author: Chief Justice Damrou Chief Justice Damron

text:
    (No. 3589
    Bessie Przetacznik, Claimant, vs. State of Illinois, Respondent.

      Opinion filed January 13, 1942.

      Supplemental opinion filed March 10, 1943.

    Boy A. Ptacin, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damrou

delivered the opinion of the court:

This case_comes on to be heard on complaint, transcript of testimony, brief and argument of the parties. Claimant was employed by the Department of Public Welfare of Illinois at the Chicago State Hospital, 6500 Irving Park Boulevard, Chicago. The evidence shows that said claimant operated a marking and sewing machine in said institution, and was paid therefor the sum of Sixty-three ($63.00) Dollars per month salary.

Claimant seeks an award of Nine Hundred Nine and 56/100 Dollars for fifty (50) per cent loss, or loss of use of her right arm.

The evidence further shows that claimant on February 2, 1941, while decending a stairway in said hospital building*' slipped on some soft substance, and fell downward against the door casing and floor striking her right shoulder against the door and casing.

Dr. Louis Cisman a staff physician of said hospital treated the claimant, and ordered ice-packs for the injured shoulder, and on the following day he x-rayed the injured area and immobolized the arm in a cast. She received short wave diathermy and massage treatment for some time thereafter. The evidence shows that the arm and shoulder were very painful, that her fingers became numb, and she was unable to use her arm as theretofore at the date of the hearing, viz May 16, 1941.

Claimant states she lost no time from her work inasmuch as she was promptly transferred to a supervisory position, which only required her to take orders as they came in, and take in-coming and out-going telephone calls. The evidence further shows that claimant was fifty four years of age, and had no children dependent on her, under the age of sixteen years.

Dr. Albert C. Field of Chicago was called by the claimant, as a witness. He made several examinations of her arm and shoulder for the purpose of testifying. He was not the treating physician. He testified that on February 18, 1941 he made an examination of claimant, and found she had some limitation of motion in her right elbow joint, but says quite an improvement had taken place since that time. That there was some atrophy of the muscles surrounding the right shoulder girdle, and on active motion she abducts her arm to about twenty five (25) per cent normal. He testified she was unable to put her arm behind her back, and head, but could put her fingers to her shoulder. He took x-rays on February 18, and again on May 12. He testified the x-rays showed that her elbow was fractured at the head of the radius, a chip fracture. That the x-rays taken on May 12, evidenced a bone injury at the insertion of the tendon muscles, that is the muscles that are used to elevate the arm beyond the right angle. He also testified that her inability to raise her arm higher than she can is due to inflammatory condition around the shoulder joint, and also due to the injury. He stated her present disability, in his opinion, amounted to fifty (50) per cent of her right arm.

On cross examination he stated that there was quite an improvement in the elbow joint, that she had a nice result in said elbow joint, and that her injuries now are mostly in the shoulder with some little trouble at the elbow.

Dr. Louis Olsman, staff physician in said hospital was called on behalf of the respondent. He testified that she came to him on January 3, 1941. At that time he found her suffering from an injury to the elbow and there was pain and limitation of motion of said right elbow, and he advised cold packs and aspirin tablets. That he advised an x-ray be taken the following morning. An x-ray was taken on January 4, 1941, revealing a fracture at the head of the radius. A cast was applied to the arm, and removed on January 23, 1941. The arm was then placed in a sling for two weeks, following* this, diathermy and physiotherapy were applied to the arm.

He testified that at the present time (May 16, 1941) the elbow is well healed, there being however, some evidence of the old fracture with the possibility of the ulnar nerve being; involved.

He stated that he examined her the day of the hearing* and that the condition of the elbow now shows almost total ability for flexion, and extension, and that the condition of the shoulder shows a limitation of the ability to abduct above ninety (90) per cent and inability to place the arm behind the back, and inability to raise the arm to the back of the head, and that in his opinion her loss of use of the right arm is about forty five (45) to fifty (50) per cent.

Petitioner is not claiming any compensation for loss of time, she having been paid in full her wages from the time of the accident until the date of the hearing.

The remaining question to be decided is whether the claimant is entitled to compensation for specific loss under Section 8 of the Workmen’s Compensation Act. The claimant bases her claim on specific loss of the use of her rig’ht arm.

The record establishes that the claimant and the respondent were, on January 3, 1941, operating under the provisions of the Workmen’s Compensation Act. That on the date above mentioned said claimant sustained accidental injuries which did arise out of and during the course of her employment, and claim for compensation on account thereof was made on said respondent within the time required under the provisions of said Act. That the earnings of the claimant during the year next preceding the injuries were Seven Hundred Fifty-six ($756.00) Dollars, and that her average weekly wage was Fourteen and 54/100 ($14.54) Dollars, and is therefore entitled to weekly compensation at the rate of Seven and 50/100 ($7.50) Dollars.

That the claimant, at the time of the injury, was 54 years of age, and had no children under the age of 16 years. That the necessary medical, surgical, and hospital services had been provided by the respondent.

The court finds that the disabling condition is temporary and has not yet reached a permanent condition up to the date of the hearing. The following award is no bar to a further hearing, and determination of a further amount of compensation for permanent disability, but is conclusive as to all other questions.

The court finds that claimant is entitled to have and receive from the respondent the sum of Seven and 50/100 ($7.50) Dollars per week for a period of fifty six and one-fourth (56%) weeks, representing a twenty five (25) per cent loss of use of the right arm, amounting to the sum of Four Hundred Twenty-one and 88/100 ($421.88) Dollars, as provided in paragraph (b) of Section (19), and paragraph (e) of Section (8). The further sum of Forty Two and 19/100 ($42.19) Dollars as- provided in paragraph (L) of Section (8) of said Act, as amended for the reason the injuries were sustained after July 1, 1939. Making a total sum due claimant of Four Hundred Sixty-four and 07/100 ($464.07) Dollars payable in a lump sum.

All of this' amount has accrued, as of January 13, 1942, except Thirty Nine and 07/100 ($39.07) Dollars. Payment by the respondent in weekly installments, however of said sum of Thirty Nine and 07/100 ($39.07) Dollars is impracticable, and the award will therefore be commuted into a lump sum in accordance with Section (9) of the Workmen’s Compensation Act, without deduction.

An award is therefore hereby entered in favor of claimant, Bessie Przetacznik, for the sum of Four Hundred Sixty-four and 07/100 ($464.07) Dollars in a lump sum.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act.

Supplemental Opinion.

Chief Justice Damron

delivered the opinion of the court:

Additional Award.

On the 13th day of January, 1942, this court had under consideration a complaint filed in the above entitled cause seeking an award under the Workmen’s Compensation Act for fifty per cent (50%) loss of use of claimant’s right arm due to an injury in the course of her employment for respondent at the Chicago State Hospital located in Cook County, Illinois.

After full consideration this court made an award amounting to twenty-five per cent (25%) permanent partial loss of use of her right arm under the provisions of the Workmen’s Compensation Act as provided in paragraph (e) of Section (8).

Being convinced that her disability had not reached a permanent condition and that she might improve in time we provided as follows:

“The court finds that the disabling condition is temporary and has not yet reached a permanent condition up to the date of the hearing. The following award is no bar to a further hearing and determination of a further amount of compensation for permanent disability, but is conclusive as to all other questions.” As provided in Paragraph (b) of Section (19) of said Act.

On May 25, 1942 the claimant again appeared in court through petition asking for an additional award stating that said injury had reached a permanent condition.

Evidence was taken of claimant, and Dr. Albert 0. Field on behalf of claimant, and Dr. Louis Olsman of the Chicago State Hospital for respondent.

The evidence shows that about twenty-five (25) months have elapsed since the date of the accident. No improvement has been noticed in the condition of the injured arm since the first award, by the claimant or her physician. The evidence further shows that since said first award claimant on advise of her physician Dr. Benedetto tried the rest cure from January 1, 1942 until April 21, 1942. During this period she received no pay from respondent having obtained sick leave. During that time she took diathermy and massage treatments on the shoulder and elbow, exercised her injured arm with a bucket of sand and in many ways attempted to restore the full functional use of the injured member.

It is agreed by the medical witnesses both for claimant and respondent that the condition as it exists today is permanent and that there is little likelihood that it will improve with time.

Dr. Louis Olsman called on behalf of the respondent, testified that his examination on August 7, 1942, showed she lacked ten degrees abducting her right arm as much as she could on May 21, 1941.

Upon full consideration of the record the court is of the opinion that claimant is entitled to an additional award for permanent partial disability of her right arm, and further that she is entitled to a further award for temporary total ■disability from January 1, 1942 to April 21, 1942.

Claimant also seeks an award of $20.00 for additional medical expenses paid by claimant to Dr. Benedetto her family physician. The-record discloses that the State had not authorized claimant to employ him. She employed him on her own accord.

This claim for medical services must be denied.

An additional award is therefore entered in favor of claimant as follows: For temporary total disability the sum of $8.25 for a period of 16 6/7 weeks amounting to the sum of $139.07. For permanent partial disability the sum of $8.25 for a period of 56% weeks amounting to the sum of $464.07 as provided in paragraph (e) and (L) of Section (8) of the "Workmen’s Compensation Act, making a total award of Six Hundred and Three Dollars and Fourteen Cents ($603.14), all of which has accrued and is now payable in a lump sum.

This award being subject to the provisions of an; Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act.


source: Caselaw Access Project

author: Fisher, J. Fisher, J. Eckert, J.,

license: Public Domain

text:
    (No. 3632
    Sun Life Insurance Company of America, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1942.

      Rehearing denied September 9, 1942.

      Supplemental opinion filed March 10, 1943.

      Rehearing denied April 15, 1943.

    Jacob M. Moses, of Baltimore, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

Complaint alleges that claimant is a Maryland corporation, doing life insurance business in Illinois since 1937. That prior to June 1, 1941, every company doing a life insurance business in Maryland was required to pay an annual license fee of Three Hundred Dollars ($300.00), which was reduced April 23,1941, effective June 1,1941, to Ten Dollars ($10.00), so that subsequent to June 1, 1941, Illinois life insurance companies were required to pay only Ten Dollars ($10.00) as an annual license fee to do business in Maryland. That prior to June 1, 1941, claimant was required to pay to the State of Illinois an annual license fee of Three Hundred Dollars ($300.00) for authority to do business in Illinois under Article XXVIII, Section 444 (retaliation) of the Illinois Insurance Code (1939). That since the passage of the Maryland Statute, Maryland companies should be required to pay an annual license fee in Illinois of Ten Dollars ($10.00).

That in February, 1941, claimant received a bill from the Department of Insurance of the State of Illinois for the annual renewal fee for a certificate of authority to do business in Illinois amounting to Three Hundred Dollars ($300.00) for the year beginning July 1, 1941, and ending June 30, 1942. That said bill was promptly paid by claimant, though not due and payable until June 30,1941, for the period beginning July 1, 1941.

That Two Hundred Ninety Dollars ($290.00) more was paid to the State of Illinois than was due and payable for the renewal of the license to do business, and a refund is requested.

This case presents the identical facts present in the case of Eureka-Maryland Assurance Corporation, a corporation, claimant, vs. State of Illinois, respondent, No. 3627; and, as was indicated in that case, it is the opinion of this court that the claim is a proper one to be allowed on its merits.

However, the complaint filed does not comply "with paragraphs 5(a), 5(b) and 6(a) of the rules of this court. Claimant, however, can amend its complaint to correct these defects.

Respondent’s motion to dismiss is therefore sustained; claimant is given thirty days in which to amend its complaint; respondent is given thirty days thereafter to file its answer; and in the event claimant declines or fails so to amend, this order dismissing the claim shall become final.

Supplemental Opinion.

Fisher, J.

This claim now comes before the court on its merits.

Claimant seeks a refund of Two Hundred and Ninety Dollars ($290.00) overpayment of license fee for the year beginning July 1, 1941, and, the facts as stated in the complaint are, in substance, admitted by stipulation.

The facts in this case are identical with the case of Eurekar-Maryland Assurance Corporation, a Corporation vs. State, No. 3627, in which case the law applicable to such facts were discussed at length in our opinion of this March term, 1943, and are controlling herein. We concluded in that case that payment was made under a mistaken set of facts and, as such, entitles claimant to a refund of the excess payment.

An award is, therefore, entered in favor of claimant, Sun Life Insurance Company of America, in the sum of Two Hundred and Ninety Dollars ($290.00).

Eckert, J.,

dissenting:

The law is well settled that a tax voluntarily paid cannot be recovered in the absence of a statute authorizing such recovery. Oswald Jaeger Baking Company vs. State of Illinois, 11 C. C. R. 119; Orchard Theater Corporation vs. State of Illinois, 11 C. C. R. 271. Furthermore, this court has held in a long line of decisions that an award cannot be made solely on the basis of equity and good conscience and can be made by this court only where claimant would be entitled to redress against the State either at law or in equity if the State were suable. Crabtree vs. State, 7 C. C. R. 207; Garbutt vs. State, 10 C. C. R. 37.


author: Chief Justice Dambou

text:
    (No. 3657
    Conrad Arndt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    Arthur A. Maina, for claimant.
    George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.
   Chief Justice Dambou

delivered the opinion of the court:

This complaint was filed on the 5th day of November, 1941, and the record was not completed until the 6th" day of May, 1943.

The complaint in this case states that Conrad Arndt was employed by the State of Illinois as a State investigator assigned to the Department of Conservation. That on the 19th day of November, 1940, while in the performance of his duties, it became necessary to take into custody and place under arrest two men who were engaged in violating certain laws of the State of Illinois, the enforcement of which particular laws is ordinarily assigned to the Department of Conservation, and while engaged in said arrest, he kept his revolver in an alert position and in attempting to remove his gun from its holster his gun became discharged and a bullet therefrom entered the left hand of claimant in the base of the left thumb and emerged and passed completely through said hand in the region of the base of the little finger.

The complaint further states that respondent through the Department of Finance, with the approval of the Department of Conservation, paid the following sums to the following persons for services rendered the claimant in attempting to cure the wound on his left hand:

To Dr. Mercer T. Brown, of Zion, Illinois for first aid treatment in
the sum of........................................................$17.00
St. Theresa Hospital, Waukegan, Illinois............................ 21.95
Dr. B. J. Limery of Waukegan, Illinois............................. 87.00
For medical and hospital treatment furnished the claimant.

The record in this case is very scant. It consists of the complaint, testimony of the claimant and Dr. B. D. Limery who treated the claimant, and his report, report of Dr. Sumner L. Koch, of Chicago, dated April 11, 1943, waiver on behalf of the claimant and the Attorney General of filing brief, statement and argument.

The evidence shows that this claimant was employed by the Department of - Conservation on October 17,1940, and was assigned to a small area for patrolling in Lake County, Illinois; that on the 19th day of November, in company with a friend, he drove into his territory and about nine miles north from his south boundary line he encountered three men who apparently were hunting. He stopped and inquired if they had a hunting license. When informed by them that they had the required license and in attempting to get out of his automobile for the purpose of examining same, a pistol which he was carrying was accidentally discharged, the bullet striking his left hand entered the radial side of the volar surface just proximal to the wrist and emerged from the ulnar margin of said hand approximately one inch distal to the wrist.

He went immediately to the St. Theresa Hospital, Waukegan, Illinois, and was given first aid treatment by Dr. Mercer T. Brown, of Zion, Illinois. He then returned to his home and placed himself under the care of Dr. B. D. Limery of Waukegan, Illinois, who continued treatment of claimant for a period of about four months. This claimant apparently never returned to work for the Department of Conservation from the time of his injury to the filing of this complaint.

This claimant asks'an award for 90% permanent loss of the use of his left hand.

Dr. Limery testified that it took about five weeks before the wound ceased to drain and the crusts came off. This doctor at the time he testified had no office records with him but was depending upon his recollection. Claimant asks an award for fifteen weeks temporary total disability.

This claimant was examined by Dr. Sumner L. Koch, of Chicago, in behalf of the respondent. His report is dated April 11, 1943. He stated “In my judgment, this patient has sustained an injury of the median nerve partly as a result of the original injury, but more particularly because of the compression by scar tissue which developed subsequent to the injury. In my judgment, the condition could be relieved completely by exposing the nerve and freeing it from the scar tissue which lies over it and helps to hold it fixed. That the nerve has not been completely divided is evidenced by the lack of wasting of the thenar muscles; by the fact that these muscles function in a normal fashion; and, third by the fact that the loss of sensation is by no means complete, for the condition is one of diminished sensation.”

This report further states “The subcutaneous nodule in the palm has probably nothing to do with the original injury. At all events, there is no basis for believing that Dupuytren’s contraction can result from an injury such as this patient sustained. Such nodules develop spontaneously in many individuals; we do not know why. Although the patient with such a condition invariably connects it with some previous injury, in more than half of the cases on record, the condition is bilateral, and the patient rarely has any explanation for the involvement of the hand last affected. Furthermore, although a nodule such as characteristically forms in early cases of Dupuytren’s contraction is present in this patient’s palm, there is no reason to believe that the condition will go on to a contracture. ’ ’

And the report further states “What this patient needs at this time is encouragement, physical therapy, and careful surgical exposure of the median nerve at the level of the wrist, which will permit removal of the scar tissue which is compressing it and causing the disturbance of sensation.”

Dr. Limery in his testimony places the functional loss of the use of claimant’s hand at 80%. He further stated “None of the tendons were severed, that I could determine. The blood vessels were severed. The tissues covering the tendons were injured. And all of the tissues, of course, were destroyed in the path of the bullet; all the tissues excepting it seemed to miss the bones and the tendons. It went on the palmar side, from the tendons, see. The tendons lay closer to the bone, and it went on the outside of the tendons, between the tendon and evidently the palmar fascia or tendenous tissue in the palm of the hand. ’ ’

Further testifying, this witness was asked the following questions:

“Q. After you started treatment was Mr. Arndt ever able to flex his fingers and thumb so as to form a fist?”

“A. Oh, yes.”

“Q. And he has been able to do that up to the present time ? ’ ’

“A. He doesn’t make a perfect fist, like that. He gets his fingers down pretty close, though. He can make a partial fist, sure he can.”

Upon consideration of the facts in the record we find as follows:

That on the 19th day of November, 1940, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of the State of Illinois; that on said date claimant sustained accidental injuries which arose out of and in the course of his employment; that notice of the accident was given to said respondent and claim for compensation on account thereof was made within the time required by the provisions of such Act; that claimant’s annual earnings within the records as. used in the Workmen’s Compensation Act were $1,200.00; that his average weekly wage was $23.07; that claimant at the time of the accident was thirty-four years of age and unmarried and had no children dependent upon him for support; that necessary first aid, medical, surgical and hospital services were provided by respondent as follows :

Dr. Mercer T. Brown for first aid treatment.........................$17.00
St. Theresa Hospital, Waukegan, Illinois............................ 21.95
Dr. B. D. Limery, Waukegan, Illinois................................. 87.00

That claimant was temporarily totally disabled from the date of his injury as aforesaid for six full weeks; that he suffered 25% permanent loss of use of his left hand.

We further find that claimant is entitled to have and receive from the respondent the sum of $12.68 per week for six weeks for temporary total disability in accordance with the provisions of Paragraph B, Section 8 of the Workmen’s Compensation Act, and the further sum of $12.68 per week for a period of forty-two and a half weeks for the permanent loss of 25% of the use of his left hand in accordance with the provisions of Paragraph E-12 of Section 8 of such Act.

We further find that all of the compensation due to claimant as aforesaid has accrued at this time.

An award is therefore entered in favor of the claimant, Conrad Arndt, for the sum of $614.98, all of which has accrued and is payable forthwith.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act.


author: Eckert, J.

text:
    (No. 3695
    Harlow H. Belding, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    Carnahan, Slljsser & Mitchell and George. W. Thoma, for claimant.
    George F. Barrett, Attorney General; William'L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

On January 7, 1941, respondent accepted claimant’s bid of $725.00 for the moving of a building located on the grounds of the Illinois State Training School for Boys, at St. Charles, Illinois. The bid was made pursuant to a written authorization of the Department of Public Works and Buildings which provided, among other things, that claimant “block and hold building at new location for foundation. Perform any necessary shoring and place building on foundation when ready. ’ ’

Prior to March 1, 1941, claimant moved the building to the designated new location, blocking it with his equipment, which included 22 jack screws, two 70' timbers, 14" x 14", and two truck-loads of blocking, consisting largely of 4' timbers, 6" x 6" square. Following instructions of respondent, claimant set the building approximately three inches higher than the top of the foundation which the respondent was to build to receive the building.

Respondent failed, however, to provide the necessary foundation, and on April 4, 1941, claimant notified the respondent that on and after May 1, 1941, a charge of $12.00 per day would be made by claimant for the use of his equipment supporting the building. There were various conferenees, both before and after the notice of April 4th, between claimant and the officers of the State Training School for Boys. Claimant was repeatedly told by the officers that they were waiting for the necessary money to build the foundation.

On July 25, 1941, claimant directed a letter to Mr. W. T. Harman, Managing Officer of the School, calling attention to claimant’s letter of April 4, 1941, and protesting against the" failure of the respondent to build the foundation. Claimant also sent a carbon copy of the letter of July 25th to Rodney H. Brandon, Director of Public Welfare, asking that something be done so that claimant could get his equipment. On July 30, claimant was advised to come to the school, remove the equipment, and lower the building to the ground or on to blocks to be furnished by the respondent. This was subsequently done, the building being lowered on to temporary piers constructed by claimant from concrete blocks furnished by the respondent. To rest the building on these piers, claimant was required to lower it a distance of four and one-half feet, and to have ten men present to perform the operation.

Claimant seeks an award for the rental value of the equipment which supported the building, computed on the following basis:

■ Item Rental Per Day
22 Jack Screws at 25c each............................... $5.50
2 70 ft. timbers, 14" x 14"; 7 40 ft. timbers, 12" x 12";
2 truck loads of blocking............................ 6.50
$12.00

for a period of one hundred days, or the sum of $1,200.00. A further claim is made for additional work and material furnished in the lowering of the building and the construction of the temporary cement piers, in the sum of $120.00, which claimant alleges does not include any charge for time and expense necessary to lower the building on to the foundation as originally contemplated, or for the removal of the equipment. It is not disputed that 25e per day is the usual and customary rental charge for use of jack screws of the size and kind which claimant used under the building; that the usual and customary rental charges for use of timbers of the size and kind used under the building is $6.50 a day; and that the charge of $120.00 for building the temporary piers and lowering the building upon them is the usual and customary charge for such services.

Under the terms of the agreement between the claimant and the respondent, claimant clearly had an obligation to move the building to a new location and to block and hold it in such position that respondent could construct the necessary 'foundation upon which it would ultimately rest. Respondent, in turn, had an obligation to build the foundation, whereupon claimant could complete the contract by lowering the building to the foundation. Although no specific time was provided for such construction by respondent, its acceptance of claimant’s bid provided that time should be the essence of the acceptance, and that all work should commence forthwith and be completed not later than April 1st, 1941. The respondent was thus obligated to build the foundation within such time after claimant had moved the building, so that claimant could lower the building and remove his equipment before April 1st, 1941. Because of the respondent’s failure to fulfill this obligation, claimant was unable to use his equipment for a stipulated period of one hundred days'. The State is liable for the damages sustained by a contractor arising from unreasonable delay caused solely by the State and not through the fault of the contractor, nor attributable to his failure in protecting himself from the effects of delays which might reasonably have been foreseen. The Strandberg Brothers Company vs. State, 8 C. C. R. 87; The Carson-Payson Company vs. State, 8 C. C. R. 581.

A question arises, however, as to the proper measure of damages. In replevin suits involving the detention of property which has a usable value, the measure of damage is the reasonable net rental value thereof. Cottrell vs. Gerson, 296 Ill. App. 412; National Contract Purchase Corp. vs. McCormick, 264 Ill. App. 63. The same principle has been applied in many other cases. In Sanitary District of Chicago vs. McMahon & Montgomery Company, 110 Ill. App. 510, the Pleasure of plaintiff’s damages due to delay of defendant in obtaining the right-of-way upon which plaintiff was employed to construct a canal, was held to be the market rental value of dredges, tugs, and scows during the time plaintiff was deprived of their use. Where a contractor was engaged in excavation work for a drainage district, and the district erected a dam which caused water to back up, overflow, and damage the contractor’s equipment and machinery, the proper measure of damages was held to be the rental value of the machinery and equipment, and the damages incident to tying up of the men employed in the work of excavating. Myers Construction Co. vs. Wood River D. & L. Dist., 221 Ill. App. 473. In the case of Sipes vs. Barlow, 197 Ill. App. 239, of which only an abstract of the decision appears in the reports, it was held, that in an action to recover for breach of a contract for moving houses, where defendant breached the contract by failing to build a foundation under the houses so that plaintiff could remove his moving tools, the measure of plaintiff’s damages was the value of the use of the tools for the period plaintiff was deprived of their use.

The court is of the opinion that the proper measure of damages in this case is the usual, customary and reasonable rental charge for claimant’s equipment while claimant was deprived of its use through the failure of the State to fulfill its obligation under the contract.

The court is of the opinion, however, that claimant’s charge of $120.00 for the construction of temporary piers and the lowering of the building upon them is sustained by neither the law nor the evidence, and this part of the claim must be disallowed.

An award is therefore entered in favor of the claimant in the sum of $1,200.00.


author: Fisher, J. Eckert, J.,

text:
    (No. 3691
    Virgil G. Brooks, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    John W. Fribley, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

Claimant alleges:

' That on April 11, 1941, and prior thereto, he was a civil service employee with the Department of Conservation.

That on April 11, 1941, he was wrongfully discharged from his position as an Inspector.

That on December 22, 1941, the Circuit Court of Sangamon County, in a mandamus proceeding pending therein, wherein claimant was petitioner and the Department of Conservation and the Illinois Civil Service Commission were defendants, entered an order commanding the Department of Conservation and the Illinois Civil Service Commission to reinstate claimant to his position as Inspector, and that he was so reinstated on January 20, 1942.

Claimant seeks an award of $1,605.44 for salary unpaid from April 11,1941, the date of his discharge, to January 20, 1942, the date of his reinstatement.

The record consists of the statement of claim filed February 26, 1942, stipulation of facts, and waiver of statement, brief and argument by claimant and respondent by and through respective counsel.

The facts as stipulated herein are, in part, as follows:

“That on May 1, 1941, the Civil Service Commission of the State of Illinois advised Virgil G-. Brooks that his discharge had been approved by the Commission, and was, as far as that Commission was concerned, final.
"That on July 24, 1941, Virgil G. Brooks, Claimant, commenced an action of mandamus, in the Circuit Court of Sangamon County, Illinois, to compel his reinstatement as an Inspector to the position of Inspector in the Department of Conservation,'State of Illinois.
“That on December 22, 1941, the Circuit Court of Sangamon County, Illinois, issued a Mandamus Order directing the Department of Conservation of the .State of Illinois, and the Illinois Civil Service Commission, to reinstate the said Virgil G. Brooks, Claimant, to his position and employment as an Inspector in the, Department of Conservation, aforesaid.
“That claimant was not so reinstated by the Department of Conservation of the State of Illinois, until January 20, 1942, and that from April 11, 1941, to January 20, 1942, Claimant was- ready and willing to perform the duties of his office, but that his services were refused.
“That the Auditor of Public Accounts of the State of Illinois, has advised that on the 30th day of September, 1942, the appropriation to the Department of Conservation of the State of Illinois, made by the Sixty-first General Assembly, lapsed, leaving a balance of $89,853.10.”
“The right to the salary is attached to and follows the legal title to the office.”
People vs. Bradford, 276 Ill. 246.

Claimant was a duly certified Civil Service employee of the State of Illinois. He was wrongfully discharged and prevented from performing the duties of his position, and was restored to his position by the Circuit Court of Sangamon County, Illinois. He was diligent in the protection of his own rights, and at all times for which he seeks payment of salary, he was ready, willing and able to perform the duties of his position, tendered the performance thereof, and such tender was refused. He is entitled to the salary of this position during the time he was wrongfully prevented from performing the duties of the position, which was from April 11, 1941, to January 20, 1942, or the sum of $1,605.44.

An award is therefore Entered .in favor of claimant in the sum of $1,605.44.

Eckert, J.,

dissenting:

On December 22,1941, claimant secured a writ of mandamus in the Circuit Court of Sangamon County, Illinois, ordering his reinstatement as an inspector in the Department of Conservation of the State of Illinois. In that suit he had the right to seek payment of the salary for which claim was filed in this court on February 26, 1942.

The Court of Claims has consistently held- that it will. not review the orders of officers, boards and commissions made pursuant to powers granted them by the Legislature, or grant awards where claimants had a remedy by appeal to the courts of general jurisdiction which they failed to pursue. (Bassett vs. State, 2 C. C. R. 372; Mayer vs. State, 3 C. C. R. 34; Bolton and Smith vs. State, 4 C. C. R. 104; Toedter et al, vs. State, 5 C. C. R. 400.) In creating the Court of Claims, it was the intention of the Legislature to give jurisdiction to the court only in such cases as could not be heard or determined by any other court or by any other process of law, provided by the statutes of the State of Illinois. (N. Y., Chicago & St. Louis R. R. Co. vs. State, 6 C. C. R. 481.) The Legislature, in creating the Court of Claims, did not intend to open wide the doors to all litigants to choose between the courts already established by the Constitution and this court; did not intend that this court should usurp the powers of, contradict, or compete with courts of general jurisdiction. (Moline Plow Company vs. State, 5 C. C. R. 277.) The Court of Claims was created to hear claims and demands against the State for which no other forum had been provided. (Michigan Central R. R. Co., et al, vs. State, 7 C. C. R. 133.) Where the claimant has a complete and adequate remedy at law in courts of general jurisdiction, the Court of Claims does not have jurisdiction. (Moline Plow Company vs. State, supra; Mohawk Carpet Mills, Inc., a corporation, vs. State, 8 C. C. R 37; Anderson vs. State, 9 C. C. R. 310; Decker vs. State, 10 C. C. R. 294; Central States Distributors, Inc., et al, vs. State, 11 C. C. R. 417; Madera Wineries & Distilleries vs. State, 11 C. C. R. 632.)

Claimant had full opportunity to present his claim to the Circuit Court of Sangamon County in a proceeding pending therein, and not having done so, cannot present the same claim for determination here. In view of the long line of decisions of this court, and in view of the basic underlying principles of those decisions, this court is without jurisdiction to make an award in this case.


author: Fisher, J.

text:
    (No. 3033
    Carlson Brothers, Inc., Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    Kenworthy, Shallberg & Harper, for claimant.
    " George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

Claimant seeks an award for merchandise sold and delivered to respondent on or about December 12, 1942.

The record consists of statement of claim, transcript of evidence, and waiver of statement, brief and argument by claimant and respondent, by respective counsel.

It appears from the evidence, that onoDecember 1, 1942, the Illinois Commerce Commission, through its Secretary,

Julius Johnson, ordered of claimant seven (7) mottled Sheaffer Life-time pen and pencil sets at the cost of $9.25 per set to be delivered to the office of the Commerce Commission at Springfield, Illinois. That thereafter, on December 12, 1942, the said pen and pencil sets were so shipped by prepaid express and receipt of the same acknowledged. That, a statement and bill for the agreed charge was frequently mailed to the Commerce Commission, but was never paid. Claimant seeks an award for $68.25, and interest thereon from December 12, 1942, to the date of payment.

The facts are not in dispute. It appears that this obligation was not paid for the reason that there was a change in the personnel of the Illinois Commerce Commission about or shortly after the time this merchandise was received by the commission, and the new members of the commission were unable to locate the pens and pencils. It is difficult to understand how such merchandise could disappear, but, in any event, the responsibility of claimant ended with the delivery of the merchandise to respondent. The goods were properly ordered, delivery was promptly made, the price was reasonable, and claimant is entitled to payment therefor.

We know of no authority whereby we could allow the claim for interest.

An award is therefore entered in favor of claimant in the sum of Sixty-eight and 25/100 Dollars ($68.25).


author: Chief Justice Damron

text:
    (No. 3783
    Helen G. Cloudas, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    Hubert & Reidy, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court. .

This complaint was filed on the 19th day of March, 1943, by Helen G. Cloudas, surviving wife of Robert C. Cloudas, deceased. It seeks an award for the death of claimant’s husband.

The complaint states that, on the 23rd day of July, 1942, Robert C. Cloudas sustained injuries and died by reason of an accident while working at the Rock Island Armory, Rock Island, Illinois; that he had been employed by the respondent' for some time prior to the accident and was working under the specific instructions of Lt. Colonel Ray W. Osterman, custodian, of said Armory; that the nature of the work upon which he was engaged at the time of the accident was using a large extension wrench two feet long to which was fitted an eighteen inch pipe wrench with an extension handle approximately four feet long, the entire apparatus weighing approximately thirty pounds; the deceased was engaged in an effort to unloosen a washout plug in a boiler and the plug being frozen the deceased was straining to loosen the plug and exerting continuous effort for that purpose for a period of approximately five minutes. While engaged in the effort he suddenly ceased work complaining, of a sudden and terrific pain in his head. He returned at once to his living quarters provided for him in the Armory Building, constantly complaining of continuing pains in his head which was thereafter accompanied by nausea. He was placed on a bed in his living, quarters, medical aid was promptly summoned, but he died within twenty minutes of the time he was forced to cease work. His death was diagnosed as cerebral hemorrhage.

The record in this case consists of the complaint, stipulation of facts by the claimant and Attorney General, report of Lt. Colonel Ray W. Osterman, custodian of the Rock Island Armory and waiver of right to file statement, brief and argument by the claimant and the respondent.

The deceased’s salary as an employee of the State of Illinois, carried on the records of the Auditor of Public Accounts, was $120.00 a month, together with living quarters in the Armory for himself, wife and minor child.

No compensation payments had been paid by the respondent to the widow and said child at the time of the filing of this complaint. No medical, surgical or hospital treatment expenses were incurred, but Dr. S. P. Durr, Rock Island, Illinois, was called and responded later. A post mortem was performed by Dr. J. M. Chapin, and an inquest was held by Coroner J. W. Seids, of Rock Island County. Claim was made for these three items as follows: Dr. Durr, emergency call, Three ($3.00) Dollars; Dr. Chapin, post mortem, Fifty ($50.00) Dollars; J. W. Seids, coroner’s inquest, Sixteen ($16.00) Dollars. These items must be denied.

After full consideration of the record, the court finds as follows:

That the deceased and the respondent were on the 23rd day of July, 1942, operating under the Workmen’s Compensation Act; that on the date last mentioned above, said deceased sustained accidental injuries within the meaning of the Act, which did arise out of, and in the course of the employment; that notice of the accident was given respondent and claim for compensation on account thereof was made on respondent within the time required by the provisions of the Act; that the earnings of the deceased during the year next preceding the injury were One Thousand Four Hundred and Forty ($1,440.00) Dollars, and that the average weekly wage was Twenty-seven Dollars and Sixty-nine Cents ($27.69); that the deceased at the time of the injury was twenty-eight years of age and left surviving him his wife, Helen G. Cloudas, the claimant, and Robert C. Cloudas, Jr., born November 24, 1940.

That the petitioner is entitled to recover compensation in the sum of Four Thousand Eight Hundred and Ninety-five Dollars ($4,895.00), for the use of herself and minor child above named, as provided in Paragraph 3 of Section 7 of the Workmen’s Compensation Act of Illinois; that the said petitioner is now entitled to have and receive from the respondent the sum of Seven Hundred Three Dollars and Fifty Cents ($703.50), being the amount of compensation that has accrued from the 23rd day of July, 1942, to the 13th day of May, 1943, and the further sum of Four Thousand One Hundred Ninety-one Dollars and Fifty Cents ($4,191.50), to be paid to her as aforesaid at the rate of Sixteen Dollars and Seventy-five Cents ($16.75) per week, payable every two weeks until fully paid, such future payments being subject to the terms of the Workmen’s Compensation Act aforesaid, jurisdiction of this cause is hereby retained for the purpose of making such further orders as may from time to time be necessary herein. This award is subject to the approval of the Governor of Illinois.

This award, being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Methods of Payment Thereof” (Illinois Revised Statutes, 1941, Chapter 127, Paragraph 180-181), approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act..


text:
    (No. 3771
    John H. Crawford, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    Dennis J. Collins, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

On October 31, 1941, claimant, John H. Crawford, an employee of the Department of Agriculture, Division of Animal Husbandry, of the State of Illinois, while driving a State-owned automobile on Alternate U. S. Route No. 30, about one mile east of DeKalb, Illinois, collided with a car driven by A. L. Porter of DeKalb. As a result of the collision, claimant suffered a fracture through the great trachanter, right femur; a fracture of the middle one-third right femur; and multiple fractures right patella.

At the time of the accident, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation were made within the time provided by the Act. The accident occurred while claimant was in the performance of his duties for the department, and arose out of, and in the course of, his employment. Claimant’s earnings at the time of the accident were $215.00 per month; he had no children under sixteen years of age; the basis for determining compensation is therefore the maximum weekly wage of $15.00.

Claimant was temporarily totally disabled from October 31, 1941, to May 1, 1942, during which time he was paid compensation in the amount of $430.00. Respondent also paid on behalf of claimant the following amounts: (Hidden Hospital, $508.00; Dr. J. S. Rankin, $150.00. No claim is made for medical or surgical treatment, but claimant seeks an award of $3,135.00 for the permanent and complete loss of the use of his right leg.

From the record, which includes a statement by the attending physician, the court finds that claimant has suffered an eighty per cent permanent loss of use of his right leg. He is, therefore, entitled to receive from the respondent the sum of $15.00 per week, for a period of 152 weeks for the partial permanent loss of the use of his right leg. Since the injury occurred subsequent to July 1, 1941, this amount must be increased ten per cent, making a total of $2,508.00.

Award is therefore entered in favor of the claimant, for the total sum of $2,508.00 to be paid to him as follows:

$883.93, which has accrued, is payable forthwith;

$1,624.07 payable in weekly installments of $16.50 each, beginning May 11, 1943, for ninety-eight weeks, with an additional final payment of $7.07.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Fund in the manner provided for in such Act.


text:
    (No. 3650
    Elbert C. Davis, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    Kenneth E. Moss, for claimant.

      George F. Barrett, Attorney General; Egbert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

This claim was filed October 25, 1941, for benefits under the Illinois Workmen’s Compensation Act for permanent partial loss of the use of claimant’s left arm. Claim is based on injuries sustained by claimant, alleged to have arisen out of and in the course of his employment as a laborer employed by the Department of Public Works and Buildings, State of Illinois.

Claimant seeks an award.in the sum of Nine Hundred Eighty-eight Dollars and Eighty-seven Cents ($988.87) for the permanent loss of fifty (50) per cent use of his left arm.

The record consists of the complaint, report of the Division of Highways, transcript of testimony, and statement, brief and argument by respective counsel.

The facts are not in dispute, the claim was filed in apt time, and no jurisdictional questions are involved.

The only question presented for decision is the extent of disability suffered by claimant.

There is some disagreement in the testimony as to the • disability suffered by claimant. He was last examined by Dr. Henry B. Thomas, a renowned orthopedic surgeon, who testified:

Q. “Now, you stated that he had a disability of 25%, in your opinion, on June 24, 1942, is that correct?
A. I did.
Q. And you think at the present time his disability is that percentage?
A. I believe it is less than that, but I am willing to give that as the percentage, because I think he is not a malingerer, but I think he has a hysteria as far as that arm goes.
Q. That is only just a mere guess on your part. You are not absolutely sure that is hysteria.
A. It is not so much a guess with me, because I have'Jspent fifty years doing this stuff and my opinions in regard to what will happen to them is influenced a great deal by what I have seen of many patients after I have given my opinions. I would not call it a guess. I think it is an opinion of an experienced person.”

From all of the evidence, we feel that the maximum disability suffered by claimant was twenty-five (25) per cent loss of the use of the left arm.

Section 8, Subsection (e-13) of the Workmen’s Compensation Act, provides for the loss of an arm or the permanent and complete loss of its use, fifty (50) per cent of the average weekly wage during two hundred twenty-five (225) weeks, which award shall be increased ten (10) per cent for injuries occurring on and after July 1, 1939 (Subsection 1).

Claimant had no children under the age of sixteen (16) years at the time the injury occurred.

All medical charges and temporary total disability have been paid.

Claimant was employed as a laborer at a wage rate of fifty (50) cents per hour, and employees engaged in a similar capacity were employed less than two hundred (200) days per year. Fifty (50) per cent of claimant’s average wage is, therefore, $7.70, to be increased ten (10) per cent, or $8.47 per week. This amount multiplied by 225 weeks equals $1,905.85, 25% of which amounts to $476.44, which sum claimant is entitled to have and receive from respondent, all of which has accrued at this time.

An award is entered in favor of claimant in the sum of $476.44.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Road Fund in the manner provided for in such Act.


text:
    (No. 3255
    Edward Domke, M. D., by and Through Eunice Domke, as Administrator of the Estate of Edward Domke, Deceased ; Eunice Domke, Individually, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    J. Edward Radley, for claimant.

      George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

This claim was filed May 5, 1938. Claimant’s amended complaint was filed May 7,1940, substituting parties claimant. The claim, as filed, is for benefits under the Illinois Workmen’s Compensation Act, and amended for the illness and death of Edward Domke as a result of contracting tuberculosis while he was engaged as a physician at the Peoria State Hospital.

The complaint alleges that Edward Domke, a physician, was employed by the State of Illinois as a physician at the Elgin State Hospital and the Peoria State Hospital. That while employed at the Peoria State Hospital he contracted tuberculosis: Claimant’s amended complaint sets out the

death of Dr. Edward Domke and makes the administrator of his estate a party claimant. Claimant now seeks an award under the Workmen’s Occupational Diseases Act.

The record consists of the complaint, transcript of testimony, motion to reopen cause for additional testimony, supplemental transcript of testimony, claimant’s original statement, brief and argument, supplemental statement, brief and argument, reply brief and argument of claimant, and respondent’s statement, brief and argument.

The facts in connection with this claim are not in controversy. Dr. Domke contracted tuberculosis while engaged as a physician, at the Peoria State Hospital and died as a direct result thereof. The claim for compensation was originally filed under the Illinois Workmen’s Compensation Act, but there being no provisions for compensation for a case of this kind under this Act, we are asked to consider the claim, under the Workmen’s Occupational Diseases Act. Exhaustive and able briefs and arguments are filed by respective counsel.

The facts of this claim are very similar to those in the claim in the case of Marjorie Wheeler vs. State, No. 3363, in which case we discussed at length the Illinois Workmen’s Occupational Diseases Act and its application to employees of the State. Our conclusions in that case are applicable here and are controlling herein. We concluded that the State was within the provisions of Section 3 of the Workmen’s Occupational Diseases Act, which is in part, as follows:

“Where an employee in this State sustains an injury to health or death hy reason of a disease contracted or sustained in the course of the employment and proximately caused hy the negligence of the employer, unless such employer shall have elected to provide and pay compensation as provided in Section 4 of this Act, a right of action shall accrue to the employee whose health has been so injured for any damages sustained thereby; * * * provided that violation by any employer of any effective rule or rules made by the Industrial Commission pursuant to the Health and Safety Act enacted by the Fifty-ninth General Assembly at the third special session, or violation by the employer of any statute of this State, intended for the protection of the health of employees, shall be and constitute negligence of the employer within the meaning of this section: * *

A claimant, to be entitled to compensation under this Section, must show that the employer violated—

(1) A rule or rules of the Industrial Commission made pursuant to the Health and Safety Act, or
(2) Violated a statute of this State intended for the protection of the health of employees.
Grutzius vs. Armour & Co., 312 Ill. App. 366.

We know of no rule or rules of the Industrial Commission promulgated pursuant to the Health and Safety Act of this State, and consequently there could be no violation of such rule.

Claimant contends that respondent violated Section 2 of “An Act to Promote the Public Health and Comfort of Persons Employed by Providing for One Day Rest in Seven” (Illinois Revised Statutes). We fail to find any evidence in the record to support this contention. We have searched the record and it appears that the only evidence or testimony bearing on this point is the following, which appears on page 3 of the transcript of testimony of Dr. Domke, as follows:

Q. “During this period of time what were the conditions — were you provided with gowns or sterilization of your person?
A. On the chronic wards they didn’t have any gowns for the doctors to wear and all we were able to do with our hands was wash them with soap and water.”

And, on page 5:

Q. “You may state the procedure in regard to the Officer of the Day.
A. Officer of the Day is part of our duties, it rotates among the members of the staff. The number of times during the month varies with the number of doctors that are on the staff. As a rule about' every eight or nine days it is our turn to be Officer of the Day.
Q. And during those times were you called to the various tuberculosis hospitals and other wards?
A. After five o’clock the Officer of the Day was the only doctor on duty and he had to take care of all emergency calls.”

In order that an award may be had, it is not sufficient for a claimant to show that he contracted an occupational disease or became ill as a result of his occupation. He must show in addition that the disease or illness was contracted as a result of the negligence of the employer, and the statute specifically provides what shall be construed as negligence. -

We find nothing in the record that could be construed as a violation by respondent of any statute of this State intended for the protection of the health of employees, and therefore we can find no authority upon which to base an award.

Award denied.


text:
    (No. 3405
    R. C. English, an Individual, Trading Under the Style of English Brothers, Claimant vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    Gottlieb & Schwartz, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Fisher, J.

Claim for $119,709.04 was filed August 31, 1939, for loss and damage sustained by claimant under contract dated December 20, 1933, with respondent through the Department of Public "Works and Buildings.

The record consists of the verified complaint, transcript of evidence, report of Division of Architecture and Engineering, by J. H. Stoekmar, Architectural Assistant, and similar report by Bryant E. Hadley (signed B.E.H.), Architectural Assistant, Division of Architecture and Engineering, and stipulation by G-ottlieb and Schwartz for claimant and George F. Barrett, Attorney G-eneral, for respondent.

Claimant alleges:

That on December 20, 1933, he entered into a contract with respondent for the general construction of buildings at Manteno, Illinois, consisting of Male and Female Ward Buildings, Connecting Dining Room Buildings, General Stores Buildings, Laundry Building, Hospital Building and Kitchen Building, Manteno State Hospital, Manteno, Illinois.

That the contractor agreed to and did provide the necessary labor and materials for the said buildings and did construct the same in accordance with the contract.

That the said contract provided that the general conditions of the contract should include, as a part of the contract, the general information and instructions for contractors estimating work for the Manteno State Hospital dated November 4, 1933, as amended, and the contract provisions issued by the Federal Emergency Administration of Public Works.

That the said general information and instructions for contractors estimating work provided that the prevailing rate of skilled labor was $1.20 and unskilled labor $.50 per hour, respectively.

That the said contract, by incorporating the general instructions for contractors, provided that the wage rate was subject to change by the Federal Emergency Administration of Public Works, and upon such change the contract price should be adjusted accordingly on the basis of all actual labor costs on the project to the contractor.

That work pursuant to said contract was started and claimant paid his employees at the prevailing rate of $.50 per hour for unskilled labor and $1.20 per hour for skilled labor as provided in the said contract.

That on or about January, 1934, the Federal Emergency Administration of Public Works made a finding that the prevailing wages at Manteno, Illinois, were $1.25 per hour for' skilled labor and $.55 per hour for unskilled labor and claimant was forced, over his protest, to meet the increased cost of labor.

That the Supervising Architect of the Department of Public Works of the State of Illinois requested and directed claimant to meet the increased wage scale in order that the Federal grant to the State of Illinois would not be jeopardized or withdrawn, and advised claimant that any failure so to do would be considered a breach of claimant’s contract. The State Superintendent of Public Works Administration also' advised claimant that unless the increased wage scale was met, the Federal grant to the State, of Illinois would be' jeopardized or withdrawn and directed claimant to comply with the said wage scale.

That on or about April, 1934, additional increases in wage scales of certain classes of labor were made under similar circumstances.

That, as a result of such increases, additional labor costs, were sustained by claimant to the extent of $31,391.69.

The transcript of evidence contains the testimony of B. C. English, contractor, and J. H. Stockmar, Architectural Assistant, which sustains the claim of $31,391.69 for additional labor costs and, claimant, by stipulation, waives all other claim for damages.

The report of the Division of Architecture and Engineering, by J. H. Stockmar, Architectural Assistant, and Bryant E. Hadley, Architectural Assistant, in reviewing the. entire claim states, in part, as follows:

“Iñ paragraph 3 the claimant states that pursuant to the contract date he had paid unskilled labor 50c per hour, and skilled labor $1.20 per hour. The claimant further states that those were the rates of wages provided in the General Specifications issued by this department pursuant to the contract date, December 20, 1933. Our records show that this is a correct statement. The claimant further states that on or about January, 1934, Mr. B. M. Marshman, Labor Conciliator for PWA, made a finding that the prevailing wages in the region around Manteno, were 55c per hour for unskilled labor, and $1.25 per hour for skilled labor. The writer recalls the incident, and our records indicate that that was the situation. The writer recalls meeting with the contractor and PWA representatives at Manteno, and also in Chicago at Mr. Marshman’s office, for the reason that English Brothers at that time protested on the basis that to the best of their knowledge the prevailing wages in that locality had never exceeded the maximum of 50c and $1.20 respectively. This office, therefore, must acknowledge that English Brothers did protest at that time, inasmuch as they stated they had not figured in their estimate to pay more than the wages as stated by this department in the general information and instructions to contractors, Exhibit B, (which documents were approved prior to release, by PWA), and claimed by the claimant to he prevailing at the time of the contract award.
Paragraph 3 further states that the claimant was instructed by the Labor Conciliator to- raise the wages to meet the increase. We agree that this is a true statement of the facts.
It is further correct that in view of the adamant position of the PWA Labor Conciliator in warning English Brothers not to take any appeal from his decision, that this department having in mind the stipulation of the Grant Agreement wherein PWA agreed to give the State 45% of the cost of the project providing the State abided by the terms of the Agreement, suggested that English Brothers meet the increased wage scale, in order that the Grant to the State would not be jeopardized, as was threatened by the Labor Conciliator. The claimant further states in this paragraph that additional increases in wages were approved under the direction of the Labor Conciliator, and that the same procedure of acceptance of the situation as above described, was again recommended by the State, in order that the PWA Grant to the State would not be jeopardized or withdrawn. In view of the fact that there were not sufficient State funds available that biennium to allow the contractor extras to cover the additional expense imposed after the contract was awarded, this department feels that the claim of English Brothers is logical and just. This recommendation agrees with the claimant’s statement, as outlined in Exhibit D, namely, a total claim for extra labor, of $31,391.69.”

The said report recommends that favorable consideration be given to the “allowance of $31,391.69 for the loss and damage sustained by the claimant due to increased wages beyond those established and advertised in the State’s invitation to bidders.”

By stipulation filed herein, claimant has offered to settle the said claim of $119,709.04 upon allowance to the claimant of the amount of $31,391.69.

It is further stipulated that “the said proposal of settlement is, in the opinion of the Attorney General, fair and equitable to the claimant and to the People of the State of Illinois.”

The said stipulation filed herein further provides:

“It Is Further Stipulated and Agreed by and between the parties hereto that the above entitled claim of claimant against the State of Illinois shall be settled by the allowance to claimant of the sum of $31,391.69 in full settlement of all claims against the State of Illinois arising out'of the said contract dated December 20, 1933; and
It Is Further Stipulated and Agreed by and between the parties that said claimant is justly entitled to and should receive in these proceedings in the Court of Claims of the State of Illinois said sum of $31,391.69; that this stipulation be filed of record in these proceedings and that a judgment be entered in these proceedings in favor of claimant for the sum of $31,391.69.”

No jurisdictional questions are involved, and there appears to be little for this court to consider. The claim is sustained by the evidence and, in addition, the material facts are-admitted. The Division of Architecture and Engineering admits that the claim is proper and justly due, and recommends payment thereof. The Attorney General stipulates that claimant is entitled-to and should receive the sum of $31,391.69 in full payment of the claim. The stipulation appears to be in accordance with the facts and the law applicable thereto.

An award is therefore entered in favor of claimant, E. E. English, an individual, trading under the style of English Brothers, for the sum of Thirty-one Thousand Three Hundred Ninety-one Dollars and Sixty-nine Cents ($31,391.69).


text:
    (No. 3464
    The County of Fayette, Illinois, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    W. F. Sonnemann, for claimant.
    George F. Barrett, Attorney General; Egbert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

Claimant Alleges :

That' the Illinois State Farm at Vandalia, Illinois, is located entirely within the county of Fayette and is a penal farm operating-under the Department of Public Welfare of the State of Illinois and, as such institution.it has inmates who, because of insanity, must be committed to the State hospitals for the insane of this State;

That from March 22,1935 to September 1,1939 numerous inmates of said Illinois State Farm were, at the request of its officers, guards and attendants, committed to the State Hospital for the Insane at Anna, Illinois ;

That necessary insanity proceedings were had in the County Court of Fayette County, Hlinois, and that certain obligations were incurred and.paid by claimant in the commitment of these various inmates to the State Hospital for the Insane at Anna, Illinois.

Claimant asks to be reimbursed for such sums so incurred and paid, and details by bill of particulars, various items of expense in the total sum of Eight Hundred Twenty-eight Dollars and Twenty-five Cents ($828.25).

The record consists of claim filed March 2, 1940, waiver of brief and argument by counsel for the respective parties, and stipulation filed March 26, 1943.

Said stipulation contains, among other things, the following :

“That the Department of Public Welfare has reported that there is due and owing to the county of Fayette, the sum of $16.00 representing coroner’s fees contracted February 9, 1937.
It is further stipulated that all other portions of the complaint are abandoned, and that this claim is for the sum of $16.00 representing coroner’s fees solely.”

The stipulated coroner’s fee of $16.00 was incurred and paid by the county of Fayette in connection with the death of Earl DeLong on February 9, 1937, an inmate of the Illinois State Farm at Vandalia, Illinois. By reason of his death, an inquest was held by the coroner of Fayette County, and that in the inquest the coroner’s fee of $16.00 was incurred and paid by claimant.

The statutes of the State of Illinois relative to such fee is as follows r

Chapter 85, Section 27:

“In cases where the deceased patient was an inmate of any State charitable or penal institution, and the fees for holding such inquest cannot be collected out of the estate of such deceased inmate, such fees shall be paid by the Department of Public Welfare out of the State treasury.”

Chapter 53, Section 43:

“For holding an inquest over a deceased body, when required by law, in counties of the first and second class, $15.00. For summoning a jury, $1.00 in all counties.”

An award is therefore entered in favor of claimant, County of Fayette, Illinois, in the sum of Sixteen Dollars ($16.00).


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    (No. 3782
    Ray E. Geisen, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    Thomas S. MacKinley, for claimant.
    George F. Barrett, Attorney General; Egbert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

In his complaint filed in this court on March 12, 1943, the claimant, Eay E. Geisen, alleges that on March 14, 1941, he was driving his automobile in a southerly direction on U. S. Eoute 66, and that at a point approximately one mile north of Joliet, Illinois, his automobile struck one of the pillars or supports of a viaduct, resulting in severe and permanent injury to claimant. He further alleges that the accident was caused by the negligence of the respondent in permitting the viaduct to be without warning lights or signals. Claimant seeks damages in the amount of $40,000.00.

Eespondent has filed a motion to dismiss the complaint on the ground that it does not state a claim which the State of Illinois as a sovereign commonwealth should discharge and pay.

This court has repeatedly held -that in the construction and maintenance of its system of State highways, the State of Illinois is acting in a governmental capacity. (Spurrell, et al. vs. State, 10 C. C. R. 74; Gerdes vs. State, 11 C. C. R. 243), and it has been uniformly held that in the exercise of such governmental functions, the State is not liable for the negligence of its officers, agents, or employees. (Sale vs. State, 10 C. C. R. 379; Mathieu, et al. vs. State, 11 C. C. R. 397.)

The motion of the respondent is therefore granted and claim dismissed.


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    (No. 3728
    Charles Goesel, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    Wolfberg & Kroll, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

On July 29, 1941, claimant, Charles Goesel, an employee of the Department of Public Works and Buildings, State of Illinois, Division of Highways, while cutting weeds with a mower and team of horses on Eoute 83 West of Blue Island, was struck by an automobile and thrown to the pavement. He was taken immediately by ambulance to St. Francis Hospital in Blue Island, and placed under the care of Dr. Earle J. W. Pronger. His head, neck, right shoulder, chest, and left ankle were severely bruised; there was a fracture of the right scapula, and the right third, fourth and fifth ribs; there were deep lacerations of the left wrist, with a laceration of the ex-tensor carpi ulnaris tendon. He did not regain consciousness until three weeks after the accident.

On August 5th, claimant was taken by ambulance from Blue Island to St. Luke’s Hospital in Chicago, and placed under the care of Dr. H. B. Thomas, Professor of Orthopedic Surgery, University of Illinois, Medical College. He was discharged from the hospital on September 15th, but remained under the care of Dr. Thomas until March 9, 1942.

At the time of the injury, claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the accident and claim for compensation, were made within the period provided by the Act. The accident arose out of and in the course of the employment.

Claimant was first employed by the respondent on June 23, 1941. He was paid at the rate, of $1.25 per hour, which included his services and the furnishing of a two-horse team and mowing machine. Compensation for claimant’s services, apart from the rental of the team and mower, is fixed by the Department at the rate of seventy-five cents per hour. Employees engaged in a similar capacity, worked less than two hundred days a year, and eight hours constituted a normal working day. At the time of the accident, claimant had no children under sixteen years of age dependent upon him for support.

The respondent has paid, on account of claimant’s injury, the following amounts:

Dr. Earle J. W. Pronger, Blue Island.............................. $126.00
Dr. H. B. Thomas, Chicago.....................................»... 484.00
Dr. R. P. Mackay, Chicago........................................ 10.00
St. Francis Hospital, Blue Island.................................. 111.75
St. Luke’s Hospital, Chicago....................................... 279.10
E. C. Clausen, R. N., Blue Island.................................. 49.00
M. Martino, R. N., Blue Island..................................... 47.00
M. Barzycki, R. N„ Blue Island.................................... 7.00
Hickey Funeral Home (ambulance), Blue Island................... 20.00

or a total sum of $1,133.85. The respondent also paid claimant the sum of $13.75 per week for a period of fifteen and three-sevenths weeks, as temporary total disability.

Claimant now seeks an award of $1.25 per week for this period of fifteen and three-sevenths weeks, alleging a compensation rate of $15.00 per week, instead of $13.75, and seeks an award of $15.00 per week for an additional forty-five weeks, alleging that he was wholly incapacitated until June 3,1942. Claimant’s average weekly wage, however, under the provisions of the Workmen’s Compensation Act of this State, was $23.08; the period of his temporary total disability was from July 30,1941, to March 9,1942, when he was discharged by Dr. Thomas. During this period of thirty-one and five-sevenths weeks, he received the sum of $212.14, so that there is due him on account of temporary total disability the further sum of $190.44.

Claimant also seeks an award for an eighty per cent permanent loss of use of his left arm. He testified that his left shoulder and left hand were broken in the accident; that he still has pain in his left wrist, and fingers, and cannot tie a knot with these fingers; that he has very little feeling in his left hand, and no feeling at all in the left wrist. He testified that he can not lift with his left hand, and that he has difficulty dressing, or doing any work involving the use of his left arm.

Dr. Samuel R. Hubert, called as a witness for claimant, testified that he examined claimant on September 2, 1942, and took x-ray photographs which were introduced in evidence. He found that claimant had a fracture deformity of the left wrist with • marked grating on motion; that both flexion and extension of the wrist were markedly restricted and limited to about fifteen degrees in extension and fifteen degrees in flexion from the horizontal. He testified that claimant has a scar on the left wrist extending from the middle palmar aspect to the ulnar side, onto the ulnar styloid, and down to the metacarpal phalangeal joint of the left little finger; that the claimant is unable to close fully his left fist, even with forceful pressure; that the fingers could not be brought down so that they would close; and that there is a residual tendinitis of the tendons of the hand with marked limitation of flexion of the interphalangeal and metacarpal phalangeal joints of the finger. He found a marked coldness, and decreased circulation of all of the fingers of the left hand, including the thumb. Dr. Hubert testified that the x-rays showed bony deformity and fracture deformity of the radius and ulna, and healing fractures of the wrist proper. He stated that in his opinion, claimant had suffered a permanent loss of function of the left hand, wrist and forearm of approximately eighty per cent, and stated that in his opinion he included the arm because of the injury to the shoulder.

The respondent called no witnesses, but submitted its case upon the report of the Division of Highways containing portions of the reports of Dr. Thomas. These reports substantiate the fact that claimant has suffered a partial loss of use of his left arm; that the fingers have lost varying degrees of motion, including the thumb; and that the left hand has lost some of its sense of feel and touch.

Claimant also seeks an award for partial incapacity arising from the fracture- of the third, fourth, fifth and sixth ribs; an award for services rendered by Dr. Samuel E. Eubert, in the amount of $65.00; and an allowance for future medical services. The record, however, does not justify an award for any of these items.

From the evidence and from personal observation of the claimant by the court, it appears that claimant has suffered a fifty per cent permanent partial loss of the use of his left arm. He is, therefore, entitled to an award in the sum of $1,428.08, for permanent partial loss of use of his left arm.

Award is therefore made to claimant in the total sum of $1,618.52, payable as follows:

The sum of $966.59 which is accrued and is payable forthwith.

The sum of $651.93 payable in weekly installments of $12.69 per week beginning May 11, 1943, for a period of fifty-one weeks, with a final payment of $4.74.

This award being subject to the provisions of an Act entitled “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30th, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the Eoad Fund in the manner provided for in such Act.


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    (No. 3401
    Fred G. Hall, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    C. C. Craig, for claimant.
    George F. Barrett, Attorney General; Egbert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

This claim was filed on the 31st day of July, 1939, but the record was not completed until the 24th day of February, 1943. Claimant seeks an award of $4,500.00 for injuries sustained while a member and officer of the National Guard of Illinois. The record consists of the complaint, report of the Adjutant General, transcript of the evidence and abstract thereof, statement, brief and argument on behalf of claimant, and argument - on behalf of respondent.

The record discloses that claimant was a practicing physician and surgeon since 1899 and was a member of the National Guard of the State of Illinois since 1924. On December 7, 1936, he held the rank of Major, was Commanding Officer of the Medical Detachment of the 123rd Field Artillery of the National Guard. On that date, under orders from the commander in chief (Special Order 247, dated December 4, 1936), an inspection of the Medical Detachment was held, and while accompanying the Colonel commanding the regiment as inspecting officer and his staff from the Armory at Galesburg, Illinois, where the inspection was held, claimant slipped and fell on an icy sidewalk in front of the Armory sustaining an injury to his right arm. The ulna was fractured and the wrist was dislocated.

That in accordance with the provisions of Paragraph 10, Article 16, Military and Naval Code (Section 142, Chapter 129, Revised Statute), and under orders from the commanding officer of said regiment, a board of officers convened on December 13, 1936, made a physical examination of claimant, took evidence and sworn statements of the facts surrounding said injury and made the following finding:

“To the Adjutant General, Chief of Staff, Springfield, Illinois
In compliance with S. O. No. 70, Military and Naval Department, State of Illinois, a board of medical officers convened at 180 North Michigan Avenue, Chicago, Illinois, April 1, 1937, all members of the board being present.
The board proceeded to make a physical examination of Major Fred G. Hall, Medical Corps, 123rd Field Artillery, with special references to a personal injury, incurred in line of duty in the military sérvice of the state. The examination included an x-ray taken under the direction of the board.
Findings of the board were as follows—
1. Date of authorized instruction was December 7, 1936.
2. Date injury was suffered was December 7, 1936.
3. Place of injury was vicinity of the Armory of 123rd Feld Artillery, Galesburg, Illinois.
4. Attending circumstances were: The officer had accompanied the regimental commander to his car, after an inspection. While returning to the armory he slipped on the icy walk, and fell.
5. Diagnosis: Fracture, simple, comminuted,' impacted, distal end of the right ulna, with dorsal dislocation of the wrist, also lateral dislocation. Healing in bad position, with considerable bony callus formation.
6. Line-of-Duty: The board concurred in previous finding of the regimental board, that injury was incurred in line-of-duty.
7. Place of treatment was (1) Cottage Hospital, Galesburg, Illinois — one day only. (2) Office of attending surgeon, Dr. A. It. Mailer, Galesburg, Illinois. (3) Veteran’s Administration, Hines, Illinois.
8. Present Status: The officer has obtained a poor result — definitely shown by x-ray taken at this date (April 1, 1937). While there has been some restoration of function under physiotherapy it is not believed that there will ever be full restoration. It is impossible to say just what the degree of permanent disability will be. At this time the board estimates his partial disability to be 50%, — this in view of the fact that he is right-handed, and the nature of his occupation. Competent physiotherapy will reduce this figure to some extent, but not completely.
Recommendations of the board were as follows—
1. The board recommends that the bill of the Cottage Hospital, Gales-burg, Illinois, be paid, if in accordance with the Fee Table of the Military and Naval Department.
2. Tha the bill of the attending surgeon, Dr. A. R Mailer, be paid, if in accordance with Fee Table. • ■ •
3. That the officer concerned receive pay in accordance with the Military and Naval Code, State of Illinois, for a period of four months from date of injury.
Arthur E. Lord, Gol. Med Corps
(President)
Jambs T. Case, Lt. Col., Med. Corps
(Member)
Benedict Aron, Major, Med. Corps
(Recorder)

Considerable medical testimony has been offered in behalf of claimant, most of which supports the finding of the medical board above referred to.

It is apparent from the record that a claim under the provisions of the Military and Naval Code (Ch. 129, Sec. 143, Smith-Hurd Ill. Rev. Stat.) is proper. Such section reads as follows:

“In every case where an officer or enlisted man of the National Guard or Naval Reserve shall be injured, wounded or killed while performing his duty as an officer or enlisted man in pursuance of orders from the Commander-in-Chief, said officer or enlisted man, or his heirs or dependents, shall have a claim against the State for financial help or assistance, and the State Court of Claims shall act on and adjust the same as the merits of each case may demand.”

Whatever right to' an award exists in favor of claimant is by virtue of the aforesaid provisions of the Military and Naval Code of Illinois. No hard and fast rule exists for determining what amount should be allowed. In certain of these cases this court has seen fit to take as a guide, but not as a fixed rule, the provisions of the Illinois Workmen’s Compensation Act, in determining what payment would be reasonable for the loss sustained. Section 8 (E) of that Act as amended to July 1, 1937 provides for the loss of an arm or the permanent and complete loss of its use, fifty percentum of the average weekly wage during 225 weeks.

Again guided by the rule in compensation cases the claimant’s compensation rate would be Fifteen ($15.00) Dollars per week.

If the claimant had been an employee of the State, and had suffered the injuries complained of while so employed no award in excess of $3,600.00 would have been allowed if the arm was completely and totally disabled.

Considering what would be a proper award in this case' had the claimant been an actual employee of the state and this court electing to follow the provisions of the Workmen’s Compensation Act and in accordance with the finding of the military board, finds the claimant is entitled to have and receive the sum of $1,800.00, representing 50% permanent loss of use of his right arm.

An award is hereby entered in favor of claimant in the sum of $1,800.00 all of which has accrued and. is payable in a lump sum.


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    (No. 3754
    Illinois Wheel & Brake Company, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    Claimant, pro se.

      George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant seeks an award for $17.09 for the following items of merchandise and services furnished respondent:

May 6, 1941, 2 Cabriol Shocks, Department of Public Works and Buildings, Division of Highways........................................ $4.95
July 22, 1941, 2 U. B. Cartridges, Department of Public Works and Buildings, Division of Highways................................... 2.87
June 9, 1941, Relining 1 set ’37 Chevrolet Truck Shoes, and lining, Department of Public Welfare..................................... 9.27

It appears from the record that the cartridges received by the Division of Highways were not as originally ordered. An exchange of materials was made, the price remaining the same. Invoice was then vouchered for payment, and payment made by the respondent on August 24,1941. The other items were received by respondent, but not paid for.

Claimant submitted statements of its charges within a' reasonable time. The non-payment is due to no fault of claimant, and when the charges were incurred there remained a sufficient unexpended balance in the appropriations from which payment could have been made. Claimant is therefore entitled to an award. (Elgin, Joliet mid Eastern Railway Company vs. State of Illinois, 10 C. C. R. 243.)

An award is- therefore entered in favor of the claimant in the sum of $14.22.


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    (No. 3716
    Jelmar Olson, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    William G. Thon, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent. ■
   Fisher, J.

Complaint was filed on May 13,1942, and the record completed on May 5,1943. The complaint alleges that on August 4, 1941, and for many years prior thereto, claimant was employed by the State of Illinois, Department of Public Welfare, as a painter at the Illinois Eye & Ear Infirmary, Chicago, Illinois. That on August 4,1941, while in the performance of his duties, claimant fell from a ladder or scaffolding and was injured. His injuries consisted of a fracture of the skull, a fractured shoulder blade and a number of fractured ribs. First aid was given, and claimant was removed to the Illinois Research Hospital for treatment. That all medical and hospital bills have been paid by respondent. That his earnings for a year prior to the date of said accident was the sum of $2,860.00.

Claimant further alleges that no compensation of any kind has been paid to claimant by respondent; that claimant had no children under the age of sixteen years. Claimant seeks an award in accordance with the provisions of the Workmen’s Compensation Act for his injuries.

The record consists of the complaint; transcript of evidence, report of the Illinois Eye & Ear Infirmary, by Dr. John B. Cipriani, report of Dr. Irving J. Speigel, M. D., dated April 20,1942, report of Dr. Percival Bailey, dated February 3,1943, stipulations, statement, brief and argument and reply brief on behalf of claimant, and statement, brief and argument on behalf of respondent.

Claimant and respondent were operating under the pro visions of the Illinois Workmen’s Compensation Act, and all jurisdictional requirements have been met. The allegations of the complaint are substantially sustained by the evidence, except that claimant’s claim of permanent disability appears to be partial and not complete.

It was stipulated that Dr. Percival Bailey, 912 South Wood Street, Chicago, Illinois, examine the claimant, and that his report of this examination be prima facie evidence as to the condition of claimant at the time of said examination.

Dr, Bailey reported that he examined the claimant on February 2, 1943, and from his examination concludes—

“This complaint of his is a subjective complaint, which is difficult to evaluate. My impression is one based on very superficial contact with him. Such a complaint as he has might very well follow such an injury to the brain, but very rarely persists for such a long period of time. The description of.his symptom points to some irritation of the vestibular apparatus, and I would suggest that he be sent to an otologist for a thorough examination of his vestibular apparatus, which we are not equipped to make in the neurological clinic. This man does not appear to me, and did not claim to me, that he is totally disabled. He maintained that only was he unable to work, when his work demanded that he bend his head backward and look upward. Otherwise he feels well and desires to work.”

Dr. Irving J. Speigel, M. D., Resident in Neurology and Neurological Surgery, University of Illinois, College of Medicine, reported on April 20, 1942, as follows:

“I have this day examined Mr. Jalmer Olson who was admitted ter the hospital on August 6th, 1941. Neurological examination at this time reveals no objective findings. However he still becomes dizzy when he looks up or down for a protracted length of time. This is not an infrequent occurrence in elderly patients following a cr'anio-cerebral injury. I am fairly convinced of this man’s sincerity. Our records are at your disposal.”

By stipulation filed herein on May 4, 1943, it is agreed between the parties hereto, by their respective attorneys of record, that the following facts may be considered by the court in arriving at its decision.

“That the claimant is not completely disabled but only partially disabled from following his usual occupation of painter and that claimant is now employed by the State of Illinois as a watchman at the State Training School for Girls located at Geneva,' Ill., and is able to earn the sum of $75.00 per month as such watchman and is further allowed his maintenance at said school which maintenance is computed and valued at the sum of $30.00 per month.”

We conclude from the evidence that claimant is entitled to the benefits of the Workmen’s Compensation Act.

At the time of the injury claimant was earning $55.00 per week. He is now able to earn and is earning $24.25 per week. Claimant is entitled to receive from respondent (Section 8, paragraph d) Illinois Workmen’s Compensation Act, fifty per centum of the difference between the average amount which he earned before the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident, subject to the limitations as to time and amounts fixed in paragraphs (b) and (h) of this section; the amount so payable to be increased 10% (Section L) for injuries occurring after July 1, 1939. The difference between claimant’s earnings before the accident and his present earnings amounts to $30.75 per week, 50% of which is $15.37, plus 10%, or $16.90. Claimant’s rate of compensation is, therefore, the maximum of $16.50 per week.

The record indicates that the duration of claimant’s disability is indefinite and, therefore, the payments herein awarded claimant shall cease when and if claimant is able to resume his former occupation or is able to engage in some other occupation or business whereby his income is equal to his earnings before the injury occurred, or when the maximum payment has been reached, whichever first occurs.

Claimant asks that he be granted a lump sum award. Section 9 of the Illinois Workmen’s Compensation Act provides that payment in a lump sum may be made “if upon proper notice to the interested parties and a proper showing made before such commission or any member thereof it appears to the best interest of the parties that such compensation be so paid, the commission may order the commutation of the compensation * *

There is no showing whatever in the record that it is to the interest of the parties that a lump sum payment be made. Also, in view of the fact that claimant’s disability is indefinite and may terminate at any time, we cannot at this time grant the request for a lump sum payment. However, should claimant desire, and be able to make the necessary showing for a lump sum payment, he can do so by petition and hearing thereon, and, for this purpose, we retain jurisdiction of this cause. Claimant was injured on August 4, 1941, and his rate of compensation for temporary total disability is $16.50 per week, the same amount he is entitled to receive for permanent partial disability. It is, therefore, immaterial when plaintiff returned to work or was able to return to work. The record does not show when he was able to return to work, but it did show that he did return to work on May 1, 1943, and that his earnings are now $105.00 per month.

Claimant is, therefore, entitled to receive from respondent, and an award is hereby entered in favor of claimant for the sum of Forty-four Hundred Dollars ($4,400.00), payable as follows:

$1,518.00 accrued up to and including May 10, 1943, is payable forthwith;
$2,882.00 payable in weekly installments of $16.50 each for 174 weeks;
and a final payment of $11.00.

This award being subject to the provisions of an Act entitled, “An Act Making an Appropriation to Pay Compensation Claims of State Employees and Providing for the Method of Payment Thereof,” approved June 30, 1941, and being by the terms of such Act, subject to the approval of the Governor, is hereby, if and when approval is given, made payable from the appropriation from the General Revenue Fund in the manner provided for in such Act.