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claim the benefit of the act (Conway Co. v. Industrial Board, 282 Ill. 313, 118 N. E. 705.

[3, 4] Erickson testified that the plaintiff in error was present when the accident happened, and that the next Monday Erickson went to the job and told the plaintiff in error his leg was so sore that he had to go home, and the plaintiff in error said: "You wasn't hurt on the job; you were drunk and fell over and hurt yourself." Three or four days later he telephoned to Moustgaard that his knee was acting pretty bad, and Moustgaard had better report him sick to the insurance company. Two weeks later he said he went to Moustgaard's house and asked for his compensation because he needed it; he had nothing to live on. Moustgaard was just ready to drive away, and Erickson told him he wanted to know what insurance company he had to go to and get money, because he needed it. Moustgaard told him he did not report to the insurance company and drove off. The plaintiff in error argues that Erickson's statement that he asked for his compensation because he needed it he had nothing to live on-was a mere conclusion, and that it appears that the statement does not correctly represent what he said, from his immediately stating, on being asked what he said: "I told him I want to know what insurance company I got to go to and get money, because I need it." This objection assumes that the answer in which the language quoted was used was intended as a substitute for the answer to a previous question instead of an expansion of it, as the witnees probably intended. Even apparently simple statements of fact upon analysis will frequently be found to be based upon inferences drawn from other facts which are assumed. The ownership of property, marriage, relationship, and many other conditions, are conclusions dependent upon the existence of facts out of which they arise, and yet they are usually proved by a direct statement of the ultimate conclusion. Such a statement may sometimes be incompetent if objected to, but if received without objection it cannot be disregarded as of no probative force. Whether Erickson asked for compensation depends upon the language he used, but this does not make his statement of the ultimate fact incompetent evidence. It is not destroyed by the statement that he asked about the insurance company, which he probaly supposed would have the compensation to pay.

[5] It is contended that there is no evidence of a temporary total incapacity for 133 weeks. The accident occurred April 15, 1914, and the decision of the arbitrator was rendered February 2, 1917, more than 2 years and 9 months later. Erickson testified that he tried to work several times, but was unable to. From the time he visited Dr. Paulson his knee was sore and swollen. Though it improved temporarily, the pain continued. He could not walk right. Eventually it got much worse, and the amputations which have been mentioned became necessary. Dr. Robertson, a physician at the hospital, testified that he thought Erickson could do light work in 3 or 4 months after his discharge. There was evidence of total incapacity to work for the time for which compensation was awarded.

Judgment affirmed.

SUPREME COURT OF ILLINOIS.

MEYER ET AL.

V.

INDUSTRIAL COMMISSION ET AL. (No. 12285.)*

1. MASTER AND

SERVANT-WORKMEN'S

ACT-WAIVER OF OBJECTIONS.

COMPENSATION

Where a petition for review for recurring disablility was filed with the Industrial Commission about two weeks after lapse of the period fixed for paying compensation under the original award, and the record showed due notice was given of the hearing before the board, and that the employer participated without raising the objection that the notice required by Workmen's Compensation Act, § 24, was not given, held that, though such notice was required by section 19, under which the petition was filed, the matter not having been raised before the Industrial Commission, and the employer having submitted to its jurisdiction, it cannot be raised thereafter.

(For other cases, see Master and Servant, Dec. Dig. § 419.) 2. MASTER AND

SERVANT-WORKMEN'S

ACT-WAIVER OF OBJECTIONS.

COMPENSATION

Where the employer, on petition for review of an award for recurring disability, did not raise before the Industrial Commission the objection that the claimant was suffering from a continuance of the original disability, and not a recurrence, the objection cannot be raised thereafter. (For other cases, see Master and Servant, Dec. Dig. § 419.)

Error to Circuit Court, Cook County; Oscar M. Torrison, Judge. Proceeding by Eugene Poznanski for compensation under the Workmen's Compensation Act against Paul J. Meyer and others. On petition for review of recurring disability, the Industrial Commission made an award in favor of claimant, and, the award having been affirmed on writ of certiorari sued out by Paul J. Meyer and others, the employers, they bring error. Affirmed.

J. C. M. Clow, of Chicago, for plaintiffs in error.

A. H. Ranes and Corinne L. Rice, both of Chicago, for defendant in

error.

CARTER, J. This was a proceeding under the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, §§ 126-152i), asking for an award on behalf of defendant in error, Eugene Poznanski, for an injury received while an employee of plaintiffs in error. On a hearing before the arbitrator an award was entered on behalf of Poznanski for "temporary total disability" for 48 weeks at $12 a week, beginning November 22, 1915, when the accident occurred. Half of this had been paid to the applicant before the award was rendered. The last payment was to be, and apparently was, made under this award on October 30, 1916. No petition for review was filed as to this award by either party. It was agreed at this hearing that the parties were operating under the Compensation Act at the date of the accident and that the injury arose out of and in the course of the employment. A petition for review because of recurring * Decision rendered, Feb. 20, 1919. 122 N. E. Rep. 51,

disability was filed by the applicant with the Industrial Commission on November 11, 1916. On June 12, 1917, that commission rendered its decision, in which it allowed applicant $12 per week for a further period of 26 weeks, commencing at the termination of the payments allowed by the arbitrator. Thereafter the plaintiffs in error sued out of the circuit court of Cook county a writ of certiorari to review the award of the Industrial Commission. The circuit court affirmed said award and entered judgment in favor of the applicant, the court at the same time certifying that the case was one proper to be reviewed by this court The cause has been brought here by writ of error.

The only questions in dispute here are whether it is shown that a written notice was given of the continuing disability, whether such notice is necessary under the circumstances as shown in this record, or whether the same was waived.

[1] The petition for review for recurring disability was filed with the Industrial Commission about 2 weeks after the lapse of the period fixed for paying compensation under the original award—that is, on November 11, 1916. The time fixed for the hearing on review and taking testimony, March 23, 1917, was less than 6 months subsequent to the discontinuance of payments under the orginal award. Counsel for plaintiffs in error then asked for, or at least acquiesced in, a continuance to a time over 6 months after such last payment without raising any question as to the jurisdiction of the Industrial Commission under the petition for rehearing.

The petition for review was apparently drawn and filed under the provisions of paragraph “h” of section 19 of the Workmen's Compensation Act, and the award of the Industrial Board on this petition for review was apparently made under the provisions of section 24 of said act. paragraph "h" of section 19, so far as it applies here, reads:

Said

"An agreement or award under this act, providing for compensation in installments, may at any time within eighteen months after such agreement or award be reviewed by the Industrial Board at the request of either the employer or the employee, on the ground that the disability of the employee has subsequently recurred, increased, diminished or ended: *Provided, that the board shall give fifteen days' notice to the parties of the hearing for review." Hurd's Stat. 1917, p. 1462.

*

No proceedings for a continuance of payments after the date of the final payment under the original award shall be maintained unless in accordance with the provisions of section 24 of said act, which reads in part:

*

"No proceedings for compensation under this act shall be maintained, in the event that payments have been made under the provisions of this act, unless written claim for compensation has been made, within six months after such payments have ceased."

It is argued that this award was unauthorized because the petition was filed under section 19, and the award was allowed under section 24, without the written notice required under the provisions of section 24. There was no question raised before the Industrial Board as to any variance, nor is there any assignment of error on this question. The record of the board shows that due notice was given of the hearing before that board on March 23, 1917. As there is nothing in the record to show that such notice was not given, and as no question was raised by plaintiffs in error as to this notice on the hearing before the Industrial Board, under the reasoning of this court in Smith-Lohr Coal Co. v. Industrial Board, 279 Ill. 88, 116 N. E. 656, the question as to lack of notice cannot be here raised. The hearing at which counsel for plaintiffs in error appeared and joined in the taking of evidence, on March 23, 1917, was within 6 months after the final payment under the original award and therefore within the 6 months' time limit provided for under section 24 and plaintiffs in error, having submitted to the jurisdiction of the In

dustrial Commission and not having raised that question before said commission, cannot raise it here. American Milling Co. v. Industrial Board, 279 Ill. 560, 117 N. E. 147; Victor Chemical Works v. Industrial Board, 274 Ill. 11, 113 N. E. 173, Ann. Cas. 1918B,627.

[2] The same reasoning and conclusion must also be reached with reference to the rights of plainiffs in error in connection with the argument that the applicant is suffering from a continuance of the original disability and not a recurrence. No question of that kind was raised before the Industrial Commission, and under the authorities just cited it cannot be raised for the first time in the courts.

The judgment of the circuit court will be affirmed.
Judgment affirmed.

SUPREME COURT OF ILLINOIS.

H W. NELSON R. CONST. CO.

ບ.

INDUSTRIAL COMMISSION OF ILLINOIS ET AL.

(No. 12316.)*

COMPENSATION

1. MASTER AND SERVANT-WORKMEN'S ACT-INJURY WHILE GOING TO LUNCH-“ARISING OUT OF AND IN COURSE OF EMPLOMENT."

Employee's act in going to lunch is an incident of his employment, though dinner hour is not paid for by employer, and injury during such business arises out of and in course of employment; rule not applying where employee chooses to go to a dangerous place where employment does not necessarily carry him.

(For other cases, see Master and Servant, Dec. Dig. § 417[4].) (For other definitions, see Words and Pharses, First and Second Series, Course of Employment.)

2. MASTER AND SERVANT-WORKMEN'S

COMPENSATION

ACT-COURSE OF EMPLOYMENT-BURDEN OF PROOF. In proceedings under Workmen's Compensation Act against employer for death of employee, burden rested on administratrix to prove that injury from which death occurred arose out of and in course of employ

ment.

(For other cases, see Master and Servant, Dec. Dig. § 403.)

3. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-BURDEN ON ADMINISTRATRIX.

Where injury resulting in death of employee occurred during his noon hour while he was crossing bridge to secure lunch, administratix proceeding under Compensation Act had burden to establish facts that employee was using way which he had right to use, and which was only available way. or as safe as any other.

(For other cases, see Master and Servant, Dec. Dig. § 403.)

* Decision rendered, Feb. 20, 1919. 122 N. E. Rep. 113.

4. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-EVIDENCE-NECESSITY OF MOTION TO EXCLUDE.

Plaintiff in error cannot complain of incompetency of evidence, first excluded by workmen's compensation arbitrator on her objection, who subsequently brought it out herself on cross-examination of the witness without any objection and without even having made motion to exclude. (For other cases, see Master and Servant, Dec. Dig § 417[4].)

5. MASTER AND

ACT-COURSE
STRUCTION.

SERVANT-WORKMEN'S

COMPENSATION

OF EMPLOYMENT-VIOLATION OF IN

Where deceased servant, by crossing bridge under construction to get his lunch, was violating instruction of employer given by superintendent in charge of work, when accident which caused his death occurred, injury did not arise out of and in course of employment.

(For other cases, see Master and Servant, Dec. Dig. § 375[2].)

Error to Circuit, Winnebago County; Robert K. Welsh, Judge. Proceedings under the Workmen's Compensation Act for compensation for the death of Hugh H. McGhan, by Laura B. McGhan, administratrix, opposed by the H. W. Nelson Railroad Construction Company, the employer. Compensation was awarded by the Industrial Commission, and the record of proceedings before it quashed and award set aside on certiorari, and from the judgment the administratirix prosecutes error. Affirmed.

Hyer & Gill, of Rockford, for plaintiff in error.

E. M. St. John, of Rockford, for defendant in error.

DUNCAN, C. J. A writ of certiorari having been sued out of the circuit court of Winnebago county to review the decision of the Industrial Commission awarding compensation to plaintiff in error, Laura B. McGhan, administratrix of the estate of her father, Hugh H. McGhan, deceased, the court quashed the record of the proceedings before the commission and set aside the award. From that judgment this writ of error was prosecuted, the trial judge having certified that this cause is one proper to be reviewed.

Defendant in error, the H. W. Nelson Railroad Construction Company, on October 11, 1915, was engaged in construction work on a railroad bridge of the Illinois Central Railroad Company which crossed the Rock river at Rockford The bridge carried a single railroad track, upon which the Illinois Central trains passed back and forth at frequent intervals. No footpath for pedestrains on said bridge was provided. On that date Hugh McGhan was going across that bridge from the east side of Rock river, where he had been at work for defendant in error as a stationary engineer, to the west side of said river for the purpose of eating his lunch, having left his dinner pail on that side of the river. As he was crossing the bridge during the noon hour intermission he was struck by an Illinois Central train and knocked into the river. He attempted to avoid being hit by the train by crawling out onto the ends of the ties. He was struck by the engine on the head, was taken from the river some distance downstream and carried to a hospital, where he was given a prophylactic treatment for typhoid because of the river water he had taken into his system. He remained in the hospital about four days and was then taken to his home. About the tenth day after his injury he became weak, and a few days later he suffered urinary trouble. An analysis of his urine showed the presence of sugar, and the diagnosis disclosed diabetes. There is no dispute as to the fact that he suffered

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