Trigg v. Indus. Comm'n

• Decision Date: 10 December 1936
• Docket Number: No. 23744.,23744.
• Citation: 5 N.E.2d 394,364 Ill. 581
• Parties: TRIGG v. INDUSTRIAL COMMISSION et al.
• Court: Illinois Supreme Court

364 Ill. 581

5 N.E.2d 394

TRIGG

v.INDUSTRIAL COMMISSION et al.

No. 23744.

Supreme Court of Illinois.

Dec. 10, 1936.

Error to Circuit Court, Kane County; Max F. Allaben, Judge.

Proceeding under the Workmen's Compensation Act by Mary Jane Trigg seeking the balance of an award which would have been paid to Amy G. Trigg, petitioner's mother, for the death of her husband. To review an order of the circuit court approving the Industrial Commission's denial of the petition, the petitioner brings error.

Order affirmed.Robert J. Wing and Arthur L. Puklin, both of Aurora, for plaintiff in error.

Wendell H. Shanner, of Chicago (Charles V. Laughlin, of Chicago, of counsel), for defendants in error.

HERRICK, Chief Justice.

The issue here is whether the Industrial Commission in a proceeding where the commission has found that the widow was the sole dependent at the time of the injury to and death of the workman and has ordered the award paid to her for her use, has jurisdiction, upon her remarriage, to review the finding as to the dependency and order the balance of the compensation paid to a child of the deceased who was a minor at the time of her father's injury and death.

On September 30, 1932, Osborne Trigg, while in the employ of the county of Kane, suffered an accidental injury arising out of and in the course of his employment. He died as the result of such injury. He left surviving him his widow, Amy G. Trigg, and his daughter, Mary Jane Trigg. She became eighteen years of age on December 24, 1932. On March 4, 1933, a petition for an award was filed with the Industrial Commission (hereinafter called the commission). In the title of the application both the widow and daughter were named as petitioners, but the widow alone signed the application. The petition state, ‘the deceased left him surviving a widow, Amy G. Trigg, and a child, Mary Jane Trigg, * * * whom he was under legal obligation to support.’ On May 19, 1933, the arbitrator made his order allowing compensation in the sum of $15 per week for 266 weeks and one week at $10. The order stated, among other things, ‘that the injuries sustained caused the death of said Osborne Trigg, who left him surviving his widow, Amy G. Trigg, sole dependent whom he was under legal obligation to support at the time of his injury and death. This award shall be paid to the said Amy G. Trigg for the use and benefit of herself. This award is subject to the further order of this commission.’ The respondent took the record to the commission, where, on January 18, 1934, it was affirmed. Its action was later confirmed by the circuit court of Kane county. Amy G. Trigg remarried February 11, 1934. Installments due to that date had been paid her. On March 22, 1935, Mary Jane Trigg filed her petition with the commission asking that the balance of the award which would have been paid to Amy G. Trigg but for her remarriage be paid to the petitioner. The commission denied the petition. Its action was approved by the circuit court of Kane county. The petitioner brings the cause here on writ of error.

The petitioner's attacks upon the correctness of the holding of the trial court may be grouped as follows: (1) Subdivision (g) of section 7 of the Workmen's Compensation Act (Smith-Hurd Ill.Stats. c. 48, § 144(g); Ill.Rev.Stat.1935, chap. 48, par. 207, p. 1593) permits a subsequent order by the commission modifying an award with reference to the person to whom it may be paid, and (2) the arbitrator by his order reserved jurisdiction in the commission, and thereby it had jurisdiction to modify or alter the order whenever it saw fit.

The petitioner urges that she was not a party to the original proceeding instituted before the commission. The record shows that she was of age and mentally competent at the time of the hearing before the arbitrator. She testified as a witness on behalf of her mother and was represented at that hearing by her attorney. She was named as a petitioner in the pleading filed, and although she did not sign it, yet this was notice to the respondents and the commission that she was making a claim for compensation. No formal proceedings are required in an application for adjustment of compensation. The petitioner was a party to the proceeding as completely as though she had subscribed her name to the petition for the allowance of compensation. Benton Coal Mining Co. v. Industrial Comm., 321 Ill. 208, 151 N.E. 520;Turner v. Jenkins, 79 Ill. 228.

One of the issues necessarily presented to the arbitrator was what person or persons constituted the dependents of the deceased as his next of kin. The arbitrator made a finding that the widow was the sole dependant. That finding was approved by the commission and later by the judgment of the circuit court having jurisdiction of the cause. By the terms of subdivision (a) of section 7 of the Workmen's Compensation Act (Smith-Hurd Ill.Stats. c. 48, § 144(a), the award to the widow abated upon her remarriage.

The findings of the commission are in a sense akin to judicial proceedings. Nega v. Chicago Railways Co., 317 Ill. 482, 148 N.E. 250, 39 A.L.R. 1057.Lewin Metals Corp. v. Industrial Comm., 360 Ill. 371, 196 N.E. 482, presented a case where the employee made his application for compensation. The arbitrator found the applicant's disability was not the result of an accident which arose out of and in the course of his employment. No attempt was made by the applicant to review that finding. It therefore, under the statute, became the finding of the Industrial Commission. Later the employee died. His widow filed an application for compensation, asserting that her husband received an injury in the course of and arising out of his employment which caused his death. The injury alleged was the same purported injury which had been the basis of the claim made by decedent in his lifetime. That proceeding involved the construction of subdivision (j) of section 19 of the act (Smith-Hurd Ill.Stats. c. 48, § 156(j). We there held that the decision of the commission was final and conclusive and could not later be reviewed by it upon the widow's petition. Cases from other jurisdictions which hold that the doctrine of res adjudicata applies to the awards of Industrial Commissions the same as to judgments at law are: Chicago, Rock Island & Pacific Railroad Co. v. Schendel, 270 U.S. 611,43 S.Ct. 420,70 L.Ed. 757, 53 A.L.R. 1265;Kalinick v. Collins Co., 116 Conn. 1, 163 A. 460;Pruitte v. Ocean Accident & Guarantee Corp. (Tex.Civ.App.) 40 S.W.(2d) 254;Ocean Accident & Guarantee Corp. v. Pruitt (Tex.Com.App.) 58 S.W.(2d) 41;Karny v. Northwestern Malleable Iron Co., 160 Wis. 316, 151 N.W. 786;Hurst v. Independent Const. Co., 136 Kan. 583, 16 P.(2d) 540;United States Fidelity & Guaranty Co. v. Industrial Comm., 42 Ariz. 422, 26 P.(2d) 1012;Reinhart & Donovan v. Dean, 160 Okl. 116, 16 P.(2d) 85.

It is urged, however, by the petitioner, that the finding of the Industrial Commission is not res adjudicata. This contention is based upon two major premises: (1) That section 7(g) vests a continuing jurisdiction of the cause in the commission; and (2) that by the terms of the order of the arbitrator and commission jurisdiction of the case was reserved to the commission to make such further orders therein as it might deem proper.

The first paragraph of section 7(g) (Smith-Hurd Ill.Stats. c. 48, § 144(g), par. 1; Ill.Rev.Stat.1935, chap. 48, par. 207, p. 1593) that is pertinent here is as follows: ‘The compensation to be paid for injury which results in death, as provided in this section, shall be paid to the persons who form the basis for determining the amount of compensation to be paid by the employer, the respective...