WRIT OF ERROR to the Circuit Court of St. Clair County; the
Hon. EDWARD F. BAREIS, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 16, 1953.
Helen Minock, widow of Edmond Minock, deceased, filed an application with the Industrial Commission to recover compensation for the death of her husband, which, she alleged, arose out of and in the course of his employment with the Hunter Packing Company. Margaret Minock, deceased's minor daughter, was subsequently included as an additional petitioner. An arbitrator heard the cause and entered an award for two hundred and ninety-six weeks' compensation at $19.50 a week, and one week at $13, upon finding that Edmond Minock sustained accidental injury arising out of and in the course of his employment which was the proximate cause of his death. The Industrial Commission sustained and affirmed the award of the arbitrator and ordered the award to stand as the decision of the commission. The circuit court of St. Clair County reversed the decision of the commission and set aside the award, entering judgment for the defendant in error, Hunter Packing Company. We have allowed the plaintiffs in error's petition for writ of error for a further review.
Edmond Minock was forty years of age at the time of his death on December 17, 1948. He was married and the father of a twelve-year-old daughter. For a number of years prior to his death he had been employed by the Hunter Packing Company as a hog driver in the East St. Louis plant. It was his duty to bring the hogs from the pens to the slaughtering floor. This necessitated his driving the hogs before him through various runways which were under a constant spray of water in order to wash the hogs.
Deceased reported to work on the morning of December 17, 1948, and was seen by a fellow employee driving some hogs. A short time later this same employee discovered Edmond Minock, either dead or dying, on the floor of a small toilet located on the premises. This toilet room was about five feet square, contained a urinal, a toilet bowl with a pressure tank, an overhead light attached to the ceiling about ten feet above the floor, and a metal strip electric heater. Deceased, when discovered, was lying on the floor on his left side with his head near the door, his back up against the heater, his legs spraddled and his feet pointing towards the toilet bowl. His hands were lying in front of his abdomen, and he was fully clothed. The employee who discovered Minock immediately summoned one Jack Blane, foreman of the hog-killing department, who took one look at Minock and went for more help. He returned in a "minute or so" and it was then someone called his attention to smoke coming from where the deceased's back lay against the heater. Blane then pulled the heater switch. Edmond Minock was pronounced dead upon arrival at the hospital.
Dr. Robert A. Little represented Mrs. Minock at a post-mortem examination performed by Dr. C.C. Kane, coroner of St. Clair County, and his consultant pathologist, Dr. Hagebusch, at about midday on the date of death. Dr. Little observed the autopsy and testified for the plaintiffs in error. He stated that he observed deep burns to the center of the back, externally and internally. These burns were about five or six inches long and several inches wide. He examined the heart and other organs as they were opened and saw nothing to indicate a stopping of the coronary vessels and no evidence of blood clot in the coronary vessels. He then testified that he observed no objective findings of disease or injury to the arteries, liver, lungs, or the heart.
The wife of the deceased, who had not seen him for fourteen weeks before his death and had filed suit for divorce, as well as deceased's mother, who saw deceased the evening before his death, testified that he was never sick and had never complained of any illness or disease.
John Reck, chief engineer of the packing company, testified that he examined the heater in the toilet room just after the death of Edmond Minock. He described the heater as consisting of two strips of aluminum steel, each of which covered a heating element. The heating element was a strip of metal covered by mica insulation for the purpose of insulating the heating element from the metal cover. The two strips were held about two and one-half inches from the wall by a metal frame at the top and bottom of the strips. Two terminals protruded from the back of each strip to which the electrical wires were attached. Reck stated that he tested the metal strips with a megometer and could discover no short circuit within the heater or the electric leads attached to it. The toilet room was then closed off from further use for some time. He also testified the floor of the toilet room was damp when he arrived there on December 17, 1948.
Ralf Toensfeldt, a consulting engineer, testified for the defendant in error. He was requested by the Hunter Packing Company to examine this electrical strip heater, and he did so on December 29, 1948. He testified the heater was perfectly insulated, and operated satisfactorily during his examination. He stated that if anyone touched the two terminals they would be shocked. From the terminals six inches of wire extended which were insulated but not covered by metal conduit.
Upon the presentation of this evidence the arbitrator entered his award of $19.50 per week for 296 weeks, and one week at $13, for the reason that the injuries sustained caused the death of decedent on December 17, 1948. The cause then came on for review before the commission by petition, and was there argued orally. Upon a consideration of this record the commission determined that the award of the arbitrator was correct and ordered it to stand as the decision of the commission.
Writ of certiorari was then prosecuted by defendant in error to the circuit court of St. Clair County where the cause was considered upon the record, written briefs and argument. The court found that plaintiffs in error failed to prove that the death of Edmond Minock arose out of his employment, or that his death was traceable to any injury received in the course of his employment. It therefore determined that the decision of the Industrial Commission was against the manifest weight of the evidence and ordered the award of the arbitrator and the order of the commission set aside and entered judgment for the Hunter Packing Company and in bar of action.
An injury, to be compensable, must arise out of and in the course of the employment or it must be incidental to the employment. Whether or not the injury arises out of and in the course of the employment is a question of fact to be determined by the Industrial Commission from reasonable inferences and conclusions drawn from the evidence presented. The findings of the commission upon questions of fact will not be set aside by this court unless they are manifestly against the weight of the evidence. An employee is engaged in the course of his employment when the injury occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or is engaged in doing something incidental to it. An injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the condition under which the work was to be performed and the resulting injury. It is not essential to the right to receive compensation that the employee was working at the time when the injury was received. A risk may be incident to the employment when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected therewith. Landon v. Industrial Com. 341 Ill. 51.
The facts show that decedent was discovered, dead or dying, lying on the floor of and against the heater located in a toilet provided for and regularly used by the employees of the Hunter Packing Company. It is a rule of general application that an employee, while engaged in the work of his employer, may do those things which are necessary to his health and comfort, even though they are personal to himself, and such acts will be considered incidental to the employment. Retiring to a toilet to meet the demands of personal health or comfort is certainly within those acts considered incidental to the employment. (Grola v. Industrial Com. 388 Ill. 114.) It is reasonable to infer that any injury decedent suffered was received in the course of his employment. He had reported to his employment on the morning of December 17, performed his duties, and was discovered about forty-five minutes later lying on the floor of the toilet, dead or dying. The only injury discovered during the autopsy was a deep burn on the back, where the body had rested against the toilet heater.
The established rule is that it is the province of the Industrial Commission, qualified by experience and special study, to draw reasonable conclusions and inferences from evidentiary facts in workmen's compensation proceedings, and the courts are not privileged to substitute their judgment for factual findings of the commission unless they are clearly and manifestly contrary to the weight of the evidence. (Jefferson Ice Co. v. Industrial Com. 404 Ill. 290.) It has very often been said that liability under the Workmen's Compensation Act cannot rest upon imagination, speculation or conjecture, or upon two views equally compatible with the evidence, but such liability must arise out of facts established by a preponderance of the evidence. (Nelson v. Industrial Com. 346 Ill. 82; Republic Box Co. v. Industrial Com. 336 Ill. 343.) This statement may generally be found in those cases where the fact of employment was in issue, or where the actual cause of death or disablement was very far removed in time or medical connection from the injury for which compensation is claimed. This is ...