Bowman v. Indus. Comm'n

• Decision Date: 10 October 1919
• Docket Number: No. 12715.,12715.
• Citation: 124 N.E. 373,289 Ill. 126
• Parties: BOWMAN v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

289 Ill. 126

124 N.E. 373

BOWMAN

v.INDUSTRIAL COMMISSION et al.

No. 12715.

Supreme Court of Illinois.

June 18, 1919.

Rehearing Denied Oct. 10, 1919.

Error to Circuit Court, Macon County; William K. Whitfield, Judge.

Proceeding under the Workmen's Compensation Act by Ray E. McCormick, administrator de bonis non of the estate of Charles W. Musgrove, deceased, employé, opposed by James Bowman, employer. Award of arbitrator, in claimant's favor, being confirmed by the Industrial Commission, the employer brought certiorari, and the orders and findings of the commission were quashed and set aside, and, the cause being certified as proper to be heard by the Supreme Court, the proceedings are brought up by writ of error by the administrator. Reversed and remanded.Whitley & Fitzgerald, of Decatur, and John A. Walgren, of Chicago, for plaintiff in error.

McMillen & McMillen, of Decatur, for defendant in error.

CARTER, J.

This was a proceeding brought under the Workmen's Compensation Act against defendant in error. The arbitrator found in favor of the claimant. On the petition for review before the Industrial Commission the award of the arbitrator was confirmed. On a writ of certiorari the proceeding was taken to the circuit court of Macon county for review, and the orders and findings of the Industrial Commission were quashed and set aside. The trial judge thereupon certified that the cause was one proper to be heard by this court, and the proceedings have been brought here for further review by writ of error.

Charles W. Musgrove, an employé of James Bowman, doing business as Bowman Bros., in Decatur, Ill., while working as a night man in charge of the office, barn, and garage used in the taxicab, moving, and storage business, was injured on the night of May 24, 1916, by an accident arising out of and in the course of his employment, by being kicked by a horse in the barn. The evidence tends to show that by the kick his head was thrown against a brick wall, and as a result of the kick and hitting the wall a large number of his teeth were knocked out, and his face badly bruised and gashed, and he received internal injuries, which, according to the finding of the arbitrator and Industrial Commission, resulted in his death on August 6, 1917. He left a widow and two minor children, and the widow subsequently died. Immediately after his injury Musgrove was treated by a physician, and thereafter his teeth were fixed by a dentist. The bills for these medical and dental treatments were paid in the usual course of the compensation program of the insurance company carrying the risk of the defendant in error, the doctor's bill being paid June 8, 1916, and the dentist's on December 2, 1916. Musgrove was absent from his work immediately after the injury less than a week, when he returned to his usual employment with defendant in error, the latter being short of help and needing him bably. His wounds seemed to have gradually healed, and he continued his work until some time in July, 1917, when the evidence tends to show that the accumulated effects of his injuries forced him to quit. He suffered a paralytic stroke on August 2, 1917, and died four days later, on August 6, 1917. He thus remained in his former employment until about a month before he died, and up to the time of his death the evidence tends to show he continued to hope that he might soon be able to return to work. During the same month in which he died his widow spoke to defendant in error about a claim for compensation, asking if he had his men insured. Defendant in error knew of his death and attended the funeral. September 14, 1917, the widow, as administratrix of his estate, filed with the Industrial Commission, on her behalf and that of her minor children, aged seven and nine years, respectively, the prescribed form of application for adjustment of claim under the Workmen's Compensation Act. No question is raised that the employer and employé were not within the provisions of the act at the time of the injury. Pending the hearing before the Industrial Commission the widow died, and Ray E. McCormick was substituted as administrator de bonis non of the estate of Charles W. Musgrove.

The decree of the circuit court found, among other things, that the Industrial Commission was without jurisdiction, for the reason that no claim for compensation was made within the limit of time provided for by section 24 of the said act; that paragraph (d) of section 8 and paragraph (h) of section 19 of the Workmen's Compensation Act were not applicable to the facts in this cause. Counsel for plaintiff in error argue that both paragraph (d) of section 8 and paragraph (h) of section 19 are applicable, and that the court was therefore wrong in quashing the orders and findings of the Industrial Commission.

Counsel for defendant in error earnestly argue that the circuit court was right in ruling that the claim was not made within the limit of time provided for in section 24 of the act, under the reasoning of this court in Bushnell v. Industrial Board, 276 Ill. 262, 114 N. E. 496, as no written claim was filed by any one ‘within six months after the accident.’ Section 24 also provides:

‘That the failure on the part of any person entitled to such compensation to give such notice shall not relieve the employer from his liability for such compensation, when the facts and circumstances of such accident are known to such employer, his agent or vice principal in the enterprise.’

The evidence in this record tends to show, without contradiction, that the defendant in error knew all about this accident immediately thereafter, and that within 30 days from the time of the accident he had authorized the payment by the insurance company of the doctor's bill for caring for the injury. There can be no question, therefore, under the decisions of this court, that the failure to give written notice within 30 days after the accident would not prevent the recovery in this proceeding. Suburban Ice Co. v. Industrial Board, 274 Ill. 630, 113 N. E. 979Parker-Washington Co. v. Industrial Board, 274 Ill. 498, 113 N. E. 976;Conway Co. v. Industrial Board, 282 Ill. 313, 118 N. E. 705.

Paragraph (d) of section 8 of the Workmen's Compensation Act in force at the time of this accident (Laws of [289 Ill. 130]1913, p. 342), read as follows:

‘If, after the injury has been sustained, the employé as a result thereof becomes partially, though permanently incapacitated from pursuing his usual and customary line of employment, he shall, except in the cases covered by the specific schedule set forth in paragraph (e) of this section, receive compensation, subject to the limitations as to time and maximum amounts fixed in paragraphs (b) and (h) of this section, equal to one-half of the difference between the average amount which he earned before the accident, and the average amount which he is earning or is able to earn, in some suitable employment or business after the accident. In the event the employé returns to the employment of the employer in whose service he was injured, the employé shall not be barred from asserting a claim for compensation under this act: Provided, notice of such claim is filed with the Industrial Board within eighteen months after he returns to such employment, and the said board shall immediately send to the employer, by registered mail, a copy of such notice.’

It is argued by counsel for plaintiff in error that the trial court improperly held that paragraph (d) of section 8 does not apply because there is no provision made that the beneficiaries of the employé may after his death file a claim for compensation within 18 months; that a plain reading of this paragraph clearly shows that it was intended that only the employé himself could file such claim. The argument of counsel for defendant in error in their brief is not quite to that effect, their position being that paragraph (d) was intended by the Legislature only to be applicable to cases arising under said paragraph, and not to cases arising under the other sections of the act; that a reading of section 7 of the Workmen's Compensation Act of 1913, together with section 8 and the rest of the act, shows that the Legislature intended by section 7 to provide compensation for death cases, and by section 8 only intended to provide for compensation to an employé for an injury not resulting in death; that the natural and appropriate office of the proviso of paragraph (d) was to restrain and qualify the matter immediately preceding it and not to qualify the entire act; that to construe the act otherwise would be to limit the enacting clause itself, which is contrary to the general rule of construction. In re Day, 181 Ill. 73, 54 N. E. 646,50 L. R. A. 519;Huddleston v. Francis, 124 Ill. 195, 16 N. E. 243. That this is the general rule...