County of Christian v. Indus. Com. , 391 Ill. 475 ( 1945 )

I disagree with the conclusion reached by the majority in this case. The respondent was admittedly an employee of the county through its operation of the administration of a fund to give care and treatment to persons afflicted with turberculosis. There is no denial she was accidentally injured. The majority opinion reaches the conclusion the respondent is not entitled to compensation because she was not engaged in any enterprise declared to be extra-hazardous in section 3 of the Workmen's Compensation Act. Ill. Rev. Stat. 1945, chap. 48, par. 139.

There can be no question that the business of administering the affairs of the county involves some of the items specified in said section 3 as being extra-hazardous. I do not deem it necessary to go into these matters specifically because of the plain provisions of the statute itself, which provides: "The provisions of this Act hereinafter following shall apply automatically and without election to the State, county, city, town, township, incorporated village or school district, body politic or municipal corporation, and to all employers and all their employees, engaged in any department of the following enterprises or businesses which are declared to be extra hazardous, * * *." Then are enumerated ten different specified hazardous occupations. It will be noted the act applies automatically to a county and to its employees. The respondent is an employee.

The Workmen's Compensation Act was amended many times and originally did not include municipal corporations, counties, and the like, and it was optional for the employer to come within the terms of the act. Later, employers engaged in extra-hazardous businesses were brought automatically within its terms, but it was not until 1919 that the State, counties, cities, towns, etc., were declared employers and brought within its terms. In 1921 section 3 of the act, which was substantially the same as it now is, except that it did not include counties and other municipal corporations, was held to have application to all employees in hazardous occupations regardless of the particular work they were doing when they were injured. The construction of this section came before us in Illinois Publishing and Printing Co. v.Industrial Com. 299 Ill. 189. In that case we first set out the contention of the employer as follows: "It is contended by plaintiff in error that the only employees covered by the act are those directly exposed to the hazards peculiar to the business or enterprise of the employer, and that it does not cover such employees as salesmen, bookkeepers and stenographers, who are not exposed to the special hazards. It is contended by defendant in error that if an industry is covered by the terms of a compulsory compensation law based upon a hazardous classification it is covered as to all the employees therein, regardless of whether or not they are all actually exposed to the peculiar hazards of the business." After examining and analyzing prior cases and the statute we then said: "This compulsory Compensation act is general in its application and embraces all employers and their employees engaged in businesses or enterprises declared by the statute to be extra-hazardous. The language of the act is clear and is not open to construction. It means just what it says — the provisions of this act shall apply automatically and without election to all employers and their employees engaged in enterprises or businesses declared to be extra-hazardous — and the court has no right to read into the statute words that are not found therein, either by express inclusion or by fair implication."

The act of 1917 required all employers engaged in extra-hazardous businesses to come under the provisions of the act automatically, but did not then include counties, cities, towns, etc. In 1919 the State, county, cities, etc., were brought within the act, and it read exactly the same as it did in 1917, except for the addition, in the first paragraph, of the State, county, city, etc., so therefore the Illinois Publishing andPrinting Co. case applies with equal effect because the other provisions of the act are exactly the same.

Moreover, the Illinois Publishing and Printing Co. case has been followed many times. In McNaught v. Hines, 300 Ill. 167, the contention was made that the Workmen's Compensation Act was not intended to include employees as within the act unless they were actually engaged in extra-hazardous employment at the time of the injury. We rejected this contention. In that case the injured employee was a salesman; the employer was a packing company. We said: "To sell through salesmen is as much a part of the business made extra-hazardous as a whole by statute as to buy through purchasers, pack through packers, grind, store, load and deliver. It took all of these different parts of the work to make the sum total of the business in which the employer and his employees were all engaged, each doing his separate part in the usual course of the whole business. * * *Illinois Publishing and Printing Co. v. Industrial Com. 299 Ill. 189. "

It will be noted in each of the above cases that the person injured was on the streets in the course of his employer's business, as was the respondent in this case. Again, in PorterCo. v. Industrial Com. 301 Ill. 76, we specifically followed the rule established in the Illinois Publishing and Printing Co.case, saying: "The first contention of plaintiff in error was considered by this court in Illinois Publishing and Printing Co. v. Industrial Com. 299 Ill. 189, and McNaught v. Hines, 300 Ill. 167, where it was held that since the amendment of the Compensation act of 1917 no distinction exists between an employee doing extra-hazardous work and one whose work is not extra-hazardous."

In Marshall Field Co. v. Industrial Com. 305 Ill. 134, the employee slipped and fell upon the floor. The contention was made that her employment was that of a clerk and not extra-hazardous. In holding she was within the protection of the act we said: "It is claimed that neither the employer nor the employee was working under the provisions of the Workmen's Compensation Act, at the time of the accident. The employer used power-driven machinery, dynamos and elevators in operating its mercantile establishment, which were subject to statutory regulation as to their use and location. * * * The act therefore applied automatically to the employer by virtue of paragraph 8 of section 3, and the act applies to all employees in the various kinds of hazardous business included in that section, regardless of the kind of work in which the employee is engaged. Illinois Publishing and Printing Co. v.Industrial Com. 299 Ill. 189."

In Ascher Bros. Amusement Enterprises v. Industrial Com.311 Ill. 258, the employee was an usher in a moving-picture theater. In walking through the aisles he injured his leg which brought about a malignant tumor, and finally his death. In that case, after holding that the moving-picture-theater business was an extra-hazardous occupation under section 3 of the Workmen's Compensation act, we said: "Since it [employer] was engaged in a business declared extra-hazardous by the act, its employees engaged in the conduct of such extra-hazardous business, regardless of the character of their duties, were all brought within the terms of the act."

In Figgins, Comr. of Highways, v. Industrial Com. 379 Ill. 75, the employee was mowing weeds along the highway maintained by the commissioner of highways. He got off the machine, still holding the reins. While having a conversation with an individual who had just alighted from an automobile, he stepped over the sickle bar, and while in this position was severely injured. Compensation was awarded, but set aside by the circuit court. The contention was made that the injured employee was not performing any act or doing any work which was extra-hazardous, and therefore not entitled to compensation. The highway commissioner was engaged in work upon the road with tools or machines. This brought it within the provisions of section 3 of the Workmen's Compensation Act.(Forest Preserve Dist. v. Industrial Com. 357 Ill. 389.) In this case also we followed the Illinois Publishing and Printing Co.case, saying: "The specific work engaged in by the employee need not be a part of such extra-hazardous undertaking or bring him in contact with it." And accordingly the judgment of the circuit court in setting aside the award was reversed with directions to reinstate the award.

In the present case there can be no doubt that certain employees of the county are actually engaged in extra-hazardous work. The county maintains roads, buildings, furnaces, motor vehicles, and has numerous other activities of which we have judicial notice, some of which come within the extra-hazardous occupations specified in section 3 of the Workmen's Compensation Act. For instance, if persons are employed for the purpose of maintaining the courthouse they would come within subdivision 1 of section 3 of the Workmen's Compensation Act. (Johnson v.Cohate, 284 Ill. 214; Rogalski v. Industrial Com. 342 Ill. 37;Jacobi v. Industrial Com. 342 Ill. 210; Sneeden v. IndustrialCom. 366 Ill. 552.) It was not necessary for the plaintiff's right to recover that she be engaged in one of such occupations. If other employees were so occupied it is sufficient, since conducting the county's business includes persons who carry on all of its activities. Carrying on the activity of caring for tubercular patients is a part of the occupation of the county. Clearly respondent was employed by the county, and the county in some respects was engaged in extra-hazardous business. It is specified in section 3 as being one of the class of employers liable to pay compensation, and I believe the distinction made in the opinion excusing it from liability is contrary to our prior decisions, and unusually harsh in its interpretation.

The judgment of the circuit court of Christian county should be affirmed.

JUSTICES WILSON and SMITH join in the foregoing dissenting opinion.