 of the pork department. On the Sunday prior to the injury Nieukirk told Blum there was a leak in one of the pipes on the fourth floor, and, according to Nieukirk's testimony, Blum replied that he would take care of it. On Thursday before the injury Frank Selen, who worked with Blum in the steam-fitting department, attempted to repair the leak, but without success, and the pipe kept leaking. Nieukirk directed the whistle be blown for one of the pipe repairmen. There was no response, and he ordered the whistle blown again, and then the third time. Selen, upon hearing the whistle, found Blum and told him of the call. Blum started at once for Nieukirk's department, and Selen followed a short distance behind. When Blum entered the smoked meat room, he walked at once toward Nieukirk, and, according to the latter's testimony on the hearing, the first he knew Blum came up to him, took him by the shoulder, pulled him around and asked, ‘What do you want?’ Nieukirk testified:

‘I had not spoken to Blum before. Blum said, ‘What in hell do you fellows mean by blowing a whistle?’ I says, ‘You know what we want; we want that leak repaired.’ I says, ‘I want to work in harmony with you as much as I can; I tried to get you to fix this leak since last Sunday; nothing has been done to remedy it since.’ He says, ‘Well, I haven't got time to fix the leak.’ I says, ‘All right; that is all I want to know; I will take it up with the superintendent's office and see that this leak is done; I don't like to go over you boys' heads, but that is what I am going to do this time.’ He says, ‘All right; go ahead; I will fix you.’ He stepped around with an attitude as if he was going to strike me, and said, ‘All right, you bastard, go ahead; I will fix you.’ He stepped around in an attitude to strike, and I hit him with my fist. He had a valve or pipe. He raised his hand up to strike, clear up, in a manner of striking me. I am sure about that.'

Nieukirk further testified that he had never had any trouble before with Blum, and that Blum was apparently a harmless individual, though of a quarrelsome disposition.

When struck by Nieukirk, Blum fell to the cement floor and sustained a basal fracture of the occupital bone, either by the blow or the fall. The testimony shows without contradiction that after the injury he was confined to his bed until August, and after that was unable to walk, except with difficulty; that his memory was gone, and he could not articulate properly. On the hearing of this proceeding he testified, but it was apparent that he remembered very little, if anything, in regard to the accident or how it occurred. He did, however, testify that he had no feeling or grudge against Nieukirk, and, so far as he remembered, did not raise his hand to strike him; that he never wanted to have a scrap there. According to Nieukirk's testimony, also, there had never been any trouble between himself and Blum before that time. Selen, Blum's assistant, who followed into the room and according to his testimony was about 30 feet away at the time of the accident, does not understand English very well. He testified that he did not see Blum start to hit Nieukirk; that Nieukirk and Blum were both talking loud; and that Blum was moving his hands. Miss Owens, another witness, who was working in the room, did not see Blum raise the pipe or valve which he had in his hand over his head, but testified that he had the pipe in his hand, and that his hand was drawn back, as we understand the record, about 6 inches. Mrs. Brzana, another employé, was sewing bags, with her back to Nieukirk and Blum, at the beginning of their interview, but turned around to watch them, and she testified in answer to a question that Blum did not raise his hand to strike Nieukirk, but afterwards, on cross-examination, stated that she may not have seen all that took place. Timothy Kelleher was called by plaintiff in error, and was the best situated to hear and see all that took place. He stated that Nieukirk, at the time Blum came into the room, was piling hams on a truck; that witness was close at hand; that Blum stood at the end of the truck nearest witness; that he heard them talking loud; but that the first he took heed of was Nieukirk telling Blum to get away, which he did three times, and then Blum threw his right hand back about six inches, and Nieukirk immediately struck him on the jaw and knocked him down.

These are all the witnesses who testified with reference to this occurrence. All of them, as we understand the record, testified before the arbitrator, but their testimony was not heard before the Industrial Board except that of Mrs. Brzana, which seems to have been taken before the board. All of these witnesses except Kelleher were called by defendant in error, and it is argued by counsel for plaintiff in error that defendant in error is bound by the testimony of Nieukirk as to what took place, as Nieukirk was called by him, and was the only witness who testified in detail as to what happened, and that, so far as any of the other witnesses testified, their testimony tends to corroborate that of Nieukirk; while counsel for defendant in error insists that Nieukirk's testimony is contradicted in material matters. especially as to Blum threatening to strike him or raising his hand in a threatening attitude. Counsel for both parties are very vehement in their arguments in the briefs as to what actually occurred and contradict each other very positively, each claiming that the statements of opposing counsel as to certain facts are not borne out by the record. We think it is clear that Nieukirk's testimony as to Blum raising his hand in a threatening attitude to strike him with a valve or iron in his hand, before Nieukirk struck Blum, is not corroborated in the record by the testimony of any other witness. The most that can be said is that Kelleher testified that Blum drew his hand back, and that the motion was such that witness would think that something was going to happen, but there is no testimony, outside of Nieukirk's, that the hand was raised high in a threatening manner. Four witnesses testified to seeing the blow struck. Nieukirk's testimony is to the effect that he struck the blow immediately upon Blum raising his hand in a...