Fico v. Indus. Comm'n

• Decision Date: 22 June 1933
• Docket Number: No. 21794.,21794.
• Citation: 353 Ill. 74,186 N.E. 605
• Parties: FICO v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

353 Ill. 74

186 N.E. 605

FICO

v.INDUSTRIAL COMMISSION et al.

No. 21794.

Supreme Court of Illinois.

June 22, 1933.

Error to Circuit Court, Cook County; Martin H. Finneran, Judge.

Proceedings under the Workmen's Compensation Act by Cuono Fico, opposed by Michele Bottigliero. Compensation was awarded by an arbitrator, and the award was confirmed by the Industrial Commission, and, to review a judgment entered upon the award, the employer brings error.

Reversed.

Kern, Stiefel & Stiefel, of Chicago (Jacob J. Kern and Charles W. Stiefel, Jr., both of Chicago, of counsel), for plaintiff in error.

Louis L. Lettiere, of Chicago (Morris J. Drezner, of Chicago, of counsel), for defendant in error.

ORR, Chief Justice.

On petition of Michele Bottigliero, plaintiff in error, a writ of error was awarded by this court to review the proceedings of the circuit court of Cook county wherein a judgment was entered on December 27, 1932, against Bottigliero and in favor of Cuono Fico, defendant in error, under the provisions of the Workmen's Compensation Act of this state (Smith-Hurd Rev. St. 1929, c. 48, § 138 et seq.) A previous application of Fico for judgment on the same award against the same respondent had been refused by the same court on May 9, 1930.

Fico suffered a foot injury by accidental means on June 22, 1929, while painting windows on property alleged to have been owned by Bottigliero in Chicago. He was employed to do this work about June 15, 1929, by Mrs. Rosalind Quaranto, a daughter of Bottigliero. Her husband, Samuel Quaranto, paid him $7 a day for his work, and also drew the sum of $87.50 out of his own bank account for Fico's doctor's and hospital bills and as ‘payment in full for work done and for all or any claims I may have,’ Fico declaring himself ‘satisfied with such payment’ in a written receipt signed by him, which also added, ‘and further, I absolve of any responsibility the said Mr. Quaranta for any consequence due to the accident which occurred to me while doing work for him as the legal representative of Mr. Bottigliero.’ An award of compensation for 20 per cent. permanent injury to his right foot, amounting to $688, was entered by the arbitrator in favor of Fico on October 10, 1929.

At the beginning of the hearing before the arbitrator, and before any evidence was heard, an attorney appeared specially ‘for the purpose of making a motion to dismiss, on the ground of there being no service on Michele Bottigliero, either personally or constructive, and that this commission has no jurisdiction of Michele Bottigliero.’ The motionwas based principally on the undisputed fact that Bottigliero left Chicago in May, 1929, and was in Italy at the time Fico was employed, June 15, and at the time of his injury, June 22, 1929. Bottigliero had not returned to this country at the time of the hearing in October, 1929, and claimed he had never authorized his daughter or any other person to hire Fico and had received no notice of the accident or of the claim for compensation. The arbitrator overruled the motion and proceeded to hear the evidence, with the result above stated, and his award was confirmed by the Industrial Commission on February 6, 1930. Subsequently the attorney for Fico gave notice to the attorney who had appeared specially before the commission for Bottigliero, that he expected to apply to the circuit court on April 11, 1930, for judgment on the award, and on April 17, 1930, leave was granted by the court to Bottigliero's attorneys to file his special and limited appearance, again challenging the jurisdiction of the court and the Industrial Commission to enter such a judgment. On May 9, 1930, Judge Harry W. McEwen, to whom the case had been assigned, refused to enter judgment on the award in Fico's favor in the following order: ‘This cause coming on to be heard on petitioner's motion to enter judgment on award herein, after arguments of counsel and due deliberation by the court said motion is denied.’ Over three months later the attorney for Fico again filed certified copies of the arbitrator's award and decision of the Industrial Commission in the circuit court and notified one of the attorneys for Bottigliero that he would again appear in that court on August 29, 1930, and ask for judgment on the award. No further action was taken in the case until over two years later, when the cause came up for hearing before Judge Martin H. Finneran on December 24, 1932. At that time leave was asked to file a special appearance in behalf of Bottigliero for the sole purpose of questioning the jurisdiction of the court to enter judgment on the award alleged to have been improperly made without jurisdiction...