Hilberg v. Indus. Comm'n

• Decision Date: 17 September 1942
• Docket Number: No. 26566.,26566.
• Citation: 43 N.E.2d 671,380 Ill. 102
• Parties: HILBERG v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

380 Ill. 102

43 N.E.2d 671

HILBERG

v.INDUSTRIAL COMMISSION et al.

No. 26566.

Supreme Court of Illinois.

May 13, 1942.

As Modified on Denial of Rehearing Sept. 17, 1942.

Error to Circuit Court, Cook County; John Prystalski, Judge.

Proceedings under the Workmen's Compensation Act by Martha Hilberg, claimant, against the Industrial Commission and others and C. A. Realty Company and others for compensation for the death of claimant's husband, Charles Hilberg. To review a judgment of the circuit court confirming the action of the Industrial Commission dismissing the application, claimant brings error.

Affirmed.Joseph A. Ricker, of Chicago (G. A. Buresh, of Chicago, of counsel), for plaintiff in error.

McKenna & Harris, of Chicago (James J. McKenna and James I. Holicky, both of Chicago, of counsel), for defendants in error.

GUNN, Justice.

Charles Hilberg, husband of plaintiff in error, sustained an accidental injury arising out of and in the course of his employment April 27, 1937. Notice of accident and claim for compensation were duly made and an award entered, and January 27, 1938, a lump sum settlement agreed upon, which said lump sum was paid February 2, 1938. Hilberg died October 26, 1939, and it is claimed the death resulted from the accidental injury received April 27, 1937. November 4, 1939, plaintiff in error, widow of the deceased, filed her application for compensation on account of the death of her husband. The Industrial Commission confirmed the decision of the arbitrator dismissing the application and the circuit court of Cook county confirmed the action of the commission. A writ of error to the circuit court was allowed.

The law with respect to employees' compensation was amended in several respects by the act of July 24, 1939, including section 24, which makes provision for limitation within which time a proceeding may be brought for compensation under the statute. Under the laws prior to the amendment, section 24 of the Compensation Act, Ill.Rev.Stat.1937, chap. 48, par. 161, authorized the filing of a petition for compensation within one year after the date of injury, and in the case of death this was construed to mean within one year after the date of the death of such person caused by accidental means. Burke v. Industrial Comm., 368 Ill. 554, 15 N.E.2d 305, 119 A.L.R. 1152. The amendment of section 24 of the statute in 1939 changed the limitation within which to make application for compensation in case of death. After making provision for the giving of notice to the employer the section provides: ‘Notice of the accident shall give the approximate date and place of the accident, if known, and may be given orally or in writing; * * * Provided, that in any case, unless application for compensation is filed with the Industrial Commission within one year after the date of the accident, where no compensation has been paid, or within one year after the date of the last payment of compensation, where any has been paid, the right to file such application shall be barred; Provided, further, that if the accidental injury results in death within said year, application for compensation for death may be filed with the Industrial Commission within one year after the date of death, but not thereafter.’ Ill.Rev.Stat.1939, chap. 48, par. 161.

This act became effective July 24, 1939, the date of approval. Board of Education v. Morgan, 316 Ill. 143, 147 N.E. 34;People ex rel. Kell v. Kramer, 328 Ill. 512, 160 N.E. 60. Hilberg died October 24, 1939. At the time the act was passed the injured man had received full settlement for his accidental injuries from his employer. At that time plaintiff in error had no claim of any kind, and might possibly never have a claim of any kind; she had no rights against the employer except the possibility that her husband would die as a result of the accident, in which event, under the construction given to the former act, an injury would occur to her at the date of his death, authorizing her to then make a claim for compensation.

The limitation of the act with respect to applying for compensation for accidental death was made more specific by the amendment of 1939. The provision ‘if the accidental injury results in death within said year’ obviously refers to the year within which application for accidental injury may be made. It then further provides that if the death results within said year application may be made within one year after death. With this interpretation the legislative intent appears twofold,-first, that death from an accidental injury must occur within the year in which application must be made for compensation by the injured employee; and second, if death did occur within such time claim for compensation for such death...