Swift & Co. v. Indus. Comm'n

• Decision Date: 05 June 1919
• Docket Number: No. 12533.,12533.
• Citation: 288 Ill. 132,123 N.E. 267
• Court: Illinois Supreme Court
• Parties: SWIFT & CO. v. INDUSTRIAL COMMISSION et al.

288 Ill. 132

123 N.E. 267

SWIFT & CO.

v.INDUSTRIAL COMMISSION et al.

No. 12533.

Supreme Court of Illinois.

April 15, 1919.

Rehearing Denied June 5, 1919.

Error to Circuit Court, Cook County; Oscar M. Torrison, Judge.

Proceeding under the Workmen's Compensation Act by Beatrice Kucinski, administratrix, against Swift & Co., employer. Award was made by the Industrial Commission, and from a judgment affirming the award, after striking from the same a certain sum awarded for medical services, the employer brings error, and the administratrix, defendant in error, assigns cross-errors. Affirmed.

T. M. Coen, of Chicago, for plaintiff in error.

Charles W. Lamborn, of Chicago, for defendants in error.

STONE, J.

The circuit court of Cook county affirmed the award of the Industrial Commission in favor of the defendant in error, Beatrice Kucinski, administratrix of the estate of Tony Kucinski, deceased, for injuries received by him while in the employ of the plaintiff in error, and from which it is claimed he subsequently died.

Tony Kucinski was at the time of his death 28 years of age, and for a number of years, with short intervals of absence, was in the employ of the plaintiff in error. His last employment was for about one year. It appears from the evidence that the alleged accident occurred on or about September 10, 1915. While the deceased was pushing a truck loaded with boxes and cases he slipped and fell, and some of the cases fell upon him, striking him in the region of the back and hip. It appears that he left the employment of the plaintiff in error about 4 weeks after the injury. For a time after that he was able to be about and walk with the aid of a cane and had some medical treatment. On December 27th following he was taken to the Michael Rees Hospital, where upon examination his hip was found to be infected with incipient tuberculosis, and an operation was performed for the removal of an abscess. On February 24, 1916, a more advanced tubercular hip condition was found. Thereafter it was discovered that his lungs were tubercular. About May of the same year he was taken to the Cook County Hospital, and died the following August of pulmonary tuberculosis. Application for the adjustment of this claim was filed February 25, 1916. The testimony of deceased was taken in the Cook County Hospital on the 11th day of May, 1916. Beatrice Kucinski, his widow, was appointed administratrix of his estate, and appears as defendant in error here.

It appears from the evidence that prior to the injury deceased had enjoyed good health; that he had never had any trouble with his hip or leg and had never limped or suffered from rheumatism. The testimony of attending physicians tends to show that the appearance of tubercular infection at the hip was caused by the blow received by the deceased in the accident in question, and that the infection later spread to his lungs, causing death. It does not appear to be urged by the plaintiff in error that the accident was not the cause of death.

The commission found as a fact that both the deceased and the respondent were working under and subject to the Workmen's Compensation Act of Illinois (Hurd's Rev. St. 1917, c. 48, §§ 126-152i) that the deceased did on the 10th day of September sustain an accidental injury which arose out of and in the course of the employment; that the respondent had notice of the accident, and that claim was made within the time prescribed by law; that the deceased died as a result of the accidental injury; that respondent is liable for hospital and medical services to the amount of $150, in addition to compensation of $6.50 per week for a period of 416 weeks. The circuit court affirmed the award after striking from the same the sum of $150 awarded for medical services.

It is contended by the plaintiff in error that no notice was given of the alleged accident within 30 days thereafter, as required by the Compensation Act; that, since the deceased is survived by a widow and a minor child, it is error to award compensation to the administratrix of the estate of the deceased, such right to compensation being an independent right vested in the dependants of the deceased; that, the commission having held compensation was due to the representative of the estate, it was error to refuse to determine the relative interests of the surviving dependents in such and to apportion the same between the dependents upon demand and request of plaintiff in error on the hearing before the Industrial Commission. Cross-errors are assigned by the defendant in error averring that the court erred in striking from the award of the Industrial Commission the sum of $150 for medical services.

Concerning the contention of plaintiff in error that no notice of the injury was given, as required by section 24 of the Workmen's Compensation Act, the record shows that the deceased testified concerning the manner of his injury, and that immediately after the injury he told Joe Lukidc, a foreman of plaintiff in error, that he had been injured and how it happened; that he was sent to the company doctor, who examined his hip, applied medicine of some sort, and told him that he would be all right by the next day; that he returned to work, but that the pain increased for 3 or 4 weeks, at the end of which time he told Lukidc that his hip hurt him so much that unless he could get easier work he would have to quit; and that Lukidc told him there was no other job for him and that he should go home and stay there until he was ready to come back. Section 24 of the Workmen's Compensation Act provides, among other things, that notice of the injury shall be given within 30 days, with certain exceptions, and further provides ‘that the failure on the part of any person entitled to such compensation to give such notice shall not relieve the employer from his liability for such compensation, when the facts and circumstances of such accident are known to such employer, his agent or vice principal in the enterprise.’ The commission found that notice of the injury was, in fact, given as required by statute. There is evidence in the record tending to prove that deceased notified Lukidc, who the deceased testified was plaintiff in error's foreman, of the injury shortly after its occurrence. While it is earnestly urged that Lukidc was not a foreman of the plaintiff in error, it is not the province of this court to weigh the testimony on that point. As has been repeatedly held by this court, where there is competent evidence before the commission fairly tending to prove a fact, the finding of that fact by the commission precludes its review here. Smith-Lohr Coal Co. v. Industrial Com., 286 Ill. 34, 121 N. E. 231;Big Muddy Coal Co. v. Industrial Board, 279 Ill. 235, 116 N. E. 662;Albaugh-Dover Co. v. Industrial Board, 278 Ill. 179, 115 N. E. 834. As the foreman was the agent of the plaintiff in error, it follows that section 24, regarding notice, has been complied with. Wabash Railway Co. v. Industrial Com., 286 Ill. 194, 121 N. E. 569;Parker-Washington Co. v. Industrial Board, 274 Ill. 498, 113 N. E. 976.

Plaintiff in error's second contention is that the court erred in affirming an award of compensation to the administratrix while the evidence shows that the widow and a child survived; that, while compensation for disability prior to death is payable to the administrator, compensation on account of deaty is payable to the dependents; that it was not only the duty of the commission to award the compensation to the dependents, but it was incumbent upon it to apportion the compensation between the widow and child.

Section 7 of the Compensation Act, as amended in 1915, provides as follows:

‘The amount of compensation which shall be paid for an injury to the employé resulting in death shall be: (a) If the employé leaves any widow, child or children whom he was under legal obligation to support at the time of his injury, a sum equal to four times the average annual earnings of the employé, but not less in any event than one thousand six hundred fifty dollars and not more in any event than three thousand five hundred dollars. Any compensation payments other than necessary medical, surgical or hospital fees or services shall be deducted in ascertaining the amount payable on death.’

Paragraph (f) of said section 7 provides as follows:

‘The compensation to be paid for injury which results in death, as provided in this section, shall be paid at the option of the employer either to the personal representative of the deceased employé or to his beneficiaries,...