173 N.E. 813 | Ill. | 1930
Lead Opinion
Anton Jackowski filed his petition under the Workmen's Compensation act claiming compensation from Felix Rogalski, plaintiff in error. The arbitrator awarded Jackowski the sum of $4862.20. This award was confirmed by the Industrial Commission, and the decision of the Industrial Commission was upheld by the circuit court of Cook county. *38 By this writ of error Rogalski seeks further review of the record.
Plaintiff in error was the owner and operator of a nineteen room hotel at Wheeling, Illinois, about twenty miles from Chicago. He also owned two two-apartment buildings and one three-apartment building located at 1319, 1321 and 1323 North Ashland avenue, Chicago. In his premises at 1321 North Ashland avenue there was a store, which had been occupied as a barber shop. He undertook to place a partition crosswise through this store, so that the front part could be used as a barber shop and the rear portion as living quarters for the barber and his family. In this work he was assisted by Carl Cikoff, who lived at Wheeling and worked for plaintiff in error as a janitor. Jackowski, a tailor employed by Hart, Schaffner Marx, Chicago, is a cousin and brother-in-law of plaintiff in error and for six years had lived as a tenant on the premises at 1321 North Ashland avenue, paying $20 a month rent. During the month of May, 1928, while plaintiff in error was putting in the above mentioned partition, work in the tailoring trade was slack and Jackowski was employed by Hart, Schaffner Marx only during the forenoon of each day. On May 15 plaintiff in error employed him to work on the partition and agreed to pay him at the rate of one dollar an hour. Jackowski worked there seven afternoons, helping on the partition and doing painting and laying floors. On May 25 he got home from his work at the tailor shop about half-past one, came to the premises where the work was being done and assisted in passing up some boards. Before plaintiff in error and Cikoff left for Wheeling that afternoon plaintiff in error told Jackowski to work ten or fifteen minutes more. Shortly thereafter, while Jackowski was standing on a ladder trying to put a bracket on a window, the ladder slipped and he fell, breaking his left leg.
Plaintiff in error argues that there is no evidence in the record to establish that at 1321 North Ashland avenue he *39
was engaged in one of the businesses enumerated in section 3 of the Workmen's Compensation act, and that there is no evidence in the record that Jackowski was engaged in the usual trade, business, profession or occupation of his employer. Jackowski contends that plaintiff in error was under the act in maintaining his real estate properties at 1319 to 1323 North Ashland avenue, and that the injury was sustained in the usual course of his employer's business. In view of our previous decision in Dazis v. Industrial Com.
Plaintiff in error further contends that the evidence does not sustain the finding that Jackowski sustained a total permanent loss of use of his left leg. Dr. L.P. Kuhn testified in detail regarding the condition of the leg as he had found it at previous examinations and submitted a number of X-ray pictures portraying its internal parts. He examined it on the day his testimony was given, and stated that there was still a large open wound across the dorsum and another open wound on the outer portion of the leg, and that Jackowski had an osteomyelitis and complete ankylosis of the ankle joint. He further testified that Jackowski was unable to do any kind of work, and that the left foot, or a portion of the left leg, ought to be amputated, and that unless this were done he would not be able to work. While Dr. D.A. Orth, who also testified, referred to the possibility of "corrective methods" which might permit Jackowski to go back to doing some kind of work, he testified that only time would tell whether the leg would improve any; that at the time of testifying Jackowski was not able to do any work, and that looking at his condition as it existed at that time, in his opinion it was permanent. We would not be warranted in holding that the finding as to disability is against the weight of the evidence.
The judgment of the circuit court is affirmed.
Addendum
The foregoing opinion reported by Mr. Commissioner Edmunds is hereby adopted as the opinion of the court, and judgment is entered in accordance therewith.
Judgment affirmed. *41