APPEAL from the Circuit Court of Cook County; the Hon. CHARLES
S. DOUGHERTY, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 22, 1959.
This is an appeal from an order of the circuit court of Cook County, entered in a proceeding brought under the Administrative Review Act, affirming the decision of the Board of Trustees of the State Employees' Retirement System. The appeal was directed to this court in that the State has a direct substantial pecuniary interest in the outcome of the action. Bohm v. State Employees' Retirement System, 404 Ill. 117.
Plaintiff's husband, Dr. George Fenyes, was employed by the State as a psychiatrist in 1942, and became a member of the State Employees' Retirement System, herein called the System. During his employment he contributed $2,772.82 to the System, on which interest had accumulated in the amount of $260.11, making a total of $3,032.93. On October 29, 1953, he signed a statement of intention to resign from his position. On October 31, 1953, he executed a resignation voluntarily resigning as psychiatrist II for "personal reasons," effective as of November 15, 1953, on which date he ceased to be employed by the State. He died June 27, 1954.
Thereupon plaintiff filed claim for the ordinary death benefit payable to her as the widow of Dr. George Fenyes, deceased, in the amount of $6,782.93. The Board of Trustees of the System denied the claim for the State's portion of the ordinary death benefit, but allowed her to recover the contributions which Dr. Fenyes had made to the System during his service with the State, plus accumulated interest.
It is conceded that the plaintiff would be entitled to the ordinary death benefit if decedent died while in service, but that she would not qualify for such benefit if he had effectually withdrawn from the service prior to his death. In the latter event, plaintiff would be entitled only to a refund of the accumulated contributions which decedent had made. (Ill. Rev. Stat. 1957, chap. 127, pars. 222, 226.) Section 3-21 provides that "`Withdrawal from service' means complete severance of employment of any member as an employee of the State or of all Departments, by resignation, discharge or dismissal." Ill. Rev. Stat. 1957, chap. 127, par. 217.
It is the contention of plaintiff that her husband had not been discharged or dismissed and had not withdrawn from the service, since his written resignation was a nullity due to his lack of mental capacity. Defendants urge that the evidence substantiated the decision of the Board of Trustees of the System and the circuit court denying the claim for the ordinary death benefit. It is therefore necessary to examine the record as to the determinative factual question of whether the decedent was mentally incompetent at the time of his resignation.
At the administrative hearing, three witnesses testified for plaintiff. Mrs. Fenyes testified that in 1952 Dr. Fenyes worked 16 hours a day, had headaches, was nervous and exhausted; that in November, 1953, he was very confused and disconcerted; that he mixed up names and often lapsed into the Hungarian language; and that he had seizures and fell off the bed four or five times. She further testified that she was of the opinion that he did not know what he was doing when he resigned.
Plaintiff's cousin, Hermina Splitter, testified that beginning in 1952, decedent was nervous and had headaches and seizures; and that he frequently lapsed into the Hungarian language. She further stated that she did not think Dr. Fenyes knew what he was talking about when he came home and told Mrs. Fenyes and herself that he had resigned.
Dr. Ernest Haase, a specialist in neurology and psychology, testified that he treated Dr. Fenyes; that he had known him for ten years; and that he first saw him as a patient on January 12, 1953. He further testified that Dr. Fenyes had then just been admitted to the hospital; that he was confused and showed the effects, on the left side of his body, of a "slight motor weakness and convulsive seizures of a special type;" that "There was no doubt that Dr. Fenyes had a brain injury or lesion;" and that his condition could have been caused by a stroke, encephalitis, or a tumor. The evidence further established that later, while in Florida, decedent experienced a similar seizure on the right side; and that in April, 1954, he had another seizure and was taken to the hospital where he died on June 27. The autopsy revealed that the cause of his death was an extensive brain tumor involving both cerebral hemispheres. The witness saw the decedent about November, 1953, and from that observation testified as follows:
"Q. And do you have an opinion as to whether he knew at the time what he was doing?
A. He was at that time already disturbed. He was depressed, he was slow in his mental reactions, and I think the fact is that he lacked the same quick and sound judgment he had before.
Q. Do you have an opinion as to whether he knew that he was executing a resignation from his ...