WRIT OF ERROR to the Circuit Court of Kane County; the Hon.
CHARLES G. SEIDEL, Judge, presiding.
MR. CHIEF JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
The Industrial Commission set aside an award for death benefits entered by the arbitrator in favor of claimant Frank Siete, a minor, for the death of his brother while employed by defendant Woodruff & Edwards, Inc., on the ground that claimant was not a dependent under the terms of the Workmen's Compensation Act. On certiorari the city court of Elgin held that finding to be manifestly against the weight of the evidence, and remanded the cause to the Commission for further evidence on the issue of a causal connection between the accidental injury and death. The Industrial Commission reconsidered the entire cause and denied compensation death benefits on the ground that decedent's injury did not arise out of and in the course of his employment. On a second writ of certiorari taken by claimant, the circuit court of Kane County confirmed both decisions of the Industrial Commission, and this court has allowed claimant's petition for a writ of error.
The essential issues are whether decedent's death was caused by an accidental injury arising out of and in the course of his employment, and whether the claimant, Frank Siete, was a dependent of the decedent within the terms of section 7(d) of the Workmen's Compensation Act. Ill. Rev. Stat. 1953, chap. 48, par. 138.7(d).
From the record it appears that on February 17, 1955, the decedent, Rupert Siete, age 19, was working the night shift in the foundry of defendant Woodruff & Edwards, Inc., at Elgin, Illinois. He worked at a heavy machine called a "slinger," which ran on tracks and was equipped with long blades that scooped up sand. There were no eyewitnesses to decedent's alleged accident, but the claimant adduced certain circumstantial evidence. Two co-workers testified they saw Rupert at his machine between 11:30 P.M. and midnight. According to company records, Rupert was also seen by the night watchman around midnight hurrying toward his machine carrying a wrench. At 12:30 A.M. Rupert was found lying unconscious beside his machine and bleeding from his head. There was blood on the side of the machine, on the clamp at the front of the machine, on the floor, and on decedent's face. He was taken by the police to the hospital in an ambulance. Immediately thereafter, according to the testimony of the co-workers, there was a conversation between the foreman, the mechanic and the personnel manager. The mechanic then worked on decedent's machine for about half an hour, after which "the machine started up again." At 2:30 A.M. the claimant and his older brother Cayetano came to the foundry. The foreman, in relating the occurrence to them referred to the "accident," and showed them the blood in the area and on decedent's machine.
The medical testimony and hospital records were not introduced at the first hearing. There was testimony, however, that decedent was found unconscious, that he died the following day in the hospital, and that he had previously been in good health, including the night of the alleged accident.
With respect to the issue of dependency, the evidence showed that claimant's mother died in 1941, when he was three years old, and his father died in 1948, when he was ten. He and his four older brothers lived with their sister, Mrs. Rafaela Perez, who supported them until the older ones began working. Rupert, the decedent, went to work for the defendant company in 1953 and contributed $40 each bi-weekly pay period to the family food fund. He also bought all of the clothes for his younger brother, Frank, the claimant herein, and gave him an allowance of $4 or $5 each week for lunches and spending money. Rupert paid $10.71 for Frank's school accident insurance, and 41 cents a week on Frank's life insurance policy. Frank's school tuition of $50 was paid by the church, in return for which Frank cleaned up around the school grounds.
Decedent's contributions to the support of his younger brother were attested to by the sister, Rafaela, the brother Cayetano, and by the claimant himself. In addition, the floor manager of J.C. Penney Co., who knew the boys as customers, testified that Rupert made frequent purchases of clothing for Frank, such as shirts, socks, underwear and pants, which Frank selected, and that during 1954 these purchases amounted to about $15 or $20 a month. There was also testimony that decedent bought Frank a suit for $60 at another store.
It appears further from the testimony that at the time of decedent's death, the household consisted of the sister, Rafaela Perez, her husband, their baby daughter, and the five brothers. They lived in a house which the sister inherited from her parents. During the preceding year her husband earned about $3,000, from which he sent $40 a month to his family in Mexico, contributed $50 toward the food, and paid other household expenses. Cipriano, the oldest brother, contributed nothing, since he had been in the armed forces and also had a wife and baby to support. Domingo was "slow" and didn't work. Cayetano and Rupert each contributed $40 a pay period toward the food, until December, 1954, when Cayetano was ordered into army service and had to discontinue his payments. Rupert then increased his contributions by $10 or $15. Although Frank was still in school, he had worked part time after school for about 23 days before decedent's death, and from his earnings he made two contributions to the family, one for $25 and one for $20. It was stipulated that he stopped working after school immediately after the accident, because he was fearful of an accident to himself and because Father Rojian did not want a boy going to school to work at such hard manual labor.
There was also evidence that in June, 1951, before decedent started working and while he was still in school, the older brother, Cayetano, listed Frank as an exemption on his income tax record. Cayetano explained that this record was not changed when Rupert went to work in 1953 because it was too much trouble, but that it was Rupert who bought all of Frank's clothes and gave him spending money. There was also evidence that Rupert was making payments on a car.
No evidence was offered by the defendant company, either at the hearing before the arbitrator or at any subsequent hearing.
The arbitrator found that decedent sustained accidental injuries arising out of and in the course of his employment, and that the claimant, a minor brother, was more than 50% dependent for support on the earnings of the decedent; and entered an award of $7,125 in favor of the claimant.
Without further evidence by either party, the Industrial Commission on review set aside the award on the ground that there was no one dependent upon decedent. It ordered defendant to pay burial expenses not to exceed $500, and to pay $400 into the special fund under section 7(f) of the Workmen's Compensation Act.
On writ of certiorari, the city court of Elgin on January 27, 1956, held that the finding of the Commission on the issue of dependency was against the manifest weight of the evidence, and remanded the cause to the Commission with directions to hear additional evidence to determine whether there was a causal connection between the accidental injuries and death, and if so, to render an award in accordance with the decision of the arbitrator.
At the hearing before the Commission pursuant to the remanding order, plaintiff introduced the hospital records and the testimony of the treating physician, who was the doctor for the defendant company. The hospital records recited that the patient was unconscious on arrival, had a skull fracture, brain concussion, and scalp laceration four inches long. Under "description of accident," the record indicated he "fell into machine." The physician, Dr. Zimmerman, testified to a diagnosis of skull fracture. He explained that the history of an accident could have been given to him by the defendant's foreman, who often called him on such matters, or by the police. After X ray and tests, he performed surgery, assisted by another doctor, and the patient died the next day. It was his opinion, ...