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Smith's Transfer Corp. v. Indus. Com.

OPINION FILED JUNE 29, 1979.

SMITH'S TRANSFER CORPORATION, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (HELEN SHAMBLIN, APPELLEE).



Appeal from the Circuit Court of Cook County, the Hon. Arthur L. Dunne, Judge, presiding.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

This is an action under the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) brought by a widow to recover benefits for the death of her husband. The arbitrator, in a decision adopted by the Commission, awarded compensation, and the circuit court of Cook County confirmed the award. The cause is brought to this court under Rule 302(a) (58 Ill.2d R. 302(a)).

The employee in question, Ray F. Shamblin, was a dispatcher with the respondent company, Smith's Transfer Corporation, in Chicago. He worked the midnight shift, requiring that he work from midnight to approximately 8 or 8:30 a.m. On June 28, 1973, he suffered a fatal heart attack while at work. His widow and claimant in this cause, Helen, prosecutes this action, alleging that her husband's death was caused, at least in part, by his job.

Several evidentiary issues are raised by the parties' arguments. A complete recitation of the evidence is necessary.

Relevant facts preceding Shamblin's last workday were provided by the testimony of his wife, the claimant Helen Shamblin. In June of 1967, the first year of his employment by respondent, Shamblin broke his leg while at work, and a blood clot developed in the leg. A vein stripping was conducted in 1972, and some veins were removed from the leg. Blood thinner was thereafter prescribed because he was found to be susceptible to clotting.

On June 27, 1973, the day before his death, Shamblin arrived home from work at approximately 10 a.m. He had coffee with Mrs. Shamblin and then slept for three or four hours. Upon awakening, he and Mrs. Shamblin took their son to an appointment with a psychiatrist. At approximately 4 p.m., after returning home, Shamblin returned to bed and slept until approximately 8 p.m. He then had dinner and watched television until he left for work at approximately 11 p.m. According to Mrs. Shamblin, her husband appeared normal on this day.

Harriet Jendrach, a fellow employee of Shamblin, was next called by claimant to testify. She appeared pursuant to a subpoena. In her testimony she told of her contact with Shamblin on the day of his death, June 28, 1973. She first testified that she arrived at work shortly after 5 a.m. that day and noticed that Shamblin's face was grayish in color.

At this point in her testimony, Mrs. Jendrach responded negatively to certain questions posed by claimant's attorney and asserted a lack of knowledge as to others. The attorney moved to have her declared hostile, alleging lack of cooperation by the witness. Mrs. Jendrach admitted that she was reluctant to testify and that she once had refused to accept a subpoena obtained by claimant's attorney, but the arbitrator refused to declare her hostile.

In response to further questioning by claimant's attorney, Mrs. Jendrach did testify that Shamblin was behind in his work on the day of his death and that she helped him with it. When asked if Shamblin had conducted a "yard check," the witness said that she did not know. A yard check entails moving about the company's yard area and checking trucks for freight information. She was then asked if she recalled a conversation with claimant's attorney, approximately one year earlier and shortly after Shamblin's death, in which she stated that Shamblin did make a yard check. She said that she did not. At this point, claimant's attorney again unsuccessfully moved to have the witness declared hostile. In response to another question, the witness said that she did not know whether it was Shamblin's duty to check trucks in the yard.

Claimant's attorney briefly changed the focus of his inquiry to a conversation between Shamblin and Mrs. Jendrach at approximately 5:30 or 6 a.m. on the day of Shamblin's death. According to Mrs. Jendrach, Shamblin had said that he was not feeling well and that he wanted to rest for a while.

The attorney then returned to questioning the witness about yard checks and alleged inconsistent statements. She was first asked if she recalled a conversation with Mrs. Shamblin on the night of Shamblin's wake. She indicated that she did not recall such a conversation. She was then asked if she recalled telling Mrs. Shamblin, at her husband's wake, that Shamblin was behind in his work, was under stress, and was running through the yard checking trucks. She responded negatively.

The questioning then returned to the events immediately following Shamblin's statement that he was not feeling well. Mrs. Jendrach testified that Shamblin sat in a chair and asked for water, but that, before receiving the water, he asked to have Willie Green, another fellow employee, take him to the hospital. Shamblin then walked to Green's car. According to Mrs. Jendrach, Shamblin's face was a grayish color at this time, approximately 6:30 a.m.

Willie Green, who drove Shamblin to the hospital, was the next witness called by claimant to testify. He first saw Shamblin at approximately 4:30 a.m. on June 28, and he testified that Shamblin looked well and was in a good frame of mind. According to Green, Shamblin's appearance did not change during the next couple of hours, but he was pale when Green took him to the hospital at 6:30 a.m. Shamblin told Green that he was experiencing chest and shoulder pains unlike any he had before. When they arrived at the hospital, Shamblin was massaging his shoulder, opening and closing his fist, and making sounds which would indicate that he was in pain.

Green, in his testimony, also related Shamblin's activities while at work that day. According to Green, Shamblin worked on files and on a teletype machine, and he conducted a yard check of trucks. On cross-examination, however, Green admitted that he did not see Shamblin conduct a yard check. His testimony on direct examination, that Shamblin had conducted a yard check, was apparently hearsay. Green did not relate details of Shamblin's alleged ...


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