Ferguson v. Indus. Comm'n

• Decision Date: 15 September 1947
• Docket Number: No. 29764.,29764.
• Parties: FERGUSON v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

397 Ill. 348

74 N.E.2d 539

FERGUSON

v.INDUSTRIAL COMMISSION et al.

No. 29764.

Supreme Court of Illinois.

May 22, 1947.

Rehearing Denied Sept. 15, 1947.

Error to Circuit Court, La Salle County; Roy Wilhelm, Judge.

Proceeding under the Workmen's Compensation Act by Paul H. Ferguson, guardian of Henry Betzer, a minor, claimant, opposed by the Illinois Caterers, employer. To review a judgment confirming the Industrial Commission's denial of compensation, the guardian brings error.

Affirmed.

Ferguson & Ferguson, of Decatur, and Giffin, Winning, Lindner, Newkirk & Jones, of Springfield (Robert H. Brunsman, Robert F. Hails and George K. Blanchard, all of Springfield, of counsel), for plaintiff in error.

Henry Kneller, of Peoria (George W. Angerstein, of Chicago, of counsel), for defendant in error.

STONE, Justice.

This is a writ of error to review the judgment and order of the circuit court of La Salle county which confirmed the action of the Industrial Commission denying compensation to the plaintiff in error for injuries sustained by his ward.

On February 11, 1944, Henry Betzer, a minor of 15 years of age, was employed by Illinois Caterers at Seneca, La Salle county, Illinois, as a truck driver at a weekly wage of $26.40. Betzer's hours of work were from 8:00 o'clock P.M. until 5:00 o'clock A.M. and his duties were to drive a truck making deliveries of food to various canteens operated by the Illinois Caterers in connection with the shipyards of the Chicago Bridge and Iron Company. Shortly after midnight on February 11, 1944, while Betzer was making a delivery to one of the canteens he backed his truck and ran into another car. In attempting to stop the truck, his right foot slipped off the brake pedal and he sustained a scratch and bruise on the outside of his right ankle. The injury did not appear to be severe at that time and no report of the accident was made to the employer. Betzer discontinued his employment on the same day. About four days later Betzer noticed that the scratch was sore, and a few days later his mother began to administer home remedies. On March 3, 1944, he went to a doctor. His condition became worse and on March 7, 1944, he entered a hospital for treatment and remained there until March 26, 1944. Subsequently, he re-entered the hospital, on two occasions, for treatment. His condition was diagnosed as traumatic osteomyelitis, and it was necessary to have several operations performed on his leg in order to secure proper drainage of the infected area. The medical testimony indicates that he has sustained a permanent injury and that the leg will be somewhat smaller because of a chronic infection, may never be as strong as the other leg and may cause him to limp for the rest of his life.

Paul H. Ferguson was appointed guardian of the estate of Betzer on June 17, 1943, but he had no knowledge of his ward's injury until about March 15, 1944. On March 20, 1944, Ferguson sent a notice of claim under the Workmen's Compensation Act, by registered mail, to the Chicago Bridge and Iron Company. On April 18, 1944, a representative of the Globe Insurance Company called at Ferguson's office and informed him that his company was the insurance carrier for Illinois Caterers and had received the notice of claim for injuries which had been directed to the Chicago Bridge and Iron Company. This was the first knowledge that Ferguson had that the employer actually was the Illinois Caterers instead of the Chicago Bridge and Iron Company. The insurance company representative called on Betzer at the hospital in order to get more details of the injury. On August 16, 1944, an application for adjustment of claim was filed with the Industrial Commission by Ferguson. A hearing was had before an arbitrator who denied the claim on the ground that notice of the injury was not given to the employer by either the minor or his guardian within 30 days, as required by section 24 of the Workmen's Compensation Act. This decision was sustained by the Industrial Commission and by the circuit court. The question in the case is whether a minor is bound by the compensation act requiring that the employee give notice of the accident to his employer within 30 days after the same occurs.

Counsel for the plaintiff in error argue that a minor is under a legal disability which prevents him from prosecuting a legal proceeding in his own name and that, therefore, he is not subject to the provisions of section 24 of the Workmen's Compensation Act, which establishes a limitation upon the right of employees to claim compensation unless due and proper notice of the accident has been furnished the employer. Ill.Rev.Stat.1945, chap. 48, par. 161. Counsel for the employer contend that under section 5 of the Workmen's Compensation Act a minor employee must be considered the same as an adult, since under that section he has been given the power to contract, receive payments and give quittances therefor, the same as an adult. Ill.Rev.Stat.1945, cahp. 48, par. 142.

Section 5 of the act provides: ‘The term ‘employee’ as used in this Act, shall be construed to mean: * * * Every...