Will v. 1527-31 Wicker Park Ave. Bldg. Corp.
| Decision Date | 11 December 1944 |
| Docket Number | Gen. No. 43056. |
| Citation | 58 N.E.2d 296,324 Ill.App. 264 |
| Parties | WILL (MUELLER) v. 1527-31 WICKER PARK AVENUE BLDG. CORPORATION et al. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Cook County; John F. Haas, Judge.
Action for personal injuries by Ruth Will (Mueller) against 1527-31 Wicker Park Avenue Building Corporation, Elm Park Hotel Company, and another. From an adverse judgment entered on the verdict of the jury after defendants' motions for a new trial and for judgment notwithstanding the verdict had been denied, defendant Elm Park Hotel Company appeals.
Reversed.Hinshaw & Culbertson, of Chicago (Oswell G. Treadway, of Chicago, of counsel), for appellant.
Hyman Smoller and Marion J. Hannigan, both of Chicago, for appellee.
This appeal is by defendant Elm Park Hotel Company from a judgment in the sum of $17,500 entered upon the verdict of a jury after defendants' motions for a new trial and for judgment notwithstanding the verdict had been denied. The suit was for personal injuries. The defendants were the 1527-31 Wicker Park Avenue Building Corporation, the Elm Park Hotel Company and the American Fork & Hoe Company.
The suit grew out of an occurrence which took place on May 5, 1941. Suit was begun October 7, 1941. The gist of the complaint was that plaintiff was at that time in a coffee shop, comprising a portion of the hotel premises, as an invited guest of Elm Park Hotel corporation and that it, through its agents and servants, was in the act of repairing the floor in and about the premises (the servant using a hatchet manufactured and sold by the defendant American Fork & Hoe Company) when a portion of the hatchet chipped off, striking plaintiff and causing serious and permanent injury. The negligence of the defendant hotel company was alleged to be in the improper use of the hatchet and particularly in doing the repair work in a negligent way, in that it failed to properly guard the place in which the work was done; that it carelessly and negligently failed to provide sufficient safeguards for persons rightfully on the premises. As to the defendant American Fork & Hoe Company the charge was that it negligently manufactured the hatchet and sold it negligently in the course of its business to be used by the public; that it carelessly and negligently failed to properly inspect or test the hatchet or properly temper the steel while manufacturing it, and carelessly and negligently allowed and permitted the hatchet to be sold in a dangerous and defective condition; that while the plaintiff was upon the premises, as a result of this negligence she was struck by a piece of steel.
The Wicker Park corporation answered it did not own the building or the hotel, and it and the hotel company denied plaintiff was a resident guest in the hotel at the time of the alleged occurrence but averred that she was in the course of her employment in a portion of the premises leased to her employer, Julia Orszulak; that she was not in the exercise of due care; that the defendants were not negligent. For a special defense they averred the accident and occurrence narrated in the complaint arose out of and in the course of the employment of the plaintiff by Julia Orszulak, who at that time was working under and bound by the Workmen's Compensation Act of the State of Illinois; that the defendants were also working under and bound by the terms of the Workmen's Compensation Act, and that by virtue of Section 29 of that Act, all rights, in any, in the plaintiff on account of the occurrence were subrogated to her employer, and that plaintiff therefore had no right of action against the defendants.
At the close of the evidence the cause was dismissed as to the defendant Building company and was submitted to the jury as to the American Fork & Hoe Company and the Elm Park Hotel Company. There was a verdict for defendant American Fork & Hoe Company and a verdict of guilty against the hotel company with damages assessed at $25,000. Judgment was entered on the verdict in favor of the American Fork & Hoe Company. There was a motion of the hotel company for a new trial and for judgment notwithstanding the verdict. These were overruled upon plaintiff remitting $7500, and judgment was entered in favor of plaintiff against that defendant for $17,500. From that judgment this appeal is taken.
The first contention is that plaintiff and defendant were at the time of the injury subject to the terms and provisions of the Workmen's Compensation Act, and that the only remedy of plaintiff is for compensation under it rather than in an action at law for damages. Ill.Rep.Stat. 1943, Chap. 48, pars. 143, 166 (§§ 6, 29).
The hotel building was four stories high and contained about 115 rooms. It was on the north side of Wicker Park Avenue and faced south. The avenue extended southeast and northwest. In the southeast corner of the building on the first floor was a restaurant operated by Julia Orszulak. It was about 24 feet wide and 27 feet long. Back of this was a wash room and to the rear of that a kitchen, separated by swinging doors. A lunch counter ran along the west side of the lunchroom, its north end extending to within 24 inches of the wash room wall. The space provided a passageway to and from behind the counter. Four small tables for the use of patrons stood along the east wall. Back of these was a larger service table.
Plaintiff resided in the hotel. She was employed by Miss Orszulak, who owned and operated the restaurant. Her compensation was $8 per week, including meals and tips such as she might receive. The floor of the kitchen had become out of repair and the hotel company, lessor of Miss Orszulak's restaurant, undertook the repair. Its maintenance man, Mr. Starlin, was directed to do this work. He undertook to do so on Monday, May 5, 1941. Starlin says he went to the restaurant at about 8:30 or 9:30 o'clock of the morning of that day and Miss Orszulak was ready for him to start. A little later he returned with his tools and began work in the kitchen, which he soon finished, then began work on the floor back of the counter at the north end of the room. At that time he saw the plaintiff sitting at the service table, drinking a cup of coffee and smoking a cigarette. She was seated about 12 or 15 feet from where he was to work. He intended to take up a part of the floor, about 12 inches wide and 4 feet long. As he worked, Miss Orszulak and Mrs. Starlin, the wife of the worker, stood by watching the work and engaging in conversation. The manner of doing the work was by placing the sharp edge of a hatchet on the floor and striking the hatchet with a hammer. When the hammer hit the hatchet a spark flew up. Plaintiff felt a pain in the instep of her right foot, near the ankle joint, and noticed blood coming from the wound. Mercurochrome was applied. She went to her room, later saw a doctor, had a x-ray made of the injury and was afterwards taken to the hospital, where a chip of steel was removed from the wound. The incision healed without evidence of infection, although other trouble developed later. A few days afterwards plaintiff felt a numbness on the outside of her right heel and a pink spot appeared on it. This spot did not yield to treatment and gradually grew worse.
Dr. Smith examined plaintiff May 14, 1941, and on May 23 she was sent to the Walther Memorial Hospital where she was under his care until June 3 of that year. The condition of the heel was diagnosed by Dr. Smith as a skin infection, ringworm dermatitis. She left the hospital and returned to her own physician for further treatment. He called a dermatologist. Several different types of treatment were administered without bringing relief. The area became a large open sore about 4 inches long and 2 inches wide. In August she went to the Cook County Hospital. Her limb became swollen from the ankle to the thigh. She remained there until October 1, 1942. A cast was placed on her limb and was removed some two weeks later. At the time of the trial she had a large open ulcer on the side of her injured foot.
The above facts are practically uncontroverted. The controlling question as it appears to this court, is whether the remedy of plaintiff is by action at law or under the Compensation Act. We have concluded that it is under the statute by which the action at law is precluded.
To avoid that result plaintiff undertook to show that she was not working at the time she was injured and that her injury did not arise out of and in the course of her employment. The evidence in our opinion does not sustain this contention. Unquestionably she was employed by Miss Orszulak to work in the restaurant. Her wages were $8 per week with meals provided for her, and she was allowed to retain tips given to her by patrons. On the morning of the day she was injured she went to the restaurant at about 6:30 and opened up the place for business. She served breakfast to the patrons. Her employer arrived later, went to the kitchen to work while plaintiff waited on the trade, typed the menu and got things ready for the day. On the trial plaintiff said she was taking a cup of coffee and smoking a cigarette when she was injured. When her deposition was taken prior to the trial she said she was ‘eating’ at the time of the occurrence. By the terms of her employment she had the right to eat her meals on the employer's premises. This was a part of her compensation. The evidence indicates that was what she was doing. When one works under such a contract and under such circumstances is injured there is a wealth of authority holding that the employee is in the course of his employment and that where the injury comes about by reason of the business in which the claimant is employed it arises therefrom within the meaning of the Compensation Act. Humphrey v. Industrial Commission, 285 Ill. 372, 120 N.E. 816;Nelson R. Construction Co., v. Industrial...
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