Kannenberg v. Deere & Mansur Co. , 203 Ill. App. 607 ( 1916 )

Mr. Justice Dibell

delivered the opinion of the court

There was an arbitration between the parties to this suit under the Employers ’ Liability Act of 1911, and an allowance to Kannenberg, the employee, of $888.72, and an appeal therefrom by Deere & Mansur Company, the employer, to the Bock Island Circuit Court, where the cause was tried by a jury and a verdict was rendered in favor of Kannenberg for $1,803.24. A motion for a new trial by defendant was denied and a judgment was rendered that plaintiff recover from defendant $701.46, being weekly payments to the date of the judgment at $4.33 per week, and the further sum of $1,101.78, to be paid plaintiff at the rate of $4.33 per week for 254 weeks, the first payment to be made December 28th, 1915, and a like sum thereafter each week until the whole amount was fully paid, and that plaintiff have execution for said $701.46, and for the different payments as they became due. The slight error in the computation is cured by the general language in the judgment. This is an appeal by defendant from that judgment.

Appellee moved to dismiss the appeal and we took that motion with the case. Appellee claims that no appeal lies from the decision of the Circuit Court under said Act of 1911. We discussed that question in Carlson v. Avery Co., 196 Ill. App. 262, and we there held that such an appeal did lie. Thereafter the Supreme "Court disposed of the same question in the same way in Lavin v. Wells Bros. Co., 272 Ill. 609. The motion is therefore denied.

The compensation for appellee is measured by section 5 of said Act (J. & A. If 5453). Instruction No. 3, given at the request of appellee, authorized a recovery under each of clauses (a), (b), (c) and (d). It was error to permit a recovery under clause (a), for the reason that there was no testimony under which the jury could find for appellee as to that clause. There was proof that appellee was in a hospital a certain number of weeks. What the hospital charges were or what would be reasonable charges was not shown. Appellee testified that he supposed that it was paid, but that he did not pay it. In the absence of proof that there is a hospital bill for which he is liable, and the amount thereof, it was error to give that part of the instruction.

It is contended that there cannot be a recovery under both clauses (c) and (d). A forcible argument is made in support of that position, bnt we held that there could be such a recovery under both of those clauses in Stevenson v. Illinois Watch Case Co., 186 Ill. App. 418 [5 N. C. C. A. 858], and Watters v. P. E. Kroehler Mfg. Co., 187 Ill. App. 548 [8 N. C. C. A. 352]. We did say in the Watters case that there could be no recovery under clause (d), but the opinion shows that the reason was that the evidence disclosed that when the plaintiff there returned to work after the injury he was able to earn as much or more wages than before. No doubt the trial judge in this case ruled in that respect in conformity with our decisions, and we do not feel disposed to reconsider that ruling until the Supreme Court holds otherwise.

In directing the jury what should be allowed under clause (c), the instruction directed them to allow in no event less than $375 nor more than $875. Clause (c) allows the employee a reasonable compensation, not exceeding one-fourth of the compensation in case of death. This refers to clause (a) of section 4 (J. & A. ]f 5452). The highest sum allowed thereby in case of death is $3,500, and one-fourth thereof is $875, but clause (c) of section 5 (J. & A. 5453) contains no authority for requiring that not less than $375 should be allowed for the serious and permanent disfigurement proved in this case. That part of the instruction is erroneous.

The jury found the defendant guilty and it is contended that the form of verdict should be that the jury find the issues for the plaintiff, etc. The liability of an employer under the act here in question is a contract liability (Lavin v. Wells Bros. Co., 272 Ill. 609), and the form of verdict should have been to find the issues for plaintiff, etc., but that irregularity would not. constitute reversible error. The verdict was in a lump sum only, and the court undertook to distribute it. This is permissible where there is no dispute as to the amounts that should be allowed if the plaintiff recovers, as was held in Dragovich v. Iroquois Iron Co., 269 Ill. 478 [10 N. C. C. A. 475]. But here there were disputes. In distributing the money the court allowed nothing under clause (a), but the court had no means of knowing but that the jury allowed something for the hospital bills for the time appellee was in the hospital. There was a dispute as to the amount of appellee’s earnings before he was injured. He worked a certain number of hours per day at a certain employment, but he also worked as janitor one hour each day before his regular employment began, and sometimes acted as janitor after his day’s work was ended, and he did work of that kind on Sunday. The bookkeeper for appellant treated this janitor work as overtime, and overtime earnings are excluded by section 6 (J. & A. [¶] 5455), while appellee claimed that it was a part of his regular employment, and that the amounts he so earned were to be treated as a part of his regular earnings in determining the difference between what he earned before and after the judgment and therefore the amount he should be compensated for such loss of earnings. The verdict did not inform the court how the jury decided that question. We are of opinion that in such a case as this, where by the judgment to be entered one or more amounts are to be paid at once and other sums in instalments for several years, the preferable practice is to have the jury find each item separately as well as to return a verdict for a total amount.

For the errors above indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.