Alton v. Byerly Aviation, Inc.

• Decision Date: 05 October 1977
• Docket Number: No. 49281,49281
• Citation: 368 N.E.2d 922,68 Ill.2d 19,11 Ill.Dec. 314
• Parties: , 11 Ill.Dec. 314 James A. ALTON, Adm'r, Appellant, v. BYERLY AVIATION, INC., Appellee.
• Court: Illinois Supreme Court

Page 922

368 N.E.2d 922

68 Ill.2d 19, 11 Ill.Dec. 314

James A. ALTON, Adm'r, Appellant, v. BYERLY AVIATION, INC., Appellee.

No. 49281.

Supreme Court of Illinois.

Oct. 5, 1977.

Roger V. Pierson and Matthew A. Maloney, Princeton, for appellant.

John E. Cassidy, Jr., of Cassidy, Cassidy & Mueller, Peoria, for appellee.

GOLDENHERSH, Justice.

Plaintiff, James Alton, administrator of the estate of Marty James Alton, deceased, appealed from the judgment of the circuit court of Peoria County entered in favor of the defendant, Byerly Aviation, Inc., upon allowance of its motion for summary judgment. The appellate court affirmed (44 Ill.App.3d 571, 3 Ill.Dec. 229, 358 N.E.2d 396), and we allowed plaintiff's petition for leave to appeal.

In his complaint, filed within three months of the occurrence, plaintiff alleged that in violation of sections 7 and 9 of the Child Labor Law (Ill.Rev.Stat.1973, ch. 48, pars. 31.7 and 31.9) defendant had illegally employed the decedent, a minor under the age of 16, and that he died as a result of defendant's negligence. Following allowance of defendant's motion to dismiss the complaint, plaintiff filed an amended complaint and defendant answered. Several months later defendant moved for summary judgment on the ground that plaintiff had failed to comply with section 5(a) of the Workmen's Compensation Act (Ill.Rev.Stat.1973, ch. 48, par. 138.5(a)), which in pertinent part provided:

"Any illegally employed minor or his legal representatives shall * * * have the right within 6 months after the time of injury or death, to file with the Commission a rejection of his right to the benefits under this Act, in which case such illegally employed minor or his legal representatives shall have the right to pursue his or their common law or statutory remedies to recover damages for such injury or death."

Attached to defendant's motion for summary judgment was the sworn statement of the Secretary of the Industrial Commission of Illinois that the Industrial Commission had received no rejection of the deceased's right to compensation.

In opposition to defendant's motion plaintiff filed a copy of a "Notice of rejection of rights under Workmen's Compensation Act" together with the affidavits of his attorney and two secretaries employed in the attorney's office that within the statutory period, and prior to the filing of the suit, an envelope, containing the rejection, properly addressed to the Commission's office and bearing plaintiff's attorney's return address, was deposited in the United States mail and that it was not returned to the attorney's office. The circuit court did not rule upon defendant's motion immediately but several months later allowed the motion on the ground that plaintiff had failed to comply with section 1.25 of the construction of statutes act (Ill.Rev.Stat.1973, ch. 131, par. 1.25), which, in pertinent part, provides that if a writing required to be filed with a State agency is mailed but not received the sender must file a duplicate writing within 30 days after written notice by the agency of its nonreceipt.

In affirming the judgment the appellate court held that the filing of the rejection of the right to benefits under the Workmen's Compensation Act was a condition precedent to the bringing of plaintiff's action, and because the Industrial Commission did not actually receive the rejection within the statutory period, the action was barred.

Plaintiff contends that the effect of the appellate court's decision is to deny plaintiff the presumption that the notice, timely mailed, was received by the Industrial Commission and the circuit court allowed the motion for summary judgment without deciding the factual question whether the notice was sent and received. Plaintiff contends further that under the rationale of Dunbar v. Reiser, 64 Ill.2d 230, 1 Ill.Dec. 89, 356 N.E.2d 89, and Saragusa v. City of Chicago, 63 Ill.2d 288, 348 N.E.2d 176, the filing of the suit within the statutory period for filing the rejection was sufficient compliance with the statute. Plaintiff...