*1 (No. 19319. Foundry
Thе American Car and Company, Plaintiff in Error, vs. et Commission al.—(Marie Hub Defendant in Error.) ka,
Opinion June filed 1929. *2 & Oeiimke, C. (William Wheeler Dunham, for in counsel,) error. plaintiff
Wesley Lueders, W. for Grieeith, counsel,) (R. defendant in error.
Mr. this reported opinion: Commissioner Partlow A for the Indus- was filed with trial Commission for the death of on account Kupka Joe of injuries received in the error, plant plaintiff American Car and at Illinois. Foundry Madison, Company, thе arbitrator held that the Upon hearing petitioner In- entitled to This was affirmed compensation. dustrial court of Madison county Commission. circuit set aside the in favor of the and made a finding finding court case comes petitioner $3750, a writ of error. the name of
The deceased was under employed Joe alias, He no name and had no was known other Kupka. he day as far as was known. On May error he tоld injured, agent plaintiff employment the record of that he was a man, single although shows that at the time he was piade error employed *3 injuries for his He was married. was paid compensation man, death, and after his the that he was a single on theory for funeral in error 4, paid on October 1923, plaintiff $150 act. March in On the Compensation as provided expenses, was filed with the for compensation 19, 1924, pеtition in the of Marie name Kupka, Commission re- children, who widow, and Tom and Orsula Kupka, in their names by Wesley It was side in Poland. signed Plaintiff in error claims that attorney. as their Lueders it claim made the first and only was this application at the February hearing On for compensation. were not but present before the arbitrator petitioners their Pie claimed to be attorney. and appeared Lueders out the nаmes striking leave to amend petition asked Marie as petitioners, leaving Tom and Kupka Orsula He stated that Marie Hubka as the sole petitioner. Hubka Plaintiff in error objected Marie Kupka. an alias for that the claim was grounds to the amendment upon on affect founded and the amendment would petition the whole that action for benefit proceeding; persons must, outside of the under living United States statute, be and maintained brought personal repre- sentative of the were deceased The objections employee. and the overruled was amended. petition It that error in stipulated ICupka plaintiff Joe were under the act at the time of operating Compensation which in em- arose out of and the course of his injury, that his ployment; weekly that average wage $19.08; he was paid $39.60, and compensation amounting after his on death, 4, 1923, October error plaintiff paid for funeral expenses. $150
On the question to file the Lueders he that after the petition, testified death of he re- ICupka ceived a letter Polish consul in Chicago asking him to which letter was investigate death, lost. Ob- jection was to the made and sustained contents of the letter foundation, on the was not ground sufficient laid for the introduction of He testified that secondary some proof. weeks after this letter he went receiving Chicago had an the consul, interview with reported result of his He to tell started what the investigation. consul advised him to but do, objection was made and on the sustained not in conversation was ground He presence error. testified instructions of the consul he filed the for compen- sation in the name of beneficiaries made arrange- ments to secure a them. An ob- attorney from jection was sustained this statement. *4 a offered in evidence
Lueders dated power attorney and the three April 7, 1924, signed by original petitioners, the consul Po- general appointed republic land in attorney in as their “to Chicago fact, our manage affairs transact and all business of whatever kind soever in or
which we are be interested as may concerned, fully or all to intents and as if in ourselves there purposes present * * * do. could To defend and prosecute, pro- tect our in all matters wherein we inbe rights may concerned as defendant otherwise, manner or plaintiff, * * * and all that said at- hereby ratifying confirming his substitute shall do or cause torney lawfully to thereof.” Plaintiff in error objected done virtue there that was no proof ground a executed who was claimant by anyone it was that was overruled. case, objection but Marie Hubka was offered in evidence, The deposition that was the testified she wife of legal in which she Joseph that after her alias Hubka, Kuplca; marriage Joseph she was divorced Hubka, alias never Joseph Kuplca, Joseph her else; married that hus- anyone from him and never America and twenty-two years her for she agо band left that she had letters since; not him received from had seen that time times each since but the year him three or four that could one en- only letters been she lost; produce had her husband re- it; not that she did produce but velope, that last time she heard Illinois; sided some place and she learned in November from him was in September he her from America sent dur- money his that death; even each timеs, more, year. or five his lifetime four ing that claim for error by plaintiff It is contended statute, that required by not made as court was authorized by of the circuit the judgment as not sufficient filed law; the petition that Lueders to make was not authorized claim because statutory authority directly not have any that he did claim; claim to have and did not such beneficiaries the supposed (cid:127)his of his evidence only authority; him between Polish took to what place testimony evidence was that this incompetent in Chicago; consul his letter from the his statement authority; show
327 been lost warrant evidence consul had did not parol Polish was said between of the contents of and what letter, him and the consul not in the being presence there is no error was and that therefore incompetent; to make competent was authоrized proof Lueders claim for such and without compensation, proof appli- cant must fail. It is also insisted that the of attor- ney admitted evidence. improperly
The aof claim for within six making compensation after months or death jurisdictional is and is a injury condition to to maintain the precedent right proceeding. This failure to make the demand is not waived a failure by make objection an on thе before the hearing arbitrator, before Industrial or Commission .circuit court. Coal Co. v. Com. Ill. In (Ridge cases 532.) 298 of this kind the rules with reference to the admission of evidence and the burden are the same as in com proof mon law actions for injuries. Rubber personal Co. (Inland v. Industrial Com. Ill. Before the 43.) claimant can 309 recover he must a establish, by the com preponderance evidence, all facts рetent an necessary award. justify Merritt v. Industrial Com. Ill. 160. 322
In Northwestern Malt Co. v. Industrial Com. Ill. beneficiaries lived outside of the United States were an begun by administrator. proceedings There was no proof party filing had from the children or the widow, administrator to represent It them. was held that the claim for must compensation be made entitled to the by or party or 'by some authorized as through person" agent attorney, and that a demand made one who is by a volunteer purely not such a as demand can as recognized and bind legal who is to ing employer pay compensation.
In Neenan v. Industrial Com. Ill. 48, an attorney demand made a compensation. claimant lived in and the was not foreign country attorney expressly au- the claimant to This court claim. by present thorized that the claim to be six months, held made within required is sufficient when by statute, section provided '24 made time, within required although the claimant in á coun- attorney, foreign because lives was not try, authorized the claimant pre- expressly sent the claim the action of the at- so, before did where *6 the claimant, is ratified the ratification torney by though was not until after the six months had expired received the and after before the arbitrator. hearing In Co. Matwiczuk American Cаr and Foundry v. N. made W. the claim or demand was (Mich.) 412, by an the widow, at the instance of a of attorney brother who resided of attor in Poland. executed a power She her to which did not reach the brother until ney brother, after the for of the six months’ expiration making period the claim. The affirmed Court Michigan Supreme notice to award and held that although attorney gave of the and death of the deceased and accident company her or made the for the widow without knowledge demand rati because such notice and demand were legal authority, attor fied the execution widow by by power for the brother in her. acting the acts of authorizing ney of the board the The court said: “In the opinion provi- law to claims making relative sion of Compensation construed, and not be technically should for compensation employer the communication which sent it of the fact to fairly in the case was sufficient apprise of the de- for the death was claimed that compensation function essential performed cedent. under law is to this injury bring of the claim for
notice time within six months after at some to the employer, home for com- of the fact that a claim accident, knowledge This case was cited asserted.” therefor is being pensation Neenan v. Com. with court approval supra. 400, N. W. Co. 186 Casualty Kottari v. Iron Empire
In claim, an filed a attorney of the death employee upon lived who widow, authority without apparently of attor on, widow sent in Finland. Later the authority in Michigan disputing to another ney party in her This the claim behalf. who filed attorney time for claim after the making arrived attorney po-yver set Stat up and thereupon company had expired, held that the The court as a defense. ute of Limitations sufficient and claim of the unauthorized allowed. claim was it one, is said: “If 919,)
In R. C. (sec. p. L. for or in the does an act himself, to act assuming act authority an name of another assumption even without latter, though prece agent in whose name the act was if the whatever, dent what has been ratified adopted performed subsequently back and ratification relates supplies then the done, the act.” This court recognized to do original Vandolah, 62 Ill. v. this rule of law Hefner *7 authority. Story cited Agency It
It that a ratification be necessary express. inferred circumstances or be from ac bemay by proved v. City Chicago, after ratification. (Connett quiescence of it “A for In 2 is said: Juris, Ill. Corpus 1307, 233.) has authority, general right withоut consul, specific eign of of his na the rights persons to property protect and he consulate, may of his jurisdiction within tionals any authority for such without special purpose suit bring Ljubich in interest.” In v. Western Coop parties in the an instituted suit attorney Pac. Co. erage of to recover Austria-Hungary damages resident name of a The act. Liability attorneys under Oregon Employer’s motion to require filed a the dеfendant plaintiff’s The authority. his for the attorney to attorney produce that the suit affidavit, alleged filed had been instituted to pursuant instructions from the con- sul general The representing Austria-Hungary. question at issue was the of the consul right to authorize an general action to be in the commenced name of a national without express from the authority named as plaintiff, it was held that he became in fact fоr attorney ex-officio of his non-resident nationals no other having repre- sentative in this In v. country. Vujic Youngstown Sheet and Tube Co. 220 Fed. it was held that a con- foreign sul had virtue of his authority, by office, to suit in bring the name of a widow who was a resident Austria- and that the consul Hungary, to receive the qualified of the sum payment awarded without a of attorney. power Under these authorities consul general Chicago had to this suit. After the begin petition filed the executed a beneficiary power appoint- the consul to her in all with ing general matters represent reference her There is merit in the no con- property. tention that the authorized attorney only acts power be done in the future. It not only authorized acts to be done in the but future, its execution the by rati- beneficiary fied whatever acts had been done to its execution. prior The made a which was beneficiary admitted in deposition and this was a sufficient ratification her evidence, by the acts of her was filed within attorney. statute, the time arbitrator al- provided properly to be amended the name lowed the petition changing out names of the two widow chil- striking dren as and the beneficiaries, attorney was prop- admitted in evidence. erly
Plaintiff in error insists that circuit court in of the error in holding finding Commis- the manifest sion was evidence. contrary weight it is In of this contention evidence urged support *8 was the claim for very of and was compensation meager at that the deceased the time all of his in- incompetent; his that he lived for months after single; several jury children; and said a wife injury about nothing having that after death in er- his no information came to plaintiff rоr that there when months, was widow for almost six for the widow application filed; testified she had not seen her husband for twenty-two years; that she had had him but was not sure letters from many Marie his that evidence as to the address; identity Hubka, and her if to the is lack- any, deceased, relations, there show that the deceased was ing; nothing known other and that the of the evi- by any name, weight on the dence, of a was such particularly question demand, that the commission decision of the affirmed the rightfully arbitrator.
There is evidence that the deceased was of Polish na- tionality and that he only Polish spoke language.
records of the in error that at time he show plaintiff he was a married man. The employed testimony in error was that employment agent at the plaintiff time the deceased was he stated that he was a employed married man. The widow testified that she was the legal widow of alias that her Hubka, hus- Joseph Joseph Kupka; band had come to America and was some residing place him Illinois; she heard from several times a year; that she heard from him the last time in September heard of his death and that November; he sent her his lifetime at four or money during least five times, and more, even each year. When the were taken dеpositions it was that the of Marie stipulated alias deposition Kupka, Marie was to be Hubka, taken. The appointment court of judge county Tyczyn, Poland, as a commis- contained the statement sioner, deposition Marie alias Marie Hubka, was to be taken. Kupka, The cross- interrogatories prepared by attorneys error were headed with the caption, “Cross-interrogatories to be to Marie alias propounded Marie Kupka, Hubka.”
332 the widow contin to these cross-interrogatories
In answer her husband as referred to Joseph and ually repeatedly These answers were received alias Hubka, Kupka. Joseph in in error. Where objection evidence without plaintiff record for his his client, is counsel of agree in the conduct and ments and made manage stipulations as the ment of the must be considered agreement litigatiоn if his acts are without sufficient client, of his and the of the client, remedy him and his authority as between Rhodes, Ill. v. client is the counsel. (Bergman against 334 Aid id. Society, Benevolent v. 137; Society Hungarian 283 evidence to be in A cannot sit and permit 99.) party objec troduced without and objection urge upon appeal if at trial. obviated made tions which have been might Railroad Co. (Bartlow Quincy v. Chicago, Burlington in er Ill. The record indicates that 332.) Hubka, ror as alias deceased Joseph Joseph recognized all to the adopted and that proceeding Kupka, parties all of the facts in of the deceased. Under identity in evidence the circuit court was justified holding and that he the deceased had been established identity was the husband of the claimant. in to the whole objects
Plaintiff error proceeding lived оutside of United that ground beneficiary filed only by could be personal States is based deceased. The contention of the representative as amended act, section jg Compensation “in a case where any per- which provides at any entitled to living sons who would be compensation shall be then States, outside of the United payment place of the deceased em- made to thе representative personal such representative The distribution by personal ployee. made to such entitled shall be persons the persons shall The theory the commission order.” manner as such representative is that personal of the objection to receive any entitled compensa- deceased person repre- and therefore due, personal might tion a bring who could proceed- the only sentative therefor. ing Com. v. River Power Co.
In Mississippi sec it which yg, before section Ill. this court had of 1915, provided in the amendment tion yf which resulted for an injury to be paid either employer, death should be at option paid, of the deceased employee to the representative personal personal rep and that to his beneficiary, payment of all obligations relieve the resentative should employer *10 It- was held of such to the distribution compensation. in this mentioned that the case personal representative ex the deceased or the the administrator of was
provision that the term of his It was there insisted “per ecutor will. act, of the in section sonal as provided representative,” 19 could meant that only representative present рersonal of action for the the claim. It held that the cause law; death a unknown to common of human being sometimes that the statutes causes of action pro creating sometimes an administrator and vide for recovery by receive the but that damages, entitled to such are matters statutory regulation; provisions purely under the that the estate of a deceased person, Compensa tion no interest in the and under act, has compensation, no circumstances can of a any part compensation paid for its that the time when an administrator benefit; only action is when the so can maintain an statute and provided; act no such exclusive gives Compensation right of the statute as representative. Section personal 19 time it existed at the this case was decided is almоst iden tical statute. In National Zinc In with Co. v. present dustrial Ill. and in Neenan v. Industrial Com. Com. 292 held that an a administrator, it was an beneficiary, supra, file or an a for might agent, employer if an award was made to an adminis- compensation, trator, was to be distributed pursuant an order of the court him. appointing jg Section present statute only to the of the applies payment compen- sation, which must be to рersonal representative, does not the claim the bene- prohibit being prosecuted The when ficiary. be to the compensation, must paid, rep- of the resentative estate when In this case appointed. such would be representative administrator public when and the court not in error county appointed, in so holding.
The circuit court in its “the judgment found peti tioner have from the and recover costs of respondent this certiorari court judgment proceeding be and same In is rendered therefor.” Nierman hereby v. Industrial Com. Ill. this court held that subsection (f of section act does ) Compensation authorize the circuit to render a review, court, judgment award execution and to order directing payment a neither does that section authorize issue, judgment The costs the certiorari. circuit court au only confers, thorized to exercise the statute powers and no such is conferred. affirmed in all will be judgment respects except
to that which renders for costs of the judgment part *11 be reversed certiorari, and will judgment respect and the cause remanded. Mr. reported by
Per foregoing opinion Curiam: hereby Partlow is adopted opinion Commissioner entered in accordance therewith. court, judgment Reversed and remanded. part