text:
    (No. 3489
    Pete Orlandini, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

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

Claim was filed April 30, 1940, for benefits under the Workmen’s Compensation Act, for permanent disability for claimant’s left leg. This claim is for injury sustained by claimant, alleged to have arisen out of and during the course of his employment as a laborer employed by the Department of Agriculture, Division of State Fair.

Claimant alleges, that on the 4th day of May, 1939, while he was employed as a laborer at the Illinois State Fair Grounds, Springfield, Illinois, while attempting to oil a gasoline lawn mower, claimant accidentally brought his left knee into contact with the revolving steel blades of the lawn mower, causing the injury to his left knee which resulted in a permanent disability of sixty (60) per cent loss of use of the left knee.

Claimant alleges that he has a family consisting of his wife and one son aged five months. It appears from the record, that claimant has one son born subsequent to the date of the injury and, therefore, claimant had no children under sixteen years of age at the time the injury occurred.

All medical and hospital expenses and charges have been paid by respondent.

Claimant asks for sixty (60) per cent total loss of his left leg, or the sum of $1,425.00.

The record consists of the complaint, report of the Department of Agriculture, transcript of evidence on behalf of claimant, stipulation of facts, and statement, brief and argument on behalf of claimant and respondent.

No jurisdictional questions are involved, and claimant is entitled to the benefits of the Illinois Workmen’s Compensation Act. The only question for decision is the amount of disability and compensation claimant is entitled to recover. The stipulation of facts in this case includes the report of Dr. David McCarthy who was employed by the State of Illinois to make the examination. Dr. McCarthy reported that, in his opinion, the claimant suffered a thirty-five (35) per cent permanent total disability to his left knee. This court must determine how much disability to the leg may be attributed as a result of a thirty-five (35) per cent disability to claimant’s left knee. The Workmen’s Compensation Act does not provide specifically for the loss of the use of the knee, but provides for the loss of use of a leg, and, therefore, in computing the disability to a knee we must determine to what degree the injury affects the entire leg. An entire loss of use of a knee is, at most, regarded as a fifty (50) per cent loss of the use of a leg and, this injury being a thirty-five (35) per cent loss of use of the knee, it would, on this basis, amount to thirty-five (35) per cent of fifty (50) per cent, or seventeen and one-half (17%) per cent loss of the use of a leg.

Claimant was employed at $25.00 per week, and it appears that workmen engaged in a similar capacity were paid $1,300.00 per year. Section 8, (E-15) of the Workmen’s Compensation Act provides for the loss of a leg or complete loss of its use, fifty per centum of the average weekly wage during 190 weeks. Fifty (50) per centum of claimant’s weekly wage was $12.50, seventeen and one-half (17%) per cent of which for 190 weeks amounts to $415.62, which claimant is entitled to recover for the partial loss of the úse of his left knee.

Claimant also seeks temporary total disability in the sum of $425.00. The record shows that claimant was injured May 15th and returned to work on December 9, 1939. Claimant’s total disability, based on fifty (50) per cent of his average earnings for this period amounts to $387.50. He was paid $386.00, leaving a balance due claimant for temporary total disability in the sum óf $1.50, or a total award of $417.12.

An award is entered in favor of claimant in the sum of $417.12, all of which is 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 Fund in the manner provided for in such Act.


source: Caselaw Access Project

author: Eckert, J.

license: Public Domain

text:
    (No. 3676
    David A. Pesavento, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    H. E. Christensen and John L. Walker, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

On July 10, 1941, claimant, David A. Pesavento, a member of the Illinois State Highway Maintenance Police, answered a call to proceed to the scene of an accident about one block south of Kankakee River Drive on State-Federal Route 66A in Will County, Illinois. Upon arrival at the scene of the accident, claimant found a Pontiac automobile turned over on the highway, and while assisting the owner to lift a tool box into the squad car, suffered a sharp pain in his back. The box was three or four feet long, eighteen or twenty inches wide, about one and one-half feet deep, and weighed approximately seventy-five pounds.

Claimant reported the injury to the district police office, and on the instructions of his superior officer, consulted Dr. W. J. Fahrner at Joliet. Dr. Fahrner found that claimant had suffered a sacro-illiac strain affecting the right side, and taped claimant’s back. On the fifth day after the accident, claimant, was supplied with a brace and returned to work. He continued in the employ of the State until September 27,1941, when he was discharged.

Claimant was employed by the Department of Public Works and Buildings, Division of Highways, Bureau of Police, as a police officer from March 1, 1931, to February 10, 1933. During the years 1933 to 1938, claimant worked as a truck gardener and farmer, and during the years 1938,1939, and 1940, worked for the Federal Government successively as a truck driver and clerk. On January 7, 1941, he was again employed as a police officer by the Illinois State Highway Maintenance Police in district No. 5, with headquarters at Joliet. Throughout this last period of employment, he received a salary of $175.00 per month. At the time of the accident, he had no children under sixteen years of age dependent upon him for support. He received his full salary during the period of his temporary total disability from July 11th to July 14th, 1941, the amount of compensation paid in the form of salary being $22.58. The respondent also paid $22.00 to Dr. W. J. Fahrner of Joliet for services rendered claimant in connection with the accident.

On July 30, 1941, Dr. Fahrner reported to the respondent in reference to the claimant as follows:

“Patient’s story of accident: while helping to lift a tool box in an auto accident, suffered a severe catch in his back. Nature of injury: sacro-illiac strain affecting the right side. Treatment: at first taped and sacro-illiac support applied later. Date patient was discharged: July 14, 1941. Permanent disability expected: none.”

Claimant signed and submitted to the district office weekly reports concerning his activity as police officer throughout the period of July 10th to September 27th, 1941, inclusive. From these reports, it appears that claimant was on active duty as a State police officer except for four days following the injury.

Claimant testified that' before entering upon his duties as an officer of the Illinois State Police on January 7,1941, he was given a complete physical examination, and that by direction of his superior officers, he was again examined at Kankakee on May 1, 1941. Apparently, no physical defects were evident at the time of either of these examinations.

Claimant also testified that his injury occurred while giving aid and assistance in accordance with instructions from his superior officers; that he was ordered back to work by the chief clerk of the district office on July 14th, and advised that if he did not return, his salary would stop; that he returned to work wearing the brace, but that if he bent over, he suffered pain in his back. He also testified that he worked from nine to sixteen or eighteen hours a day during the period following the injury, working days until the middle of August, and then nights, for a four-week period.

Claimant testified that about the time he began working-nights, he felt pain in his left side and chest and that he had difficulty sleeping. His average weight prior to the accident was 155 to 160 pounds; his present weight is 132 pounds.

After claimant left the employ of the State, he worked for the sheriff’s office in Will County for one week during October, 1941. The condition of his health was such, however, that he consulted Dr. Arthur Fahrner, who advised him that he had a heart injury, and that he must give up his employment. Since that time he has been under the constant care of Dr. Fahrner, and has himself paid for these services. The record, however, does not show the amount.

Claimant testified that he is still unable to work; that he is short of breath; and that he has a heavy pounding over the heart, and a pain in the lower part of his spine. He testified that he .is still unable to sleep, and that he is easily exhausted.

Dr. Walter A. Fahrner, called as a witness for claimant, testified that he first examined claimant on July 10, 1941, shortly after the accident. Claimant at that time was unable to stand straight, was bent to the left, and some of the ligaments and muscles of his back were torn. Following diagnosis of sacro-illiac strain, claimant was strapped and a brace was prescribed. The doctor testified that the last time he saw claimant was about six weeks after the accident, at which time “he still was having a residue of his trouble.” He expressed no opinion as to the cause of claimant’s present disability.

Dr. Arthur H. Fahrner, called as a witness for claimant, testified that he first examined claimant on October 13, 1941, and found blood pressure decreased from normal, an inflammation of the heart muscle, and an enlargement of the heart. The doctor testified that he had treated the claimant steadily since that time, and upon examination on June 22nd, 1942, found claimant’s condition substantially unchanged. In answer to a hypothetical question, the doctor stated:

“Well, yes, there is a probability that when he lifted an object that weighed seventy-five pounds that might have thrown some strain on the heart. Of course I can’t be one hundred per cent positive of it, because the only thing I can be positive of is what I found at my physical examination, but apparently this condition had been existing for sometime, I would say, because it was fairly well established, which could have been for several months, it could have been in éxistence. It was not just a recent happening, because it had already been tending toward a chronic inflammation, anything which is two. or three months or more along we call chronic inflammation. Anything before that we call acute inflammation, especially of heart muscle tissue.”

Upon cross-examination, Dr. Fehrner testified that the condition might have existed for months; that it can exist for years, or can be .of very recent origin; and that the same symptoms are present regardless of the length of time the condition exists. For that reason he found it impossible to say definitely how long the heart condition had been present. He also testified that heart trouble is seldom caused by-trauma, although heavy lifting can cause the heart to dilate or enlarge, and that the medical profession is unable to trace heart conditions back to their origin. He was definitely unwilling to state that claimant’s present condition is the result of the injury of July 10, 1941.

Included in the record is a report of Dr. Chauncey C. Maher, a specialist in internal medicine and cardiovascular disease, who examined the claimant on June 19, 1942. Dr. Maher stated:

“The cardiac findings in- this man deviate very mildly from the normal, and in my opinion are probably not closely related to his present complaints. He has an irregularity of the pulse, which is technically known as premature auricular systoles. Normally the pulse beats quite regularly, similar to the ticking of a clock. In this patient there is an occasional beat which occurs prematurely in the rhythm, and it is possible that he is conscious of this and it may be somewhat annoying. The significance of this irregularity, however, from a medical standpoint is negligible. Many patients with normal hearts have this irregularity and it has no serious significance. It does not indicate any damage to the heart muscle, valves or blood vessels, and does not indicate future heart disease. He also has a very slight systolic murmur, which is also not significant. The size and shape of his heart is normal and quite characteristic of his general build, and he has a normal electrocardiogram except for the extra beats already mentioned.
“This man also has changes in his peripheral arteries. This is particularly noticeable in the radial artery which goes to the arms and hands. Sclerosis of this artery suggests that this is present in other arteries of the body. Arteriosclerosis, or hardening of the arteries, is a generalized disea.se which increases with age. One might consider the possibility that this man’s arteries are somewhat more sclerotic than the average man of 47 years of age.
“It is my impression that the primary problem in this patient is concerned with the lesion in his lung. It would be impossible to tell you with certainty that this patient has an active tuberculosis infection, but the x-ray findings are strongly suggestive of this classification. His subjective symptoms, other than pain in the leg, would also suggest an active tuberculous 'infection.
“In conclusion, this patient has some minor findings with regard to the rhythm of his heart and a slight systolic murmur, but cannot be classified as having organic heart disease. The cardiac findings are not significant and are in no way related to his occupation or his injury. He does have, however, a generalized arteriosclerosis, which is particularly manifested in the arteries to his extremities. His subjective symptoms and the x-ray findings strongly suggest that he has pulmonary tuberculosis, probably active.”

Claimant now seeks an award, alleging complete disability, in the amount of $4,400.00, and pension for life, as provided by the Workmen’s Compensation Act of this State. At the time of the accident, claimant and respondent were operating under the provisions of that Act, and notice of the accident and claim for compensation were made within the time provided by the Act. The accident occurred while the claimant was in the performance of his duties for the respondent and arose out of and in the course of his employment.

The claimant, however, has a burden of proving the causal connection between the accident and the condition of incapacity which constitutes his claim for compensation. Sanitary District vs. Industrial Commission, 343 Ill. 236; Sears Roebuck & Company vs. Industrial Commission, 334 Ill. 246. Liability cannot rest upon imagination, speculation, or conjecture, but must be based upon facts established by a preponderance of the evidence. Springfield District Coal Company vs. Industrial Commission, 303 Ill. 528. It cannot rest upon a choice between two views equally compatible with the evidence. Rittler vs. Industrial Commission, 351 Ill. 338; Carson Payson Company vs. Industrial Commission, 340 Ill. 632.

The medical testimony in this case shows that claimant’s physician is unable to determine whether or not claimant’s disability is a result of the injury. Dr. Arthur H. Fahrner testified to a possibility that the lifting of the tool box might have thrown some strain on the heart. He was unable to determine how long a period of time the alleged chronic inflammation had existed. Dr. Fahrner also testified that a trauma seldom causes heart trouble. The cardiac findings of Dr. Maher were insignificant, and in no way related to claimant’s incapacity or injury. Dr. Maher, on the other hand, found claimant suffering from a generalized hardening of the arteries, with a strong suggestion of pulmonary tuberculosis, probably active. Hone of the medical testimony shows that claimant’s present incapacity is a result of the injury incurred in his line of duty.

Claimant has not sustained his burden of proving the causal connection between the accident and his present disability. Any liability in this case would be based, not upon facts, but upon conjecture; there are two views equally compatible: (1) that claimant’s disability is a result of the injury; (2) that claimant’s disability is a result of á generalized hardening of the arteries and tuberculosis.

An award must therefore be denied.


author: Fisher, J.

text:
    (No. 3764
    Frank Regan, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    Cassidy, Knoblook & Sloan, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Fisher, J.

Claim filed November 17, 1942; seeks an award for the loss of the use of claimant’s left hand.

On March 26, 1942, while employed by the State of Illinois, Department of Public Welfare, and working in the laundry of the Peoria State Hospital, Bartonville, Illinois, claimant’s left hand became caught and was crushed in the laundry washer. Claimant was given surgical and hospital care at the Peoria State Hospital. Respondent had immediate notice of the injury.

No jurisdictional questions are involved and the facts are substantially admitted. Claimant was injured in the course of his employment and is entitled to the benefits of the Illinois Workmen’s Compensation Act.

The record consists of the complaint, report of the Peoria State Hospital, by Dr. J. H. Ellingsworth, Managing Officer, stipulation of facts, and waiver of statement, brief and argument by claimant and respondent by and through respective counsel.

There is a small difference of opinion between the doctors who examined claimant as to the extent of the loss of use of claimant’s left hand, but it appears from the evidence that the loss of the use was not less than fifty (50) per cent. Claimant is, therefore, entitled to compensation for fifty (50) per cent loss of the use of his left hand.

Claimant’s salary was $1,044.00 per year, or an average weekly salary of $20.08. He was injured on March 26, 1942, and returned to work on June 15, 1942. He was entitled to payment of compensation for temporary total incapacity for 11-3/7 weeks at $11.04 per week, or $126,15. He was paid for this period the sum of $148.47, an overpayment of $22.72, which must be deducted from any award herein.

Section 8 (E12 and L) of the Illinois Workmen’s Compensation Act provides for the payment of the loss of the use of a hand fifty (50) per cent of the average weekly wage for one hundred seventy (170) weeks, to be increased ten (10) per cent for injuries subsequent to July 1, 1939, or $1,876.80. Claimant, having suffered a fifty (50) per cent loss of the use of his left hand is, therefore, entitled to have and receive from respondent the sum of $938.40, less $22.72 overpayment which he received as payment for temporary total incapacity.

An award is therefore entered in favor of claimant in the sum of $915.68,

$507.20, which is accrued and is payable forthwith, and
$408.48, payable in weekly installments of $11.04 for 37 weeks beginning
May'17, 1943.

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.


text:
    (No. 3709
    William H. Rehmstedt, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

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

William H. Rehmstedt, claimant, a resident of Mt. Olive, Illinois, while employed by the Division of Highways as a laborer and engaged in such work, was injured on December 4,1941. Claimant seeks damages in the sum of Four Hundred Fifty Dollars ($450.00) for total and permanent disability of the little finger on his left hand and total and permanent disability of the third finger on his left hand.

The record in this case consists of the complaint, report of the Division of Highways, report of Dr. Gr. A. Floreth, and stipulation by the respective parties that the report of the Department of Public Works and Buildings and the report of Dr. Gr. A. Floreth constitute a part of the record in this case. It is further stipulated that Dr. Gr. A. Floreth of Mt. Olive, Illinois, is a reputable and qualified physician.

The report of the Division of Highways sets forth that on December 4, 1941, claimant was engaged in crushing concrete for the division in the northwest part of- Mt. Olive about one block from U. S. Route 66; that while so working his finger was caught between the concrete and the edge of a hopper and injured; that the Division had knowledge of the accident on the same day it occurred; that claimant was taken immediately to the office of Dr. Gr. A. Floreth where he received medical treatment; that on January 26, 1942, Dr. Floreth reported to the Division that claimant would be able to resume work on February 5, 1942; that permanent disability was expected and stiffness and disfigurement at site of fracture. “ Dr. Floreth did not report the fracture of any finger except the little finger of the left hand. The division paid compensation for temporary total disability until February 4, 1942, and the charges of Dr. Floreth for services rendered claimant were paid by the division.

The record report of Dr. Floreth states that

“This is to certify that I have examined Mr. Behmstedt’s left hand. I find the 2d joint of little finger of left hand, complete anchylosis, this leaves a practically total loss of little finger.”

No jurisdictional questions are involved, and claimant is entitled to the benefits of the Workmen’s Compensation Act.

The record shows that claimant worked at a wage rate of Fifty Cents an hour and that employees engaged in the same capacity in which claimant was engaged at the time of the accident in question worked for the division less than 200 days a year. Claimant’s average weekly wage was, therefore, Fifteen Dollars and Thirty-eight Cents ($15.38) a week, and claimant is entitled, under the Workmen’s Compensation Act, to recover the sum of $7.69 per week for 20 weeks, plus 10%, or a total of $169.18 for the total loss óf the use of the fourth finger of his left hand.

An award is, therefore, entered in favor of claimant in the sum of One Hundred Sixty-nine Dollars and Eighteen Cents ($169.18), all of which is accrued and 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 Road Fund in the manner provided for in such Act.


author: Chief Justice Damron

text:
    (No. 3664
    Grant Reninger, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    Roger H. Clark, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

The record in this case consists of the complaint, bill of particulars, stipulation and report of the Director of the Department of Conservation.

The complaint alleges that the claimant, Grant Reninger, was employed by the respondent in the Department of Conservation at what is called the “Pheasant Farm” at York-ville, Illinois, on the 7th day of June, 1941, as a laborer. That among his duties he was required to operate a grass cutting machine powered with a motor. Said machine was equipped with blades and sprockets; that while operating said machine it became clogged and the power was shut off by claimant for the purpose of removing the stoppage; that while reaching down among the sprockets with his left hand the machinery suddenly started to operate and that as a result thereof his said finger was crushed and damaged to such an extent that it became necessary to remove the first joint or phalange thereof.

That necessary medical, surgical and hospital treatment was furnished by the respondent on the day of the accident and some time thereafter, and, according to the report of the Department of Conservation, the claimant lost less than one week before resuming his employment.

There is no jurisdictional question to be decided in this case, the respondent having had ample notice, as required by Section 24 of the Workmen’s Compensation Act.

The report of the Department of Conservation states that the salary of the claimant was $100.00 per month and that the earnings of employees in the same class or grade as claimant amounted to $100.00 per month for the year preceding the injury of claimant.

Upon consideration of the facts in the record, we find as follows: That on the 7th day of June, 1941, the claimant and respondent were operating under the provisions of the Workmen’s Compensation Act of this State; 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 said Act; that claimant was in the employ of the respondent in the grade in which he was employed at the time of the accident for less than one year; that his compensation rate amounts to the sum of $8.25; the claimant at the time of the accident was fifty-two years of age and had no children under the age of sixteen years; that necessary first aid, medical, surgical and hospital services were provided by the respondent; the claimant was temporarily totally disabled from the date of his injury for less than one week; that he suffered the loss of the first phalange of the second finger of the left hand, which, under Paragraph E-3, of Section 8, of the Workmen’s Compensation Act, is considered to be equal to the loss of one-half of such finger.

We further find that the period of claimant’s temporary total incapacity for work being less than six working days he, therefore, is not entitled to receive from respondent any compensation for such temporary total incapacity.

We further find that claimant is entitled to have and receive from the respondent for the loss of one-half of the second finger of his left hand, the sum of $8.25 per week for a period of 17% weeks pursuant to the provisions of paragraph E-3, amounting to the sum of $144.38.

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

Award is therefore entered in favor of the claimant, Grant Reninger, for the sum of One Hundred Forty-four Dollars and Thirty-eight Cents ($144.38).

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. 3774
    Frank Richards, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

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

Claimant, Frank Richards, was employed as a laborer by the Division of Highways, Department of Public Works and Buildings, of the State of Illinois, on August 24, 1942. On October 13, 1942, while patching concrete pavement on U. S. Route 52, Wilton' Center, Illinois, a chip of concrete, apparently propelled by an air hammer chisel operated by a fellow employee, struck and injured his left eye. Claimant was treated at St. Mary’s Hospital in Kankakee, Illinois, from October 19th to December 5th; he was able to return to work on December 21, 1942. The accident, however, resulted in the loss of all useful vision in the injured eye.

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 arose out of and in the course of the employment. Claimant had been in the employ of the division less than two months; he had no children under sixteen years of age; his wage rate was fifty-five cents an hour. Employees engaged in a similar capacity worked for the respondent less than two hundred days a year, and eight hours constituted a normal working day. The basis for determining claimant’s compensation is therefore a weekly wage of $16.92.

Claimant was temporarily totally disabled for a period of nine and one-seventh weeks, during which time he was paid compensation in the amount of $96.96. He was entitled, however, to compensation payments totalling $85.12, so that there was an over-payment of $11.84. Respondent also paid $346.47 for medical and hospital services. No further claim is made for such services.

Claimant seeks an award for total loss of use of his left eye. His claim is fully substantiated by the record, and he is entitled to receive from the respondent the sum of $8.46 per week for one hundred and twenty weeks, or $1,015.20. Since the injury occurred subsequent to July 1st, 1941, this amount must be increased ten per cent, making a total sum of $1,116.72, from which should be deducted $11.84, ■ over-payment on account of temporary total disability.

Award is therefore entered in favor of the claimant for the sum of $1,104.88 to be paid to him as follows:

$187.53 which has accrued and is payable forthwith. $917.35, payable in weekly installments of $9.31 per week beginning May 11, 1943, for ninety-eight weeks, with an additional final payment of $4.97.

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. 3719
    Grover C. Stucker, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

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

delivered the opinion of the court:

The complaint in this case alleges that the claimant was employed by the Department of Public Welfare as a stationary engineer. That on the 24th day of November, 1941, while engaged in his duties and endeavoring to repair the shaft of a coal feeder, he injured the index finger of his left hand, and that as a result of said injury it become necessary to amputate the distal phalange on said finger. The respondent received notice of said injury on the day it occurred and the Department of Public Welfare paid all medical bills incurred by claimant.

The record in this case consists of the complaint, the report of the Department of Public Safety, stipulation of the facts between the respondent and claimant, waiver of statement, brief and argument on behalf of the claimant, and the statement, brief and argument on behalf of respondent.

The stipulation of facts shows that the injury to claimant arose in the course of and out of his employment while claimant was engaged in his duties. The stipulation further shows that as a result of the injury it became and was. necessary to amputate the distal phalange of the index finger of claimant’s left hand above the joint. It would appear, therefore, that the only question for the court to pass upon is the amount of compensation due claimant.

There is no jurisdictional question to be decided in this case, respondent having had ample notice as required by Section 24 of the Workmen’s Compensation Act.

Claimant was receiving pay of $213.75 per month making his compensation rate amount to $16.50 per week at the time of this injury. For the total loss of the index finger an employee would be entitled to 50% of the average weekly wage during 40 weeks.

The loss of the distal phalange of the index finger under Paragraph E-6, of Section 8 of the Workmen’s Compensation Act, is considered to be equal to the loss of one-half of said finger.

Under this record, it is impossible to ascertain the amount of temporary total compensation due the claimant, if any. Claimant seeks an award for temporary total compensation from November 24, 1941, to the 17th day of February, 1942, but the record does not support this claim. Under ordinary circumstances this injury should have healed within three weeks and claimant should have been able to resume his work at the end of That time. If complications had arisen in the healing of this finger the record should show it. Since it does not, the court feels that three weeks is indicated for temporary total disability.

An award is therefore entered in favor of claimant and against the respondent for temporary total compensation on the basis of $16.50 for three weeks, amounting to the sum of $49.50. A further award is entered in favor of the claimant and against the respondent for the loss of 50% of the index finger of the left hand, at the rate of $16.50 for 20 weeks, amounting to a sum of $330.00, making a total award in favor of claimant of $379.50, as provided in Section 8, Paragraph E-2-6 and Paragraph L, of the Workmen’s Compensation Act of Illinois, all of which is now accrued and is 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 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. 3542
    Georgia E. Stull, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    Stone & Fowler,, Londrigan & Londrigan (James E. Londrigan, of counsel), for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Eckert, J.

On December 16, 1939, claimant, Georgia E. Stull, while employed by respondent, and on duty as a domestic at the State School and Colony at Lincoln, Illinois, fell upon the kitchen floor of the institution and fractured her left hip.

At the time of the acciclent, 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 her duties, and arose out of and in the course of her employment. Respondent furnished all necessary medical, surgical and hospital services. Claimant’s earnings during the year next. preceding the injury were $995.70; at the time of the accident she had no children under sixteen years of age; the basis for determining compensation is therefore an average weekly wage of $19.15.

Claimant was temporarily totally disabled from December 16, 1939, to October 20, 1940, during which time she received compensation in the amount of $60.90. During this period of forty-four weeks, she was entitled to the sum of $10.54 per week, or a total sum of $463.76, so there is now due her on account of temporary total disability the sum of $402.86.

Claimant also seeks an award for sixty-five per cent permanent loss of use of her left leg, and for twenty-five per cent permanent loss of use of her right leg. From the record, it appears that she sustained a serious fracture of the surgical neck of the left femur with about an inch displacement inward and upward. The medical reports show that claimant’s disability is permanent; that claimant’s left leg is shorter than the right, with a slight general muscular atrophy, the left thigh being less in circumference than the right. There appears to be considerable stiffness and limitation of motion in .the left hip, together with limitation of flexion. The report of Dr. R. F. Herndon finds practically no hyper-extension, abduction and external rotation reduced about twenty-five per cent, internal rotation and abduction practically normal.

From the medical reports, and from observation of the claimant by the court, the court finds that claimant has suffered a 50% permanent loss of use of her left leg, and no permanent loss of use of her right leg. She is therefore entitled to receive from the respondent the- sum of $10.54 per week for a period of ninety-five weeks, or the sum of $1,001.30.

Award is therefore entered in favor of the claimant for the total sum of $1,404.16; 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 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 General Revenue Fund in the manner provided for in such Act.


text:
    (No. 3531
    The Terminal National Bank of Chicago, a Banking Corporation, Claimant, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    Osborne, Kline & MoGurren, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

On March 3, 1939, the Illinois Milk Products Company, an Illinois corporation, being indebted to the Terminal National Bank of Chicago, the claimant, executed and delivered to claimant its promissory note in the sum of $1,660.00, and on March 9, 1939, being further indebted to the Terminal National Bank of Chicago, executed and delivered its promissory note to claimant in the amount of $1,650.00. Each of these notes was payable forty days after date, with interest at seven per cent per annum after maturity. By stipulation there is due on the first note $265.41 principal, and $61.90 interest; there is due on the second note $539.09 principal, and $125.78 interest, or a total of $992.18.

To secure the payment of these notes, the Illinois Milk Products Company assigned to claimant certain accounts due from respondent to the Illinois Milk Products Company. Notice of this assignment was given to the Department of Public Welfare, to the Treasurer of the State of Illinois, to the Auditor of Public Accounts, and to the Attorney General. On January 25, 1939, the State Treasurer acknowledged receipt of power of attorney authorizing claimant to endorse warrants issued on behalf of the Illinois Milk Products Company to July 7, 1939. It is conceded that the assigned accounts, in the total sum of $1,043.83, were properly due and payable by the respondent to the Illinois Milk Products Company for products furnished to the respondent for the maintenance of its institutions.

Warrants in payment of the accounts were issued by the State, returned, and cancelled upon payment, except warrants in the amount of $321.48 which are still held by the Department of Public Welfare. The warrants issued, returned and cancelled, were not received by the claimant.

The Illinois Milk Products Company, having furnished necessary supplies for the operation of respondent’s institutions, was entitled to payment. Its right to collect these accounts is unquestioned, and as against this assignor the respondent has no apparent defense. The claimant, by its assignment, acquired rights equal to those of the assignor. The general rule is that claims against the government are assignable. (People vs. Nudelman, 376 Ill. 535.) The right to assign a debt which is due and fully earned is unquestioned by the courts. The assignment, by the Illinois Milk Products Company of its accounts against the respondent, was a valid assignment of which the State was required to take notice.

It is also a general rule that interest is not payable on claims against the State. In this case, however, there is due from the respondent to the assignor the total sum of $1,043.83; there is due c laimant from the assignor, including principal and interest, the total sum of $992.18. The amount due from the respondent to the assignor being greater than the amount due claimant, claimant is entitled to recover interest on the assignor’s indebtedness for which the accounts were given as security. The interest is due upon the notes, not upon the amount due from the "respondent to the assignor.

An award is therefore entered in favor of the claimant in the amount of $992.18.


text:
    (No. 3622
    Robert Trolin and Naomi Elizabeth Trolin, Claimants, vs. State of Illinois, Respondent.

      Opinion filed May 12, 1943.

    David M. Jacobson, for claimants.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

The complaint in this case was filed by Robert Trolin on August 16, 1941. By leave of court an amended complaint was filed on February 24, 1942, joining Naomi Elizabeth Trolin as additional pji-rty claimant.

The record consists of the original complaint, copy of report of the Department of Public Works and Buildings, amendment to the complaint, transcript of evidence on behalf of claimant and respondent. Respondent’s motion to dismiss having heretofore been denied by the court.

The record discloses that prior to December, 1939, claimants were in possession of land and buildings located on Green Bay Road, Route No. 2, Waukegan, Illinois, pursuant to a real estate purchase contract executed by Edward C. Ottens and Francis Ottens, his wife, the owners of said land. That claimants had constructed a garage type building on said land 50' x 50'. The front of said building had a gas station thereon, which said station was covered with a wooden canopy attached to and made a part of said building; the said canopy was 20' x 50' in size. There was also one shed type building on said land.

The record of the Department of Public Works and Buildings (Division of Highways) discloses that on or about January 15, 1940, Joseph Miller, District Field Maintenance Engineer of the Division of Highways in behalf of the State of Illinois entered into a verbal contract or lease with the claimants for said premises for the sole purpose of storing machinery, plows, asphalt, oil and other kindred products which said department uses. The agreed rental for said premises was $50.00 per month and to run month to month. It was further understood and agreed that the claimants could store certain of their personal property consisting of machinery, equipment, stock of goods and other belongings.

The respondent took possession of said premises in January, 1940, and continued in possession until April 14, 1941. Eent by way of State vouchers was issued and delivered to the claimants each month from January, 1940, until April, 1941, and machinery and other property belonging to the respondent were at once stored and kept in said building-each day thereafter.

On April 14, 1941, at about 9:00 o’clock A. M., six emr ployees of the Division of Highways mixed bituminous materials inside the said garage building. Two barrels of S.C.2 oil were heated on specially designed racks with gasoline torches. A barrel of fluxing oil was placed on a heating rack. This oil was heated for about five minutes when it exploded resulting in the complete destruction by fire of the building of claimants and its contents including the personal property of claimants stored therein.

The respondent filed a motion to dismiss and as ground therefor said:

1. Claimant’s claim is predicated on the alleged liability of respondent .while engaged in governmental function because of negligence and wrongful acts of its officers, agents or employees.
2. The claimant seeks an award by virtue of an oral agreement and there can be no recovery by virtue of the statutes of the State of Illinois.

We found therefore that under this motion we had first to determine if the Department of Public Works and Buildings through its Division of Highways had authority to enter into a verbal contract or lease as the law existed on or about January 15, 1940.

It is not denied that the premises were rented and used by respondent for the specific purpose of the storage of respondent’s equipment and that rent was paid by respondent to claimants for this service.

In Large & Co. vs. State, 9 C. C. R., page 480, this court had before it a question very similar to the one at bar. There claimant was the owner of a three story and basement building of brick and concrete construction located in Taylorville, Illinois. Part of the building and basement was occupied by officers and members of the Illinois National Guard who were then on duty in Christian County in connection with disorders in the Midland Coal Fields.

There was no written lease between the owner and the respondent, but the occupancy of said premises by the military authorities was pursuant to a verbal agreement between the owner and the officers of the Illinois National Guard in charge of such troops.

The building was heated by a sectional steam boiler and in order that there might be uniform heat at all times for the men who were quartered in the building the National Guard assumed the duty of firing the furnace and in so doing an explosion occurred damaging the furnace and boiler at a cost and expense of $1,014.37, for repairs.

Claim was filed in this court to recover that amount. It is true that the Attorney General in that case did not question the authority of the National Guard to enter into a verbal lease for these premises. But such authority, if any was granted by Section 63 of the Military and Naval Code of this State which provides as follows:

"The Quartermaster’s Department is charged with furnishing all means of transportation, clothing, tentage, fuel, stoves, and other means of heating; . and in general, all necessary supplies and services not specified for some other staff Department.”

The duties and powers of the Department of Public Works and Buildings, Division of Highways, are defined by statute. Chapter 121, Section 296, provides as follows:

“The Department of Public Works and Buildings, in addition to and not in limitation of its general powers, shall have power:
1. ... to enter into contract covering all matters and things incident to the . . . repair, reconstruction, improvement and maintenance of state highways.”

A statute itself affords the best means of its exposition, and if the legislative intent can be ascertained from its provisions such intent will prevail without resorting to other aids for construction. (2 Lewis Sutherland on Stat. Const. (2d.) secs. 348, 366; Burke vs. Industrial Comm., supra; Schaellkapf vs. De Vry, supra; People vs. West Side Trust and Savings Bank, 362 Ill. 607; Coon vs. Doss, 361 id. 515; People vs. Oregon State Savings Bank, 357 id. 545.)

Had the Legislature intended to restrict the department’s powers and compel it, before taking any actions, to enter into written agreements, appropriate language to express its purpose would undoubtedly have been incorporated into the Act.

In the absence of an express limitation in the statute it must be presumed that the Legislature intended that the Department of Public Works and Buildings should have power to rent buildings to keep equipment sheltered so that it could be used to repair, reconstruct, improve and maintain our State highways, as was done in this case, and in considering respondent’s motion to dismiss we hold the department was acting within the scope of its authority in the instant case when it rented claimants’ property for that purpose. Respondent’s motion therefore was denied.

Approximate cause of the fire was not the storage of the property belonging to the respondent which was the object for which the respondent rented the premises, but the heating of inflammable substances in said building and the explosion resulting therefrom. The respondent could, and should have foreseen that this was a dangerous undertaking and proper precaution should have been taken.

In the absence of an express agreement at common law there is an implied obligation to surrender the premises in the same condition at the termination of tenancy as when received, ordinary wear and tear excepted. U. S. vs. Bostwick, 94 U. S. 53 (24 Law Ed. 65); Walker vs. Tucker, 70 Ill. 527; Consolidated Coal Co. vs. Cavitz, 57 Ill. App. 659; 35 Corpus Juris Section 555.

This implied obligation is part of the contract itself, as much so as if incorporated into it by express language; and it results from the relation of landlord and tenant between the parties which a contract creates. 16 R. C. L. p. 1085, Section 603.

The evidence shows that the premises could not be surrendered in the same condition as when originally received. The respondent breached an implied contract and is liable for such breach.

Edward C. Ottens and Francis Ottens, his wife, had or claimed to have had an interest in this real estate and its improvements on the date said improvements were destroyed by fire.

The record discloses that on the 15th day of April, 1941, they assigned all rights, title and interest to the claimants for their sole use and benefit.

Under the allegations of the pleadings, the evidence in the record, and the law as above set forth, claimants are entitled to an award.

The evidence in regard to the fair, cash market value of the destroyed building is somewhat conflicting. From all the evidence before us including the rental derived from the building, we are of the opinion that the value of the building destroyed was the sum of $3,000.00. The value of the fixtures and personalty destroyed was $1,663.67.

Award is therefore entered in favor of claimants Robert Trolin and Naomi Elizabeth Trolin for the complete destruction of the building and personal property stored therein in the sum of $4,663.67, the amount demanded in said amended complaint.


author: Per Curiam.

text:
    (No. 2680
    Adolph Hammer, Claimant, vs. State of Illinois, Respondent.

      Opinion filed June 17, 1943.

    Raymond I. Suekoef and Edward P. Saltier, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant Attorney General, for respondent.
   Per Curiam.

This claim was filed June 17, 1935, and the record completed April 29, 1943. Claimant alleges that during the year 1914, he became associated with the Medical School of the University of Illinois as Director of the Plastic Studio for Anatomical and Pathological Models and Moulages, in which capacity he remained until August, 1930, receiving from the Medical School a free studio and gas and electricity in consideration of permitting the school to use his moulages and models in its classes. That on or about the 12th day of August, 1930, claimant left for Europe, leaving his models, moulages and tools in his studio for the use of said school upon the assurances that they would be safeguarded. That claimant returned to the United States in September, 1933, and requested the return of the described property and was told that the said chattels were disposed of. Claimant further alleges that the said chattels were of great value, requiring twenty years of expert and painstaking labor to complete. Claimant prays an award for damages in the sum of $33,-285.50.

The record consists of the complaint, transcript and abstract of evidence, stipulation of facts, statement, brief and argument by counsel for claimant, and waiver of statement, brief and argument by the Attorney General on behalf of respondent.

It appears from the record that claimant installed in the Medical School Building of the University of Illinois, in space provided by the University, certain Moulages, Molds and Anatomical Models which he constructed and which were his property. Claimant was provided with additional space for use as a laboratory from which he could sell reproductions of the original models. In exchange- for the space thus given claimant he agreed to permit the Medical School for instruction purposes to use the said property and to assist in instructing students of the proper use of said Moulages, Molds, etc. Claimant’s relationship with the University continued from the year 1914 until about the month of August, 1930, at which time claimant went to Europe leaving his said property for use of the University until his return. During claimant’s absence the building in which the said property was kept was remodeled or demolished and claimant’s property was removed to the Illinois Research Hospital, a State institution, at that time under the direction and management of the Department of Public Welfare of the State of Illinois. Upon claimant’s return from Europe in September of the year 1933 his said property could not he located and had apparently been destroyed.

The pertinent facts as alleged and shown by the evidence are not in dispute and are by stipulation admitted.

Claimant was deprived of his property by an agency of the State through no fault or act of negligence of the claimant. There is no question that claimant was damaged materially by the loss of his property and claimant is entitled to recover the fair and reasonable value thereof.

The fair and reasonable value of the property, as alleged by claimant, is not clearly sustained by the evidence. While claimant’s testimony as to value is not contradicted, it is based on. usage, custom, scarcity and other intangible elements. Supporting testimony is likewise somewhat vague. There is no doubt that the various items were of material value. They represented the life work of claimant. The construction of the many items required great skill and painstaking labor to complete. The claimant and Mr. John E. Millar, a scientist attached to the Field Museum in Chicago, testified it would require ten to twelve years of claimant’s work to replace this property. The burden of proof of damages, however, is upon claimant, and we must be governed here by the minimum damage shown by stipulation and by the record to have been sustained. After much consideration we conclude that the reasonable amount of damages sustained by claimant is the sum of $16,600.00 and claimant is entitled to an award for such sum.

An award is therefore entered in favor of claimant Adolph Hammer in the sum of Sixteen Thousand Six Hundred ($16,600.00) Dollars.


text:
    No. 3429
    Mary Ade, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1943.

    Eva L. Minor, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Eckert, J.

Claimant, Mary Ade, is the widow of Lester Ade, deceased, who was formerly employed by the Department of Public Welfare of the State of Illinois as an ' attendant at the Manteno State Hospital. During the month of August, 1939, in the course of his employment, the deceased was required to attend a patient who had contracted typhoid fever; as a result, on August 10, 1939, the deceased also contracted the disease and died on August 29, 1939.

The deceased was confined to the hospital ward of the Manteno State Hospital from August 14, 1939, to August 17, 1939; on August 22, 1939, he was removed to St. Mary’s Hospital, Kankakee, Illinois, where he remained until his death; his illness and death necessitated medical services in the amount of $68.00, nursing services in the amount of $91.00, hospital services in the amount of $111.65, and funeral expenses in the amount of $270.00. The earnings of the deceased during the year preceding his death were $752.40. The claimant seeks an award in the amount of four times the average annual earnings of the deceased, plus the medical, hospital and nursing services, and funeral expenses, in the total sum of $3,550.25.

At the time of his illness, the deceased and the respondent were operating under the provisions of the Workmen’s Compensation Act of this State, and notice of the illness and claim for compensation were made within the time provided by the Act. It is stipulated that a typhoid fever epidemic existed at the Manteno State Hospital, from July 10, 1939, to December 10, 1939.

Compensation is payable under the provisions of the Workmen’s Compensation Act for death from typhoid fever if the disease was accidentally contracted by the deceased. Rissman & Son, vs. Industrial Commission, 323 Ill. 459. Under the decision in that case, it appears that typhoid fever may be said to be accidentally contracted if it is an unforeseen or unexpected event of which a person’s own misconduct is not the natural and proximate cause and which does not ordinarily and naturally result from his conduct. The maimer in which the disease is contracted is thus material in determining whether or not it was contracted accidentally. The court there held that the contraction of typhoid fever by the deceased from the drinking of water furnished by the defendant was unexpected and not foreseen by her, and might therefore be said to be accidental. The deceased in this case, in pursuance of his duties as an attendant at the Manteno State Hospital, was placed in charge of a patient who subsequently died of typhoid fever. The contraction of the disease by the deceased from the pursuance of his duties was as unexpected and as unforeseen by him as was the contraction of the disease by the deceased employee in the Eissman case. There is no suggestion in the record that it was a result of his own misconduct. The contraction of typhoid fever by the deceased, Lester Ade, may therefore be said to have been accidental.

The question then arises whether the typhoid fever contracted by the deceased arose out of his employment as provided by the terms of the Workmen’s Compensation Act. An injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. If the injury can be seen to have followed as a natural incident to the work and as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment. Permanent Construction Co. vs. Industrial Commission, 380 Ill. 47. The hazard to which the deceased employee in this case was exposed was peculiar to his work and was not common to the neighborhood; it was a hazard to which he would not have been equally exposed apart from his employment; it was a hazard incidental to the character of his employment and not independent of the relation of master and servant. It had its origin in a risk connected with the employment and flowed from that source as a rational consequence. The deceased employee, by reason of his employment, was exposed to the risk to a greater degree'than other persons, and the injury arising therefrom is compensable. Permanent Construction Co. vs. Industrial Commission, supra.

The court is of the opinion that Lester Ade, in attending a typhoid fever patient in pursuance of his duties as an attendant at the Manteno State Hospital, received accidental injuries which arose out of and in the course of his employment within the meaning of the .Workmen’s Compensation Act of this State. Claimant, as the widow of the deceased employee, is entitled to an award under Section 7 (a) of that Act.

It appears from the record, however, that the claimant was remarried on January 27, 1941. Under the provisions of the Workmen’s Compensation Act any right to receive compensation is extinguished by the remarriage of a widow if the deceased did not leave him surviving any child or children whom he was under legal obligations to support at the time of the injury. Claimant is therefore entitled to an award of $8.25 per week for a period of seventy-three and five-sevenths weeks from August 29, 1939, to January 27, 1941, or an amount of $608.14. The employee having received the sum of $29.26 for unproductive time during his illness, that amount must be deducted, leaving a balance of $578.88. Claimant is also entitled to payment of the doctor, hospital and nursing services incurred because of the illness of the deceased employee, which amount in the aggregate to $270.65.

Award is therefore made in favor of the claimant, Mary Ade, in the total sum of $849.53 to be paid to her as follows :

1. $111.65 for the use of St. Mary’s Hospital, Kankakee, Illinois; $45.00 for the use of Dr. Perrodin, of Kankakee, Illinois; $23.00 for the use of Dr. Daniel K. Hur of Manteno, Illinois; and $91.00 for reimbursement of claimant for money expended for nursing services.

2. $578.88 which has accrued and is payable forthwith.


text:
    No. 3197
    Estelle Landers Alexander, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1943.

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

This claim was filed February 2,1938, and the record of the claim completed on June 4, 1943.

The claim is for benefits under the Workmen’s Compensation Act for the death of claimant’s husband and for medical and funeral expenses as a result thereof.

It is alleged that Louis C. Alexander, deceased, was employed by the Department of Public Health of the State of Illinois, as a messenger to carry specimen and infectious test tubes and containers from and to the offices of the Department of Public Health.

It is further alleged that on or about October 6,1937, the said Louis C. Alexander, while in the performance of his duties and while carrying containers of typhoid bacteria was infected with typhoid caused by breakage or defective containers, which he was transporting; that the Department of Public Health did not provide for inoculation against said disease and that as a result of having contracted typhoid fever, deceased died on October 15,1937, leaving claimant Estelle Landers Alexander as his sole dependent. Claimant seeks an award in the sum of $5,000.00 for the death of her husband and the sum of $500.00 for medical and funeral expenses.

The record consists of the complaint, report of the Department of Public Health, transcript of claimant’s testimony, and statement, brief and argument on behalf of claimant and respondent.

The evidence presented is that of persons with whom the deceased spoke, or those who had seen the deceased handling containers. There is no evidence which sustains the allegation that the deceased handled and transported defective or broken containers. There is no evidence from which it could reasonably be assumed that the deceased contracted typhoid fever from condition of, or as a result of, his employment.

An award may not be based upon speculation or conjecture, but must be based upon facts established by a preponderance of the evidence.

Libby, McNeil & Libby vs. Industrial Commission, 320 Illinois 293.

The report of the Department of Public Health, stipulated herein, states that the deceased was employed as a messenger, his duties being to receive and store freight shipments; preparing and mailing literature and occasionally helping to set up exhibits. His work did not bring him in contact with infectious material in the laboratory.

The material allegations of the complaint are not sustained by the evidence and an award must therefore be denied.

Award denied.


author: Per Curiam:

text:
    No. 3748
    Peter J. Angsten, et al., Claimants, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1943.

    Phillip B. Davis and Owen Y. Johannsen, for claimants.

      George F. Barrett, Attorney General; Robert - V. Ostrom, Assistant Attorney General, for respondent.
   Per Curiam:

This is a joint claim of Peter J. Angsten, August J. Hummert, Anton Johannson, Joseph Lisack, and A. M. Thompson for various sums of money allegedly due them for services rendered respondent as members of the Industrial Commission of the State of Illinois. Claimant Peter J. Angsten seeks an award of $14,208.60; August J. Hummert, of $9,858.90; Anton Johannsen, of $9,-614.41; Joseph L. Lisack, of $9,619.05; and A. M. Thompson, of $7,994.54; making a total of $51,295.50.

The complaint alleges that the claimant, Peter J. Angsten, served as chairman of the Industrial Commission from January 27, 1933 to June 30, 1941; that his salary during this period was fixed by statute at $7,500.00 per year; that the Legislature, during this period, appropriated only $6,000.00 per year for payment of such salary.

The complaint also alleges that the claimant, August J. Hummert, served as a member of the Industrial Commission from January 27, 1933 to August 20, 1941; that the claimant, Anton Johannsen, served as a member of the Industrial Commission from May 10,1933 to October 31, 1941; that the claimant, Joseph Lisack, served as a member of the Industrial Commission from February 21, 1941 to June 30, 1941; and that the claimant, A. M. Thompson, served as a member of the Industrial .Commission from March 23, 1933 to December 31, 1940. It is alleged that the salary of each member of the Industrial Commission, during the respective periods, was fixed by statute at $6,000.00 per year; that during the respective periods, the Legislature appropriated only $5,000.00 per- year for payment of each of such salaries. The appropriations were in the amounts fixed by the Civil Administrative Code for the salaries in question, but were not in the amounts provided for such salaries by the Workmen’s Compensation Act.

The respondent has filed two motions to dismiss. The first motion is directed to that portion of the claim which is for services rendered prior to September 5, 1937. Section 10 of the Court of Claims Act provides:

“Every claim against the State, cognizable by the Court of Claims, shall be forever barred unless the claim is filed with the Secretary of the Court within five years after the claim first accrues, saving to infants, idiots, lunatics, insane persons and persons under disability at the time the claim accrued two years from the time the disability is removed.”

The complaint in this case was filed on September 5, 1942. That portion of the claim which is for services rendered prior to September 5, 1937, comes within this provision of the Statute; the motion must therefore be granted.

“Where it appears from the face of a claim that the same is barred by Statute of Limitations, a plea thereof will be sustained.” Miller vs. State, 11 C. C. R, 490, Ragains vs. State, 8 C. C. R., 21, Wiskirchen vs. State, 7 C. C. R. 17.

The second motion, with supporting affidavits, is directed to that portion of the claim arising out of services rendered subsequent to September 5, 1937. From the affidavits, it appears that each claimant, during his term of office, was paid his salary by warrants drawn on the State Treasurer, upon vouchers submitted; that the warrants specified they were for salary for stated periods of time and amounts; and that each warrant, upon proper endorsement, was subsequently paid by the State Treasurer. Respondent contends that the complaint should be dismissed because of claimants’ acceptance of these monthly warrants.

Section 9, Sub-section 3, of “An Act in relation to State Finance,” (Chap. 127, Ill. Rev. Stat., Sec. 145) provides:

“Amounts paid from appropriations for personal service of any officer or employee of the State, either temporary or regular, shall be considered as full payment for all services rendered between the dates specified in the payroll or other voucher and no additional sum shall be paid to such officer or employee from any lump sum appropriation, appropriation for extra help or other purpose or any accumulated balances in specific appropriations, which payments would constitute in fact an additional payment for work already performed and for which remuneration had already been made.”

Under this provision of the statute, it was held in Mills vs. State, 9 C. C. R., 69, that a claimant cannot accept salary warrants, purporting to cover the full amount due him for services during stated periods, and thereafter, when his active service has ended, obtain an award from the State for an additional amount for those periods for which he had apparently been paid for services in full. In that case the claimant sought to recover the difference between the salary he had received as a member of the Industrial Commission under Section 5 of the Civil Administrative Code ($5,000.00 per year), and that fixed by Section 14 of the Workmen’s Compensation Act, ($6,000.00 per year). The court there also held that the Civil Administrative Code, which became effective July 1,1917, and not the Workmen’s Compensation Act, controlled and fixed the amount of the salaries of members of the Industrial Commission.

In the case of Broderic, et al. vs. State, 9 C. C. R., 461, similar claims were made by former arbitrators of the Industrial Commission. The court said:

“Claimants herein in each instance throughout their terms of service received regular monthly salary warrants from the State of Illinois, and accepted same from month to month as received. Regardless of any rights which they may have had to have demanded and received salary in any other amounts, claimants accepted said monthly warrants regularly through their term of service.”

The Court held that the claimants, having accepted the monthly warrants, were barred by the Statute from obtaining any further payments of salary. The claims were denied.

In the case of Novak vs. State, 10 C. C. B., 258, it was held that the Civil Administrative Code, and not the Workmen’s Compensation Act, controls and fixes the salaries of the Chairman and members of the Industrial Commission. The claimant, having received the salary fixed by the Civil Administrative Code for his services, an award was denied.

Counsel for claimants have filed full and persuasive briefs, but under the statute and the prior decisions of this court, the respondent’s contention must be sustained. Whether the Civil Administrative Code or the Workmen’s Compensation Act controls and fixes salaries of members of the Illinois Industrial Commission, claimants, by accepting salary warrants purporting to cover the full amount due them for their services during the stated periods, cannot now claim additional compensation for such services. Under the provision of “An Act in relation to State Finance,” supra, awards must be denied.

The respondent’s motion to dismiss is therefore granted. Case dismissed.


text:
    No. 3784
    Dovie Arendell, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1943.

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

This claim was filed on March 27, 1943.

Complaint alleges that on April 4, 1933, claimant was employed by the State of Illinois as an attendant and assigned to work at the Illinois State School for the Deaf at Jacksonville, Illinois.

It is further alleged that the claimant began work on or about said date and worked continuously for a period of sixteen months. -

It is further alleged that claimant was entitled to be paid the sum of $45.00 per month, but that through error or oversight claimant was only paid $36.00 per month, and that therefore there is due and owing to claimant the sum of $131.00 for services rendered.

Chapter 37, paragraph 436, Illinois Eevised Statutes, provides as follows:

"Every claim against the State, cognizable by the Court of Claims, shall be forever barred unless the claim is filed with the secretary of the court within five years after the claim first accrues, saving to- infants, idiots, lunatics, insane persons and persons under disability at the time the claim accrued two years from the time the disability is removed.”

The complaint herein shows on its face that the claim of the claimant herein is for money alleged to be dne for services rendered during the year 1933 and for the next sixteen months.

Paragraph 10 of the Court of Claims Act, being Paragraph 436 Illinois Revised Statutes, provides that unless a claim is filed with the secretary of the Court of Claims within five years after the claim first accrues it shall be forever barred.

This court has repeatedly held that in accordance with such statute unless a claim is filed within five years after the same first accrued, this court is without the jurisdiction to make an award, and a plea of the statute of limitation will be sustained.

The motion to dismiss is sustained and the claim dismissed.


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    No. 3804
    Edward J. Barrett, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1943.

    Nash, Ahern, McDermott & McNally, for claimant.
    George F. Barrett, Attorney General; Robert V. Ostrom, Assistant, Attorney General, for respondent.
   Eckert, J.

On November 4, 1930, claimant, Edward J. Barrett, was elected Treasurer of the State of Illinois for a term of two years, from January 1, 1931. On December 9, 1930, and on December 24, 1930, he applied to the Great American Indemnity Company of New York, a New York corporation, for a public official's bond in the penal sum of $500,000.00. Each application contained an indemnifying agreement which provided that the applicant “indemnify the Company against any losses, damages, costs, charges and expenses it may sustain, incur, or become liable for in consequence of said bond or any renewal thereof, or any new bond issued in continuance thereof or as a substitute therefor.” The Company subsequently issued two bonds each in the penal sum of $500,000.00 with the Fidelity & Casualty Company of New York as co-surety; premiums in the amount of $4,000.00 were paid by the State of Illinois; the bonds were filed in the Office of the Secretary of State, and were duly approved by the Governor and two justices of the Supreme Court, all in accordance with statutory requirements. The bonds remained in full force and effect from the date of their filing until the expiration of the term of office of the claimant on January 9, 1933.

On December 10, 1937, a suit was started in the Circuit Court of Sangamon County, Illinois, by American Legion Post No. 279, against the claimant, the Great American Indemnity Company of New York, and others, as defendants. On December 14, 1937, a suit was also started in the United States District Court, Southern Division, in and for the Southern District of Illinois, by Gordon L. Seeger, naming the claimant, the Great American Indemnity Company of New York, and others, as defendants. In each suit it was alleged that claimant and the Great American Indemnity Company of New York were liable on the official bonds of the claimant to the creditors of the Ayers National Bank of Jacksonville, Illinois, which had become insolvent in November, 1932, for the proceeds of certain securities of that bank. These securities were alleged to have been wrongfully deposited by the bank as a pledge to secure moneys of the State deposited with the bank prior to its insolvency in an amount of approximately $1,800,000.00. The complaints charged that the claimant had converted these funds when he liquidated the securities as State Treasurer.

Subsequent to the service of summons upon the Great American Indemnity Company of New York, the company notified claimant of the pendency of the suits and of its expectancy of reimbursement for any loss or expense incurred by reason of the litigation. Although claimant was properly represented by the Attorney General of the State of Illinois, the company, by its own counsel, moved to strike the complaints and dismiss the suits. These motions were granted by the Circuit Court of Sangamon County, and upon appeal to the Supreme Court of Illinois, the action of the trial court was affirmed. The suits were subsequently dismissed.

Claimant now alleges that the interests of the several defendants differed in the litigation; that it was necessary for the Great American Indemnity Company of New York to employ its own counsel for its defense; that because of these suits, the company sustained losses, damages, costs, charges and expenses amounting -to $20,-919.92; that claimant became liable to indemnify the Great American Indemnity Company of New York on account of such losses, costs, charges and expenses; that the company had demanded payment by the claimant, and commenced an action at law in the Superior Court of Cook County to recover this amount from the claimant. He also alleges, that although morally and legally liable for the payment of this money, he is financially unable to pay it; that because the liability was incurred by claimant in his official capacity as Treasurer of the State of Illinois, because the bonds were given to satisfy a statutory requirement, and because the premiums for the bonds were paid by the State, the liability is the liability of the State. Claimant further alleges, that in incurring this liability, he was acting as an agent for the State; that such liability should be absorbed by the principal; and that an award should be made to the Great American Indemnity Company of New York to discharge the liability which it has asserted against the claimant. The case is before the court on the respondent’s motion to dismiss.

From the allegations of the complaint, it appears that the liability of the claimant under the indemnifying provisions of the applications for the bonds is the subject of litigation in the Superior Court of Cook County, and has not been determined. That litigation entails a consideration of the need for separate counsel on the part of the Great American Indemnity Company of New York, the reasonableness and necessity of the various items of the costs and charges incurred by the company, and the meaning and intention of the indemnifying provision. The Superior Court of Cook County may find that the company was wholly unjustified in employing its own counsel; may find, that although justified, the costs and charges are excessive; or may find that the provisions of the indemnifying agreement are not sufficiently broad to render claimant liable to the company for the expenditure of these moneys.

The extent, if any, of claimant’s liability being properly before a court of general jurisdiction, it will not be passed upon by this court. The Legislature in creating the Court of Claims did not intend that it should usurp the powers of, contradict, or compete with courts of general jurisdiction. Moline Plow Company vs. State, 5 C. C. R. 277. Without passing upon the question of the responsibility of the respondent, it is obvious that the claim against the State is prematurely made at this time.

The respondent’s motion to dismiss is therefore granted.


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    No. 3238
    Joseph Bordenkecher, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1943.

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

This claim was filed on March 31,1938 pro se and the record completed June 14, 1943.

Claimant alleges; that he was employed as a special laundry laborer at the Manteno State Hospital, Manteno, Illinois on February 7, 1935; that on the 30th day of April, 1937, while assisting in the installation of a new unit on a switchboard, claimant’s left hand came in contact with the switch carrying 220 volts and the current passed through his body, hurling claimant against a brick wall, fracturing the ulna of the right arm.

Claimant further alleges that in reducing the fracture, his fore-arm was placed on a board made from an orange box and that two weeks later his fore-arm was placed in a plaster cast.

Claimant alleges that his arm was improperly reduced and is now crooked.

Claimant seeks an award for the partial loss of the use of his right hand and arm.

The claim in this case was filed pro se.and on October 16, 1942, appearance of George B. Marvel was filed as Attorney for claimant.

The record consists of the complaint, stipulation of facts, waiver of statement, brief and argument on behalf of claimant and statement, brief and argument on behalf of respondent.

All jurisdictional requirements have been met and claimant is entitled to the benefits of the Workmen’s Compensation Act.

It is conceded and admitted by respondent that the accident in this claim arose out of and in the course of his employment, while claimant was properly engaged in the performance of his duties. The only question for determination here is the amount of compensation to which claimant is entitled.

By stipulation of facts filed herein it is shown that three physicians of the Department of Public Welfare examined the claimant on January 21, 1943, and reported.

“It is our opinion after a thorough physical examination and roentgenographic study of Joseph Berdenkecher, who was examined under date of January 21, 1943 at the Manteno State Hospital, that ten per cent of the present permanent disability could be attributed to a service connected injury sustained while employed by the Manteno State Hospital on the last day of April, 1937. Moreover, it is our opinion that the bowing effect of the arm is not the result of the accident. ’ ’

No other evidence is submitted of the extent of the injury. Claimant is, therefore, entitled to compensation for 10% loss of the use of his right arm.

Claimant earnings amounted to $1,244.00 per year. His average weekly salary was $23.92 per week. Section 8, paragraph e(13) of the Workmen’s Compensation Act provides for 50% of the average weekly wage during 225 weeks for the total loss of the use of an arm. 50% of claimant’s average weekly wage equals $11.96. If claimant had sustained a total loss of the use of his arm he would be entitled to receive 225 times $11.96 or $2,691.00. His loss, however, being 10% of the use of his arm he is entitled to receive 10 per cent of $2,691.00 or the sum of $269.10.

An award is therefore entered in favor of claimant, Joseph Bordenkecher, in the sum of $269.10 all of which is accrued and payable forthwith.

This award is subject to the approval of the Governor as provided in Section 3 of “an Act concerning the payment of compensation awards to State employees.”


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    No. 3535
    Fred E. Brackenbush, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1943.

    Samuel H. Shapiro, for claimant.
    George F. Barrett, Attorney General; William L. Morgan, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court:

The complaint in this case charges that Fred E. Brackenbush, claimant, while employed as a senior Stenographer at Manteno State Hospital, Manteno, Illinois, on the 28th day of August, 1939, was injured by reason of contracting typhoid fever from drinking water at said hospital; that medical, surgical and hospital treatment were partially furnished by the respondent and claimant’s earnings during the year preceding the alleged injury amounted to $1,008; that his salary was paid to him during the time of his temporary disability. Claimant asks an award in the following amounts:

To doctor bills, estimated.................................... $150.00

To special diet, estimated.................................... 300.00

To medicine, etc., estimated.................................. 50.00

and the further sum of $5,000 alleged to be due him under the Workmen’s Compensation Act of the State of Illinois.

The record consists of the complaint, stipulation, waiver of statement, brief and argument on behalf of claimant and respondent, report of Walter H. Baer, Managing Officer of said institution, dated September 13, 1940, hospital records and testimony of the claimant and Dr. O. H. Phipps for claimant taken on the 23rd day of April, 1943, at Kankakee, Illinois. No evidence was taken in behalf of respondent.

The stipulation discloses that the claimant was first employed at Manteno on January 5, 1931, as a senior stenographer, having resided at said institution continuously until on August 8, 1939, when he became ill and was confined to his apartment in said institution. That during the time he was ill wages in the sum of $441.67 were paid to him and on March 18,1940, claimant returned to his work. The evidence shows that prior to August, 1939, the claimant had been complaining of not feeling well and was taking days off at his own discretion. He did not ask for any medical attention. Finally he went to bed in his apartment in the Administration Building and was seen by Dr. L. H. Cohen, Clinical Director, and Dr. Steinberg, of the medical staff. They recommended that he be hospitalized but claimant refused to go to the hospital but received treatment in his apartment by some of the staff members of the institution, among them Dr. C. L. Perkins, whose report is a part of this record.

Dr. Perkins reports that on or about September 14, he called on claimant and upon examination found that his symptoms were mild abdominal cramps and constipation, the abdomen was negative except that he had slight general tenderness. The patient perspired freely, was not toxic but was definitely weak. He was exhausted. Patient had had two stool and urine specimens sent to the laboratory for typhoid culturing. Patient was put on general management, more stools were ordered, and in the following two weeks patient ran temperature. This ranged from 100-101 the first week. After that it was 100 at night (by mouth). After about two weeks patient gradually began to get out of bed under the doctor’s direction. By this time two more stools had been taken. All stools had proven negative for typhoid bacillus. A blood count taken during this period showed white count of 15,000, red blood count was normal. Urinalysis was negative. Dr. Perkins further reports “Patient also complained of sticking pains in left chest along lower border about this time. Careful check of the lungs showed nothing (the patient had had a lung ray just prior to his illness which was essentially negative). On October 20 patient left his room for first time. After that I did not see patient. ’ ’ And further:

“The exact diagnosis of this illness is in some doubt. Typhoid fever seems to have been ruled out by a negative blood culture and four negative stools for typhoid cultures.”

In connection with this report the laboratory examination of the claimant is as follows:

Card No. 288, 8-31-39, result negative.

Card No. 462, 9-5-39, result negative.

Card No. 633, 9-7-39, result negative.'

Card No. 1144, 9-22-39, result negative.

Card No. 8681, 11-13-39, result negative.

Card No. 9530, 11-17-39, result negative.

Card No. 9831, 11-20-39, result negative.

We have searched this record diligently and failed to find any evidence supporting the claim that Bracken-bush contracted typhoid fever from drinking water furnislied him by respondent during the course of his employment as alleged in said complaint. It is true claimant testified that he contracted typhoid fever in August, 1939, but that must be treated as a self-serving statement and conclusion of the witness. Dr. O. A. Phipps, called on behalf of claimant, testified that he treated the claimant on February 28, 1940. In response to a question he gave the following answer: “All physical findings are essentially negative except chest finding referable to heart. Chest, well developed, well nourished. Bespiratory excretions slightly increased above average' normal. Breath and voice sound normal, outlines of heart show an increase in dimensions as compared with dimensions of chest. Valvular sounds muffled, not sharp and distinct. ’ ’

Counsel for claimant attempted to establish a basis for this claim by asking Dr. Phipps the following question:

“Q. From your examination of Fred Brackenbush on February 28, 1940, what are his permanent disabilities as a result of his having this typhoid fever, if you know?”

“A. At that time he had an impaired heart.”

There was no legal basis for such a question for the reason that the witness had not testified that claimant had suffered from typhoid fever. Dr. Phipps was not the treating physician.

Under the facts in this case, we are of the opinion that the respondent is not liable to the claimant.

The general rule of law that the burden of proof is upon the plaintiff to prove his case by a preponderance or a greater weight of the evidence is applicable to claims under the Workmen’s Compensation Act, and where claimant has not proven his claim no award can be made.

Award denied.


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    No. 3693
    Joe Frazee, Claimant, vs. State of Illinois, Respondent.

      Opinion filed September 14, 1943.

    Ernest J. Galbraith and Carroll Baymiller, for claimant.
    George F. Barrett, Attorney General; Robert Y. Ostrom, Assistant Attorney General, for respondent.
   Chief Justice Damron

delivered the opinion of the court.

On June 24, 1941, Joe Frazee, claimant, was employed as a common laborer by the Department of Public Works and Buildings, Division of Highways, to assist in unloading material from railroad cars to motor trucks in the Péoria & Pekin Railroad freight yards in East Peoria, Illinois, at 87% cents per hour for an eight hour day.

On June 30, 1941, a moving tractor used for switching purposes by the respondent threw the claimant to the roadbed at his place of employment and injured him. Claimant was immediately placed under the care of a physician, hospitalized and treated for his injuries until August 22, 1941, on which day he was discharged by the physician with the advice that he be given light work.

Claimant was paid compensation for total temporary disability during this period amounting to the sum of $112.20. Respondent also paid the physician, Dr. Major, $31.00 and the John C. Proctor Hospital $60.60. Since his discharge on August 22, 1941, the claimant has received nothing from the respondent. Claimant seeks an award for $150.00 which he alleges he expended for additional medical services; $11.13 for underpayment on his temporary compensation; $162.80 for additional temporary total disability from August 22, 1941, to November 1, 1941; and $1,960.00 for permanent partial disability.

A careful consideration of the evidence offered on behalf of claimant, together with the report of the Division of Highways filed on behalf of respondent, shows that claimant was sixty-two years of age and had one child under the age of sixteen years dependent upon him for support at the time of the accident.

The medical testimony shows that claimant suffered injuries consisting of a contused and lacerated wound on the right hip and fracture of the 9th and 10th ribs on his right side. That when discharged on August 22,1941, he had spasticity of the lumbar-sacro muscles on the right side and 30% limitation flexion of the lumbar-sacro spine; that he was unable to sit for any length of time without extreme pain and discomfort and was unable to flex his back without pain; that he suffered from a partial incontinence or loss of control of his bowels, which conditions still exist. The injuries above described are permanent.

The evidence further discloses that on the date of the injury and prior thereto claimant was capable of and was earning an average of $26.92 per week. That due to the injuries sustained by him as aforesaid he now is able to earn only $20.00 per week.

Upon consideration of the record the court finds:

1. That claimant and respondent were on the 30th day of June, 1941, operating under the provisions of the Workmen’s Compensation Act.

2. That on said date the claimant sustained accidental injuries which arose out of and in the course of his employment.

3. That notice of the accident was given to said respondent and claim for compensation made within the required time by the provisions of said Act.

4. That claimant was in the employ of respondent for less than one year; that the annual earnings of persons of the same class and in the same employment and in the same location during the year preceding the accident were $1,400.00; and the average weekly wage was $26.92.

5. That claimant at the time of the accident was sixty-two years of age and had one child under the age of sixteen years dependent upon him for support.

6. That necessary first aid, medical, surgical and hospital services were provided by the respondent.

7. That claimant was temporarily totally disabled from the date of his injury as aforesaid, to August 22, 1941, but has not been paid in full for such temporary total disability.

8. That the injuries sustained by claimant have resulted in permanent partial disability.

9. That claimant was entitled to have and receive from the respondent the sum of $120.93 for total temporary compensation for a period of 7 3/7 weeks to August 22, 1941, but was only paid $112.20 by respondent, which leaves a balance of $8.73 due and unpaid to claimant.

10. That claimant is entitled to have and receive from respondent by virtue of Subsections (d), (j)l and (k)l of Section 8 of the Workmen’s Compensation Act the sum of $4.18 per week for a period of 408 4/7 weeks for permanent partial disability commencing on August 22, 1941, and amounting to the sum of $1,707.80. That of that amount $449.62 has accrued and is payable in a lump sum. Claimant is also awarded the further sum of $8.73 representing balance due him for temporary total compensation which was miscalculated by the respondent.

An award is therefore entered in favor of claimant and against the respondent in the sum of $1,716.53, payable as follows: The sum of $458.35 forthwith, and the further sum of $1,258.17 for 301 weeks in installments of $4.18 commencing on September 14, 1943.