dissenting:
This proceeding involves a claim for compensation for the death of appellee’s husband under the Workmen’s Compensation Act of 1913. The proceedings before the Industrial Board resulted in the allowance of compensation to appellee aggregating $3,500, payable in instalments. The evidence disclosed that appellant is a corporation organized not for pecuniary profit, and conducts and operates a hospital in Chicago. Appellee’s husband, William H. Delscamp, was employed by appellant as chief engineer. His duties were to superintend the operation and repair of the heating, lighting, ventilation and plumbing systems of the hospital. About four o’clock p. m., December 16, 1915, he was found lying in an injured and unconscious condition at the foot of the basement stairs in the rear of the hospital. Upon examination it was found that he sustained a fracture of the skull and other injuries, from which he died a few days later.
Appellant contends that it is not subject to the provisions of the Workmen’s Compensation Act, in that the business or occupation which it conducted was not extrahazardous within the meaning of the act, and as it had not given the notice of its election to accept the terms of the act, as provided by section 1, paragraph (a), the Industrial Board was therefore without jurisdiction.
It is conceded that appellant did not give the notice of its election to accept the terms of the act, as provided. The question then is whether the hospital as conducted by appellant was an extrahazardous business as defined in the act. Section 3, paragraph (b) of the Act [Cal. Ill. St. Supp. 1916, fl 5475(3)] enumerates certain occupations, enterprises or businesses which are deemed extrahazardous. Paragraph (b), so far as material, is as follows:
“8. In any enterprise in which statutory or municipal ordinance regulations are now or shall hereafter be imposed for the regulating, guarding, use or the placing of machinery or appliances, or for the protection and safeguarding of the employees or the public therein; each of which occupations, enterprises or businesses are hereby declared to be extrahazardous. ’ ’
In construing subdivision 8 of paragraph (b), the Supreme Court, in the case of Uphoff v. Industrial Board of Illinois, 271 Ill. 312 [13 N. C. C. A. 80], said p. 317:
“It is also plain that the Legislature only intended to include under paragraph (b) any such occupations, enterprises or businesses of the employer when they were properly considered to be ‘extrahazardous.’ It is true that the clause in subdivision 8 of said paragraph (b) calling all of these trades, businesses, enterprises or occupations extrahazardous was inserted for the purpose of making clear what was considered ex-trahazardous, but it is also clear that the Legislature did not intend to include work that everyone knows is not extrahazardous or even hazardous.”
The evidence tends to show that appellant conducts a hospital in the City of Chicago in a seven-story building, which is equipped with freight and passenger elevators; a system of high-pressure boilers in the basement; a system of wiring and electrical apparatus, used for generating and conducting electricity, and a steam-heating system; all of which, as to • installation and operation, are' regulated and controlled by ordinances of the City of Chicago, “for the protection and safeguarding of the employees or the public.” The evidence further tends to show that it is the duty of the deceased to supervise the operation of all these appliances, and that in the performance of his duties he was required to use the freight and passenger elevators from time to time in going to and from the seyeral floors of the hospital; that he had a desk in the basement near the boilers where he could be found when not called by his duties to some other portion of the building. His hours of work were from eight o’clock in the morning until six or seven o’clock in the evening. Sometimes he worked all night, and he was expected to call on Sundays at the hospital. He had worked at the hospital for more than seventeen years. The witness Burt, who was the general superintendent of the hospital for twenty years, testi-' fled that on án occasion when he saw the deceased under the influence of liquor, he told him he must stop drinking; that “I would not feel the confidence to let him take charge of a- hig’h pressure plant because there might he something happen to a lot of sick people; we could not take a chance.”
Section 4 of the Act [Cal. Ill. St. Supp. 1916, If 5475(4)] defines the term “employer” to be “every person, firm, public or private corporation, including hospitals, public service, eleemosynary, religious or charitable corporations or associations,” who have come under the act by notice or otherwise. From this it appears that a hospital, if its business is extrahazardous within the meaning of section 3, paragraph (b) would under section 2 [Cal. Ill. St. Supp. 1916, ft 5475(2)], come within the act without notice. From a careful consideration of this paragraph, and the manner in which the hospital was constructed and operated, I am clearly of the opinion that appellant is subject to the provisions of the act, and that, if the deceased received accidental injuries “arising out of and in the course of the employment,” then under the rule announced in the cases of Suburban Ice Co. v. Industrial Board of Illinois, 274 Ill. 630; Vaughan’s Seed Store v. Simonini, 275 Ill. 477; Marshall v. City of Pekin, 276 Ill. 187, appellee was entitled to recover.
Appellant, however, contends that there was no evidence that the injuries received were accidental, or that they arose out of and in the course of his employment. In support of this contention it is argued that no one saw how the injuries were received, and that the evidence clearly shows that the deceased, at and prior to the time he was injured, was intoxicated, and was not in the discharge of his duties, but was injured as a result of such intoxication.
The evidence tends to show that the deceased had been in the employ of appellant for more than seventeen years; that his duties took him from time to time to all parts of the building; that his desk was in the boiler room in the basement; that the usual method of reaching his desk was by means of the stairway, at the foot of which he was found unconscious; that it was necessary for him in the discharge of his duties to go up and down this stairway several times daily; that about fifteen minutes before he was found he went up the stairs from the boiler room to fix some radiators; that a little later he was seen going down the stairs in the direction of his desk; that the stairway was dark, and immediately thereafter he was found unconscious at the foot of the stairs. There was evidence, however, which tended to show that the deceased had been drinking during the day and was intoxicated; that he was so under the influence of liquor that he could scarcely navigate; that he was seen to stagger towards the stairway. On the other hand, there was evidence tending to show that he was not under the influence of liquor, although he had been drinking some during the day; that he had been on duty all day and was on duty at the time he received the injuries. I think there is evidence to sustain the finding of the Industrial Board that he received accidental injuries arising out of and in the course of his employment, and, in the absence of fraud, both the Circuit Court and this court are bound by such finding. Munn v. Industrial Board of Illinois, 274 Ill. 70 [12 N. C. C. A. 652].