SUPREME COURT OF ILLINOIS. SCHWARM VS. GEORGE THOMSON & SONS CO. (No. 11437.)* 1. WORKMEN'S COMPENSATION ACT-COMMUTATION OF COMPENSATION TO LUMP SUM. It was not incumbent on the claimant for compensation for a death under the Workmen's Compensation Act to show it to be for the best interests both of her and of the employer to have the compensation commuted to a lump sum. 2. WORKMEN'S COMPENSATION ACT-REVIEW. It is not within th province of the circuit or Supreme Court to pass on the weight of evidence heard by the Industrial Board, and only in cases where it is contended that there is no competent evidence to support the decision of the board is the evidence adduced reviewed on the question of law so raised. 3. WORKMEN'S COMPENSATION-COMMUTATION PENSATION TO LUMP SUM OF COMDISCRETION OF INDUS The Legislature, by Workmen's Compensation Act, § 9, having lodged the discretion with the Industrial Board to determine whether the circumstances justify an award of compensation in a lump sum, when any facts are shown which in the judgment of the Industrial Board warrant it in commuting the compensation allowed to a lump sum on the ground that such commutation is for the best interests of the parties, its action is final, and can be reviewed only for errors of law as in other cases. Error to Circuit Court, Cook County; Oscar M. Torrison, Judge. Proceedings under the Workmen's Compensation Act for compensation for the death of Gottlieb Schwarm by Johanna Schwarm, administratrix, opposed by George Thomson & Sons Company, the employer. There was an award by the Industrial Board, which was confirmed by the circuit court, the employer having filed bill in chancery to review the award, the two cases being consolidated and heard together, and the employer brings error. Affirmed. John A. Bloomingston, of Chicago, for Plaintiff in Error. Sommers & Sommers, of Chicago (Wesner H. Sommers, of Chicago, of Counsel), for Defendant in Error. COOKE, J. Defendant in error, Johanna Schwarm, administratrix of the estate of Gottlieb Schwarm, deceased, filed her petition with the Industrial Board praying for the commutation to a lump sum of the compensation awarded her from George Thomson & Sons Company, plaintiff in error, on account of the death of her intestate. Proper notice was given plaintiff in error, and a * Decision rendered, Dec. 19, 1917. 118 N. E. Rep. 95. hearing was had upon the petition, which resulted in an order by the Industrial Board that the compensation be commuted to a lump sum of $2,728.60. Thereupon defendant in error filed her petition in the circuit court of Cook county to have judgment entered upon this award. Before a hearing was had on the petition plaintiff in error filed a bill in chancery in the circuit court for the purpose of reviewing the award. The two cases were consolidated and heard together. The court confirmed the award, and entered judgment thereon, and certified that this was a proper case to be reviewed by this court. The sole question raised is as to the power and authority of the Industrial Board to commute the compensation to a lump Section 9 of the Workmen's Compensation Act provides that: "Any employer or employee or beneficiary who shall desire to have such compensation, or any unpaid part thereof, paid in a lump sum, may petition the Industrial Board, asking that such compensation be so paid, and if, upon proper notice to the interested parties and a proper showing made before such board, it appears to the best interest of the parties that such compensation be so paid, the board may order the commutation of the compensation to an equivalent lump sum," etc. was It is contended that there is no proof in the record that the commutation of the award to a lump sum was for the best interest of the parties. In support of her petition defendant in error showed that her intestate was her husband, and that he left surviving him six children; that he died seized of real estate consisting of a house and lot in the city of Chicago; that the house had been built for about 25 years, and was divided into five apartments, one of which was occupied by defendant in error and her family; that the other four apartments were rented and netted an income of approximately $200 per year; that the house was in a dilapidated condition, and it necessary to make repairs costing approximately $800 or more to make it tenantable; that by the expenditure of an additional $800 the house could be remodeled and converted into a place suitable to be conducted as a rooming house; that defendant in error was capable of conducting such an establishment; and that such a business would produce more of an income for herself and family than she could secure by renting the apartments. The proof thus tended to show that in order to preserve the real estate of which the defendant in error's intestate died seized for the benefit of his heirs at law it would be necessary that a considerable sum be expended upon it at once. Plaintiff in error appeared and was represented by counsel, and if it had desired to do so, it would have been permitted to show that it was not to its best interest to have the compensation commuted to a lump sum. [1] It was not incumbent upon defendant in error to show it to be for the best interests of both parties to have the compensation commuted to a lump sum. Forschner & Co. vs. Industrial Board, 278 Ill. 99, 115 N. E. 912; Goelitz Co. vs. Industrial Board, 278 Ill. 164, 115 N. E. 855. The Workmen's Compensation Act provides that the circuit court shall have power, by writ of certiorari, to review all questions of law presented by the record of the board, and that the judgments, orders, and decrees of the circuit court may be reviewed by the Supreme Court on writ of error. [2] It has been repeatedly held that it is not within the province of the courts to pass upon the weight of the evidence heard by the board. Victor Chemical Works vs. Industrial Board, 274 Ill. 11, 113 N. E. 173; Munn. vs. Industrial Board, 274 Ill. 70, 113 N. E. 110; Parker-Washington Co. vs. Industrial Board, 274 Ill. 498, 113 N. E. 976. It is only in cases where it is contended that there is no competent evidence to support the decision of the board that the evidence adduced is reviewed by the courts on the question of law thus raised. [3] Plaintiff in error's contention is that a proper showing was not made for the awarding of a lump sum in this case for the reason that the facts proven on behalf of defendant in error are not such as to warrant the Industrial Board to make an award in a lump sum, and we are asked to state under what circumstances as a matter of law, the Industrial Board may or may not award such compensation. The Legislature has lodged this discretion entirely with the Industrial Board, and when any facts are shown which in the judgment of the Industrial Board warrant it in commuting the compensation allowed to a lump sum on the ground that such commutation is for the best interest of the parties, its action is final and can be reviewed only as in other cases for errors of law. Facts were proven in this case which satisfied the Industrial Board that it was for the best interests of the parties that an award in a lump sum should be made, and as no error of law is presented for review, the judgment of the circuit court is affirmed. Judgment affirmed. SUPREME COURT OF ILLINOIS. HOULIHAN VS. SULZBERGER & SONS CO. (No. 11432.)* 1. WORKMEN'S COMPENSATION-THIRD PARTY'S LIABILITY. Under Workmen's Compensation Act (Laws 1911, p. 316) § 3, abolishing damage actions, and section 17, authorizing damage actions against third parties, an employee may sue a third party negligently injuring him. although receiving workmen's compensation from his employer. 2. WORKMEN'S COMPENSATION-NATURE OF ACT. The Workmen's Compensation Act is based upon the principle that the employer should pay certain fixed amounts for accidental injuries irrespective of negligence. 3. WORKMEN'S COMPENSATION-THIRD PARTY'S LIABILITY. Where contractor had taken out workmen's compensation insurance, an owner is not liable to one of the contractor's employees for injuries sustained, under Workmen's Compensation Act, §.20, defining "employer," etc. Error to Appellate Court, First District. on Appeal from Superior Court, Cook County; C. F. Irwin, Judge. Action by Margaret Houlihan, administratrix, against Sulzberger & Sons Company. A judgment for plaintiff was affirmed by the Appellate Court (204 111. App. 449) and defendant brings certiorari. Affirmed. Moritz Rosenthal, Henry H. Kennedy, Joseph W. Moses, Julius Moses, Walter Bachrach, and S. Sidney Stein, all of Chicago (Hamilton Moses and Henry Jackson Darby, both of Chicago, of counsel), for Plaintiff in Error. James C. McShane, of Chicago, for Defendant in Error. DUNN, J. Margaret Houlihan, as administratix of the estate of Frank A. Houlihan, her deceased husband, recovered a judgment for $6,500 in the superior court of Cook county against the Sulzberger & Sons Company for negligently causing his death. The Appellate Court affirmed the judgment, and the record has been brought here by writ of certiorari for review. Houlihan was killed on September 30, 1912, by falling from a ladder attached to building of the plaintiff in error. He was an employee of the Hamler Boiler & Tank Works, a corporation which was employed by the plaintiff in error to repair an iron band which encircled a smokestack of the plaintiff in error. The smokestack was about 150 feet high and 6 or 8 in diameter. The band was about 75 feet above the roof of the power house, * Decision rendered, Dec. 19, 1917. Rehearing denied, Feb. 6. 1918. 118 N. E. Rep. 429. and to it were attached four guy wires, the other ends of which were attached to anchors upon different buildings of plaintiff in error. At the time of the accident which resulted in Houlihan's death, the band had been repaired and two of the guy wires had been attached to their anchors. A third wire was to be attached to an eyebolt fastened to the north wall of the plaintiff in error's fertilizer building, which was a five-story building of fireproof brick and cement construction, about 50 feet high, having an inside measurement of 23 feet square. Inside the building were iron stairways extending from the ground floor to the fourth floor, a wooden stairway from the fourth floor to the fifth floor and a stationary ladder from the third floor to the skylight in the roof, which was usually left open, but had a cover which could be closed in case of rain. On the south side of the building, at the level of the second floor, was a roof extending out from the building about 16 feet. From this roof to the top of the building was a permanent wooden fire ladder, painted red, the sides of which were of yellow pine two by six inches, fastened to the building with the broad side prependicular to its walls. The rungs were one-inch oak strips two inches wide, mortised into the uprights, so that their ends were even with the outsides of the uprights and the two-inch faces were even with the outer faces of the uprights. One-inch oak strips two inches wide were fastened to the outer faces of the uprights over the rungs. The upper part of this ladder from which the deceased fell had been constructed about seven years prior to the accident. There was a shorter ladder from the ground to the roof, where this ladder started. Houlihan was going up the fire ladder, having been preceded by a fellow workman who had reached the roof and being followed by another who was about 15 feet up the ladder. The latter heard a cry, and looking up saw Houlihan falling over backward clear of the ladder and about 10 feet from its top. No one saw Houlihan at the instant he started to fall. After the accident it was discovered that the second and third rungs from the top had pulled loose and the strips fastened to the outer faces of the uprights had been loosened for a distance of about 15 feet from the top of the ladder. There was evidence tending to show that the ends of the rungs which pulled loose were rotten, and that there was a hole in each end of one of the rungs through which the nail or screw had pulled. [1] It is urged that there was no evidence tending to prove negligence on the part of the plaintiff in error; that Houlihan was using the ladder for his own convenience, without any authority or invitation of the plaintiff in error to do so; and that, the plaintiff in errror having provided a safe interior means of access to the roof, Houlihan had no right to use the fire ladder. There was nothing in the contract between the plaintiff in error and the Hamler Boiler & Tank Works in regard to the means of access to the roof, and, if there had been no means of access, it |