Chicago, Wilmington & Franklin Coal Co. v. Indus. Comm'n

• Decision Date: 21 June 1922
• Docket Number: No. 14570.,14570.
• Citation: 303 Ill. 540,135 N.E. 784
• Court: Illinois Supreme Court
• Parties: CHICAGO, WILMINGTON & FRANKLIN COAL CO. v. INDUSTRIAL COMMISSION et al.

303 Ill. 540

135 N.E. 784

CHICAGO, WILMINGTON & FRANKLIN COAL CO.

v.INDUSTRIAL COMMISSION et al.

No. 14570.

Supreme Court of Illinois.

June 21, 1922.

Error to Circuit Court, Macoupin County; Frank W. Burton, Judge.

Proceeding under the Workmen's Compensation Act by Victor Mathias to recover compensation for the death of his son, Frank Mathias, opposed by the Chicago, Wilmington & Franklin Coal Company, employer. An award of compensation by the Industrial Commission was set aside by the circuit court, and the claimant brings error.

Reversed and remanded, with directions to quash the writ and confirm the award.Ken, MacDonald & Murphy, of Chicago, for plaintiff in error.

John J. Sherlock, of Chicago, and Truman A. Snell, of Carlinville, for defendant in error.

STONE, J.

Frank Mathias, son of the plaintiff in error, was injured while working in the mine of the defendant in error on the 28th day of September, 1920, and on that date died as the result of such injury. The deceased and defendant in error were working under the Workmen's Compensation Act (Hurd's Rev. St. 1921, c. 48, §§ 126-152i) of this state and subject to its provisions. A hearing was had before the arbitrator, and an award entered in favor of the plaintiff in error for $7 per week for a period of 235 weeks, or a total of $1,650, being the minimum under paragraph (c) of section 7 of said act. This award was sustained on review by the Industrial Commission. The circuit court of Macoupin county set aside the award.

Two questions are presented by the assignment of errors for review by this court: First, dependency; and, second, did the accident arise out of and in the course of the employment of the deceased?

As to the question of dependency, the evidence in the record shows that the deceased was 18 years of age on April 18, 1920; that the petitioner is the father of the deceased, and at the time of the accident in question had nine children living at home; that the oldest boy, Steve, was working in the mine of the defendant in error and became 21 years of age on August 21, 1920; that no other members of the family were old enough to work, and none of them were working; that the petitioner, until May, 1920, worked in the mine of the defendant in error, but on account of sickness and inability to work had not worked since that time; that Steve, at the time of the accident, had taken the place of the plaintiff in error in the mine; that after becoming of age Steve paid $48 per month to his mother for board; that the father earned prior to May, 1920, when the mine worked practically full time, about $200 per month, and in slack time about $90 per month; that Steve, after becoming of age, earned practically the same amount as the father; that the deceased son, when the mine was working full time, had an earning capacity of about $60 per month; that the entire family expense was approximately $200 per month; that the living expenses of the father and mother, without the children, would be in the neighborhood of $75 per month; that after Steve became of age he collected his own wages and spent the same for his own use, except the $48 above stated, and that the deceased son lived at home with his father and mother, and contributed in the neighborhood of $60 a month to the use and support of the family. Plaintiff in error, at the time of the death of Frank, was receiving about $108 per month from the two boys.

Dependency, and the extent thereof, are questions of fact for the Industrial Commission, and the courts will not interfere when such facts are controverted, unless it can be said that the finding of the commission is against the manifest weight of the evidence. Otis Elevator Co. v. Industrial Com., 302 Ill. 90, 134 N. E. 19;Keller v. Industrial Com., 302 Ill. 610, 135 N. E. 98. The test for determining dependency is whether the contributions of the deceased were relied upon by the dependent for his means of living as determined by his position in life, or whether dependent was to a substantial degree supported by the employee at the time of the employee's death. Pratt Co. v. Industrial Com., 293 Ill. 367, 127 N. E. 754.

A child contributes to the support of its parents, within the meaning of the Compensation Act, when it contributes a substantial sum to the support of the family, although this sum is less than the actual cost and expense of its support and maintenance, where the child is a minor or is in a condition to demand legal support from its parent Richardson Sand Co. v. Industrial Com., supra, 296 Ill. 335, 129 N. E. 751. The uncontradicted evidence in this case shows that in May prior to the accident in question the father had ceased working in the mine or at any other employment on account of poor health, and that at the time of the accident the...