Republic Casualty Co. v. Industrial Commission

Mr. Chief Justice Stone delivered the opinion of the court: Mary C. Dooley, widow of Edward P. Dooley, deceased, and Dennis Harmon, each filed a petition for adjustment of compensation before the Industrial Commission, making Dooley Bros., a corporation, the Travelers Insurance Company, a corporation, and the Republic Casualty Company, plaintiff in error, parties respondent to said petitions. The death of Edward P. Dooley and the injury to Dennis Harmon were caused by the falling of a wall on the premises of Dooley Bros., in the city of Peoria. The arbitrator entered an award on each of these petitions against Dooley Bros, and the Republic Casualty Company and dismissed the petition as to the Travelers Insurance Company. On review the Industrial Commission confirmed the award in each case as against Dooley Bros, but set it aside as to the Republic Casualty Company, stating in its finding that it refrained from passing upon the liability of the Republic Casualty Company and the Travelers Insurance Company. Upon review the circuit court of Peoria county denied the motion of the Republic Casualty Company to quash the writ of certiorari, and held that the decision of the commission in refraining from passing upon the liability of the Republic Casualty Company and the Travelers Insurance Company was not according to law. The court found and entered an award against Dooley Bros, and the Republic Casualty Company and dismissed the Travelers Insurance Company out of the case. Plaintiff in error filed a petition in each case for writ of error, and, the same being allowed, the causes have been consolidated for hearing in this court. Dooley Bros. are.not contesting the award. The assignments of error raise the points that the Industrial Commission having made no award against plaintiff in error the circuit court had no jurisdiction to enter such an award, and that there was involved before the commission the construction of the policy of insurance, which was a question of law beyond the jurisdiction of the commission to decide, and this being so, the circuit court likewise was without such jurisdiction. The third and principal contention of the plaintiff in error is that the accident which caused the death of Dooley and the injury to Harmon was not covered by the policy. Regarding the first contention, it is sufficient to say that under paragraph (f) of section 19 of the Workmen’s Compensation act the circuit court has power “to review all questions of law and fact presented” by the record of the Industrial Commission. That court exercises its own independent judgment both as to the law and facts arising on such record. Inland Rubber Co. v. Industrial Com. 309 Ill. 43. By paragraph (e) of section 19 of the Compensation act the Industrial Commission is required to review the decision of the arbitrator on all questions of law and fact which appear from the statement of facts or stenographic report. The matter of coverage under the insurance contract was before the commission, and it was its duty to pass upon it. The question was in the record, and the circuit court had power to pass upon it on certiorari, without regard to whether the commission discharged its duty in that particular. In support of the third contention, plaintiff in error calls attention to various provisions of its contract of insurance. This contract is one of a form in common use in workmen’s compensation insurance. In it the operations of the assured, Dooley Bros., were designated under the head “Classification of operations,” as follows: “Dealers in coal and miners’ supplies.” “Dealers in blasting powder, dynamite and blasting caps in original packages, only, including drivers, drivers’ helpers, chauffeurs and chauffeurs’ helpers.” By the provisions of the policy relating to premiums, a check of the pay-roll was to be made at the end of each year and the premium based upon such pay-roll. It is not claimed that the deceased, Dooley, and the injured employee, Harmon, were not included in that pay-roll. The contract by its provisions also covers “all business operations, including the operative management and superintendence thereof, conducted at or from the locations and premises defined in the above, as declared in each instance by a disclosure of estimated remuneration of employees under such of the following divisions as are undertaken by this employer: (1) All industrial operations on the premises; (2) all office forces; (3) all repairs or alterations to premises; (4) specially rated operations on the premises; (5) operations not on the premises.” Edward P. Dooley’s employment was in the capacity of foreman over the truck and wagon drivers in the coal business. He also had charge of the coal yard. His salary was listed under “clerical hire” in the policy schedule, and his duties took him about the premises in connection with the general business of Dooley Bros, carried on there. He also had a desk in the office. It is not contended that he was not within the scope of his employment at the time of the accident. Harmon was an employee engaged at common labor. His duties required that he help about the yard and premises of Dooley Bros, in the matter of handling coal or other business of his employer. The evidence discloses that Dooley Bros., previous to and on the day of the accident, was engaged in tearing down an old garage and shed on its premises adjoining the office of the company. On July 28, 1923, the date of the accident, other employees were engaged in taking down the garage. Harmon was engaged, under the direction of Edward P. Dooley, in digging up a gasoline tank buried in the ground on the premises of Dooley Bros, near one of the outer walls of the garage. This outside wall fell, killing Dooley and injuring Harmon. The record shows that the purpose of taking up the tank was to get it out of the way and for possible use of it in the future. The tank was buried in the ground outside the garage. It is contended that the work in which Dooley and Harmon were engaged was not that of “repairs or alterations to premises” covered by the policy, but that it was a part of the destruction of the old building for the purpose of erecting a new building, and that the removal of the tank caused the wall to fall. The record does not support the contention that the removal of the tank was a part of the work of tearing down the old garage or had anything to do with the falling of the wall. The tank was in nowise connected with the wall. The record does show, however, that the dangerous condition of the wall was brought about by the destruction of the garage. It cannot be said that the work of digging up the tank was a part of the destruction of the building, though the purpose of its removal was to get the premises ready for a new building, which the record shows was afterward built. Plaintiff in error cites in support of its contention that these operations are not to be included in “repairs or alterations to premises,” the case of People’s Ice Co. v. Employers Liability Assurance Corp. 36 N. E. (Mass.) 754. In that case the policy covered the trade or business of ice dealers, specifying the operations carried on by the assured to be cutting and handling ice. The applicants in that case were injured while engaged in the building of a new ice house on the premises, and the court held that the policy did not cover injuries arising in such occupation. Defendants in error cite the case of Hoven v. Employers Liability Assurance Corp. 93 Wis. 201. In that case the policy covered all operations connected with the business of “iron and steel works,” and the employee at the time of his injury, and while employed in the manufacturing department, was struck by a girder being handled by a crew constructing a building on the premises. It was there held that the policy covered the injury, on the ground that the building under construction was for the use of the assured in its business. While these cases appear not in exact accord in the application of the principles involved, neither of them is in point here, for the reason that the facts in this case show that the injury arose while the deceased and the applicant were engaged in excavating a gasoline tank, which it seems clear to us was an alteration of the premises. The purpose for which such alteration was being made is in nowise material, as the policy does not limit its application to any specific purpose or purposes of such alteration. This being true, the injury was directly covered by that provision of the policy, and the court did not err in entering the award against the plaintiff in error and Dooley Bros. It is not contended that there is any liability on the part of the Travelers Insurance Company. The judgments of the circuit court are affirmed. Judgments affirmed.