statement signed by the same doctor was also introduced in evidence in which he stated that the death of Riley had no connection with the injury. Another doctor who treated Riley at the hospital testified that there was no relationship between the accident and the nephritis, of which he died; that if it had been supposed that there was any relation between the accident and death he would have caused an inquest to be held, but did not because there was no ground for such a supposition. He said there was absolutely no evidence of internal injuries, and in answer to a hypothetical question said that he did not believe the injury had anything to do with Riley's death. Another doctor who saw Riley at the hospital on March 2 and examined him said that he found him very sick, lying in a bed in a semi conscious condition; that he should say that bronchial nephritis had been running at least many months, and in answer to the hypothetical question said that in his opinion death was not due to the injury. The nurses at the hospital testified that Riley had bruises on his legs and some bruises on his back; that he had hemorrhoids, and his bowel movements contained a large amount of blood, and that he continually grew weaker, and before he died was delirious. The evidence was that the kidneys did not discharge through the bowels and the great amount of blood discharged came from hemorrhoids. Three doctors testifying as experts in answer to a hypothetical question embracing the facts, confirmed the testimony of the doctors who treated Riley. One of them testified that such an accident as Riley suffered would not produce bronchial nephritis, and gave his opinion that he did not die as a result of the accident. Another said that he did not find any causal connection between the fall from the wagon and the death, and the third doctor said that the accident would not produce the condition from which Riley died. ma, It is contended that there was some evidence in the record, which, considered by itself, would sustain the award, and that the court is bound to accept it as true. The evidence which is pointed out for that purpose consists of the testimony of two doctors, giving opinions as experts, one of whom said that acute nephritis might be set up by traubut it was not very common; that bruises would have to be of great severity to affect organs inside of the body, and for the purpose of his opinion he assumed that Riley was in absolutely good health at the time he fell, an acute nephritis was of short duration. His opinion was that under such conditions acute nephritis might have been set up by the fall. but according to his testimony it was unlikely. and the assumption that Riley was in absolutely good health at the time of the fall was contrary to the evidence. The opinion was no more than that there was a possible connection between the accident and death, and, being based upon a hypothesis unsupported by any evidence, it was not admissible. The other doctor who it is said gave testimony sufficient to sustain the award was asked the hypothetical question put to the other doctors, and this was his answer: "I have looked at the hospital record. My opinion is, if the chronic condition of the kidney existed, or an acute condition, that injury which he sustained was sufficient to cause the trauma and the shock received by the system to lower his metabolism and his resisting power vitality to such a degree as ordinarily known among the medical profession as congestion or inflammation that has been brought about by trauma, shock, or injury or otherwise from blows from without. That being the case, there is no question in my mind but what the injury relegated to and assisted the patient to deplete in vitality instead of gain; and furthermore, I believe that the mentality as shown by the hospital report, his mental derision-they had to put him in a straight jacket-certainly shows that it was above the normal or ordinary type of mental derangement. I reached the conclusion that the death was superinduced by the fall. The fall led up to his death and increased the likelihood of his death." The answer was very far from being even an opinion that the death of Riley was caused by the fall from the wagon, but it amounted only to an opinion that the trauma and the shock received by the system would lower vitality and power to resist the disease which Riley already had, so as to make recovery less probable. There was a complete failure to prove that the death of Riley was caused by the accident. [2, 3] The defendant in error has assigned cross-errors on the record, based on the refusal of the circuit court to hold that the award of the arbitrator became the decision of the Industrial Commission under section 19 of the Workmen's Compensation Act (Hurd's Rev. St. 1919, c. 48, § 144), because no agreed statement of facts appearing upon the hearing before the arbitrator, nor any correct stenographic report of the proceedings at such hearing had been filed with the commission within the time fixed by the statute. The motion was supported by the affidavit of the attorney for the applicant made before the Industrial Commission. The record does not show the date of the service of notice on the plaintiff in error of the entry of the award, but the petition for review was filed on November 16, 1917, and within 20 days thereafter an additional period of 30 days was allowed for filing a stenographic report. On December 7, 1917, within the time extended a stenographic report was filed; but it was not authenticated, and when the case came before the Industrial Commission on January 27, 1918, a motion was made that the award of the arbitrator should be held final. The affidavit in support of the motion shows that the report had been taken by an inexperienced stenographer, and it was withdrawn, amended, and modified and was authenticated by the arbitrator on March 20, 1918. There was no express ruling by the Industrial Commission on the motion, but it was disregarded, and the award was confirmed. The circuit court entered an order, authorizing the Industrial Commission to withdraw its return to the writ of certiorari and to make corrections or additions so as to show a full and complete record of proceedings before the commission, and this was done. The report was filed within the time extended, as provided by statute, but was corrected and authenticated afterward, and that might lawfully be done. Bloomington Decatur & Champaign Railroad Co. v. Industrial Board, 276 Ill. 454, 114 N. E. 939. There was no error in permitting the authentication, nor in allowing the commission to withdraw the return, and ainend it to correspond with the facts. The judgment is reversed, and the award set aside. Judgment reversed; award set aside. Farmer and Thompson, JJ., dissenting. RIDGE COAL CO. v. INDUSTRIAL COMMISSION. (No. 13876.) (Supreme Court of Illinois. June 22, 1921.) 131 Northeastern Reporter 637. 1. MASTER AND SERVANT-NOTICE ESSENTIAL TO JURISDICTION OF INDUSTRIAL COMMISSION. Under Workmen's Compensation Act, § 24, providing that no proceedings shall be maintained under that act unless notice of the accident is given the employer within 30 days, notice is essential to the jursdiction of the Industrial Commission. (For other cases, see Master and Servant, Dec. Dig. § 389.) 2. MASTER AND SERVANT-RECORD OF INDUSTRIAL COMMISSION PRESUMED TO SPEAK TRUTH. The record of the Industrial Commission in a workmen's compensation proceeding is presumed to speak 'he truth as to the finding and action of the commission, and a reviewing court must act upon the record as certified to it. (For other cases, see Master and Servant, Dec. Dig. § 417[5].) 3. MASTER AND SERVANT-REVIEWING COURT CANNOT ASSUME THAT ARBITRATOR'S FINDING OF WANT OF NOTICE WAS CLERICAL ERROR. Where the evidence in a workmen's compensation proceeding is conflicting as to notice of the acciden, the court cannot disregard the finding of the arbitrator that notice was not given as a clerical error, though he awarded compensation which would not have been proper if notice was not given, as to disregard such finding would be passing upon the weight of the evidence. (For other cases, see Master and Servant, Dec. Dig. § 417[5].) 4. MASTER AND SERVANT-SUPREME COURT CANNOT CONSIDER EVIDENCE WHICH MERELY RAISES QUESTION OF FACT. Where in a workmen's compensation proceeding there was evidence fairly tending to show that notice of the accident was not given as found by the arbitrator, it is not the province of the Supreme Court to consider evidence in the record which does no more than raise a question of fact as to the giving of notice. (For other cases, see Master and Servant, Dec. Dig. § 418[6].) 5. MASTER AND SERVANT-NO PRESUMPTION THAT EMPLOYER DID NOT RAISE QUESTION OF WANT OF NOTICE ON MOTION TO DISMISS CERTIORARI. Where the employer brought certiorari to quash the record in a workmen's compensation proceeding without setting out the reasons for quashing the record, and the claimant moved to quash the writ without setting out the reasons, it cannot be presumed that the employer failed to raise the question of want of notice of the accident by answer to the motion to quash the writ, or waived its right to rely on such want of notice in the Supreme Court. (For other cases, see Master and Servant, Dec. Dig. § 418[5].) Error to Circuit Court, Williamson County; D. T. Hartwell, Judge. Proceedings under the Workmen's Compensation Ac by John Shadowens for compensation for injuries, opposed by the Ridge Coal Company, employer. Compensation was awarded by the Industrial Commission, and the award was affirmed by the circuit court, and the employer brings error. Reversed, and award set aside. T. W. Quinlan, of Springfield, and Denison & Spiller, of Marion, for plaintiff in error. A. W. Kerr, of Chicago, and George R. Stone, of Marion, for defendant in error. DUNN, J. This writ of error was allowed to review a judgment of the circuit court of Williamson county affirming an award made to John Shadowens under the Workmen's Compensation Act (Hurd's Rev. St. 1919, c. 48, §§ 126-152i) against the Ridge Coal Company. The arbitrator found that the parties were operating under the act; that the employee sustained accidental injuries which arose out of and in the course of his employment; that no ice of the accident was not given to the employer, but demand for compensation was made within the time required by the act; that the injured employee is entitled to receive $15 a week for 12/, weeks' temporary total incapacity, and $15 a week for 50 weeks under paragraph (e) of section 8 (section 133) for one-third permanent loss of left hand. The award was reviewed by the Industrial Commission, which sustained the findings and award of the arbitrator, and ordered them to stand as the decision of the commission. [1-3] Section 24 of the act (section 149) provides that no proceedings shall be maintained unless notice of the accident has been given to the employer within 30 days. This notice is essential to the jurisdiction of the commission. Bushnell v. Industrial Board, 276 Ill. 262, 114 N. E. 496; Barrett Co. v. Industrial Com., 288 I11. 39, 123 N. E. 29; Ohio Oil Co. v. Industrial Com., 293 Ill. 461, 127 N. E. 743. Counsel for the defendant in error expressly concede that compensation cannot be awarded if no no ice of the injury was given, and meet the situation by the statement that the word "not" in the finding of the arbitrator is a clerical error. They sustain their position, not by showing that there actually was a clerical error, but by the argument that the award without the notice would have been erroneous; the arbitrator must therefore have found that there was notice, and the record of his finding that there was not must be regarded as a clerical error. When there is any controversy in the evidence on the point in question the record cannot be so d'sregarded. It is presumed to speak the truth as to the finding and action of the tribunal whose record it is, and a reviewing court must act upon the record as certified to it. The case of Centralia Coal Co. v. Indus rial Com., 294 Ill. 325, 128 N. E. 554, is an illustration of a clerical error which a reviewing court may take notice of and correct, where all the evidence, without dispute, showed an injury to the left leg, but the commission found that as a result of the accident the applicant had sustained a partial permanent loss of the use of the right leg. In Slago Coal Co. v. Industrial Com., 293 Ill. 271, 127 N. E. 751, the judgment was modified, not because of a clerical error, but because there was no evidence as to the item stricken out of the award. In the present case the evidence is conflicting as to the notice, and we are not authorized to disregard the finding of the commission as to the fact. To do so would simply be passing upon the weight of the evidence. [4] The defendant in error insists that the abstract does not present all the evidence on the question of notice, and his counsel state that no record is available for comparison or correction, but enough of the evidence is remembered for them to know that the abstract is not full, and they invite the attention of the court to the record for further details. The abstract shows that there was evidence at least fairly tend ng to show that the notice was not given, and the further de ails which counsel ask us to look for in the record could do no more than raise a question of fact, which we have frequently held it is not our province to consider. [5] The defendant in error states that the plaintiff in error has made the objection for the first time in this court that, the arbitrator found that notice was not given. The record shows that the defendan in error moved to quash the writ of certiorari. If the notice was not given, that fact was an answer to the motion, for it would show a want of jurisdiction in the commission. The motion of the defendant in error did not set out the reasons for quashing the writ, and the plaintiff in error did not set out its reasons for quashing the record. Either party had therefore the right to rely upon anything shown by the record in support of his position, and in the absence of some showing in the record no waiver of this right by the plaintiff in error or failure to present any answer shown by the record to the motion of the defendant in error can be presumed. Wallner v. Chicago Consolidated Traction Co., 245 Ill. 148, 91 N. E. 1053. In Bushnell v. Industrial Board, supra, it was held that the making of a claim for compensation within six months is jurisdictional and a condition precedent to the right to maintain the proceeding, which is not waived by a failure to make the objection on the hearing before the arbitrator, the Industrial Board, or the circuit court. The judgment of the circuit court will be reversed, and the award set aside. Judgment reversed, and award set aside. ST. LOUIS SMELTING & REFINING CO. v. INDUSTRIAL COMMISSION ET AL. (No. 13894.) (Supreme Court of Illinois. June 22, 1921.) 131 Northeastern Reporter, 617. 1. MASTER AND SERVANT COMPENSATION CLAIMANT RESULT MUST SHOW ACCIDENT ARISING OUT OF AND IN It was incumbent on an employee seeking to recover compensation for injuries under the Compensation Act to prove that the accident occurred in the course of his employment, and arose out of it, and that the condition for which he claimed compensation was the result of such accident.. (For other cases, see Master and Servant, Dec. Dig. § 403.) 2. MASTER AND SERVANT COMPENSATION AWARD CAN-NOT REST UPON SPECULATION. An award under the Compensation Act cannot rest upon speculation, conjecture, or surmise. (For other cases, see Master and Servant, Dec. Dig. § 405[1].) 3. MASTER AND SERVANT EVIDENCE HELD INSUFFICIENT TO SHOW PERMANENT LOSS OF USE OF LEG. In a proceeding under the Workmen's Compensation Act for compensation for conditions claimed to have been caused by lead poisoning evidence held insufficient to show any permanent loss of the use of a leg. (For other cases, see Master and Servant, Dec. Dig. § 405 [6].) 5. MASTER AND SERVANT EVIDENCE HELD INSUFFI CIENT TO SHOW CONDITIONS RESULTED FROM LEAD POISONING.' In a proceeding under the Workmen's Compensation Act, evidence held insufficient to show that the employee's condition was caused by lead poisoning, rather than by infection from conditions having no connection with the employment. (For other cases, see Master and Servant, Dec. Dig. § 405[4]) |