WRIT OF ERROR to the Circuit Court of Kane County; the Hon.
CHARLES G. SEIDEL, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 18, 1959.
This court has allowed a writ of error to review a judgment of the circuit court of Kane County reversing a death benefit award of $9,250 under the Workmen's Compensation Act, entered by the Industrial Commission in favor of Virginia M. Jungels, herein referred to as petitioner, for the death of her father in an airplane crash allegedly arising out of and in the course of his employment by C.A. Dunham Company, herein referred to as respondent.
The sole issue is whether the death of an employee in a plane crash feloniously caused by a bomb explosion "arises out of" his employment, under the terms of the Workmen's Compensation Act, where the employee was traveling on the plane on company business at the employer's request.
The facts material to this inquiry are uncontroverted. On November 1, 1955, the decedent, John W. Jungels, a heating engineer, was requested by his employer, respondent C.A. Dunham Company, to book passage on United Air Lines flight No. 629, from Chicago, Illinois, to Seattle, Washington, pursuant to company business. Shortly after the takeoff following a scheduled stop at Denver, Colorado, an explosion occurred aloft, which caused the airplane to disintegrate and crash, and resulted in the death of all persons aboard. Subsequent investigation disclosed that an explosive device had been placed in the baggage of one of the passengers, who boarded the plane at Denver, by her son, John Gilbert Graham, for the avowed purpose of causing the plane to crash, so as to collect his mother's insurance and to inherit her property. Graham was subsequently convicted and executed for the murder of his mother.
It was agreed by the attorneys herein, during the hearing before the arbitrator, that an accident of this character had happened only once in the history of aviation, that being in Canada. It further appears that petitioner, at the time of her father's death, was totally dependent upon him for her support, and that his earnings were in excess of $6,000 a year.
In determining whether the circuit court erred in setting aside the death benefit award to petitioner, the essential inquiry is whether the accident "arose out of" decedent's employment, since it is admitted that decedent at the time of his death was "in the course of" his employment. Those phrases are used conjunctively in the Workmen's Compensation Act (Loyola University v. Industrial Com., 408 Ill. 139; Scholl v. Industrial Com., 366 Ill. 588), and to authorize an award under the act it must be established that the accident not only occurred "in the course of" the employment, but that it also "arose out of" the employment. The statutory phrase "arising out of" points to the origin of the accident, so that to "arise out of" the employment an accident must have its origin in a risk incidental to the employment. Pekin Cooperage Co. v. Industrial Com., 285 Ill. 31, 35; Porter Co. v. Industrial Com., 301 Ill. 76; Irwin-Neisler & Co. v. Industrial Com., 346 Ill. 89, 92; Mazursky v. Industrial Com., 364 Ill. 445, 449; Northwestern Yeast Co. v. Industrial Com., 378 Ill. 195, 200; Payne and Dolan v. Industrial Com., 382 Ill. 177.
While it was originally stated that this risk must be peculiar to the work, and not connected with the neighborhood, the concept was expanded so that even if the general public is also exposed to the risk, if the employee, by reason of his employment, is exposed to such risk to a greater degree, the accident is said to arise out of his employment. (Payne and Dolan v. Industrial Com., 382 Ill. 177; Hinckley & Schmitt v. Industrial Com., 391 Ill. 577.) Moreover, if the risk or hazard is so increased by the employment, it does not matter that the injury is unusual, or unexpected, or that it is not peculiar to the employment. City of Chicago v. Industrial Com., 389 Ill. 592, 600; Irwin-Neisler & Co. v. Industrial Com., 346 Ill. 89; Jefferson Ice Co. v. Industrial Com., 404 Ill. 290, 295.
The difficulty of applying these guiding principles (Payne and Dolan v. Industrial Com., 382 Ill. 177; Ceisel v. Industrial Com., 400 Ill. 574), together with the trend of liberal construction of compensation statutes (53 Mich. L. Rev. 495; Riesenfeld, "40 Years of American Workmen's Compensation," 35 Minn. L. Rev. 525), has resulted in an irreconcilable maze of cases involving the "arising out of" clause, which appears in the compensation acts of some 41 States. (For an authoritative review of the Illinois cases, see I Angerstein, "Illinois Workmen's Compensation," Revised Edition, § 392-508 and Supplement.)
Insofar as we have been able to ascertain, there is no determinative precedent for the case at bar. In Illinois, the Appellate Court has merely inferred that the employee's injuries from escaping carbon monoxide on a plane on which he was traveling on company business were compensable under the Workmen's Compensation Act, by dismissing the employee's common-law action against the airline under former section 29 of the Workmen's Compensation Act. (Schnell v. Nat'l Air Transport Corp., 296 Ill. App. 641.) The cases in other jurisdictions allowing compensation for the death of employees in plane crashes, while traveling on company business, involved plane crashes of unknown rather than felonious origin. Constitution Indemnity Co. v. Shytles, (5th Cir. 1931) 47 F.2d 441; Green v. Heard Motor Co. 224 La. 1078, 71 So.2d 897.
In the absence of a controlling precedent, therefore, the parties have quite properly made analogies to cases involving street and transportation risks by employees required to travel in connection with their work, and to cases involving felonious assaults upon employees, which categories have elements similar to those involved in the case at bar. We shall consider the tenor and scope of these categories in the Illinois case law and that of other States.
It has been held by this court and those of other States (100 A.L.R. 1055 et seq.; 80 A.L.R. 126 et seq.) that where employees, in the performance of their work, are exposed to the hazards of the street and to the hazards of automobile and railroad transportation more than the general public, such risks become risks of the employment, and that accidental injuries or death as a result of such risks "arise out of" such employment. City of Chicago v. Industrial Com., 389 Ill. 592; Illinois Publishing and Printing Co. v. Industrial Com., 299 Ill. 189; Irwin-Neisler & Co. v. Industrial Com., 346 Ill. 89; Swift & Co. v. Industrial Com., 350 Ill. 413; Kennedy-VanSaun Corp. v. Industrial Com., 355 Ill. 519; Porter v. Industrial Com., 352 Ill. 392; Porter Co. v. Industrial Com., 301 Ill. 76; Solar-Sturges Mfg. Co. v. Industrial Com., 315 Ill. 352.
In Irwin-Neisler & Co. v. Industrial Com., 346 Ill. 89, where the employee sustained injuries when his automobile overturned on his way home from a town where he had attended to some business at the direction of his employer, the court, in rejecting the contention that the unusual manner of the accident precluded it from "arising out of" the employment, stated at p. 95: "As to the contention that the injury did not arise out of his employment there is little merit. Automobiles do not ordinarily turn over under circumstances such as are described by Sawyer in this case, but such an accident is possible as one of the risks of the business in which Sawyer was engaged and as incidental to it." (Italics ours.)
Vehicular accidents on streets and highways were also deemed to arise out of the employment where an advertising solicitor was killed in an automobile collision between the car driven by him and that driven by a third party, while on his way to make a call on behalf of his employer (Illinois Publishing and Printing Co. v. Industrial Com., 299 Ill. 189); where the traveling salesman was killed when he lost control of a company car, which left the highway and struck a tree as a result of a flat tire (Swift & Co. v. Industrial Com., 350 Ill. 413); and where an employee engaged ...