Wise v. Industrial Commission

• Decision Date: 02 April 1973
• Docket Number: No. 44870,44870
• Citation: Wise v. Industrial Commission, 295 N.E.2d 459, 54 Ill.2d 138 (Ill. 1973)
• Parties: Russell WISE, Appellant, v. The INDUSTRIAL COMMISSION et al. (Checker Taxi Co., Appellee.)
• Court: Illinois Supreme Court

Page 459

295 N.E.2d 459

54 Ill.2d 138

Russell WISE, Appellant, v.The INDUSTRIAL COMMISSION et al. (Checker Taxi Co., Appellee.)

No. 44870.

Supreme Court of Illinois.

April 2, 1973.

Murges & Johnson, and Joseph L. Goldberg, Chicago (George J. Murges and Phillip J., Johnson, Chicago, of counsel), for appellant.

Kane, Doy & Harrington, Chicago (Arthur O. Kane, Chicago, of counsel), for appellees.

KLUCZYNSKI, Justice.

Claimant, Russell Wise, filed an application for adjustment of claim with the Industrial Commission seeking compensation from his employer, Checker Taxi Company(hereinafter Checker).The arbitrator denied relief, finding that claimant's injuries did not arise out of and in the course of his employment.The Commission affirmed and on writ of certiorari to the circuit court of Cook County the Commission's order was confirmed.Claimant has appealed to this court.The only issue we need consider is whether the finding was contrary to the manifest weight of the evidence.

Claimant was a full-time employee of the Federal government.However, he would also work several evenings week as a cab driver for Checker.The circumstances upon which the claim was based occurred during the early morning hours of September 3, 1966.

Jeff Jackson, a longtime acquaintance of claimant, testified that he brought claimant's wife to a birthday party that evening.As Jackson arrived he saw a group of teenagers standing near the street corner.Shortly after midnight claimant appeared and stayed for an hour or more and then left.About 15 minutes later Jackson heard claimant screaming as the latter stood in front of the house where the party was being held.Jackson said that the party hostess, Catherine MacDonald, went outside He followed and saw claimant and Mrs. MacDonald going toward claimant's taxicab, which was parked at the corner with the engine hood open.Jackson sat in the front seat of the vehicle and for several minutes futilely attempted to start it with the key which was in the ignition.He said that claimant, whom he described as bleeding, was in the back seat with Mrs. MacDonald.The police were called and claimant was taken to the hospital.

On cross-examination this witness said that claimant and Mrs. MacDonald entered the vehicle about 2:30 or 3:00 A.M.He further stated that he left the keys in the vehicle after his unsuccessful effort to start it.

Catherine MacDonald, claimant's cousin, testified that claimant had arrived at her party about midnight.After consuming several cans of beer and some champagne, he departed about 2:00 A.M.This witness stated she saw claimant about 10 minutes later as he stood in front of her house screaming for someone to take him to the hospital.Mrs. MacDonald went outside and claimant told her, 'Some teenage punks done got me down there.'Claimant was bleeding from a neck would and this witness attempted to administer aid to him after placing him in the back seat of the cab.She corroborated Jackson's testimony as to the location of the vehicle, the fact that the engine hood was open and that Jackson could not start the cab.

Claimant's wife testified that on September 2, 1966, claimant left their house about 5:20 P.M.She received a telephone call from him at 9:30 P.M., and he said he was at his cousin's house but the party has not yet started.She next saw him about 1:00 A.M. at the party where she confirmed the fact that he had several drinks.She estimated that he stayed at the party about 1 to 1 1/2 hours.As claimant was leaving she spoke to him briefly, and he told her that he was going to pick up several more fares and then return the vehicle to Checker.During this conversation she said that she saw several teenagers standing on the corner.The remainder of her testimony was similar to that of the previous witnesses.

Claimant appeared before the arbitrator but was unable to testify.A stroke had partially paralyzed him and caused his loss of speech (aphasia).Medical testimony indicated that claimant's present condition was causally related to the attack, which had resulted in damage to the left internal carotid artery.

Julian Siewrog, a garage superintendent for Checker, testified that claimant's vehicle was towed to the garage after the assault.He claimed that he checked the cab and found nothing wrong with it.He also said that company policy prohibited drivers from using the vehicles for personal matters and from drinking while on duty.

Eliza Jones, a tow-truck driver for Checker, testified on review before the Commission.He stated that he received a radio message to bring claimant's vehicle to the garage and arrived at the scene of the assault about 3:30 A.M. that day.He said that the vehicle was parked at the corner and the engine hood was closed.He further testified that he could not find the ignition key; however, he was immediately able to start the vehicle...