{
  "id": 2526757,
  "name": "Willie Franklin, Plaintiff-Appellee, v. Wellco Company, Defendant-Appellant",
  "name_abbreviation": "Franklin v. Wellco Co.",
  "decision_date": "1972-05-04",
  "docket_number": "No. 54860",
  "first_page": "731",
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  "last_updated": "2023-07-14T19:05:48.814564+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "Willie Franklin, Plaintiff-Appellee, v. Wellco Company, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE DEMPSEY\ndelivered the opinion of the court:\nWillie Franklin, an employee of the Wellco Company, was injured three times during the course of his employment. He filed applications with the Industrial Commission of IUinois seeking compensation for his injuries. An arbitrator granted him awards totaling $6,579. WeHco did not file a petition to review the awards and they became final.\nThe compensation was not paid and the commission, as permitted by statute (Ill. Rev. Stat. 1967, ch. 48, par. 138.19(k)) increased the amount of the awards by 50 per cent ($3,289.50). WeHco did not appeal.\nPayment of $9,868.50 was not forthcoming and Franklin turned to tire Circuit Court pursuant to section 19(g) of the Workmen\u2019s Compensation Act (ch. 48, par. 138.19(g)) and obtained a judgment for that amount. The court fixed Franklin\u2019s attorney fees at $3,289.50 and the total judgment thus became twice the sum of the original awards.\nAfter Wellco\u2019s bank account was garnisheed, it filed a petition under section 72 of the CivH Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 72) to vacate the judgment WeHco alleged that its petition was filed promptly after learning of the judgment, that it had not received timely notice of the proceedings before the Industrial Commission or the court, and that it had meritorious defenses to Franklin\u2019s claims for compensation.\nFranklin moved to strike the petition on the ground that the court was without jurisdiction to review the awards. The motion to strike was sustained and WeHco appealed to this court. It contends that the trial court had jurisdiction to consider the petition on its merits, and that it also had jurisdiction because it had aHowed costs and attorney fees.\nAs noted, WeHco did not appeal the arbitrator\u2019s decision or the penalty of the commission imposed. The jurisdiction which the Circuit Court exercises in workmen\u2019s compensation cases is a special statutory jurisdiction and a party desiring judicial review must comply with all the conditions prescribed. (Moweaqua Coal Co. v. Industrial Commission (1926), 322 Ill. 403, 153 N.E. 678.) Section 19(f) of the Workmen\u2019s Compensation Act (Ill. Rev. Stat. 1969, ch. 48, par. 138.19(f)) affords the exclusive means of appealing an award of the commission. An employer cannot have the award reviewed by filing an answer in an action brought by the employee under section 19(g) to enforce the award (McCormick v. McDougal-Hartmann Co., 47 Ill.2d 340; Gerish v. Feldman, 381 Ill. 635) or by means of a petition under section 72 of the Civil Practice Act. A section 72 petition cannot cure the jurisdictional defect caused by not proceeding with an appeal in accordance with section 19(f). Sears Roebuck and Co. v. Industrial Commission (1971), (Ill.App.2d), 273 N.E.2d 725.\nThe purpose of section 19(g) is to permit speedy judgment in cases where there has been a refusal to pay the award and a need to reduce the award to judgment to compel its payment. The statute delineates the powers of the court in such a situation. It declares that when a final award of the commission is presented to the court, \u201csaid court shall render a judgment in accordance therewith s The court lacks the power to pass upon the merits of the claims upon which the award was based or to hear arguments in opposition to those claims. In the present case, the court would have exceeded its authority if it had entertained that part of Wellco\u2019s petition which sought to contest the awards. Insofar as Wellco\u2019s petition was addressed to the propriety and amount of the awards, the court properly denied the petition to vacate the judgment.\nA further purpose of section 19(g) is to compensate a claimant who is compelled to incur additional expense by reason of the refusal to pay an award by allowing him court costs and attorney fees. (Mc-Murray v. Peabody Coal Co. (1917), 281 Ill. 218, 118 N.E.29.) The statute empowers the court to tax \u201cthe reasonable costs and attorney fees in the arbitration proceedings and in the court entering the judgment.\u201d In entering the judgment in the instant case, the court taxed the costs of the proceedings against Wellco and allowed Franklin attorney fees. Inasmuch as the amount of these awards had been determined by the court itself, it had jurisdiction over this part of its judgment.\nA petition drawn under section 72 of the Practice Act was a proper vehicle to reach this judgment. Wellco\u2019s petition, however, made only an oblique reference to attorney fees; it merely stated \u201cThat it would be inequitable to allow an award of $13,000 to stand for relatively minor injuries * * Ordinarily, the failure to bring the subject specifically to the attention of the trial court would preclude its consideration in this court. (Lehman v. Arnold (1966), 76 Ill.App.2d 124, 221 N.E.2d 331.) A section 72 petition is to be considered in the light of equitable principles. (Elfman v. Evanston Bus Co. (1963), 27 Ill.2d 609, 190 N.E.2d 348. Larsh v. Green Gold Farms, Inc. (1966), 68 Ill. App.2d 113, 214 N.E.2d 924.) Wellco\u2019s petition must be considered as a whole and it must be evaluated in connection with the statute which permits the granting of attorney fees where an Industrial Commission award remains unpaid. A major allegation in the petition was that Wellco was unaware of the proceedings before the commission and knew nothing of the awards until its bank account was garnisheed. The petition alleged that Wellco moved its plant and administrative offices shortly after Franklin was injured; six months later, its new plant and offices were destroyed by fire and 90 per cent of its administrative files and records were either destroyed or damaged beyond recognition; after the fire it had temporary office space for one month; subsequently, it leased space at another location on a month-to-month basis and, finally, it moved to a permanent address. It thus had five different addresses from the time of Franklin\u2019s injuries to the date of the judgment. The petition alleged that notices of the commission proceedings and the application for judgment were never received. Franklin\u2019s motion to strike admitted the truth of all Wellco\u2019s allegations. The statute states that reasonable attorney fees shall be taxed when the employer refuses to pay the awards. Accepting the accuracy of Wellco\u2019s averments, it follows that it could not have refused to pay something it knew nothing about. Under these circumstances, it would have been advisable for the court to have considered the broad base and equitable aspects of the petition and to have taken jurisdiction of that portion of it which was addressed to the propriety and size of the fee allowed Franklin\u2019s counsel.\nThe motion to strike should be denied and, after appropriate pleadings have been filed, a hearing should be held to determine if Wellco knew of the awards and refused to pay them; to determine if attorney fees are proper and, if so, to receive proof as to the reasonable amount of those fees. The judgment will be affirmed insofar as it pertained to the Industrial Commission\u2019s awards. The judgment awarding attorney fees will be reversed and the cause will be remanded for further proceedings not inconsistent with this opinion.\nAffirmed in part, reversed in part and cause remanded.\nMcGLOON, P. J., and McNAMARA, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE DEMPSEY"
      }
    ],
    "attorneys": [
      "Aplon, Bennett, Alexander & Levine, of Chicago, for appeHant.",
      "Epstein, Wilsey & Kirsch, and Cohn, Cohn & Lambert, both of Chicago, for appeHee."
    ],
    "corrections": "",
    "head_matter": "Willie Franklin, Plaintiff-Appellee, v. Wellco Company, Defendant-Appellant.\n(No. 54860;\nFirst District\nMay 4, 1972.\nRehearing denied June 6, 1972.\nAplon, Bennett, Alexander & Levine, of Chicago, for appeHant.\nEpstein, Wilsey & Kirsch, and Cohn, Cohn & Lambert, both of Chicago, for appeHee."
  },
  "file_name": "0731-01",
  "first_page_order": 753,
  "last_page_order": 757
}