19 N.E.2d 361 | Ill. | 1939
Otis Holder, defendant in error, was an automobile salesman employed by the Abell Chevrolet Company of *461 Metropolis, Illinois. An award for compensation was allowed him by the arbitrator for injuries received in a garage building during a cyclone, in the afternoon of March 25, 1935. Upon review, the Industrial Commission confirmed the award and, oncertiorari, the circuit court of Massac county confirmed the award of the commission.
Defendant in error was engaged in selling an automobile inside the brick garage building of the company when a cyclonic windstorm struck the building and partially demolished it. The employment relationship, the injuries sustained, the amount of the award and the fact that brick and debris from the falling building, during the storm, caused Holder's injuries, are not in dispute. The building destroyed faced the east and an alley ran along the south side. There were door openings in both south and east walls, about 9 feet high by 13 to 15 feet wide, and both doors were open at the time of the storm. It is shown there were a dozen or more buildings damaged in various parts of the city, and other persons, in various places, were injured during the storm. Holder was in the rear portion of the garage and was showing an automobile for sale to a prospective customer. Someone gave a warning and just as Holder started out of the building he was struck by bricks and materials which were falling in from the roof and walls at the time. The force of the storm twisted the roof off, the east and west walls fell outwardly and the north and south walls partially fell in.
The questions to be determined are whether the injury to defendant in error arose out of his employment, and whether plaintiff in error received notice or knowledge of the injury within the time fixed by section 24 of the Workmen's Compensation act. Ill. Rev. Stat. 1937, chap. 48, par. 161.
We have repeatedly said a finding of fact made by the Industrial Commission would not be disturbed unless the finding is manifestly against the weight of the evidence, *462
but the burden of proof is upon the claimant to show, by a preponderance of the evidence, that the injury for which compensation is claimed not only occurred during the course of his employment but arose out of it. (Dietzen Co. v. IndustrialBoard,
Defendant in error advances the theory that the garage collapsed because it was carelessly constructed and because both doors in the east and south walls were open, thereby allowing the wind to sweep through the building, causing its destruction. Careful examination of the record shows nothing of the details concerning the construction of the building, except that it was built of ordinary brick and tile. There is no evidence to indicate this garage contained any defect in building or was otherwise hazardous. There is no evidence to sustain the theory that the open doors would be more liable to cause a building to collapse in a cyclone than if the doors were closed, and even if this were true, people do not ordinarily anticipate cyclones nor know where they will strike. We cannot say from the record that there was an increased hazard to defendant in error, arising out of *464 his employment, which subjected him to an exceptional risk greater than to other persons who were exposed to the storm, in and out of the various buildings in the community, at the time. The evidence was not sufficient to show the injury of defendant in error arose out of his employment. The same conclusion has been reached in other jurisdictions. Walker v. Wilkins, Inc. 194 S.E. (N.C.) 89; Rush v. Empire Oil and Refining Co. 34 P.2d (Kan.) 542; Gale v. Krug Park Amusement Co. 208 N.W. (Neb.) 739;Slanina v. Industrial Com. 158 N.E. (Ohio) 829.
The findings of the arbitrator and commission, on both questions involved herein, were erroneous and not supported by the evidence in the record.
The judgment of the circuit court of Massac county is reversed and the cause remanded, with directions to set aside the award.
Reversed and remanded, with directions.