Appeal from the Circuit Court of Cook County, the Hon. Arthur
Dunne, Judge, presiding.
MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
This workmen's compensation case (see Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) arose out of fatal injuries sustained by Walter A. Johnson on September 13, 1977. The parties stipulated that his death was compensable under the Act but could not agree that he had dependents entitled to an award or on the amount of medical expenses owed. The first time this case was heard the arbitrator and the Commission found that the decedent was survived by his widow, Dorothy Johnson, and by a minor child, Dorothy Victoria (Vicky) Gilmore, the widow's granddaughter, to whom decedent stood in loco parentis. The appropriate death benefits were ordered to be paid "to said widow, for her use and benefit and for the care, education and maintenance of said minor grandchild, subject to the further order of the Industrial Commission of Illinois." The circuit court of Cook County remanded the cause to the Commission "for further evidence on the issue of the relationship of Vicky Gilmore to the deceased, Walter Johnson." In all other respects the Industrial Commission award was confirmed.
Before the Commission reheard the case, the widow filed a petition requesting attorney fees and penalties under sections 19(k) and 16 of the Act (Ill. Rev. Stat. 1975, ch. 48, pars. 138.19(k), 138.16), for unreasonable and vexatious delay on the part of respondent in paying the awarded compensation. The Commission consolidated the hearing on the in loco parentis issue and on the widow's petition. The respondent, however, conceded that the deceased stood in loco parentis to Vicky Gilmore. The Commission then ordered 50% of the award to "be used solely for the care, education and maintenance of Dorothy Victoria Gilmore, subject to the further order of the Industrial Commission." The Commission also ordered respondent to pay attorney fees in the amount of $1,064.74 under section 16 of the Act and a 50% penalty in the amount of $5,323.68 under section 19(k). The circuit court of Cook County set aside the assessment of attorney fees and the penalty; otherwise the award was confirmed.
The widow first challenges the circuit court's original order of remandment for further evidence on the in loco parentis issue. The remand order was interlocutory and therefore not appealable when issued. Pursuant to that order, the Commission had original jurisdiction subject to the remanding court's directions. The Commission's post-remand actions are appealable to this court after review in the circuit court. We now must review the whole record, including the propriety of the original order of remandment. See Stockton v. Industrial Com. (1977), 69 Ill.2d 120, 124-26; Technical Tape Corp. v. Industrial Com. (1974), 58 Ill.2d 226, 232-33; Wellman-Lord, Inc. v. Industrial Com. (1971), 48 Ill.2d 533.
Section 7(a) of the Act states that death benefits are payable to a surviving "widow, widower, child or children" and then defines child as "a child whom the deceased employee left surviving, including a posthumous child, a child legally adopted, a child whom the deceased employee was legally obligated to support or a child to whom the deceased employee stood in loco parentis." (Ill. Rev. Stat. 1975, ch. 48, par. 138.7(a).) Both parties here agree that the circuit court's order of remandment pursuant to section 19(f)(2) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(f)(2)) was proper only if the Commission's original finding, that the deceased stood in loco parentis to Vicky, was against the manifest weight of the evidence. See, e.g., Allis Chalmers Manufacturing Co. v. Industrial Com. (1971), 50 Ill.2d 2; Wellman-Lord, Inc. v. Industrial Com. (1971), 48 Ill.2d 533; Peabody Coal Co. v. Industrial Com. (1919), 289 Ill. 330.
In loco parentis did not have a monolithic common law meaning. (See Thomas v. United States (6th Cir. 1951), 189 F.2d 494, 505, cert. denied (1951), 342 U.S. 850, 96 L.Ed. 641, 72 S.Ct. 78; Banks v. United States (2d Cir. 1959), 267 F.2d 535.) A showing of in loco parentis, however, has come to require that the putative parent (1) intended to assume parental functions and (2) discharged parental duties. See Gribble v. Gribble (Utah 1978), 583 P.2d 64, 67; Lyles v. Jackson (1976), 216 Va. 797, 798, 223 S.E.2d 873, 874 (per curiam); Workman v. Workman (Okla. 1972), 498 P.2d 1384, 1386; In re Fowler (1972), 130 Vt. 176, 181, 288 A.2d 463, 466; McManus v. Hinney (1967), 35 Wis.2d 433, 436-41, 151 N.W.2d 44, 45-48; Faber v. Industrial Com. (1933), 352 Ill. 115, 119-20.
The widow, Dorothy Johnson, was the only witness at the original hearing before the arbitrator. Much of her testimony related to the absence of dependent children from either her or the deceased's earlier marriages. Exhibits relevant to funeral and medical expenses, her marriage to the deceased, and his death were admitted in evidence.
The widow and the deceased had no children from their marriage. She explained, however, that she had taken custody of Vicky Gilmore, 13, in 1973 under the terms of an alleged will which, concededly, was never probated and which was not introduced as evidence. (Upon remandment, it was identified as the will of Vicky's father, the son-in-law of the widow. Because it was never authenticated, it was submitted on the record as a rejected exhibit.) Vicky lived with the widow and the decedent after their marriage on June 28, 1976. It is not clear whether they changed residences after the marriage. On cross-examination, the widow revealed that Vicky was in a special school for slow learners. In response to questions relating to the deceased's children from prior marriages, the following colloquy took place:
"Q. Are they [the deceased's children from a prior marriage] all physically well, self-sufficient to your knowledge?
Q. Are any of them retarded —
Q. — or unable to support themselves?
A. They're all married and have children.
Q. Do you know whether or not Mr. Johnson supported in whole or in part ...