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Clifford-jacobs Co. v. Industrial Com.

OPINION FILED MARCH 31, 1960

CLIFFORD-JACOBS FORGING COMPANY, PLAINTIFF IN ERROR,

v.

THE INDUSTRIAL COMMISSION ET AL. — (EMMA M. JOHNSON, DEFENDANT IN ERROR.)



WRIT OF ERROR to the Circuit Court of Champaign County; the Hon. CHARLES E. KELLER, Judge, presiding.

MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 16, 1960.

Dora James Johnson, deceased, died March 7, 1957. He was employed by the Clifford-Jacobs Forging Company at the time of his death. His widow, Emma M. Johnson, filed her claim for workmen's compensation death award with the Industrial Commission of Illinois. A hearing was had before the arbitrator. On October 16, 1958, the arbitrator rendered his decision denying compensation for the reason that the evidence failed to prove that the death was the result of an accident arising out of and in the course of his employment. The decision was thereafter reviewed by the Industrial Commission upon oral arguments of counsel and the transcript of proceedings before the arbitrator. On March 26, 1959, the commission found that the decedent did sustain injuries on March 7, 1957, arising out of and in the course of the employment resulting in his death, and directed the employer to pay the widow the sum of $34 per week for 272 weeks and one week at $2. Upon review in the circuit court of Champaign County, the award of the commission was confirmed on July 6, 1959. The employer now brings his petition for writ of error to this court for review.

A review of the record discloses that the decedent was employed by Clifford-Jacobs Forging Company as a "heater." His position required that he arrive at work earlier than other employees to fire the furnaces for heating, and to supply metal to the furnace. On March 7, 1957, his usual work unit was not running and he was assigned to a different unit where he took the job of running the press. This unusual job required that he receive the raw hot metal forgings weighing 30 to 40 pounds, carry them to the press, and release a pedal whereby holes were punched in the metal. He then again lifted the metal with tongs and carried it to a tub. After working at this job from 7:00 A.M. to about 8:30 A.M., the decedent became sick, went to the company cafe, had a bromo-seltzer, then sat on a newly varnished bench, complained of being sick, and became sick at his stomach. He left the plant and drove home, arriving about 9:30 A.M.

His wife testified that upon arriving home he was panting and short of breath, his skin was moist and cold, and he was beating his chest with his hands. In the house he paced back and forth, beating his chest, rubbing his arms and wringing his hands. His face was ashen. He lay down on a couch and his wife retired to the kitchen, whereupon she heard a gurgling and gasping. She ran into the room where the decedent lay. His face and hands were blue and she could feel no pulse. An ambulance was called which took him to the Carle Hospital in Urbana, where he was pronounced dead on arrival. No physician treated deceased at any time and there was no post-mortem examination.

He was survived only by his wife and had earned $6,139.60 during the year preceding his death. No compensation was paid by the employer for the death.

Dr. John H. Houseworth was presented by the claimant as a medical expert. In answer to hypothetical questions, Dr. Houseworth testified, over objections, that the death of Dora Johnson could have been caused by myocardial infarction and could have had some relation to his work.

The employer offered no evidence at the hearing. In this appeal the employer contends that the answers of the medical expert to the hypothetical questions, and the hypothetical questions themselves were not proper or competent, and that the record contains no competent evidence to prove that decedent died from an injury which arose out of and in the course of the employment.

The employer complains that the hypothetical questions asked Dr. Houseworth were incompetent because they assumed certain facts for which there was no basis in the evidence. The employer asserts that the record contains no testimony to support the assumption, contained in the hypothetical questions, that while in the process of doing the work, the hypothetical person became ill and ceased doing such work. It is likewise asserted that the questions insinuated that the decedent was using hand tools and that it was extremely hot where he was working, contrary to the record.

Our examination of the record does reveal that the decedent complained of being sick after he had been at this work for one and one-half hours, and immediately upon stopping for a coffee break. He returned to his unit but was still ill and vomited. He then left for home.

The hypothetical questions do not assume that it was hot where decedent was working, but they do state, as the record discloses, that he was working near a furnace and in near proximity to hot metal. While there is conflicting testimony, the man who worked next to Dora Johnson on the fatal day positively testified that he used hand tongs on that date for carrying the hot castings.

The employer urges that the opinions of the expert medical witness, in answer to the hypothetical questions, that the death might or could have been caused by myocardial infarction, and that there could be some relationship between the work performed by decedent on the day of his demise and his death, were incompetent as speculative, inconclusive, and improper. The employer likewise objects that certain of the hypothetical questions failed to call for a positive answer.

The rule as to when an expert witness, in answer to a hypothetical question, could answer whether a given set of facts may, might, or could have been the cause of an injury, has not been clearly defined. In Illinois Central Railroad Co. v. Smith, 208 Ill. 608, there was a dispute in the evidence as to the manner in which the plaintiff had suffered injury. This court held that to permit a physician to give testimony as to what "did cause" an injury would be error as invading the province of the jury. It was there indicated, however, ...


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