Weil-Kalter Mfg. Co. v. Indus. Comm'n

• Decision Date: 02 April 1941
• Docket Number: No. 25667.,25667.
• Citation: 32 N.E.2d 889,376 Ill. 48
• Parties: WEIL-KALTER MFG. CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

376 Ill. 48

32 N.E.2d 889

WEIL-KALTER MFG. CO.

v.INDUSTRIAL COMMISSION et al.

No. 25667.

Supreme Court of Illinois.

Feb. 14, 1941.

Rehearing Denied April 2, 1941.

Error to Circuit Court, Randolph County, Alfred D. Riess, Judge.

Proceeding under the Workmen's Compensation Act by William H. Robison, claimant, for the death of his wife, Margaret Robison, opposed by the Weil-Kalter Manufacturing Company, employer. To review a judgment of the circuit court confirming a decision of the Industrial Commission granting an award, the employer brings writ of error.

Affirmed.W. C. Ropiequet, of East St. Louis, for plaintiff in error.

Beasley & Zulley, of East St. Louis, for defendant in error.

WILSON, Justice.

William H. Robison filed an application for the adjustment of compensation with the Industrial Commission charging that Margaret Robison, his wife, suffered an accidental injury while she was employed by the Weil-Kalter Manufacturing Company, and that the injury resulted in Mrs. Robison'sdeath. The arbitrator found that the employee had sustained an accidental injury arising out of and in the course of her employment but denied compensation on the ground that the evidence failed to disclose a causal relation between the injury and death. The Industrial Commission, on review, set aside the decision of the arbitrator, found that Margaret Robison's death resulted from the accidental injury, that her average weekly wage was $12 during the year next preceding the injury, and that her husband was dependent upon her earnings. Accordingly, the commission awarded the applicant $2,500 as compensation conformably to section 7(b) of the Workmen's Compensation Act. Ill.Rev.Stat.1939, chap. 48, par. 172.7. March 4, 1940, the circuit court confirmed the decision of the commission. We have granted a writ of error for a further review.

Uncontroverted testimony discloses that Margaret Robison, fifty-five years of age, had been employed as a janitress in the factory of the Weil-Kalter Manufacturing Company, the plaintiff in error, located at Sparta, five or six years prior to August 31, 1934, and for the preceding two years had worked under immediate supervision of Ulala Bixby. About noon on the day named, while pursuing her regular duties, she stumbled on a worn and rough place in the floor of the factory. The forewoman, Ulala Bixby, observed that Mrs. Robison was not limping around 8 or 9 o'clock in the morning, testifying that she first saw her limping a little before noon and that the employee continued to limp the balance of the day. From the forewoman's testimony it also appears that Mrs. Robison, on August 31, told her superior that she had turned and sprained her ankle. Sigmond Tietge, a fellow-employee, who took Mrs. Robison in his automobile from the factory to the office of Dr. C. O. Boynton in the afternoon, testified that she was limping as she moved from the factory to his car. Dr. Boynton was not available and Tietge took Mrs. Robison home, arriving about 4:30 P.M. Her husband, the defendant in error, assisted her into the house. Dr. N. F. Roberson, who, in the absence of Dr. Boynton, rendered first aid to Mrs. Robison, testified to an injury of recent origin to her right ankle. An accident report of the employer on the form prescribed by the Industrial Commission described an accidental injury, namely, a sprained ankle, to Margaret Robison, August 31, 1934, at 11:30 A.M. while in the employ of the plaintiff in error at its Sparta plant. The evidence narrated is sufficient to sustain the successive findings of the arbitrator, the Industrial Commission and the circuit court that the employee sustained an accidental injury arising out of and in the course of her employment.

Disposition of plaintiff in error's contention that the defendant in error did not prove a causal connection between the accidental injury and the death of his wife requires a review of the relevant testimony. According to the defendant in error, Mrs. Robison was in good health when she departed for work on the morning of August 31, there being ‘nothing wrong with the woman at all,’ and, in particular, her right shoulder and right side were all right and she was not limping in any way. He also said that since the birth of their ninth child, twenty years earlier, his wife had been ‘like a little mule and she * * * never had a day's illness in her life outside of her confinement.’ The defendant in error testified that while his wife was resting at their home prior to Dr. Roberson's arrival she vomited little streaks of blood, that she vomited during Dr. Boynton's visits on September 1 and 3, and, in fact, constantly and with increasing severity from August 31 to the day of her death, two weeks later on September 14. He testified, further, that when Dr. Roberson examined his wife's right foot it was discolored up to the ankle, being almost as black as his shoe. Again, the next day, he saw her foot and it was black and swollen. A week later, on September 8, he saw a bruised ‘blacky-blue’ mark on the right side a little toward the front above the pelvic bone. He also stated that she complained of her right side from the day of the accident until the day of her death. It appears further, from his testimony, that Mrs. Robison was able to be out of bed on only two occasions, and then, assistance was required.

George Robison, a son, twenty-one years of age, testified that there was nothing wrong with his mother's health during her employment with the plaintiff in error. He was at home during the month of August and noted that his mother was able to attend her usual household duties. When he saw her on the davenport on the late afternoon of August 31, she had a yellowish look on her face and her right ankle was considerably swollen. The son was present when Dr. Boynton removed the bandage September 1, and saw that the ankle was swollen and blue. George stated that several days after his mother had been brought home he observed that her right arm was blue, a condition which remained quite a while.

Marie Misselhorn, a neighbor, who assisted with the care of Mrs. Robison during her illness, knew of no ailment suffered by the latter prior to August 31. On her first visit, the evening of August 31, the witness noticed only the bandaged foot. She testified that Mrs. Robison made a complaint about her right side the second day she was present, and that on the second day after August 31, and again, about three days before her death, she saw black and blue spots on Mrs. Robison's right side around the waistline. Mrs. Misselhorn observed that Mrs. Robison had a yellowish color, also blue spots running down her right arm and during her attendance witnessed vomiting spells. The latter's condition, the witness added, became worse from September 8, and she was unable to get out of bed by herself.

Dr. Roberson testified that during the half-hour he was present on the afternoon of August 31, Mrs. Robison was not nauseated. Dr. Boynton, a witness in behalf of the plaintiff in error, visited Mrs. Robison the first time in the morning of September 1, responding to a call from her employer. He testified that the patient was then vomiting bile and complained of severe pain in her upper abdomen. He relieved the pain with hypodermic medication and examined the patient. From his testimony it appears that he found the ankle to be slightly swollen, with no heat, no discoloration and no redness, merely a little swelling on the ankle. His diagnosis was that the patient had probably turned her ankle and had wrenched or strained the ligaments. Testifying further, Dr. Boynton stated that no tumor masses were found except in the right inguinal region where there appeared to be a group of enlarged glands, hard and nodular, irregular in size, and, from the type of the mass, it was his opinion they had been present a long time. He did not reach a definite diagnosis stating that the mass suggested itself as being a malignant type of growth. Dr. Boynton strapped and bandaged the ankle and gave the patient some medicine. He next visited Mrs. Robison two days later, on September 3, when he examined the ankle which appeared to have improved. On this visit, he found the patient very sick although the pain had not been so severe. He stated that he did not then find any black marks on the ankle and continued the first treatment. He testified that on the occasion of his third and last visit on September 7, Mrs. Robison stated she was feeling better and was able to walk a little. He made a cursory examination, limited to taking the pulse, temperature, examining the ankle and reducing it. The ankle, he said, appeared to be practically all right and he concluded that his services, so far as the ankle was concerned, were no longer required. He stated that his examination disclosed no marks, discolorations, or bruises on the body of any kind other than the swelling of the ankle, and added that she made no complaints to him with respect to her right side. He did not visit Mrs. Robison during the last week of her illness. In his sworn statement to the coroner Dr. Boynton said that he did not know the cause of death. To the question whether the fall aggravated some preexisting condition or itself produced death, Dr. Boynton replied he could not tell and to the same question at the hearing before the arbitrator replied: ‘I prefer to answer I don't know.’ He also reported to the coroner: ‘As best I can determine I consider that the death has no connection with any accident, the illness was coincident rather than the result of an accident.’ Dr. Boynton declined to testify before the arbitrator directly as to the cause of death, expressing the opinion merely that Mrs. Robison died of ‘metastasis of cancer,’ probably from the stomach, adding that the persistent vomiting of a dark substance is always suggestive of malignancy involving the stomach. He stated further that he did not think there...