American Car & Foundry Co. v. Indus. Comm'n

• Decision Date: 19 June 1929
• Docket Number: No. 19319.,19319.
• Court: Illinois Supreme Court
• Parties: AMERICAN CAR & FOUNDRY CO. v. INDUSTRIAL COMMISSION et al.

335 Ill. 322

167 N.E. 80

AMERICAN CAR & FOUNDRY CO.

v.INDUSTRIAL COMMISSION et al.

No. 19319.

Supreme Court of Illinois.

June 19, 1929.

Commissioner's Opinion.

Error to Circuit Court, Madison County; Jesse R. Brown, Judge.

Proceeding under the Workmen's Compensation Act by Marie Hubka, claimant, for the death of Joe Kupka, employee, opposed by the American Car & Foundry Company, employer. Finding of Industrial Commission was set aside by circuit court and award made in favor of petitioner, and employer brings error.

Reversed in part and remanded.Wheeler & Oehmke, of East St. Louis (William C. Dunham, of East St. Louis, of counsel), for plaintiff in error.

Wesley Lueders, of Granite City (R. W. Griffith, of Granite City, of counsel), for defendant in error.

PARTLOW, C.

A petition for compensation was filed with the Industrial Commission for the death of Joe Kupka on account of injuries received in the plant of plaintiff in error, the American Car & Foundry Company, at Madison, Ill. Upon a hearing the arbitrator held that the petitioner was not entitled to compensation. This was affirmed by the Industrial Commission. The circuit court of Madison county set aside the finding and made a finding in favor of the petitioner for $3,750, and the case comes to ths court upon a writ of error.

The decreased was employed under the name of Joe Kupka. He was known by no other name and had no alias as far as was known. On May 22, 1923, the day he was injured, he told the employment agent of plaintiff in error that he was a single man, although the record of plaintiff in error made at the time he was employed shows that he was married. He was paid compensation for his injuries on the theory that he was a single man, and after his death, on October 4, 1923, plaintiff in error paid $150 for funeral expenses, as provided in the Compensation Act (Laws 1913, p. 337, as amended). On March 19, 1924, a petition for compensation was filed with the Industrial Commission in the name of Marie Kupka, the widow, and Tom and Orsula Kupka, the children, who reside in Poland. It was signed in their names by Wesley Lueders as their attorney. Plaintiff in error claims that this application was the first and only claim made upon it for compensation. On February 4, 1927, at the hearing before the arbitrator the petitioners were not present, but Lueders appeared and claimed to be their attorney. He asked leave to amend the petition by striking out the names of Tom and Orsula Kupka as petitioners, leaving Marie Hubka as the sole petitioner. He stated that Marie Hubka was an alias for Marie Kupka. Plaintiff in error objected to the amendment upon the grounds that the claim was founded on the petition and the amendment would affect the whole proceeding; that any action for the benefit of persons living outside of the United States must, under the statute, be brought and maintained by the personal representative of the deceased employee. The objections were overruled and the petition was amended.

It was stipulated that Joe Kupka and plaintiff in error were operating under the Compensation Act at the time of the injury, which arose out of and in the course of his employment; that his average weekly wage was $19.08; that he was paid compensation amounting to $39.60; and that after his death, on October 4, 1923, plaintiff in error paid $150 for funeral expenses.

On the question of the authority of Lueders to file the petition, he testified that after the death of Kupka he received a letter from the Polish consul in Chicago asking him to investigate the death, which letter was lost. Objection was made and sustained to the contents of the letter on the ground that sufficient foundation was not laid for the introduction of secondary proof. He testified that some weeks after receiving this letter he went to Chicago and had an interview with the consul, in which he reported the result of his investigation. He started to tell what the consul advised him to do, but an objection was made and sustained on the ground that the conversation was not in the presence of plaintiff in error. He testified that on the instructions of the consul he filed the petition for compensation in the name of the beneficiaries and made arrangements to secure a power of attorney from them. An objection was sustained to this statement.

Lueders offered in evidence a power of attorney dated April 7, 1924, and signed by the three original petitioners, which appointed the consul general of the Republic of Poland in Chicago as their attorney in fact, ‘to manage our affairs and transact all business of whatever kind soever in which we are or may be interested or concerned, as fully to all intents and purposes as ourselves if present there in person could do. * * * To prosecute, defend and protect our rights in all matters wherein we may be in any manner concerned as plaintiff, defendant or otherwise, * * * hereby ratifying and confirming all that said attorney or his substitute shall lawfully do or cause to be done by virtue thereof.’ Plaintiff in error objected to this power of attorney on the ground that there was no proof that it was executed by any one who was a claimant in the case, but the objection was overruled.

The deposition of Marie Hubka was offered in evidence, in which she testified that she was the legal wife of Joseph Hubka, alias Joseph Kupka; that after her marriage to Joseph Hubka, alias Joseph Kupka, she was never divorced from him and never married any one else; that her husband left her for America 22 years ago and she had not seen him since; that she had received letters from him three or four times each year since that time but the letters had been lost; that she could produce only one envelope, but she did not produce it; that her husband resided some place in Illinois; that the last time she heard from him was in September, and she learned in November of his death; that he sent her money from America during his lifetime four or five times, and even more, each year.

It is contended by plaintiff in error that the claim for compensation was not made as required by statute, and that the judgment of the circuit court was not authorized by law; that the petition filed by Lueders was not sufficient as a statutory claim because he was not authorized to make the claim; that he did not have any authority directly from the supposed beneficiaries and did not claim to have such authority; that the only evidence of his authority was his testimony as to what took place between him and the Polish consul in Chicago; that this evidence was incompetent to show authority; that his statement that his letter from the Polish consul had been lost did not warrant parol evidence of the contents of the letter, and what was said between him and the consul not being in the presence of plaintiff in error was incompetent; and that therefore there is no competent proof that Lueders was authorized to make any claim for compensation, and without such proof the applicant must fail. It is also insisted that the power of attorney was improperly admitted in evidence.

[1][2][4] The making of a claim for compensation within six months after the injury or death is jurisdictional and is a condition precedent to the right to maintain the proceeding. This failure to make the demand is not waived by a failure to make an objection on the hearing before the arbitrator, before the Industrial Commission or in the circuit court. Ridge Coal Co. v. Industrial Com., 298 Ill. 532, 131 N. E. 637. In cases of this kind the rules with reference to the admission of evidence and the burden of proof are the same as in common law actions for personal injuries. Inland Rubber Co. v. Industrial Com., 309 Ill. 43, 140 N. E. 26. Before the claimant can recover he must establish, by a preponderance of the competent evidence, all the facts necessary to justify an award. Merritt v. Industrial Com., 322 Ill. 160, 152 N. E. 505.

In Northwestern Malt Co. v. Industrial Com., 313 Ill. 534, 145 N. E. 89, the beneficiaries lived outside of the United States and the proceedings were begun by an administrator. There was no proof that the party filing the petition had authority from the widow, children, or the administrator to represent them. It was held that the claim for compensation must be made by the party entitled to the compensation or by or through some person authorized as agent or attorney, and that a demand made by one who is purely a volunteer is not such a demand as can be recognized as legal and binding upon the employer who is to pay the compensation.

In Neenan v. Industrial Com., 329 Ill. 48, 160 N. E. 218, an attorney made a demand for compensation. The claimant lived in a foreign country and the attorney was not expressly authorizedby the claimant to present the claim. This court held that the claim required to be made within six months, as provided by section 24 of the statute, is sufficient when made by an attorney within the required time, although the attorney, because the claimant lives in a foreign country, was not expressly authorized by the claimant to present the claim before he did so, where the action of the attorney is ratified by the claimant, though the ratification was not received until after the six months had expired and after the hearing before the arbitrator.

In Matwiczuk v. American Car & Foundry Co., 189 Mich. 449, 155 N. W. 412, the claim or demand was made by an attorney at the instance of a brother of the widow, who resided in Poland. She executed a power of attorney to her brother, which did not reach the brother until after the expiration of the six months' period for making the claim. The Supreme Court of Michigan affirmed the award and held that although the attorney gave notice to the company of the accident and death of the deceased and made the demand for the widow without her knowledge or authority, such notice and demand were legal because ratified by the widow by the...