F.K. Ketler Co. v. Indus. Comm'n

• Decision Date: 14 March 1946
• Docket Number: No. 29104.,29104.
• Citation: 392 Ill. 564,65 N.E.2d 359
• Parties: F. K. KETLER CO. v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

392 Ill. 564

65 N.E.2d 359

F. K. KETLER CO.

v.INDUSTRIAL COMMISSION et al.

No. 29104.

Supreme Court of Illinois.

Jan. 23, 1946.

Rehearing Denied March 14, 1946.

Error to Circuit Court, Peoria County; John T. Culbertson, jr., judge.

Proceeding under the Workmen's Compensation Act by Catherine Parker, claimant, for the death of William J. Parker, employee, opposed by the F. K. Ketler Company, employer. To review a judgment confirming an award of the Industrial Commission for the widow, the employer brings error.

Affirmed.

Henry Kneller, of Peoria, for plaintiff in error.

Cassidy, Sloan & Crutcher, of Peoria, for defendant in error.

FULTON, Justice.

This case is here on writ of error allowed by this court to review a judgment of the circuit court of Peoria county. William J. Parker was killed October 23, 1941, as a result of an accidental injury arising out of and in the course of his employment with the F. K. Ketler Company while engaged as a pile driver on a construction project for the Chicago, Rock Island & Pacific Railway Company.

The application for adjustment of claim was filed by the widow on October 21, 1942. The decision of the arbitrator, rendered on March 22, 1944, found, among other things, that the accidental injury causing the death arose out of and in the course of the deceased's employment with the F. K. Ketler Company; that claim for compensation had been made within apt time and that there was due the widow for the support of herself and minor child the sum of $4895. The arbitrator further found that the sum of $4000 had previously been paid on account of the death of said Parker and ordered that the latter sum be credited on the total amount of compensation payable.

On review before the Industrial Commission no additional evidence was offered and after oral argument that body, on January 22, 1945, affirmed the arbitrator's findings in all respects, except the ruling that the sum of $4000 should be credited upon the amount of the award to be paid, and ordered payment from the F. K. Ketler Company in the full amount of $4895. The circuit court of Peoria county on certiorari confirmed the decision of the Industrial Commission. There were no stipulations, jurisdictional or otherwise, entered into by the parties at the hearing before the arbitrator.

The record discloses that Catherine Parker, as administratrix of her husband's estate and prior to the institution of the workmen's compensation proceedings herein, began a common-law suit for damages in the circuit court of Peoria county against the trustees of the Chicago, Rock Island and Pacific Railway Company under the Federal Employers' Liability Act. In this latter suit, the widow alleged that William J. Parker was, at the time of his death, an employee of the railway company, and that the injuries and death were caused by the railway company through its agents and servants. More than a year after the death of Parker, on October 28, 1942, the railway company filed its motion to dismiss the common-law action. To this motion was attached the affidavit of F. K. Ketler, president of the plaintiff in error company, which affidavit stated that Parker was an employee of the Ketler Company at the time of his death. A certified copy of this motionwith the attached affidavit was introduced at the hearing before the arbitrator by the claimant over the objection of counsel for plaintiff in error. According to the testimony of Mrs. Parker, developed on cross-examination over the objection of her attorney, it appears that sometime subsequent to October 28, 1942, the common-law action against the railway company was dismissed and that Mrs. Parker received the amount of $4000 in settlement of her claim. At the hearing before the arbitrator a certified copy of the amended complaint against the railway company was introduced in evidence.

The record before the arbitrator establishes the fact that the deceased was employed as a pile driver by the Ketler Construction Company on a project involving the repair of a certain bridge on the right of way of the Chicago, Rock Island & Pacific Railway Company. All the employees on the job at the time of the accident were employed by the F. K. Ketler Company. The equipment used belonged to the F. K. Ketler Company, and there is no evidence in the proceedings before the arbitrator, other than the introduced copy of the widow's complaint against the railway company, that indicates that the accident was caused by or through the negligence of the railway company. Parker's death was caused by his being struck on the head with a large timber which fell from the piledriving machine as Parker was lining it up preparatory to beginning operations. It is affirmatively shown by the evidence before the arbitrator that there were no railway employees or equipment at the scene of the accident.

The plaintiff in error in this case contends that the decision of the circuit court was in error for two reasons: (1) That there is no competent evidence in the record to establish the jurisdictional fact that a claim or demand for compensation was made within the period prescribed by the statute, that is, within six months following October 23, 1941; and (2), in the alternative, if an award of compensation is proper here, under the provisions of section 29 of the Workmen's Compensation Act (Ill.Rev.Stat.1943, chap. 48, par. 166) the plaintiff in error is entitled to a credit in the sum of $4000, which is the amount received by the widow in settlement of her common-law action against the Chicago, Rock Island & Pacific Railway Company. As stated before, there were no stipulations entered. The only evidence in the record touching the question of notice of claim is a copy of a letter dated April 20, 1942, as follows:

‘F. K. Ketler Company,

‘105 West Monroe Street, Chicago, Illinois.

'Gentlemen:

‘We represent Mrs. Catherine Parker, widow of William Parker, who was fatally injured on October 23rd, 1941, while employed in the construction of a bridge on the Rock Island right of way, which construction was under your supervision.

‘In behalf of the widow, Mrs. Parker and the minor surviving children, we hereby make claim under the Workmen's Compensation Law of Illinois for benefits provided by the said Act on account of accidental death.

‘You are advised, Mrs. Parker has filed suit against the Rock Island Railway Company under the Federal Employment Liability Act in the Peoria Circuit Court.

‘The railroad is resisting said claim on the ground that at the time of the accident Mrs. Parker was in your employ.

‘In the event the court decides against that, it will amount to a decision that Mr. Parker was an employee of your Company and came to his death out of and in the course of such employment.

‘Should the court decide conversely, i.e. that Mrs. Parker's remedy is under the Federal Employers Liability...