(123 N.E.) limit uncertainties, such as the one here un- swer. Whether or not that was done in this der consideration, as much as is commensu- case the record does not set out at length. The rate with other rights which the law cannot recital in the decree is that it was done, and overlook. It is clear the policy of the law that the issue was submitted to the jury, and has been for many years in this country, and the verdict so returned by the jury upon especially in this state since 1829, to limit the that issue must be taken as showing that it time in which will contests could be brought. was done. There seems to have been no obIt would be absolutely contrary to the trend | jection made in the circuit court as to the of public policy in this regard to construe manner in which this question was submitthis statute as holding that the rights of the ted. Therefore any objection to the manner beneficiaries, not only with respect to those in which it was submitted must be regarded heirs who are under disability, but also with as waived. with respect to those under no disability, shall remain unsettled until such time as the disabilities of all the heirs are removed. In our judgment a fair construction of the statute, in the light of the history of legislation upon this subject, is that after the year the probate is, as the proviso says, forever binding and conclusive on all the parties concerned, except infants and persons non compos mentis. The circuit court erroneously held otherwise. The decree of the circuit court will be reversed, and the cause remanded, with directions to enter a decree in accordance with the views herein expressed, holding the will to be void, but limiting the effect of the decree only as to the interest of the minor heir of Lula G. Knorr, deceased, who by his next friend brought this contest. Reversed and remanded, with directions. It is also urged by counsel for appellants that the final decree is wrong, because the record shows that no issue of law was prop- JAKUB v. INDUSTRIAL COMMISSION et erly made up as to whether the writing produced was the last will and testament of the testatrix. The decree recites: "The court having heretofore directed an issue at law to be made up whether the writing referred to in the pleadings and purporting to be the last will and testament of Lula G. * al. (No. 12539.) (288 Ill. 87) (Supreme Court of Illinois. April 15, 1919.) -- 1. MASTER AND SERVANT 417(3) WORKMEN'S COMPENSATION REVIEW-NECESSITY OF REVIEW BY COMMISSION. Knorr, deceased, was the last will and testa-pensation Act, the circuit court may review the In proceeding under the Workmen's Comment of the said Lula G. Knorr or not, and a record by certiorari under section 19, without jury * * having been duly called, selected, the necessity of a review of the decision of the and sworn to try the said issue, and arbitrator by the Industrial Commission. the jury having found by their verdict that the said writing was not the last will and testament 2. MASTER AND SERVANT 376(2) WORKof said Lula G. Knorr, deceased," etc. MEN'S COMPENSATION-PRE-EXISTING DISEASE-CAUSE OF DEATH. [7] In a system of practice where the common-law and equity courts were entirely separate and their jurisdiction was exercised by different judges, an issue to be tried at law was certified by the chancery court to the common-law court, and after the trial the verdict was certified by the common-law court back to the chancery court. Under our system the same judge exercises both commonlaw and chancery jurisdiction in the same court at the same time, and he may make the issue at law and immediately call a jury to try it. This practice has made it unnecessary in our courts to follow some of the rules which prevailed under the system of separate courts of chancery and common-law jurisdiction, and in practice some of such rules are disregarded. Williams v. Bishop, 15 Ill. 553; Milk v. Moore, 39 Ill. 584. [8, 9] The usual method of submitting the issue to be tried by a jury in a case of this character is in the form of questions made up by the court, or by the parties under the direction of the court, framed so as to require merely an affirmative or negative an Under the Workmen's Compensation Act, compensation may be awarded, although there is a pre-existing disease, if the disease is aggravated and accelerated by an accidental injury in the course of employment, but there must be an accidental injury as the immediate or proximate cause of death. 3. MASTER AND SERVANT 372-WORKMEN'Ş COMPENSATION-"ACCIDENTAL INJURY." An "accidental injury," within the Workmen's Compensation Act, is one which occurs and without the affirmative act or design of in the course of the employment, unexpectedly, the employé; it being something which is unforeseen and not expected by the person to whom it happens. [Ed. Note.-For other definitions, see Words and Phrases, Second Series, Accidental Injury.] 4. MASTER AND SERVANT 376(2) —Work MEN'S COMPENSATION-ACCIDENT AS CAUSE Where an employé engaged in baling scrap copper was found dead near the baling press, with a completed bale of copper beside him, and there was no evidence proving accident, or accidental injury, the claim being that the heavy For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes work which deceased was doing hastened his death by heart and kidney disease, there could be no recovery. statutory right to a review of the decision by the Industrial Commission and the privilege of introducing additional evidence upon such review, but permitted the decision of the ar Error to Circuit Court, Cook County; Os-bitrator to become final as the decision of car M. Torrison, Judge. CARTWRIGHT, J. Plaintiff in error, Eudokia Jakub, applied to the Industrial Commission for compensation for the death of her husband, John Jakub, while in the employment of defendant in error, J. Sandrovitz & Co. An arbitrator found that Jakub did not sustain accidental injuries arising out of and in the course of his employment, and denied the application. The decision of the arbitrator was filed with the Industrial Commission, and became final as the decision of the commission. Plaintiff in error sued out a writ of certiorari from the circuit court of Cook county, and, a return being made by the commission, the court confirmed the finding, and certified that the case was one proper to be reviewed by this court. [1] There was no application for a review by the Industrial Commission of the decision of the arbitrator, and the question is presented whether the circuit court had jurisdiction to review the decision. Section 19 of the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, § 144) provides that the decision of the arbitrator shall be filed with the Industrial Commission, which shall send to each party a copy of the decision, and, unless a petition for review is filed by either party within 15 days after the receipt by said party of a copy of the decision, then the decision shall become the decision of the Industrial Commission; that the decision of the Industrial Commission, acting within its powers, and of the arbitrator or committee of arbitration, where no review is had, and his or their decision becomes the decision of the Industrial Commission, shall, in the absence of fraud, be conclusive, unless reviewed as therein provided. The provision for such review is that the circuit court of the county where any of the parties defendant may be found shall, by writ of certiorari to the Industrial Commission, have power to review all questions of law presented by the record. Plaintiff in error did not avail herself of the the Industrial Commission. By the statute the circuit court was given jurisdiction to review the record by certiorari without the necessity of a review of the decision of the arbitrator by the commission. On the hearing before the arbitrator plaintiff in error proved the following facts: John Jakub was employed by defendant in error in baling loose pieces of copper in large bales, weighing from 900 to 1,500 pounds, by an electric baling press. He would put rags in the bottom of the press, and then put on the scrap copper and press it down, and repeat the process until there was enough for a bale, and would then release the power, open the press, bind the bale with wire, and take it off the press upon a truck and haul it away. The last that was known of him before his death, he was heard to call for more copper to put in the press. Very soon afterward he was found lying on the floor, with the bale, completed and wired, also on the floor, about two feet from him. He was still breathing, and died within a half hour. These facts being proved, defendant in error introduced the verdict of a coroner's jury, which was admitted without objection, and found that the deceased came to his death "from organic heart disease (marked chronic fibrous myocarditis) and kidney disease." In rebuttal the plaintiff in error offered the testimony of a physician, who said that after the coroner's autopsy he examined the heart, lungs, liver, kidneys, part of the intestines, and the stomach, and found in them acute hyperemia and the heart somewhat enlarged; that in case of organic heart disease there was hyperemia in other organs, and the heavy exertion of the work in which he was employed would hasten his death. Another physician testified that in the condition of the deceased the effort and exertion of his work would interfere with the heart action and cause more or less trouble, and finally cause death if the work was too heavy. [2, 3] Compensation may be awarded, although there is a pre-existing disease, if the disease is aggravated and accelerated by an accidental injury in the course of employment. This rule was applied in Peoria Railway Terminal Co. v. Industrial Board, 279 Ill. 352, 116 N. E. 651, where a fireman fell from the engine and suffered accidental injuries and a fracture of his skull. To bring a case within that rule, however, there must be an accidental injury as the immediate or proximate cause of death. The statute provides compensation for accidental injuries or death suffered in the course of the employment, and an injury to be accidental is one which occurs in the course of the em ployment unexpectedly and without the af (123 N.E.) firmative act or design of the employé. It is | ticing medicine"; but the Legislature could desomething which is unforeseen, and not ex- fine the term for the purposes of Laws 1899, pected by the person to whom it happens. p. 275, § 7, as including that method of practice. Matthiessen & Hegeler Zinc Co. v. Industrial [Ed. Note.-For other definitions, see Words Board, 284 Ill. 378, 120 N. E. 249. and Phrases, Second Series, Practicing Medicine.] [4] In this case there was no evidence tending to prove any accident or accidental injury to the deceased. There was no mark upon his person, and nothing from which it could be inferred that an accident had occurred, and it is not claimed that there was any accident, but only that the heavy work which he was doing in the ordinary course of his employment caused or hastened his death. The decision of the arbitrator was therefore right, and the circuit court did not err in confirming the decision. The judgment is affirmed. (288 Ill. 235) PEOPLE, for Use of STATE BOARD OF (Supreme Court of Illinois. April 15, 1919. the rules, and is not violative of constitutional Rehearing Denied June 6, 1919.) provision. Appeal from Macon County Court; John 1. APPEAL AND ERROR 1170(12) — IRREGU- ASIDE. Where action was debt, and verdict and judgment was for damages, and no objection was made to either on account of form, the judgment will not be reversed therefor, in view of Practice Act, § 77. 2. PHYSICIANS AND SURGEONS 6(12) PRACTICING WITHOUT CERTIFICATE-PENAL TY-FIRST OFFENSE." Action by the People, for the use of the State Board of Health, against James E. Kane. From a judgment for plaintiff, defendant appeals. Reversed and remanded. Whitley & Fitzgerald, of Decatur, and John A. Walgren, of Chicago, for appellant. Edward J. Brundage, Atty. Gen., Jesse L. Deck, State's Atty., of Decatur, Albert D. Rodenberg, of Springfield, and Charles F. Evans and A. R. Ivens, both of Decatur, for appellee. The offense, defined by Laws 1899, p. 273, amended by Laws 1917, p. 579, of practicing medicine or surgery or treating human ailments without a certificate from the state board of health, consists, not of treating some individual, but of general practice by treating the public, so that a "first offense" means a first conviction, and there could not be a judg-of Illinois, for the use of the state board of ment for five first offenses. 3. PHYSICIANS AND SURGEONS 2-LICENSE TO PRACTICE-STATUTE-VALIDITY - POLICE POWER. Laws 1899, p. 273, as amended by Laws 1917, p. 579, making it an offense to practice medicine or surgery or treat human ailments without a certificate from the state board of health, was enacted in the exercise of the police power, for the protection of the lives and health of the people, and it is valid, unless infringing on constitutional rights. - LI 4. PHYSICIANS AND SURGEONS 6(1) A chiropractor, whose practice consists of adjusting the vertebræ of the spinal column, professes a method of treating physical ailments, injuries, or deformities that is not within the common meaning of the term "prac CARTWRIGHT, J. The people of the state health, appellee, commenced this action in debt in the county court of Macon county against James E. Kane, appellant, and filed a declaration containing 10 counts, charging him with practicing medicine without a license from the state board of health. The plea was the general issue, and upon a trial there was a verdict for the defendant. The court granted a new trial, and on the second trial there was again a verdict for the defendant and judgment accordingly. plaintiff appealed to the Appellate Court, which reversed the judgment and remanded the cause. On the third trial there was a verdict for the plaintiff and assessing damages at $500. The court rendered judgment on the verdict, and ordered that the defendant be committed to the common jail of Macon county until the fine and costs were paid. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The This appeal was prosecuted from that judg- [ shall be enacted for the protection of the pubment. [1] The action was debt, and the verdict and judgment were for damages; but no objection was made to either on account of form, and the judgment will not be reversed for formal matters of that kind. Bowden v. Bowden, 75 Ill. 111. Section 77 of the Practice Act (Hurd's Rev. St. 1917, c. 110) provides that no verdict or judgment shall be set aside for irregularity only, unless cause be shown for the same during the sitting of court at the term such judgment or verdict shall be given. [2] The suit was brought under the act of 1899 (Laws 1899, p. 273), as afterward amended (Laws 1917, p. 579), which authorized a recovery of $100 for the first offense and $200 for each subsequent offense. The offense defined by the act consisted in practicing medicine or surgery or treating human ailments without a certificate issued by the state board of health. The offense did not consist of treating some individual, but for practicing medicine generally by treating the public, so that a first offense meant a first conviction. There could not be a judgment for five first offenses, and the judgment must be reversed for that reason. lic health, and so long as it does not infringe upon inherent or constitutional rights its determination of what measures and regulations shall be adopted is conclusive. The exercise of the police power, however, is subject to constitutional limitations, and the power extends only to such measures as are reasonably necessary and appropriate for the accomplishment of a legitimate object within the domain of the police power. The General Assembly cannot aribtrarily interfere with the enjoyment of rights guaranteed by the Constitution, and cannot invest any board or commission with arbitrary discretion which may be exercised in the interest of a favored few, or which affords opportunity for unjust discrimination. Noel v. People, 187 Ill. 587, 58 N. E. 616, 52 L. R. A. 287, 79 Am. St. Rep. 238. Every citizen has a right to be governed by fixed rules, and cannot be subjected to the will or caprice of an administrative board. Ruhstrat v. People, 185 Ill. 133, 57 N. E. 41, 49 L. R. A. 181, 76 Am. St. Rep. 30; People v. Wilson, 249 Ill. 195, 94 N. E. 141, 35 L. R. A. (N. S.) 1074; Haller Sign Works v. Physical Culture Training School, 249 Ill. 436, 94 N. E. 920, 34 L. R. A. (N. S.) 998. The act provided for examina[3, 4] The appeal was taken to this court, tions of persons applying for licenses to pracon the ground that the act was in conflict tice medicine, and, as to those desiring to with the Constitution, and therefore void. practice medicine and surgery in all its It was enacted in the exercise of police pow- branches, prescribed general rules for an exer, for the protection of the lives and health amination, As to those who desired to pracof the people. The state has a right to regu- human ailments, who did not use medicines tice any other system or science of treating late any and all kinds of occupations for that internally or externally, or practice operative purpose, and all measures and regulations for surgery, it required that examinations should the protection of the public health, not in- be of a character sufficiently strict to test fringing upon constitutional rights, are with- their qualifications as practitioners. That in the scope of the police power. The right provision, standing alone, conferred upon, the of a citizen to follow any legitimate occupa- state board of health arbitrary power to tion is subject to the paramount power of the grant or refuse licenses in its own discretion state to impose such regulations as may be and upon its own judgment as to what examrequired to secure the people against igno- ination would be sufficient to test the qualifirance, incapacity, deception, or fraud in the cation of each applicant for a license. It furpractice of medicine, subject only to such nished no standard and no guide and no securestraints as are imposed by the Constitution. rity to an applicant by which the courts Section 7 of the act provided that any person could determine whether the requirements of should be regarded as practicing medicine, the board were reasonable or not. The act, within the meaning of the act, who should however, provided that all examinations treat or profess to treat, operate on, or pre- should be conducted under rules and regulascribe for any physical ailment, or any phys- tions prescribed by the board, which should ical injury to or deformity of another. The provide for a fair and wholly impartial methdefendant was a chiropractor, and his prac- od of examination. Such rules and regulatice consisted of adjusting the vertebræ of tions, if made, would be subject to review by the spinal column. That method of treating the courts to determine whether reasonable physical ailments, injuries, or deformities is or not. Kettles v. People, 221 Ill. 221, 77 N. not within the common meaning of the term E. 472. Considering the provision of the stat"practicing medicine," but the General As-ute for the adoption of rules and regulations sembly had a right to define the practice of subject to judicial review, under which exammedicine for the purposes of the act so as to inations should be made and licenses issued, include that method. People v. Gordon, 194 the statute did not violate any constitutional Ill. 560, 62 N. E. 858, 88 Am. St. Rep. 165. right. The record does not show whether or [5, 6] Within constitutional limits the Gen- not any rules and regulations were adopted eral Assembly is the sole judge of what laws by the board, and it affords no means for de (123 N.E.) termining whether any constitutional right of the defendant was violated by unreasonable or arbitrary rules and regulations with which he could not be compelled to comply. The judgment is reversed, and the cause remanded. Reversed and remanded. (288 Ill. 132) SWIFT & CO. v. INDUSTRIAL COMMIS- (Supreme Court of Illinois. April 15, 1919. 1. MASTER AND SERVANT 417(7)-WORK- 2. MASTER AND SERVANT trix, against Swift & Co., employer. Award was made by the Industrial Commissiou, 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 er ror. 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 386(5)-WORK-accident occurred on or about September 10, appears from the evidence that the alleged MEN'S COMPENSATION ACT-DUTY OF COM- Under Workmen's Compensation Act, § 7, as amended in 1915, the commission was not required to apportion compensation between a widow and a child in a proceeding by the employé for an award, carried to completion by the widow as his administratrix after employé's decease; there being no contest as to who should receive the benefit of the award. 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 Workmen's Compensation Act, §§ 7, 21, with incipient tuberculosis, and an operation providing for determination by the Industrial was performed for the removal of an abCommission of the proportionate share of each scess. On February 24, 1916, a more advancbeneficiary, does not require that the commis-ed tubercular hip condition was found. sion shall determine how much or what proportion of the compensation every member of the class may receive. 3. MASTER AND SERVANT 386(5)—WORKMEN'S COMPENSATION ACT-DUTY OF COмMISSION TO APPORTION AWARD. Thereafter it was discovered that his lungs were tubercular. About May of the same year he was taken to the Cook County Hospi4. MASTER AND SERVANT 385(16)-WORK-tal, and died the following August of pulMEN'S COMPENSATION ACT EXPENSE OF monary tuberculosis. Application for the PHYSICIAN-EMPLOYÉ'S ELECTION TO PAY adjustment of this claim was filed February PHYSICIAN. In view of Workmen's Compensation Act, providing that the employer shall provide necessary medical treatment for a period not longer than eight weeks, an injured employe's selection of a physician other than one of the staff maintained by employer was an election to secure his own physician, and under section 8 he must be held to have elected to do so at his own expense, and it was not error for circuit court to strike from an award a sum allowed therefor. 25, 1916. taken in the Cook County Hospital on the The testimony of deceased was his widow, was appointed administratrix of 11th day of May, 1916. Beatrice Kucinski, 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 Proceeding under the Workmen's Compen- in the accident in question, and that the insation Act by Beatrice Kucinski, administra-fection later spread to his lungs, causing Error to Circuit Court, Cook County; Oscar M. Torrison, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |