Lewis v. Indus. Comm'n

• Decision Date: 03 October 1934
• Docket Number: No. 22278.,22278.
• Citation: 357 Ill. 309,192 N.E. 212
• Parties: LEWIS v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

357 Ill. 309

192 N.E. 212

LEWIS

v.INDUSTRIAL COMMISSION et al.

No. 22278.

Supreme Court of Illinois.

June 15, 1934.

Rehearing Denied Oct. 3, 1934.

Error to Circuit Court, De Kalb County; William J. Fulton, Judge.

Proceeding under the Workmen's Compensation Act by Florence Lewis for the death of Albro G. Lewis, her husband, claimant, opposed by the De Kalb County Telephone Company and another, employers. A decision of the Industrial Commission setting aside an award of compensation by an arbitrator was confirmed by the circuit court, and the claimant brings error.

Affirmed.

Poust, Fisk & Moudry, of Sycamore (Cassius Poust, of Sycamore, and John K. Newhall, of Aurora, of counsel), for plaintiff in error.

Thomas H. Murray, of Chicago, and Smith & Brower, of Sycamore, for defendants in error.

DE YOUNG, Justice.

Florence Lewis, in an application filed with the Industrial Commission, charged that Albro G. Lewis, her husband, suffered an accidental injury while he was employed by the De Kalb County Telephone Company; that the injury was caused by a fall from a telephone pole and that it resulted in Lewis' death. The applicant asked the adjustment of compensation for the injury. The arbitrator awarded her $3,750. The Industrial Commission, on review, found that although notice of the accident had been given, no claim for compensation, as required by the Workmen's Compensation Act, had been made, and the award was set aside. The circuit court of De Kalb county remanded the cause to the commission. Additional evidence was introduced, but the commission again found that no claim for compensation had been made. The commission also made findings that the employer had furnished first aid, medical and surgical services in part, and that it had paid Lewis' wages to the time of his death. The circuit court confirmed this decision of the Industrial Commission on September 11, 1933. Thereafter, upon the applicant's petition, this court granted a writ of error, and the record is submitted for a further review.

Albro G. Lewis was employed as a lineman by the De Kalb County Telephone Company. On August 11, 1925, while regularly engaged in the performance of his duties, he fell from a tree to the ground, a distance of approximately ten feet. He continued to work until December 20, 1925, when he became ill. His illness was diagnosed as spinal meningitis and he died on January 27, 1926. Three months later, on April 27, 1926, his widow filed her application for the adjustment of compensation with the Industrial Commission.

Florence Lewis, the plaintiff in error, testified that in compliance with her husband's requests, on December 30, 1925, and January 15, 1926, she sought payment of his wages from Harry A. Joslin, the general manager of the De Kalb County Telephone Company, the predecessor of the De Kalb-Ogle Telephone Company, the other defendant in error. On each occasion she received the sum paid to her husband on the 1st and 15th days of each month. Three days after Lewis' death, the employer paid the remainder of his wages for the month of January, 1926, to the plaintiff in error. Joslin testified that three sums, one for $57.50 and two for $60 each, were paid to the wife; that these sums, the last two following a general increase, constituted Lewis' wages, payable semimonthly; that it was customary to pay employees during absences from their duties if they were hired by the month, or had been employed for a considerable period of time or were deemed worthy, as Lewis was; that his name remained on the regular pay roll; and that the plaintiff in error signed the pay roll upon the receipt of each of the three payments. No receipt for, or statement of, the sums so paid to her was filed with the Industrial Commission.

Dr. Rodney A. Wright testified that on December 20 or 21, 1925, he was called to treat Lewis; that he sent him to a hospital where he found him afflicted with meningitis and that he treated him for that disease; that about January 3, 1926, J. C. Joslin, an officer of the De Kalb County Telephone Company called at his office and inquired about Lewis' condition; that he was assured proper care and attention were given him; and that, while the witness had no clear recollection of the conversation, the effect of what Joslin said was that the telephone company would pay the bills incurred for the care of Lewis. The doctor continued to treat his patient as before. He did not remember whether he had sent a bill for his services, but he added that he had not been paid.

The sole issue presented is whether a claim for compensation was made in conformity with the provisions of the Workmen's Compensation Act. To determine this question, a review of the pertinent provisions of that act, as it stood when the accident occurred, is necessary.

Section 24 of the Workmen's Compensation Act (Smith-Hurd Rev. St. 1925, c. 48, § 161; Cahill's Rev. St. 1925, c. 48, par. 224) declares that no proceeding for compensation shall be maintained unless claim has been made within six months after the accident, or, in the event that payments have been made under the provisions of the act, unless written claim has been made within six months after such payments have ceased and a receipt therefor or a statement of the amount of compensation paid shall have been filed with the commission. The section concludes with the proviso that, in any case, unless written claim for compensation is filed within one year after the date of the injury or within one year after the date of the last payment of compensation, the right to file an application therefor shall be barred. Subdivision (a) of section 8 (Smith-Hurd Rev. St. 1925, c. 48, § 145(a) provides that the furnishing by an...